USA – TEXAS Law and Practice Contributed by: Gerald J. Pels, Elizabeth E. Mack, Gerald D. Higdon, Susan Rainey, Elizabeth Corey and Brett A. Miller, Troutman Pepper Locke LLP
with pre-acquisition due diligence to mitigate post- closing liability for pre-closing discoveries.
Texas. Many federal environmental statutes provide for direct “citizen suits” to enforce permit require- ments in federal court. In recent years, Region 6 has been particularly aggressive in enforcing air emissions regulations, with a focus on the oil and gas industry. 4. Environmental Incidents and Permits 4.1 Investigative and Access Powers Generally, Texas’ statutory authorities confer broad investigative authority. When potential violations are found, there is usually prompt notice and an opportu- nity to discuss before formal enforcement begins. In some instances, resolution may occur without formal enforcement. It is good practice for regulated entities to respond promptly in writing to any notice and docu- ment compliance efforts. 4.2 Environmental Permits/Approvals Texas has a wide and varied permitting programme. Virtually all air emissions, as well as discharges to state waters and waste management activities, must be authorised. Texas has one of the most comprehen- sive air permitting programmes in the US and indus- trial companies should consult with technical consult- ants and counsel familiar with the state’s labyrinthine rules before and during facility planning. In many instances, permitting will entail public notice, pursuant to which “affected persons” may object to the issuance of a permit. Such “protesters” may even have the right to a hearing before the State Office of Administrative Hearings to determine if a draft permit should be finalised and issued. This is tantamount to a mini-trial and may involve technical experts and legal counsel. Recent litigation has granted contested case hearing standing to protesters well beyond TCEQ’s prior default threshold of a one-mile geographic radius from the facility. Texas permitting often involves providing notice to affected parties and local officials, as well as posting site-specific notices and advertisements in local pub- lications, including those in alternative languages. The process has specific timelines. Certain permit actions require the applicant to prepare a Public Involvement Plan, including disclosure of community and demo-
3. Environmental Protections 3.1 Protection of Environmental Assets Texas protects the environment through detailed stat- utes and regulations. Important statutes include the Texas Clean Air Act, the Texas Water Code, and the Texas SWDA, which respectively govern the environ- mental media of air, water, and waste management. Texas has detailed air, water, and waste-permitting programmes, as well as detailed licensing pro- grammes relating to naturally occurring radioactive materials and low-level radioactive waste. Due to the nature of the oil and gas industry, injection well regula- tion often necessitates additional attention. In Texas, underground injection control regulations are primarily managed by the RRC for oil and gas-related injection wells, and by the TCEQ for other well types. RRC and TCEQ regulations set forth detailed permitting, con- struction, and closure requirements for various injec- tion well classes within their respective jurisdictions. Texas has its own endangered species and wetlands programs in addition to federal initiatives. While there is no direct equivalent to the federal National Envi- ronmental Policy Act (NEPA) at the state level, pro- jects regulated by the state must adhere to a similar process. Texas employs a framework of state laws, which are overseen by the TCEQ and the TPWD. For example, TPWD collaborates with pipeline operators to adjust routes by proposing alternative routes that minimise environmental harm to specific properties, particularly state-owned wildlife management areas (WMAs) and other environmentally sensitive areas. 3.2 Breaching Protections Non-compliance in Texas can lead to serious con- sequences. Enforcement is multi-layered, involving state, federal, and in some cases, local authorities. Texas has statutory authority for civil, administra- tive, and criminal enforcement. The law allows for per diem and per-violation penalties, and injunctive relief may also be available. In addition to state authorities, Region 6 of the US Environmental Protection Agency (EPA) actively enforces environmental programmes in
481 CHAMBERS.COM
Powered by FlippingBook