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Texas Environmental Update

April 15, 2014

The environmental practice of Bracewell & Giuliani LLP offers seamless, front-rank representation in local, state, national, and cross-border regulatory, enforcement, and litigation matters, as well as experienced counsel on the environmental aspects of transactions and operations across the country and around the world. We are dedicated to helping clients successfully navigate complex and costly environmental issues and to building longstanding client relationships founded on superior advice, integrity, and value. We are pleased to provide you with this issue of Bracewell's Texas Environmental Update, offering the latest news about permitting, enforcement, regulatory developments, and other matters of interest to the regulated community in Texas.


EPA and Corps of Engineers Proposed "Waters of the U.S. Rule"
In late March, the EPA and Corps of Engineers announced the release of their proposed rule defining what waters fall under federal jurisdiction. Over a decade in the making, the rule, once finalized, will literally redefine the landscape of federal water pollution regulation, impacting laws governing wetlands fill, water discharge permits, oil spill liability, spill contingency planning, hazardous substance spill response, and more. It will impact municipalities, states, and industry of every type, from natural resource extraction like energy and mining, to construction and development and beyond.  Click here to read our numerous recent blog posts about this proposed rule (posts will appear in reverse chronological order; the first was posted March 26 and appears on page two). 

D.C. Circuit Hears Argument on 2013 Renewable Fuels Standard
Energy Legal Blog, April 8, 2014
On Monday, April 7, the D.C. Circuit heard oral argument in Monroe Energy v. EPA, No. 13-1265, which challenges the 2013 renewable fuels standards (RFS).  Judges Rogers, Griffith, and Pillard presided over the argument. Monroe Energy, an independent refiner, and trade associations API and AFPM challenged the 2013 RFS. PBF Holding Company LLC intervened on [...]

Texas One Step Closer to Obtaining Authority to Issue GHG Air Permits
Energy Legal Blog, March 31, 2014
As anticipated, on March 26, 2014, the Texas Commission on Environmental Quality (TCEQ) adopted rules to implement House Bill 788, which required the Commission to establish greenhouse gas (GHG) emissions rules.  The new rules will become effective on April 17, 2014. This action is one more step in the process of transitioning GHG Prevention of [...]

Lesser Prairie-Chicken Listed as Threatened Under Endangered Species Act
Energy Legal Blog, March 28, 2014
On March 27, 2014, the U.S. Fish and Wildlife Service (USFWS) announced the final listing of the lesser prairie-chicken, a grassland bird that roams across key areas for oil and gas development in Texas, New Mexico, Oklahoma, Kansas and Colorado, as "threatened" under the Endangered Species Act (ESA).  At the same time, the USFWS issued [...]


Agendas & Work Sessions

Commissioners' April 30, 2014 Meeting Agenda
TCEQ Web Site

Commissioners' April 9, 2014 Agenda Meeting Webcast

In the News:


Report Offers Grim Predictions for South Texas Air Quality Amid Oil Boom
Bloomberg.com, April 11, 2014
"InsideClimateNews.org - What might the oil- and gas-rich Eagle Ford Shale region of South Texas look like in 2018?"

Industries, TCEQ Fight Study Linking Death, Ozone
Dallas Morning News, April 8, 2014
"Backed by Texas' top environmental officials, some of the country’s biggest industries are working against a possible crackdown on ozone, the air pollutant that afflicts North Texas."

New Study Finds Elevated Cancer Rate in Flower Mound
Dallas Morning News, March 31, 2014
"A study by a University of Texas at Austin researcher raises concerns about whether current gas drilling regulations protect public health and questions a state study that found no link between cancer rates and gas drilling in Flower Mound."


TCEQ Approves Fines Totaling $671,781
TCEQ Web Site, April 9, 2014
"The Texas Commission on Environmental Quality today approved penalties totaling $295,236 against 27 regulated entities for violations of state environmental regulations."


Pipeline Backlog Expected to Ease as Texas Backs Off Pollution Fight
Dallas Morning News, March 28, 2014
"For close to 18 months, Mike Heim watched the construction site outside Decatur where his company planned to build a natural gas processing plant sit idle."

Regulatory Developments

What's New in TCEQ Rules
TCEQ Web Site, April 11, 2014


North Texas City Awaits Word on Wastewater Re-Use
Fort Worth Star-Telegram, April 13, 2014
"LUBBOCK, Texas - Grappling with a three-year drought, a North Texas city is awaiting word from the state to re-use wastewater, including some from toilet flushes, for drinking."

Tapped: Our Water Trouble
Lubbock Avalanche-Journal, April 5, 2014
"JUSTICEBURG - Lake Alan Henry lost roughly 4 billion gallons of water to evaporation in 2011 before the city of Lubbock took a drop."

Other TCEQ News

Zak Covar Builds on a Firm Foundation
TCEQ Web Site, April 9, 2014
"On Friday, Jan. 10, 2014, Governor Rick Perry appointed Zak Covar to the Texas Commission on Environmental Quality for a term to expire on Sept. 1, 2015."


Notice of Intent (NOI) to Prepare a Supplemental Environmental Impact Statement (EIS) and an Announcement of Scoping Meetings and Comment Period for Proposed Gulf of Mexico OCS Oil and Gas Western Planning Area Lease Sales 246 and 248
79 Federal Register 18930, April 4, 2014


60-Day Notice; Information Collection Activities: Oil and Gas Drilling Operations; Proposed Collection; Comment Request
79 Federal Register 20897, April 14, 2014

Notice of Voluntary Confidential Near-Miss Reporting System Public Workshop
79 Federal Register 17563, March 28, 2014


EPA Mercury Rule for Power Plants Upheld by U.S. Appeals Court
BloombergBusinessWeek, April 15, 2014
"Duke Energy Corp. (DUK:US), Southern Co. (SO:US) and other energy companies must abide by federal limits on mercury and additional power-plant pollutants, a U.S. court said, upholding a rule regulators say will save lives and the industry claims was illegally drafted."

Final Rule, Approval and Promulgation of Implementation Plans; Texas; Reasonably Available Control Technology for the 1997 8-Hour Ozone National Ambient Air Quality Standard
79 Federal Register 21144, April 15, 2014

Proposed Rule, Approval and Promulgation of Air Quality Implementation Plans; Texas; Control of Air Pollution From Motor Vehicles, Vehicle Inspection and Maintenance and Locally Enforced Motor Vehicle Idling Limitations
79 Federal Register 21179, April 15, 2014

EPA Defends Enforcement Plan to Focus on Biggest Polluters
Reuters, April 10, 2014
"The U.S. Environmental Protection Agency's plan to focus on cracking down on just the largest polluters will deliver 'lasting returns' to the American public, its top enforcement official said on Thursday."

Notification of Two Public Teleconferences of the Science Advisory Board Panel for the Review of the EPA Water Body Connectivity Report
79 Federal Register 18293, April 1, 2014

Direct Final Rule, Approval and Promulgation of Implementation Plans; Texas; Revisions to the Minor New Source Review (NSR) State Implementation Plan (SIP); Types of Standard Permits, State Pollution Control Project Standard Permit and Control Methods for the Permitting of Grandfathered and Electing Electric Generating Facilities
79 Federal Register 18183, April 1, 2014

EPA issues Greenhouse Gas Permit in Texas
Region 6 Web Site, April 14, 2014
"Today, the U.S. Environmental Protection Agency (EPA) issued a final greenhouse gas (GHG) Prevention of Significant Deterioration (PSD) construction permit to Apex Matagorda Energy Center, LLC, Matagorda, Texas."


Final Rule, Endangered and Threatened Wildlife and Plants; Special Rule for the Lesser Prairie-Chicken
79 Federal Register 20074, April 10, 2014

Final Rule, Endangered and Threatened Wildlife and Plants; Determination of Threatened Status for the Lesser Prairie-Chicken
79 Federal Register 19974, April 10, 2014


Notice and Request for Comments; Pipeline Safety: Information Collection Activities, Revisions to Operator Identification (OPID) Assignment Request and Operator Registry Notification
79 Federal Register 18118, March 31, 2014


Railroad Commission Hires Seismologist
Railroad Commission Web Site, March 28, 2014
"AUSTIN - Railroad Commission Executive Director Milton Rister announced today the Commission has hired a seismologist, Dr. David Craig Pearson, a former team leader for a Los Alamos National Laboratory seismic, experimental field team, who also holds a doctorate in geophysics from Southern Methodist University."


EPA Needs to Demonstrate Whether It Has Achieved the Goals It Set Under the National Petroleum Refinery Initiative
EPA Office of Inspector General Web Page, April 15, 2014
"The objective of this evaluation was to determine to what extent the U.S. Environmental Protection Agency's (EPA’s) enforcement actions led to sustained compliance under the National Petroleum Refinery Initiative (NPRI, or the initiative)."

Toward a Better Understanding and Quantification of Methane Emissions From Shale Gas Development
Proceedings of the National Academy of Sciences Web Site, April 14, 2014
"An instrumented aircraft platform was used to identify large sources of methane and quantify emission rates in southwestern PA in June 2012."

Fiscal Year 2014-2018 EPA Strategic Plan
EPA Web Site, April 10, 2014
"In implementing this FY 2014-2018 Plan, EPA will focus on developing and using creative, flexible, cost-effective, and sustainable actions that deliver significant benefits on the ground to protect and improve human health and the environment."

Draft SAB Review of the Draft EPA Report Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence
EPA Science Advisory Board Web Page, March 25, 2014
"The EPA's Office of Research and Development (ORD) requested that the Science Advisory Board (SAB) review the draft report titled Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence (September 2013 External Review Draft) ('Report')."

Petroleum Refining: Industry's Outlook Depends on Market Changes and Key Environmental Regulations
Government Accountability Office, March 2014
"This report examines: (1) major changes that have recently affected the industry and (2) the future of the industry."