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A Rose by Any Other Name: Texas Court of Appeals Says Nuisance “Symptoms of Discomfort” Require the Same Proof of Causation as “Disease”

In what may appropriately be called a “swing and a miss”, the Fourth Court of Appeals in San Antonio has rejected plaintiffs’ attempt to avoid the need for medical expert testimony in a toxic tort case by pleading damages for “symptoms of discomfort” instead of disease.  Cerny v. Marathon Oil Corp, et al., No. 04-14-00650-CV,  … Continue Reading

Fifth Circuit Rejects EPA’s Overreaching on CAA and MBTA

Background The U.S. Fifth Circuit Court of Appeals recently issued an opinion regarding criminal liability under environmental statutes.  United States v. Citgo Petroleum Corp., et al., No. 14-40128, 2015 U.S. App. LEXIS 15865 (5th Cir. Sept. 4, 2015).  In what may be considered a warning shot to overzealous federal prosecutors looking to obtain criminal convictions … Continue Reading

New EPA Stormwater Permit Adds More Restrictions to Allowable Wash Water Discharges

On June 16, 2015, the EPA published a notice of final permit issuance for the NPDES General Permit for Stormwater Discharges from Industrial Activities (commonly referred to as the Multi-Sector General Permit or “2015 MSGP”). Click here to see the Multi-Sector General Permit. Many permittees will understandably focus on any changes made to the specific … Continue Reading

Sierra Club Asks Court to Ban Use of Legacy DOT-111 Tank Cars

As if crude producers and midstream transportation companies don’t already have enough problems trying to get crude oil from production fields to refineries thanks to inadequate pipeline infrastructure, tank car supply, rail safety concerns, and new regulations, they now also have to address a new, potentially market-busting lawsuit. In September, the Sierra Club, one of … Continue Reading

BSEE’s Investigations and Review Unit Changes the Playing Field on the OCS

The Bureau of Safety and Environmental Enforcement’s (BSEE’s) Investigations and Review Unit (IRU) substantially enhances the civil and criminal enforcement of the Outer Continental Shelf Lands Act (OCSLA) and the regulations issued thereunder. Background In 2010, in the wake of the Deepwater Horizon oil spill, the Department of Interior renamed the Minerals Management Service (MMS) … Continue Reading

Proposed Railroad Rules May Impact Crude Oil Producers: Proposed DOT/PHMSA Oil Tank Car Rules

Prompted by concerns heightened by several recent high profile train derailments and accidents, coupled with the boom in the number of oil-carrying trains, the Obama administration, through the Pipeline and Hazardous Materials Safety Administration (PHMSA), has proposed two new sets of rules aimed at addressing the perceived risks posed by the increase in rail transportation … Continue Reading

Air Permitting Update: D.C. Circuit Decision Helps E&P Facilities

On May 30, 2014, in an unanimous decision in National Environmental Development Association’s Clean Air Project v. U.S. Environmental Protection Agency, the United States Court of Appeals for the District of Columbia Circuit vacated EPA’s policy limiting the reach of the Sixth Circuit’s decision in Summit Petroleum Corp. v. EPA. In Summit, the Sixth Circuit … Continue Reading

EPA and Army Corps of Engineers Propose Significant Revisions to Definition of “Waters of the United States”

On March 25, 2014, the Environmental Protection Agency (“EPA”) and the Army Corps of Engineers (“Corps”) jointly released a proposed rule purporting to clarify the scope of the “waters of the United States” protected under the Clean Water Act. The agencies claim that, as a result of the Supreme Court’s decision in Rapanos v. United … Continue Reading

TCEQ Updates Penalty Policy Document to Incorporate Legislative Enactments and Current Enforcement Practices

On January 6, 2014, TCEQ requested comments on a proposal to revise the agency’s penalty policy. See Revised Penalty Policy (PDF). According to TCEQ, the proposed revision to its Policy simply incorporates recent statutory changes and documents existing enforcement practices. Recent Statutory Changes House Bill 2615 (PDF) (83rd Legislature, 2013) significantly increased the administrative penalties for a … Continue Reading

New Texas Law Encourages Recycling of Wastewater From Oil and Gas Operations by Clarifying Ownership and Limiting Tort Liability

By Jillian Marullo House Bill 2767, which took effect on September 1, 2013, was enacted to encourage recycling of the wastewater produced in hydraulic fracturing (or “fracking”) and other oil and gas operations. A hotly contested issue is the consumption of water by fracking activities. Fracking involves the injection of several millions of gallons of … Continue Reading

Texas Legislature Allows Saltwater Pipeline Operators to Build Pipelines Along Public Roadways for Disposal of Fracking and Other Drilling Wastewater

By Jillian Marullo Senate Bill 514, signed into law on June 14, 2013, authorizes saltwater pipeline operators in Texas “to install, maintain, and operate” saltwater pipelines “through, under, along, across, or over a public road” in order to transport the wastewater produced by hydraulic fracturing operations to disposal sites. The bill, which was introduced by … Continue Reading

Subsequent Purchaser Doctrine Defeats Civil Code Art. 667 Claims by Neighbor

On September 13, 2013, the Louisiana Supreme Court denied Plaintiff-landowners’ writ application seeking review of an opinion of the Louisiana First Circuit Court of Appeal granting Defendants’ exception of no right or cause of action based on the subsequent purchaser doctrine. Day v. Northrop Grumman Ship Systems, Inc., 13-0952 (La. 9/13/13), 2013 La. LEXIS 1898. And … Continue Reading

New Texas Legislation Authorizes TCEQ to Permit Greenhouse Gas Emissions

By Jillian Marullo House Bill 788, signed into law on June 14, 2013, authorizes the Texas Commission on Environmental Quality (“TCEQ”) to regulate emissions of carbon dioxide and five other greenhouse gases (“GHG”) “[t]o the extent that greenhouse gas emissions require authorization under federal law.” The legislation gives TCEQ the authority to issue permits authorizing … Continue Reading

Louisiana’s New Twenty-Day Deadline for Hydraulic Fracturing Reporting Requirements

By Sarah Y. Dicharry On July 20, 2013, the Louisiana Department of Natural Resources amended its reporting and disclosure requirements for hydraulic fracturing stimulation operations. 39 La. Reg. 1824 (July 20, 2013). The amendment does not significantly alter the substance of the reporting requirements, but it imposes a new twenty-day reporting deadline (required by a … Continue Reading

You Cannot Just Read the Regulations to Understand Stormwater Permitting for Oil and Gas Activities!

By Carlos J. Moreno and Robert E. Holden EPA’s most recent NPDES regulations for stormwater permitting of oil and gas facilities were vacated by the Ninth Circuit in 2008 and new regulations have not been promulgated. To understand the stormwater permit requirements for oil and gas activities, you need to review not only the regulations … Continue Reading

The Good Neighbor Provision on Steroids: Third Circuit Ruling Resurrects Clean Air Act Section 126(b)

By Lesley Foxhall Pietras A recent opinion by the United States Court of Appeals for the Third Circuit has breathed new life into Clean Air Act Section 126(b), which allows downwind state and local governments to petition the Environmental Protection Agency (“EPA”) for immediate relief from interstate pollution caused by a major source (or a … Continue Reading

Update: Supreme Court Will Review EPA’s Cross-State Air Pollution Rule

By Lesley Foxhall Pietras On June 24, 2013, the U.S. Supreme Court granted the petitions for writs of certiorari filed by the U.S. Environmental Protection Agency (“EPA”) and the American Lung Association in the litigation involving EPA’s Cross-State Air Pollution Rule (“CSAPR”). The CSAPR sets limits on sulfur dioxide and nitrogen oxides from power plants … Continue Reading

D.C. Circuit Upholds EPA Authority to Retroactively Veto CWA Section 404 Permits Issued by the U.S. Army Corps of Engineers

By Bob Holden and Jillian Marullo On April 23, 2013, in a case of first impression, the D.C. Circuit Court of Appeals held that the EPA’s veto authority under section 404(c) of the Clean Water Act (CWA), 33 U.S.C.§ 134(c), “clearly and unambiguously” includes the power to retroactively revoke portions of a Section 404 dredge and … Continue Reading

Louisiana Adopts EPA Revision to Condensable PM Requirements in its Definition of “Regulated NSR Pollutants”

On October 25, 2012 the Environmental Protection Agency (EPA) published its corrected definition of “regulated NSR pollutant.” The Louisiana Department of Environmental Quality (LDEQ) adopted EPA’s revised definition of “regulated new source review (NSR) pollutant” at LAC 33:III.509.B in a May 20, 2013 Louisiana Register Notice. 39 La. Reg. 1280 (May 20, 2013). LDEQ’s definition … Continue Reading

EPA to Improve Oil and Gas Sector Air Emissions Data in Response to Inspector General’s Report

By Lesley Foxhall Pietras On April 18, 2013, the U.S. Environmental Protection Agency (EPA or Agency) committed to improving air emissions data for the oil and natural gas production sector. EPA made this commitment in response to the Office of Inspector General’s February 20, 2013 report, “EPA Needs to Improve Air Emissions Data for the … Continue Reading

EPA Grants Reconsideration of Certain Oil and Gas Storage Tank NSPS Provisions Issued in August 2012

By Stephen W. Wiegand On August 16, 2012, EPA issued new source performance standards (NSPSs) for the oil and gas sector. The standards applied to various sources including storage tanks used in crude oil and natural gas production. On April 12, 2013, EPA announced proposed amendments to the rule pertaining to storage tanks. The proposed … Continue Reading
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