February 28, 2013
98 San Jacinto Boulevard, Suite 1420
Austin, TX 78701-4296
(512) 391-8025
98 San Jacinto Boulevard, Suite 1420
Austin, TX 78701-4296
(512) 391-8040
98 San Jacinto Boulevard, Suite 1420
Austin, TX 78701-4296
(512) 391-8010
98 San Jacinto Boulevard, Suite 1420
Austin, TX 78701-4296
(512) 391-8020
98 San Jacinto Boulevard, Suite 1420
Austin, TX 78701-4296
(512) 391-8030

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GHG Permitting Take-Back Bills Filed in Texas Legislature

The Texas Legislature is addressing two identical, companion bills (Senate Bill 536 and House Bill 788) that would require the Texas Commission on Environmental Quality ("TCEQ") to implement a New Source Review ("NSR") prevention of significant deterioration ("PSD") permitting program for greenhouse gas ("GHG") sources in Texas, as well as a "Title V" federal operating permits program for GHGs. Currently, U.S. Environmental Protection Agency ("EPA") Region 6 is accepting applications and has issued PSD permits for Texas GHG sources. EPA implemented its program pursuant to a federal implementation plan ("FIP") in response to the State of Texas’ opposition and still-pending legal opposition to EPA’s regulation of GHGs. Although EPA is issuing PSD permits for GHGs, neither TCEQ nor EPA is issuing Title V permits for GHG-related requirements.

Texas Railroad Commission Republishes Revised Proposed Oil & Gas Rules

On January 29, 2013, the Texas Railroad Commission withdrew proposed amendments to 16 TAC §§3.13, 3.99, and 3.100 that had been published in the September 7, 2012 Texas Register (37 Tex. Reg. 7021), and approved a revised set of proposed amendments. The proposed amendments address the transfer of the Groundwater Advisory Unit from the Texas Commission on Environmental Quality to the Railroad Commission, revise the requirements for all wells, consolidate the requirements for well control and blow-out preventers, and update requirements for drilling, casing, cementing, and fracture stimulation, along with other changes.

TCEQ Proposes Streamlining Approval of Oil and Gas Maintenance, Startup, and Shutdown Activities

On February 27, TCEQ initiated a rulemaking to create a permit by rule ("PBR") to authorize emissions from planned maintenance, startup, and shutdown ("MSS") activities at oil and gas handling and production facilities. The new PBR § 106.359 would provide applicants with a streamlined process for obtaining authorization for planned MSS activities. Under Senate Bill 1134, passed in 2011, certain oil and gas facilities have until January 5, 2014, to claim the authorization. Without authorization, owners and operators will lose the ability to claim an affirmative defense for unauthorized emissions during MSS activities.

EPA Proposes Disapproval of Texas Emergency Order SIP Revisions

On February 5, the Federal Register published the Environmental Protection Agency’s ("EPA's") proposed disapproval (the "Proposed Disapproval") of revisions to the Texas State Implementation Plan ("SIP"). The Proposed Disapproval applies to portions of the Texas SIP revisions relating to Emergency Orders that were submitted by Texas on August 31, 1993; December 10, 1998; February 1, 2006; and July 17, 2006. According to EPA, the Texas SIP revisions do not meet the requirements of the Clean Air Act ("CAA"), EPA regulations, or applicable policy and guidelines. EPA is reviewing only those portions of the SIP revisions that are applicable to the issuance of air Emergency Orders. The non-air portions of the SIP submittals will be returned by EPA to the State on the grounds that they cannot be included in the SIP because "under the CAA, SIPs can only include provisions addressing criteria pollutants and their precursors."

TCEQ Issues Updated Effects Screening Level & Air Monitoring Comparison Values Lists

During February 2013, TCEQ issued an updated effects screening level ("ESL") list and a revised air monitoring comparison value ("ACMV") list. ESLs are ambient air concentration guidelines used to gauge the potential of constituents associated with modification of an existing facility or construction of a new facility to cause adverse health or welfare effects. They are permit review screening tools, the exceedence of which triggers a more in-depth health effects review. "AMCVs" is a collective term referring to all odor-, vegetative-, and health-based values that TCEQ uses to review air monitoring data. Similar to ESLs, AMCVs are chemical-specific air concentrations set to protect human health and welfare. The revised lists are available at TCEQ’s website.

Texas Senate Confirms Commissioner Toby Baker

On February 27, 2013, the Texas Senate unanimously confirmed the appointment of Toby Baker to serve as a Commissioner of the Texas Commission on Environmental Quality. Commissioner Baker has been serving in that capacity since his appointment by Governor Rick Perry on April 16, 2012. His term will expire on Aug. 31, 2017.

Upcoming TCEQ Meetings and Events

TCEQ will host its annual Environmental Trade Fair and Conference at the Austin Convention Center from April 30 to May 1, 2013. A banquet will be held on the evening of May 2 during which the 2013 Texas Excellence Awards will be accepted. Additional information about this event is available on TCEQ’s website.

TCEQ Enforcement Orders

TCEQ announcements for enforcement orders adopted in January can be found on TCEQ’s website.

Recent Texas Rules Updates

For information on recent TCEQ rule developments, please see the TCEQ website.




EPA Proposes to Require 36 States to Revise Startup, Shutdown, and Malfunction Air Emission Provisions in State Implementation Plans

On February 22, 2013, the U.S. Environmental Protection Agency (EPA) published a proposed rule that requires 36 states to revise startup, shutdown, and malfunction (SSM) provisions in their State Implementation Plans (SIPs).

States Propose to Regulate Chemicals While Congress Debates TSCA

In the absence of legislation overhauling the federal Toxic Substances Control Act, 19 states have introduced bills in 2013 to regulate chemical exposures, primarily in consumer products. It is unclear which, if any, will become law. Nevertheless, these 41 bills show that states consider themselves full partners with Congress in addressing chemicals management issues.

TSCA Modernization Proposals in Congress: Recent History and Prospects

The core provisions of the Toxic Substances Control Act (TSCA) have not been substantially changed since the law’s passage in 1976, but efforts to modernize the law have seen a marked increase in intensity in recent years.

TSCA Developments at EPA: Looking Back at 2012

When Administrator Lisa Jackson’s term concluded on February 14, 2013, the Environmental Protection Agency had largely lived up to her incoming promise to make "managing chemical risks" a top priority. EPA’s efforts to enhance its chemicals management program expanded and refocused in February 2012, with the release of a new Existing Chemicals Program Strategy.

TSCA Implementation at EPA: Looking Ahead

Following the reelection of President Obama and the departure of Administrator Lisa Jackson, the Environmental Protection Agency will continue to aggressively implement its Enhanced Chemicals Management Program under the Toxic Substances Control Act (TSCA). While EPA will be able to continue and build on its recent policies, there will also certainly be opportunities to rethink and refine certain policy elements going forward.

Increased Federal Criminal Enforcement Against Oil and Gas Fracking Companies

While President Obama renewed his support for the "natural gas boom" in his State of the Union address last week, his administration continues to carefully scrutinize the environmental impacts of hydraulic fracturing (or fracking) as a method to access these natural gas reserves.

First-Ever Criminal CPSIA Charges Brought for the Importation and Sale of Hazardous Toys

On February 4, 2013, a 24-count federal indictment was issued charging multiple individuals and companies with importing and trafficking hazardous toys from China into the United States. The Consumer Product Safety Improvement Act of 2008 (CPSIA) added stringent limits on the amount of lead and phthalates in children’s products, including toys.

EPA Releases State Enforcement Dashboards and Comparative Maps

On February 7, 2013, EPA released new interactive tools which are intended to provide enforcement performance data and comparative maps through its Enforcement and Compliance History Online (ECHO) service.




Former EPA General Counsel Scott Fulton to Join Beveridge & Diamond, P.C.

Washington, DC – Scott Fulton, the former General Counsel of the U.S. Environmental Protection Agency (EPA), will join Beveridge & Diamond, P.C. as a Principal in the Firm’s Washington, DC office, effective March 25, 2013.

Beveridge & Diamond Secures Key Appellate Victory for City of Los Angeles Protecting Land Application of Biosolids

Litigators from the Beveridge & Diamond, P.C. Washington, DC and San Francisco offices convinced the California Court of Appeal to affirm a preliminary injunction that blocks implementation of a county voter initiative that sought to halt biosolids recycling at a 4,700 acre farm in Kern County, California, owned by the City of Los Angeles.

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