February 2012
98 San Jacinto Boulevard, Suite 1420
Austin, TX 78701-4296
(512) 391-8010
98 San Jacinto Boulevard, Suite 1420
Austin, TX 78701-4296
(512) 391-8040
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


For more information about our firm, please visit www.bdlaw.com.





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Texas Developments

TCEQ Oil & Gas Air Authorization Guidance Update

TCEQ has published updated guidance to facilitate the use of New Source Review air authorizations for oil and gas industry facilities. 

LCRA Approves New Water Management Plan for Lake Buchanan and Lake Travis

On February 22, 2012, the Lower Colorado River Authority (“LCRA”) approved a new Water Management Plan for Lake Buchanan and Lake Travis.

Railroad Commission Responds to EPA Draft Report Linking Groundwater Contamination to Hydraulic Fracturing in Wyoming

On February 7, 2012, the Railroad Commission of Texas sent a letter to the U.S. Environmental Protection Agency (“EPA”) in response to a December 8, 2011, draft EPA report purporting to find a “likely association” between groundwater contamination and hydraulic fracturing in Pavillion, Wyoming.

Texas Supreme Court Rules that Landowners Own Groundwater In Place

On February 24, 2012, the Texas Supreme Court ruled that landowners hold ownership interests in the groundwater in place beneath their properties and may be entitled to compensation if that groundwater is taken for public use or if their access to the water is restricted by permitting authorities.

TERP Guidance Comment Opportunity

TCEQ is offering an opportunity to provide written and oral public comment on proposed revisions on the Texas Emissions Reduction Plan (“TERP”) Guidelines for Emissions Reduction Incentive Grants (TCEQ Publication RG-388). 

EPA Proposes Determination that Houston Area Failed to Attain Ozone Standard

On February 1, 2012, EPA published a proposal to determine that the Houston-Galveston-Brazoria (“HGB”) severe nonattainment area did not attain the one-hour Ozone National Ambient Air Quality Standard by its applicable attainment date of  November 15, 2007.  EPA based this proposal on three years of ambient air quality monitoring data for the period preceding the attainment deadline.

Texas Files Brief Challenging EPA’s Imposition of Greenhouse Gas Permitting in Texas

On February 8, 2012, the states of Texas and Wyoming filed their opening brief with the U. S. Court of Appeals for the District of Columbia Circuit in the lawsuit challenging EPA’s imposition of a New Source Review prevention of significant deterioration (“PSD”) permitting program for greenhouse gas emissions in Texas and Wyoming.

TCEQ Executive Director Announces Retirement

On February 23, 2012, the Texas Commission on Environmental Quality (“TCEQ”) Commissioners announced that the agency’s Executive Director, Mark Vickery, will retire effective May 2012.

Barry Smitherman Elected Chairman of the Texas Railroad Commission

On February 28, 2012, Barry Smitherman was elected to be Chairman of the Railroad Commission of Texas.  He was appointed to the Commission in July 2011.  

Air Pollutant Watch List Annual Report & Updated Protocol Released

The TCEQ Chief Engineer’s office has issued its 2012 Report on Air Pollutant Watch List Areas in Texas, as well as an updated Air Pollutant Watch List (“APWL”) protocol document that outlines the framework the agency will use in implementing the APWL program, including the listing and delisting of APWL areas. 

Federal District Court Grants Preliminary Injunction in Challenge to City of Dallas Flow Control Ordinance

The U.S. District Court for the Northern District of Texas has issued a preliminary injunction enjoining the City of Dallas from implementing the City’s flow control ordinance, which the City enacted in September 2011. The ordinance requires all solid waste generated, found, or collected inside the City to be disposed of at a City-owned or -operated facility.

Upcoming TCEQ Meetings and Events

  • TCEQ will host its annual Environmental Trade Fair & Conference at the Austin Convention Center on May 1-2, 2012.  A banquet will be held on the evening of May 2 during which the 2012 Texas Excellence Awards will be accepted.  

TCEQ Enforcement Orders

TCEQ announcements for enforcement orders adopted in February can be found on the TCEQ website at http://www.tceq.texas.gov/news/releases/2-11Agenda2-22 and http://www.tceq.texas.gov/news/releases/2-12Agenda2-8.

Recent Texas Rules Updates

For information on recent TCEQ rule developments, please see the TCEQ website at http://www.tceq.state.tx.us/rules/whatsnew.html.

National Developments

Congress Limits DOT Authority over the Transport of Lithium Batteries

On February 6, 2012, Congress passed legislation, which is expected to be signed soon by President Obama, to prohibit the United States Department of Transportation from issuing or enforcing any regulation regarding the transport of lithium batteries by aircraft that is more stringent than the requirements of the Technical Instructions for the Safe Transport of Dangerous Goods by Air issued by the International Civil Aviation Organization. 

Court Victory for Genetically Engineered Crop

The U.S. Department of Agriculture’s Animal and Plant Health Inspection Service (“APHIS”) and the agriculture-biotechnology industry received welcome news on January 5, 2012.  The U.S. District Court for the Northern District of California upheld APHIS’s decision to grant non-regulated status to Monsanto’s Roundup-Ready Alfalfa (RR Alfalfa), in a case commonly referred to as “Alfalfa II.”

Firm News & Events

Beveridge & Diamond, P.C. Elects New Principals

Beveridge & Diamond, P.C., the Environmental, Land Use, and Litigation Law Firm is pleased to announce that W. Parker Moore in our Washington, D.C. office and Evynn M. Overton in our Baltimore office have been elected as Principals and Shareholders of the Firm.

Beveridge & Diamond Ranked One of Largest Environmental Practices by Law360

On February 13, 2012, Law360 released its ranking of the nation’s largest environmental practices, listing Beveridge & Diamond, P.C. as the fifth-largest environmental practice, and noting that the Firm had the highest percentage of lawyers dedicated to the practice of environmental law of any law firm.

Mark Duvall Co-Authors and Edits Book on FDA Regulation of Nanotechnology

Nanotechnology holds a great deal of promise, but also raises many regulatory issues.  In a book edited and co-authored by Mark Duvall of Beveridge & Diamond, the complex issues raised by nanotechnology in FDA-regulated applications are explored in detail

Beveridge & Diamond Leads Successful Defense of Power Plant Permit in Case of First Impression in Texas

Beveridge & Diamond’s Texas office secured a ruling from a Texas state district court denying novel claims that a wastewater permit for a Texas power plant was issued by the Texas Commission on Environmental Quality in violation of the plaintiffs’ due process rights.

Previous Issues of the Texas Environmental Update

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