Environmental

Environmental law is a broad term that encompasses federal, state, and local statutes, rules, and regulations. However, most environmental law is created at the federal level, and the responsibility of enforcement largely falls upon federal agencies. Below is an overview of key federal environmental legislation. 

Key federal environmental legislation

Federal environmental law in the United States consists primarily of the following: 

• Clean Air Act – The Clean Air Act regulates air quality and addresses air pollution from stationary sources. Regulated entities include refineries, power plants, petrochemical plants,  and mobile sources.
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Environmental law is a broad term that encompasses federal, state, and local statutes, rules, and regulations. Federal, state, and local agencies have broad discretion in determining whether to take enforcement action against violators of these laws. When passing environmental laws, states and local governments are generally permitted to adopt stricter requirements than those contained in federal statutes and regulations. However, state and local laws may not conflict with federal laws. And although states and local governments have some authority to enforce environmental laws, the majority of enforcement actions are initiated by federal agencies.
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Under the Texas Environmental, Health, and Safety Audit Privilege Act (“the Act”), those entities who conduct voluntary health, environmental, and safety audits of regulated facilities and operations are entitled to immunity from penalties for violations that are discovered, disclosed, and corrected within a specified amount of time. Below is some additional information about immunity under the Act.  

Voluntary disclosure of violations 

In order for an entity to receive immunity, a disclosure must be voluntary and preceded by a notice of audit. A disclosure is considered voluntary if the following conditions are met:

• The disclosure was made soon after the violation was discovered
• The disclosure was submitted in writing 
• The disclosure was made prior to the initiation of an independent investigation 
• The violation was disclosed as the result of a voluntary audit
• Efforts to correct the violation are initiated by an entity within a reasonable amount of time of the disclosure
• The disclosing entity cooperates during the investigation of the issues identified
• The disclosed violation hasn't caused injury or an imminent risk of injury
• The disclosure isn't required by an enforcement decree or order 
  
  And when a violation is discovered during an audit that was conducted prior to an acquisition closing date, the person making the disclosure must certify the following:
  
  

• Before the closing date, he or she wasn't responsible for compliance at the regulated entity
• Before the closing date, he or she didn't have the largest ownership share of the seller
• Before the closing date, he or she and the seller didn't have a common corporate parent 
  
  

 Limitations

Immunity does not apply under any of the following circumstances:

• The disclosed violation was committed intentionally or knowingly 
• The disclosed violation was committed recklessly
• The disclosed violation resulted in a significant economic benefit that gave the violator an advantage over its competitors
• An administrative law judge or court finds that the person or entity claiming immunity has continuously committed significant violations and hasn't tried to bring the facility into compliance
  
  

Texas Environmental Law Attorneys 

If you or your company have been cited for non-compliance or are facing legal action based on non-compliance, then you need an experienced

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Under the Texas Environmental, Health, and Safety Audit Privilege Act (“the Act”), those who conduct voluntary environmental or health and safety audits of regulated operations and facilities are entitled to immunity from administrative penalties for violations that are discovered, disclosed, and corrected within a certain amount of time. Under the Act, an audit that qualifies for protection is a voluntary evaluation, assessment, or review of compliance with environmental or health and safety laws or a related permit conducted by an operator or owner. Below is an overview of the submissions required under the Act. 

Submissions under the Act 

There are three types of documents a person may submit under the Act: 

• A notice of audit letter
• A disclosure of violations letter
• A request for an extension 
  
  

Notice of audit letter 

An individual must submit a notice of audit letter prior to commencing an audit. A notice of audit letter must include:  

• The name of the individual conducting the audit
• The date and time that the audit will commence 
• A description of the leases, properties, or facilities to be audited
   

Disclosure of violations letter 

In order to gain immunity under the Act, an individual must submit a disclosure of violations letter, which is a voluntary disclosure of violations identified as a result of the audit.

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The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) was passed in 1980 in response to the hazardous waste practices of the time. CERCLA provides federal funds to clean up abandoned or uncontrolled hazardous waste sites, spills, accidents, and other emergency releases of contaminants and pollutants into the environment. CERCLA is an important environmental program, as it both ensures that valuable removal actions are taken and  enforces against responsible parties. As is discussed below, CERCLA relies on a number of enforcement tools to ensure that the above pollutants and hazards are removed in a timely manner. In addition, CERCLA promotes community involvement, accountability, and long-term protectiveness.
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Environmental audits allow companies to identify, assess, and fix problems before it’s too late. In addition, in many cases, federal and state laws can be used to shield companies from penalties assessed for violations discovered during voluntary audits. However, there are a few things that you should consider before undertaking an environmental audit in Texas, including:

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Anyone who wishes to construct or modify a facility that emits air contaminants into the atmosphere must obtain authorization from the Texas Commission on Environmental Quality (TCEQ). TCEQ’s Office of Compliance and Enforcement is responsible for the enforcement of compliance with all environmental regulations and laws in Texas. In addition, since TCEQ has the authority to administer the Federal Clean Air Act requirements for Texas, it is also the primary enforcement agency for certain federal permits. Authorization from TCEQ comes in several forms, and the timeline for obtaining authorization can range from a few days to several years. Two such forms of authorization are:

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The Texas Environmental, Health, and Safety Audit Privilege Act (Act) was originally enacted in 1995. The purpose of the Act is the encouragement of voluntary compliance with environmental, health, and safety regulations. In addition, the Act incentivizes voluntary audits by facilities. Under the Act, facilities that voluntarily conduct audits are immune from civil and administrative penalties for violations that are uncovered and disclosed as a result of the voluntary audit. The Act also provides privilege for reports submitted in accordance with its requirements.

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The Texas Supreme Court recently overturned an Austin Court of Appeals decision which held that a corporate officer could not be held personally liable for environmental violations unless certain conditions were present. Below is an overview of this decision and its implications on corporate officers in Texas.

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According to a new report by Environment Texas, an environmental advocacy group, Texas leads the nation in violations of the Clean Water Act. The report found that over a 21-month period from January 2016 to September 2017, major industrial facilities in the state released pollution that exceeded levels allowed under Clean Water Act (CWA) permits 938 times. By comparison, Pennsylvania was second on the list with more than 600 exceedances. If your business has been cited for CWA violation, it is essential to enlist the services of an experienced health, safety and environmental attorney.

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The Texas Supreme Court ruled on March 23 that coating manufacturer AC Interests LP should be allowed to proceed with its appeal TCEQ decision, saying that the law left the consequences of delay ambiguous. The majority found that, since the TCAA did not spell out how to interpret the time limit for providing notice, the proper interpretation is the time limits are directory and not mandatory. That is, the suit should not be dismissed even if notice was served late.

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