Texas environmental law, McPherson LawFirm, PC

OVERALL AREAS

This lawfirm believes that environmental “management” does not mean “thou shalt not.” Our environment is a resource that can and should be properly managed, which implies its use. Scientific developments continue to change our understanding of what is harmful and what is manageable. Science also continues to expand the types of properties that can be rehabilitated for future use, and the methods available for rehabilitation. Business operations and environmental protection can co-exist.

The “Big Three” areas of the State of Texas’ environmental concerns are:

Air
Waste
Water

Our practice includes all three of these areas. In addition to this website, we have a separate website focused on water, so if you’re interested in water issues, click this link to visit www.texasH2Olaw.com.

Two categories of people need to read this web page. One, people who know they are going to engage, or who already are engaged, in regulated activity. Two, people who are facing possible enforcement by the Texas Commission on Environmental Quality, Texas Railroad Commission, or Environmental Protetction Agency, and need to bring their activities into compliance. This page includes information about more commonly used programs and processes designed to allow businesses and landowners to mess with Texas legally.

Typical Clients
Buying, Selling or Leasing Real Property and Businesses
Permits
Recycling/Beneficial Reuse
Green Construction
Texas Emissions Reduction Plan
Texas Risk Reduction Plan
Voluntary Cleanup Program
Innocent Owner/Operator Program
Petroleum Storage Tanks
Municipal Setting Designation
Brownfield Site Assessment Programs
Commenting on Proposed Agency Rules

TYPICAL CLIENTS

We can help identify and implement environmental solutions for:

Buyers and Sellers of Real Estate
Commercial Businesses
Commercial Fleet Operators
Construction Industry
Developers
Industrial Businesses
Landlords and Tenants
Landowners
Operators
Recycling Operations
Waste Generators

Currently in the marketplace, lots of former gas stations are being converted to different uses, like bank branches (at least before the credit markets froze). Over the next few years, we will see many former auto dealerships converted to different uses as that industry restructures. Most if not all of these properties have "issues" such as petroleum storage tanks and other regulated fluids that have been dripped on the property over time. Contracts for the redevelopment of these properties will have to address the environmental condition of the property. Keep reading down this page for more information about what we can do for our clients.

BUYING, SELLING OR LEASING REAL PROPERTY AND BUSINESSES

Sometimes contracts between private individuals or businesses need to address environmental issues. We draft contracts for the sale, purchase, lease, and license, of environmentally-affected properties or environmentally sensitive operations.

PERMITS

We can assist you in identifying and obtaining required permits, including those typically required by the following business operations:

Auto Body
Auto Repair
Auto Salvage
Dry Cleaning
Fleet Maintenance
Foundries
Metal Finishers
Printers
Recycling Operations
Sawmill Operations
Solid Waste Disposal
Surface Coating
Thermoset Resin/Cultured Marble Facilities
Transportation of Hazardous Materials
Wood Products Manufacturing

RECYCLING/BENEFICIAL REUSE

Recycling operations have a set of regulations all to themselves. Landlords of tenants who perform recycling services need protection from the liability imposed on them by state and federal statutes and regulations, while operators may need guidance about permits and operational requirements required by state and federal law. In Texas, this comes under the Solid Waste Disposal Act.

If you receive, process, and return to use only nonputrescible, source-separated recyclable materials diverted from a municipal solid waste stream, or source-separated nonhazardous recyclable materials from industrial sources, your facility is exempt from permitting and registration requirements, provided you comply with general requirements and certain storage, reporting, and recordkeeping requirements for exempt recycling facilities.

All other facilities that separate recyclable materials from a municipal solid waste stream must be permitted or registered as a municipal solid waste processing facility.

GREEN CONSTRUCTION

Designing and constructing “green” buildings is becoming more important. More individuals want to live in “green” developments. More people want to work in “green” buildings, which means more businesses want to locate in “green” buildings.

There are several green-building rating systems, but the U.S. Green Building Council (USGBC), a non-profit coalition of industry leaders that promotes environmentally responsible design and building practices seems to be the most recognized and widely used. Obtaining LEED certification allows you take advantage of a growing number of state and local government incentives, and can help boost press interest in your project.

The USGBC developed and administers the LEED certification program, which is the recognized standard for measuring building sustainability. “LEED” stands for “Leadership in Energy and Environmental Design.” The rating system for LEED was issued by the USGBC in 2000. Generally, the more environmentally sustainable a project, the more points it earns toward its LEED ranking. Projects are evaluated by factors such as energy and water efficiency, recycling and disposal of waste, and innovative design. Points accrue, for example, for using building materials drawn from local sources, which reduces energy spent on transporting materials. Recycling is also rewarded when construction materials are reused on-site rather than being hauled to a landfill.

The program also encourages features that promote worker health and productivity—such as superior indoor air quality and natural lighting.

Under the LEED system, projects registered with USGBC must be evaluated before they can be certified. Certified projects that go the extra mile and accrue additional points may be labeled silver, gold, and, finally, platinum.

The LEED rating system offers four certification levels for new construction -- Certified, Silver, Gold and Platinum -- that correspond to the number of credits accrued in five green design categories: sustainable sites, water efficiency, energy and atmosphere, materials and resources and indoor environmental quality. LEED standards cover new commercial construction and major renovation projects, interiors projects and existing building operations. Standards are under development to cover commercial "core & shell" construction, new home construction and neighborhood developments.

TEXAS EMISSIONS REDUCTION PLAN (TERP)

Sometimes the State of Texas pays you money to remove certain old, polluting vehicles from your fleets. There are two different programs within the larger rebate grant proram known as TERP. Generally the way these programs work is that applicants have a window of time to submit an application to obtain a grant of money from the state. In the Rebate Grant Program, the qualification for the grant is objective. The Emissions Reduction Incentive Grant program has a review committee and awards grants competitively. In either case, there is only a certain amount of money available.

The Rebate Grant Program will offer $26 million in funding for eligible projects. The TCEQ began accepting applications on October 5, 2009. Applications will be received and reviewed on a first-come basis until March 31, 2010, or until all funding is distributed. This program is non-competitive.

You can check on the status of these programs by vising the TCEQ's TERP website page here.

If you need assistance in applying for a TERP grant, or complying with the terms of your grant, please contact us.

DRIVE CLEAN ACROSS TEXAS PROGRAM

Clean air is a huge concern for Texans, especially in our urban areas. Mobile emissions produced by old cars are the primary source of Nox. This program provides qualifying owners of older, high-polluting vehicles with vouchers worth up to $3,500 toward the purchase of qualifying new, cleaner-running vehicles.

Visit the TCEQ's website page for this program by clicking here. Visit the program's official website by clicking here, or call 1-800-3321 for more information.

TEXAS RISK REDUCTION PROGRAM (TRRP)

TRRP generally regulates the cleanup and management of wastes and substances, referred to as chemicals of concern (COCs), which are released into the environment from regulated commercial and industrial facilities. The TRRP process is also generally available to guide the closure of waste management facility components (e.g., tanks, container storage areas, surface impoundments). The TRRP determines if releases or closures pose unacceptable risk. If they do, it sets out the requirements for what must be done to reduce the risk, prevent pollution, or protect natural resources. The TRRP can be a more cost-effective way to rehabilitate properties, allowing for their return to productive use.

VOLUNTARY CLEANUP PROGRAM (VCP)

The Texas Legislature enacted the Texas VCP to provide administrative, technical, and legal incentives to encourage the cleanup of contaminated sites in Texas. Many unused or under used properties may be restored to economically productive or community beneficial use.

All non-responsible parties, including future lenders and landowners, receive protection from liability to the state of Texas for cleanup of sites under the VCP.

Any site is eligible to enter the VCP if it is not subject to response actions under Railroad Commission of Texas authority or an order or permit from the TCEQ or where TCEQ enforcement action is pending. Parties entering the VCP must submit an application, an Affected Property Assessment Report describing the contaminated area of concern, and a $1,000 application fee. The VCP is a process that usually takes many months to complete, but can positively affect the fair market value and eliminate land use restrictions on a property.

INNOCENT OWNER/OPERATOR PROGRAM (IOP)

The Texas IOP provides a certificate to an innocent owner or operator if their property is contaminated as a result of a release or migration of contaminants from a source or sources not located on the property, and they did not cause or contribute to the source or sources of contamination. Similar to the Texas Voluntary Cleanup Program discussed above, the IOP can be used to redevelop or add value to a contaminated property by providing an Innocent Owner/Operator Certificate (IOC). However, unlike the VCP release of liability, IOCs are not transferable to future owners/operators. Future innocent owners or operators are eligible to enter the IOP and may receive an IOC only after they become an owner or operator of the site.

If you need help obtaining an IOP certificate, or to evaluate the meaningfulness of someone else's IOP, please contact us.

PETROLEUM STORAGE TANKS

Some petroleum storage tanks are regulated, some are not. Regardless of regulation, spills of petroleum products may be regulated, and clean-up required.

Regulated aboveground storage tanks (ASTs) with a capacity greater than 1,100 gallons containing petroleum products are regulated.

Owners of certain underground storage tanks (USTs) existing on or after September 1, 1987 are required to register these tanks with the TCEQ, unless they were emptied and filled in place before January 1, 1974. Tanks that are empty or unused still need to be registered. USTs containing substances which are not a liquid at standard temperature and pressure do not need to be registered.

A UST is defined under 30 Texas Administrative Code Section 334.2 as any one or combination of underground tanks and any connecting underground pipes used to contain an accumulation of regulated substances, the volume of which, including the volume of the connecting underground pipes, is ten percent or more beneath the surface of the ground. Regulated USTs include those containing petroleum substances (which are generally known as Petroleum Storage Tanks or PSTs) such as:

• gasoline
• diesel
• used oil
• jet fuel

and those containing hazardous substances such as:

• acetone
• methyl ethyl ketone, and
• numerous other chemicals listed as hazardous substances in CERCLA §101(14).

Other USTs commonly excluded from TCEQ regulations include:

• farm or residential tanks with a capacity of 1100 gallons or less
• heating oil tanks
• septic tanks
• flow-through process tanks, and
• sumps with a capacity of less than 110 gallons.

Hydraulic lifts are excluded from registration requirements, but are still subject to release reporting and cleanup action.

MUNICIPAL SETTING DESIGNATION (MSD)

An MSD is an official state designation given to property within a municipality or its extraterritorial jurisdiction that certifies that designated groundwater at the property is not used as potable water, and is prohibited from future use as potable water because that groundwater is contaminated in excess of the applicable potable-water protective concentration level. The prohibition must be in the form of a city ordinance, or a restrictive covenant that is enforceable by the city and filed in the property records. MDSs are authorized by Texas Health and Safety Code Subchapter W.

An MSD is a helpful tool to control the cost of a property cleanup because it limits the scope of, or eliminates the need for, what would otherwise be investigations of or costly response actions addressing contaminant impacts to groundwater that have been restricted from use as potable water by ordinance or restrictive covenant.

BROWNFIELDS SITE ASSESSMENT PROGRAMS

In Texas, many former industrial properties lie dormant or underutilized due to liability associated with actual or theoretical contamination. These properties are broadly referred to as “brownfields.” The TCEQ is facilitating cleanup, transferability, and revitalization of brownfields through the development of regulatory, tax, and technical assistance tools. The TCEQ is available at no cost to local governments and will provide technical advice, education, and project partnering for brownfields redevelopment projects.

Local governments can now offer additional ad valorem property tax abatements to attract brownfield cleanup and redevelopment.

COMMENTING ON PROPOSED AGENCY RULES

From time to time the TCEQ, RRC and EPA propose new rules they intend to adopt as a regulation. These rules have comment time periods, during which members of the public (i.e. you) can make comments, objections and suggested changes. The agencies take these comments into account and respond to them before adopting the rule as an official "regulation." Some businesses even go so far as to formulate comments to deliberately hinder a competitor.

When Ronald Reagan famously said "if it moves, tax it. If it keeps moving, regulate it. If it stops moving, subsidize it", this is the "regulate it" part to which he was referring. This is where government can get big, and intrusive, quickly.

These agencies generally do not know the particulars of your business and they often do not take business concerns into their intial drafting. Not surprisingly, sometimes these proposed rules are just not workable, or they would reduce a business's profit margin.

We can analyze proposed rules and formulate comments in an effort to have the agency change the rules to continue to allow for a client's current operations, or address other concerns.

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