Texas environmental law, McPherson & Associates, PC

OVERALL AREAS

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

Air
Waste
Water

Our practice includes all three of these areas. This website addresses waste and air concerns. We have a separate specialty website for water, so if you’re interested in water issues, click this link to visit www.texasH2Olaw.com.

This firm 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.

This page includes information about more commonly used programs and processes designed to allow businesses and landowners to mess with Texas legally.

Typical Clients
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

TYPICAL CLIENTS

We help identify and implement environmental solutions primarily for:

Buyers and Sellers of Real Estate
Commercial Businesses
Commercial Fleet Operators
Construction Industry
Developers
Industrial Businesses
Landlords and Tenants
Landowners
Operators
Recycling 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) REBATE GRANT PROGRAM

The State of Texas will pay you money to remove certain old, polluting vehicles from your fleets. Basically, those who qualify for a TERP grant get money to upgrade or replace their truck or equipment. New and upgraded equipment pollutes less, improving the air quality in Texas. The TCEQ accepts grant applications at different times throughout the year, depending on available funds. Incentive grant applications are now being accepted through July 31, 2008. Contact us to learn whether you qualify for these grants, or for help in completing an application for these grants because they are competitive grants.

Examples:

on-road heavy duty vehicles: fuel trucks, refuse and recycling trucks, dump trucks, delivery trucks, concrete trucks, haul trucks

equipment: pavers, bore and drill rigs, excavators, cranes, rubber-tire loaders, tractors, loaders, backhoes, forklifts, stationary compressors and generators

TERP funding is dependent on the county in which the business operates. The D/FW Metroplex is generally qualified for TERP assistance.

A subset of TERP, the New Technology Research and Development Program (NTRD) provides financial incentives to encourage and support research, development, and commercialization of technologies that reduce pollution in Texas through the issuance of state funded grants. The Texas Environmental Research Consortium (TERC), a non-profit organization based in Houston, Texas , administers the NTRD Program during the 2006 and 2007 fiscal years under a contract with the TCEQ.

Hurry up, because there are limited funds available and once they are granted, the program will close. Contact us today to assist you in evaluating whether you are eligible for a TERP Rebate Grant or in completing your application.

TERP EMISSIONS REDUCTION INCENTIVE GRANTS

The TCEQ is accepting applications for the TERP Emissions Reduction Incentive Grants. The application deadline for this round of funding is April 11, 2008, at 5 p.m.

This program provides grants to eligible projects in nonattainment areas (for air quality, which includes the Houston-Galveston-Brazoria; Dallas-Fort Worth; Beaumont-Port Arthur; Tyler-Longview; Austin; and San Antonio Areas) and affected counties. The grants offset the incremental costs associated with reducing emissions of oxides of nitrogen (NOx) from high-emitting internal combustion engines.

Any person (i.e., individual, business or otherwise) who operates or plans to operate on-road heavy-duty vehicles, non-road equipment, or stationary engines primarily in one or more of the nonattainment areas or other eligible counties of the state is potentially eligible for a grant. For infrastructure projects, persons owning or operating the infrastructure in an eligible county may also be eligible for funding.

Projects eligible for funding under this program are intended to reduce NOx emissions in eligible counties. Vehicles and equipment used primarily for competition or recreational purposes are not eligible for funding under any of the project categories. The TCEQ may more narrowly define or limit the types of eligible activities for a particular funding period. The types of projects that may be eligible for funding include:

On-Road Heavy-Duty Vehicles (8,500 lbs. or more) and Non-Road Equipment (25 hp or greater)
Purchase or lease
Replacement
Repower
Retrofit or add-on of emission-reduction technology
Stationary Equipment
On-Site and On-Vehicle Electrification and Idle Reduction Infrastructure

Contact us today to assist you in evaluating whether you are eligible for TERP Emissions Reduction Incentive Grant or in completing your application.

DRIVE CLEAN ACROSS TEXAS PROGRAM

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. 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. To qualify, an applicant’s vehicle must be 10 years or older, or have failed state emissions tests. It must be registered in one of the 16 counties of nonattainment or near-nonattainment for federal ozone standards. Reportedly, over 20% of the vehicles in these counties are 10 years old or older.

To qualify, a household must make less than 300% of the federal poverty level. For example, a family of four with annual net income up to $61,950 would meet the income guidelines. This program offers the following incentives toward the purchase of a replacement vehicle:

$3,000 for a car, current model year or up to three model years old
$3,000 for a truck, current model year or up to two model years old
$3,500 for a hybrid vehicle, current or previous model year.

Vehicles purchased must be on a list of qualifying vehicles, purchased from a participating car dealer, and cost less than $25,000.

In North Texas this program is administered by the North Central Texas Council of Governments. In the Houston area it is administered by the Houston-Galveston Area Council, and in the Austin area it is administered by Williamson and Travis County. Those interested in using the program must apply for vouchers through these organizations, and qualified applicants will be awarded vouchers from these organizations.

For more information check out www.driveacleanmachine.org or call 1-800-913-3321.

TEXAS RISK REDUCTION PROGRAM (TRRP)

TRRP generally regulates the cleanup and management of hazardous 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 (VCP), 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.

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 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)

MDSs are authorized by Texas Health and Safety Code Subchapter W. An MSD is helpful because it limits the scope of, or eliminates the need for, investigation of or response actions addressing contaminant impacts to groundwater that have been restricted from use as potable water by ordinance or restrictive covenant.

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.

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.

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