April 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

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

Office Locations:
› Washington, DC
› Maryland
› New York
› New Jersey
› Massachusetts
› Texas
› California

TEXAS DEVELOPMENTS

U.S. Supreme Court Rejects Petition to Hear Regulatory Takings Case Against State of Texas

On April 22, the U.S. Supreme Court denied a petition filed by Hearts Bluff Game Ranch (the "Ranch") for review of a Texas Supreme Court decision that denied a takings claim brought by the Ranch against the State of Texas and the Texas Water Development Board. In its petition, the Ranch argued that the Texas Supreme Court failed to perform the fact-specific analysis the U.S. Supreme Court has found to be necessary in regulatory takings cases.

Texas is Among States Filing Petition for Cert with U.S. Supreme Court on GHG Rules

On April 19, 2013, Texas, along with eleven other states, submitted a petition for ceriorari  to the U.S. Supreme Court asking the Court to reconsider aspects of its 2007 decision in which the Court held that EPA has authority to regulate greenhouse gas ("GHG") emissions as air pollutants under the Clean Air Act (Massachusetts v. EPA, 549 U.S. 497, 63 ERC 2057 (2007)). Along with other assertions, the petitioners argue that the Supreme Court should limit its decision in Massachusetts v. EPA to apply only to emissions from motor vehicles, which were the subject of that decision. They also request that the Supreme Court reconsider that decision in light of the "preposterous consequences" associated with the application of greenhouse gas regulations to stationary sources.

Supreme Court Invites Solicitor General to File Brief Expressing United States Views on Texas-New Mexico Water Dispute

On April 15, the U.S. Supreme Court invited the U.S. Solicitor General to file a brief expressing the views of the United States regarding a complaint filed in the U.S. Supreme Court by the State of Texas against the State of New Mexico regarding the allocation of water carried by the Rio Grande river. Texas’ complaint alleges that the the Rio Grande Project Act, enacted by the U.S. Congress in 1905, and the Rio Grande Compact, signed in 1938 by Texas, New Mexico and the State of Colorado ("Colorado"), require New Mexico to deliver specified amounts of Rio Grande water into Elephant Butte Reservoir, located near Engle, New Mexico.

Texas Federal Court Dismisses CERCLA Contribution Claimed Based on Alleged "Re-Contamination" of Former Superfund Site

On March 28, a Texas federal court granted summary judgment to the purchasers of part of a former Superfund site in Port Arthur, Texas, on a contribution claim brought by the sellers under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). The former owners of the State Marine Superfund site, Chester L. Slay and several affiliated trusts (the "Slay Parties"), had been sued by the United States in an action seeking environmental cleanup costs under CERCLA § 107. The Slay Parties in turn sued the purchasers (various affiliates of New Birmingham Resources, Inc., or "NBR"), claiming that although the site had been remediated prior to the sale, NBR had "re-contaminated" it by dredging contaminated soil in front of the property, thus exposing the Slay Parties to potential additional CERCLA cleanup costs.

TCEQ and EPA Reach Agreement re GHG Permitting

On April 4, 2013, EPA Region 6 issued a letter  that followed from lengthy debate between TCEQ and EPA regarding which agency has authority to permit non-greenhouse gas ("non-GHG") emissions above prevention of significant deterioration ("PSD") significance levels when PSD review is triggered solely by GHG emissions.

Environmental Groups Request Probe Into Startup, Shutdown, Malfunction and Maintenance Events

In a letter submitted by the Environmental Integrity Project ("EIP"), environmental groups have asked the EPA Inspector General to undertake a probe into startup, shutdown, malfunction and maintenance emissions of 20 companies in Texas that occurred during the period of 2009 to 2012. The groups specifically request that the Inspector General review enforcement taken by USEPA and TCEQ regarding facilities reporting the largest and most frequent events, and, in particular, examine how the affirmative defense has been applied in those cases. (Letter at 2.)

New Hydraulic Fracturing Water Recycling Rules Published in Texas Register

On April 12, 2013, new hydraulic fracturing water recycling rules (the "Water Recycling Rules") adopted by the Texas Railroad Commission on March 26, 2013 were published in the Texas Register. The Water Recycling Rules were adopted in order to encourage Texas hydraulic fracturing operators to conserve water used in the hydraulic fracturing process for oil and gas wells.

Texas SIP Update

On April 2, 2013, EPA published approval of revisions to the Texas State Implementation Plan ("SIP") for the Houston/Galveston/Brazoria ("HGB") 1997 8-hour ozone nonattainment area ( 78 Fed. Reg. 19599 ). The action finalizes EPA’s proposed approval of portions of two SIP revisions Texas submitted as meeting certain Reasonably Available Control Technology requirements for volatile organic compounds and oxides of nitrogen in the HGB area. EPA also finalized its proposal to approve the 2007 Voluntary Mobile Emission Reduction Program commitments for the HGB Area. The revisions will be effective on May 2, 2013.

TERP Program Rebate Grants Available

The Texas Commission on Environmental Quality ("TCEQ") is accepting applications for the Texas Emissions Reduction Plan ("TERP") Rebate Grants Program, for which $5,000,000 is currently available. Grants under this program are available for replacing or upgrading older diesel vehicles or equipment.

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 April can be found on TCEQ’s website - April 10 and April 23 .

Recent Texas Rules Updates

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

NATIONAL DEVELOPMENTS

Important D.C. Circuit FOIA Ruling Affirms Agencies’ Obligation To Provide Substantive, Appealable Determinations Promptly in Response to FOIA Requests

The U.S. Court of Appeals for the D.C. Circuit has issued a significant decision holding that the common agency practice of providing open-ended initial responses to requests for records under the Freedom of Information Act ("FOIA") violates statutory requirements for prompt agency "determinations" and that judicial review of incomplete responses may be available after the initial 20-business-day period for agency responses to FOIA requests. The ruling should prompt agencies to provide more substantive and robust initial determinations and provide requesting parties with faster and more reliable access to federal courts to challenge an agency’s failure to respond or decision to withhold records.

EPA Proposes Changes to Storage Tank Provisions of 2012 NSPS for Oil & Natural Gas Sector

On April 12, 2013, in response to a number of industry petitions for reconsideration, EPA proposed amendments to NSPS Subpart OOOO requirements for storage vessels, 78 Fed. Reg. 22,125 (Apr. 12, 2013). The amendments provide additional time for some vessels to install controls, temporarily suspend certain monitoring requirements, provide an alternative compliance option, and make other changes to definitions, testing, and reporting requirements. The Agency will accept comments until May 13, 2013.

"Safe Chemicals Act," First TSCA Reform Bill of 113th Congress, Reintroduced

On April 10, 2013, Senator Frank Lautenberg (D-NJ) reintroduced the "Safe Chemicals Act" to "amend the Toxic Substances Control Act (TSCA) to ensure that risks from chemicals are adequately understood and managed."[1] The 2013 bill, S. 696, is identical to the version of the Safe Chemicals Act that was approved by Democrats in the Senate Environment and Public Works (EPW) Committee in December 2012 on a party line vote, but which died at the end of the 112th Congress having seen no further activity.

Safe Cosmetics and Personal Care Products Act of 2013 Mirrors TSCA Proposals, Would Greatly Expand FDA Authority Over Cosmetics

Representative Janice Schakowsky (D-IL), with fifteen co-sponsors, has introduced legislation in the House of Representatives to dramatically increase Food and Drug Administration (FDA) oversight of chemicals in cosmetics and other personal care products. The Safe Cosmetics and Personal Care Products Act of 2013, H.R. 1385 , includes a number of provisions also included in the Safe Chemicals Act of 2013, S. 696, a bill to modernize the Toxic Substances Control Act (TSCA). The bill would fundamentally transform the regulation of cosmetics and their ingredients. It expands on prior proposals in a number of respects. The bill, introduced March 21, 2013, has been referred to the House Committee on Energy and Commerce and to the Committee on Education and the Workforce.

Owner of Electronics Export Company Receives a 30-Month Prison Sentence

Washington, DC –On March 22, 2013, the Federal District Court for the Eastern District of Michigan sentenced Discount Computers, Inc. ("DCI"), a computer company, and its owner for trafficking in counterfeit goods and services and for violating environmental laws related to the fraudulent export of cathode ray tubes ("CRTs). The prosecution of DCI, along with the December 2012 prosecution of a Colorado electronics recycler for illegal exportation of CRTs, demonstrate the federal government’s increased focus on using existing laws to pursue criminal enforcement to address the illegal handling and disposal of e-waste.

FIRM NEWS & EVENTS

Beveridge & Diamond Secures Class Certification Denial in Drinking Water Case

Litigators in Beveridge & Diamond’s Washington, D.C. office secured a denial of class certification on behalf of the District of Columbia Water and Sewer Authority ("DC Water") in a major class action relating to claims of injuries due to lead allegedly found in drinking water in the city.

Beveridge & Diamond Named to National Law Journal’s "Midsize Hot List" for Third Consecutive Year

The National Law Journal has again included Beveridge & Diamond on its "Midsize Hot List." The list recognizes 20 law firms of between 50 and 200 lawyers who stand out from their peers and from larger firms with unique business strategies and practice success. 2013 marks the third consecutive year that Beveridge & Diamond has been so honored.

Nadira Clarke Named a "Rising Star" by Diversity & the Bar Magazine

Beveridge & Diamond, P.C. is pleased to announce that Nadira Clarke has been named a "Rising Star" by The Minority Corporate Counsel Association’s (MCCA) Diversity & the Bar magazine.

Beveridge & Diamond Receives Supplier Excellence Award from SunCoke

Beveridge & Diamond, P.C. has been selected as a recipient of SunCoke Energy’s Supplier Excellence Award. The award recognizes firms that show outstanding support of SunCoke’s 2012 business priorities and make a positive impact on the organization through savings, relationship, innovation, and other services that make an impact on their strategic drivers.

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