Texas Law
Texas Environmental Law
- Environmental Law
Environmental Law
State and federal environmental laws can touch many areas of business. Some business owners have become so concerned over potential liability that their environmental concerns make or break deals. The laws regulate numerous activities ranging from the handling of dangerous chemicals and the disposal of toxic waste to the building of new facilities and the rights of workers to know which chemicals are present in the workplace. Awareness of laws and regulations in this area can help a savvy business owner avoid substantial future costs and liability for noncompliance. Businesses that comply with environmental laws and regulations also are more likely to avoid exposure to liability for toxic torts. This chapter identifies and describes some of the primary environmental issues of concern to business owners.
Regulatory Agencies
During the 1960s, both federal and state legislators became aware of the need to protect the environment, and began passing laws in an effort to clean up pollution and to protect people and places from further contamination. As legislators enacted more laws and regulations, the need for an agency to oversee and coordinate these efforts to protect the environment became apparent. President Nixon issued an executive order establishing the Environment Protection Agency (EPA). Its mission is to establish regulations, set standards for emissions, determine which chemicals are hazardous, and coordinate its policies with the states' programs. Various governmental agencies are responsible for establishing and implementing environmental law in Texas. Central among these is the Texas Natural Resource Conservation Commission (TNRCC). The TNRCC was formed in 1993 by a merger of the Texas Water Commission and the Texas Air Control Board. In this merger the Department of Health also transferred responsibility of regulating municipal solid waste, water hygiene, and radioactive waste disposal to the TNRCC. The TNRCC has authority for various permitting functions, handling applications for water use and storage, and creating local districts for the conservation and use of the state's water. It also carries out the regulatory functions of the federally mandated programs.
The Texas Water Development Board is responsible for water-supply planning and water financing. Other activities include development and maintenance of the state water plan, administering the Texas Development Fund and Water Assistance Fund, operating the Texas Natural Resources Information System, and coordinating the state's plans with federal agencies developing federal water projects in Texas.
The General Land Office administers all state-owned land programs and is responsible for coastal zone management. The Governor's Budget and Planning Office serves as a clearinghouse for the distribution of federally required environmental assessments and impact statements to the applicable state agencies.
Categories of Environmental Concern
There are four general categories of environmental concern of which businesses should be aware. These categories are water quality, air pollution, hazardous waste, and solid waste.
Water Quality
Businesses are responsible for the effect their operations may have on water quality. Texas' water protection programs are carried out by various divisions within the TNRCC. The state has three categories of water quality designations: contact and non-contact recreation, domestic water supply, and aquatic life. The domestic water supply and aquatic life designations especially affect businesses. The state imposes limitations on concentrations of heavy metals, pesticides, and toxic and chemical materials with regard to water with these quality designations.
The TNRCC has assumed an aggressive enforcement stance to encourage uniform compliance by those holding wastewater discharge permits. Penalties of up to $10,000 per day may be assessed and individuals not complying with the permit requirements for an extended period face mandatory enforcement hearings before the TNRCC. In addition, administrative penalties may be assessed.
National Pollution Discharge Elimination System (NPDES) permits are required of anyone who intends to emit any pollutant into state surface waters, including noncontact cooling water and air conditioning or heat-pump water. Firms subject to these requirements must deal with the EPA Region IV Office in Dallas as well as the TNRCC, because Texas has not assumed final jurisdiction of programs under the Clean Water Act. The state tries to keep duplication of requirements to a minimum. Holders of water discharge permits must periodically report their compliance with the terms of the permits, including flow measurements and sample analysis results. Companies producing leather, glass, asbestos, rubber, and timber products are subject to additional EPA water discharge requirements.
Air Pollution
Laws regulating air pollution are designed to limit industry emission of airborne pollutants that may be harmful to people, plants, and animals. In Texas, these air quality standards, which were established by the federal government by the Clean Air Act, are enforced by the TNRCC.
As required by the EPA, the TNRCC reports an air pollution standards index (PSI) for cities with 200,000 or more residents. The index is based on measured levels of major air pollutants, such as particulates, ozone, carbon monoxide, and sulfur dioxide, and--during summer--mold and pollen. In other areas, levels may be estimated through computer modeling. The levels are a major factor in the State Implementation Plan (SIP) that the TNRCC must file with the EPA to demonstrate attainment of federal air quality standards. Attainment or non-attainment affects the issuance of permits to businesses that emit pollutants.
Emission of pollutants can occur either directly or indirectly. Indirect sources include vehicle emissions from heavy traffic drawn to certain businesses locations, such as hotels and shopping centers. Direct emissions are those that come from buildings, machines, or processes that emit pollutants. A person who owns or operates a facility that emits pollutants must comply with all applicable air pollution controls, and may be required to obtain a permit. In most cases, at least 180 days are needed for processing a permit application.
Some TNRCC rules apply even though the business does not have direct air emissions for which a permit is required. Businesses are liable for air pollutants such as odors, dust created by business operations and carried by the winds, and smoke caused by open burning. Every business must notify the TNRCC immediately of any releases to the air that might endanger human health, damage property, or create a public nuisance, and the business must take any steps necessary to prevent such releases. Businesses that should be particularly aware of air quality rules include grain elevators, concrete plants, sand and gravel operations, and building demolition companies, as well as those that use boilers, incinerators, generators, and solvent-borne coatings.
Indoor air quality has received attention in recent years. "Sick-building syndrome" refers to a building with extensive indoor pollution that causes its inhabitants to suffer physical symptoms, and is most likely to occur in buildings constructed between 1973 and 1990, due in part to inadequate ventilation. Contributors to indoor air pollution include formaldehyde in particle board, plywood, furniture, and carpets; benzene in synthetic fibers, plastics and cleaning supplies; mercury and lead in paint; asbestos; dust; pollen; mold; and tobacco smoke. Texas has established rules governing smoking in various public places.
Hazardous Waste
Hazardous waste is waste in any form that may cause serious illness or death or is otherwise dangerous to human health. A waste is said to exhibit a hazardous characteristic if it is flammable, oxidizable, corrosive, reactive, or toxic. Texas has led the nation in the generation of hazardous waste due to the fact that it produces over half of the country's petrochemicals and has 20 percent of its refining capacity. It also has been a net importer of hazardous waste.
Regulation of Hazardous Wastes
The TNRCC is the regulating authority for hazardous waste. It regularly updates its rules to incorporate changes in EPA programs. Generators and transporters of hazardous waste, as well as operators of treatment, storage, and disposal facilities, must comply with all applicable rules, including general rules not yet incorporated into state rules. Every industry that generates waste is required to determine whether its waste is hazardous either by locating the waste on a list of hazardous substances or by conducting tests. Each transporter of hazardous waste must have an EPA identification number and be registered to haul hazardous waste in the destination state. Generators also are required to have EPA identification numbers and licenses (renewable annually), and must submit annual disclosure statements. Every generator must name an emergency coordinator who is on call for disasters. They also must post emergency notification information and locations of emergency control equipment and alarms. If a spill occurs, the emergency coordinator or person in control must contain it and clean it up, and call the State Emergency Response Commission or the TNRCC.
Superfund
"Superfund" was enacted by Congress to identify and clean up sites that have been contaminated by hazardous substances. Superfund imposes liability on those responsible for release of a hazardous substance, pollutant, or contaminant. The liability is "strict liability," meaning that it does not matter whether the company was negligent. If the company was the cause of the contamination, it is liable. Further, this liability can be imposed retroactively so that the company responsible may be liable even for contamination that occurred before the law was enacted. Penalties for noncompliance in this area are severe.
Generally, persons who owned or operated a facility when it was contaminated, or who transported or disposed of the contaminant, can be held responsible. However, under the "innocent landowner exclusion," an owner of contaminated property may not be liable if he or she did not know or had no reason to know of the contamination and was in no way associated with the contamination. In addition to the persons named by statute as responsible for the contamination, courts have extended liability to those who held an interest in any corporation responsible for the contamination and who had the power to prevent the damage from occurring. Therefore, corporate officers, directors, and even shareholders can be held personally liable for the cleanup. Parent and successor corporations have even been held liable under Superfund. An employee may be liable only if he or she knew the substance was hazardous and acted negligently, but an employer is responsible regardless of the degree of care exercised by an employee. Responsible persons under Superfund also are referred to as "potentially responsible parties" or PRPs. PRPs may have to pay the costs incurred by the state to clean up and remove the damage or contamination, and may be liable for economic losses and personal injuries. The only defense to the Superfund laws recognized by the courts is that the release of contaminants was caused by an act of God, an act of vandalism or war, or an act of a third party.
Once a contaminated site has been discovered, an extensive system of assessment, cleanup, and monitoring begins. Researchers must determine the total scope and effect of the contamination as well as the best way to conduct the cleanup. Also, monitoring of the site may go on for many years after the initial cleanup has been completed.
Employee Right-To-Know
Under the Hazard Communication Act, most employers are required to evaluate their workplaces for any hazardous substances and to provide information and training to workers about the substances that they may encounter. Written information on the hazards must be readily available to staff, and the labeling of substances must conform to certain requirements. The Act includes lists of hazardous substances and harmful physical agents to assist employers in evaluating their work sites. The Act is administered by the Texas Board of Health.
Community Right-To-Know
Under federal law, businesses that manufacture, store, or use hazardous substances must report their inventories to local emergency-planning agencies to help these agencies in the event of an unplanned release, fire, or similar disaster. In Texas, the agency that collects the information is the State Emergency Response Commission in the Department of Energy Management. In addition to inventories, employers are required to report estimates of maximum combined quantities of hazardous substances and the name of a responsible person who is always on call in case of emergency. Filing fees are determined by a formula based on the number of chemicals reported.
Solid Waste
Solid waste includes garbage, refuse, sludge, and other waste materials resulting from industrial activities, including mining and agricultural operations. Certain waste--including hazardous waste, earthen fill, and sewage sludge--are specifically excluded from the definition because they are covered by different regulations. Industrial solid waste means any non-hazardous waste generated by an industrial source, regardless of its nature. Management of solid waste is shared by the TNRCC and Texas municipalities. Industries that use landfills, or otherwise dispose of wastes on-site are not required to obtain permits. However, they must register their activities with the TNRCC. Companies also may use municipal landfills but only with approval of the applicable governmental office. Commercial off-site industrial waste disposal facilities must have permits. Texas law prohibits placing tires, lead-acid batteries, used motor oil, and other such items in landfills. A business concerned with the rules and regulations at a particular facility should contact the operator of the facility.
Special Categories of Environmental Concern
Some categories of pollutants or environmental nuisance that might fit into one of the above broad areas of environmental concern are treated separately under the law because of some special characteristic of the pollutant or the generator, or because political pressures force the government to treat these pollutants or nuisances differently.
Infectious Waste
Infectious waste includes laboratory waste, blood and blood products, certain bodily fluids, research animal waste, and sharp instruments such as needles and scalpel blades. In Texas, medical waste management is the responsibility of the Municipal Solid Waste Division, which provides rules for labeling and packaging of waste by hospitals and clinics. It also requires that commercial transporters of medical waste be licensed. Because the regulations governing infectious waste are quite technical, generators should seek expert advice to devise procedures for collection, storage, marking, transportation, and disposal of infectious waste.
Asbestos
Various laws regulate the use and disposal of asbestos. Asbestos is listed as a hazardous substance under Superfund. The EPA regulates the reporting of commercial and industrial uses of asbestos and the control and abatement of asbestos-containing materials in schools. Emissions of asbestos into the air are regulated under the federal Clean Air Act. Various federal and state laws regulate discharge of asbestos into waters. Asbestos exposure in the workplace is governed by the federal Occupational Safety and Health Administration (OSHA). The basic legal requirement for all areas of business, except construction, is to maintain a workplace that is free of asbestos hazards. If the concentration of airborne asbestos fibers rises above a certain threshold level, a business must begin air monitoring and medical surveillance of employees. If it rises above a specified maximum level, the business must provide its employees with protective clothing and equipment, such as respirators, and make sure that they are used. The protective gear must be removed only in designated changing rooms and stored in closed containers to prevent spreading asbestos in the air, and it must be cleaned weekly. Requirements for construction--including alteration, repair, painting, and decorating--are somewhat different from general industry standards. The strictest rules apply to asbestos abatement activities, while short-term, small-scale activities and construction operations in which asbestos does not exceed a threshold level for more than 30 days per year are exempt from some requirements. Medical surveillance is required less often under the construction standard than under the general industry standard. Demolition of buildings (except for apartment buildings with fewer than four units) must be reported to the EPA at least ten days prior to the start of asbestos removal or, if there is no asbestos involved, at least ten days prior to demolition.
Under both the general industry and construction standards, employers must institute training programs for employees who may be exposed to asbestos. Violation of asbestos standards may result in monetary and criminal penalties.
Storage Tanks
Abandoned or leaking storage tanks are common sources of water and ground pollution. Many tanks that once held toxic substances such as petroleum were buried, poorly maintained, and eventually forgotten. Years after they were last used, they continue to pollute the soil surrounding them and can be a major liability for property owners. Federal and state storage tank regulations are intended to prevent the release of substances that may be hazardous to human health and the environment. Regulations also contain provisions for the cleanup of leaks and damage caused by these storage tanks.
In 1989, the Petroleum Storage Tank Division was created to register tanks, license storage tank installers, provide technical support and enforcement, and provide corrective functions. The Division also oversees Texas' Petroleum Storage Tank Remediation Fund.
Electromagnetic Fields
Electrical and magnetic fields (EMFs) surround all electrical conductors, such as radio, television, and microwave transmitters; transmission lines; and personal computers. Although building materials shield electrical fields, magnetic fields pass easily through almost anything, including buildings and the human body. Some research studies suggest that electromagnetic fields may play a role in diseases such as cancer and Alzheimer's disease. Concern over possible deleterious health effects has resulted in job-related litigation involving claims of detrimental on-the-job exposures to EMFs, although OSHA currently does not regulate EMF exposure in the workplace. Large commercial buildings often have transformer and switching rooms that can generate extremely strong EMFs, and office wiring can produce high fields. Computer monitors and copy machines are two common pieces of office equipment that produce intense magnetic fields. The fields projected by computer monitors are much stronger at the backs and sides of the monitor than at the front. Offices can be designed to minimize workers' exposure to the sides and backs of other workers' monitors, and thus, their exposure to EMFs. In Texas, the Public Utility Commission has recommended that these lines be kept away from homes and schools if feasible.
As more research on this topic is conducted, it is expected that litigation and regulation related to EMFs will increase.
Stray Voltage
Stray voltage is a phenomenon that has become an issue in dairy farming. Under certain circumstances, electrical use and distribution lines on a farm can result in low voltage electrical current that flows through cows, affecting the animals in various ways and often resulting in decreased milk production. Dairy farmers have successfully sued electrical utilities, holding them liable for milk production loss. In many cases, the source of the problem is incorrect or improper wiring, faulty electrical equipment, improper grounding, dirt, moisture, or bad connections. Questions regarding stray voltage issues should be directed to the Texas Public Utility Commission.
Toxic Torts
Texas defines a toxic tort as a cause of action for damages arising out of or caused by exposure to, or the release into the environment of, hazardous chemicals, wastes, hydrocarbons or similarly harmful organic or mineral substances, or radiation. This includes torts arising out of exposure to such substances in the workplace. A business, therefore may be liable to employees or others exposed to and injured by toxic substances. A defendant is liable to the claimant, however, only for the percentage of the damages equal to the defendant's percentage of responsibility for the personal injury, property damage, death, or other harm for which the damages are allowed. Under some circumstances, the amount of recovery be limited.
Recycling
Recycling in Texas is governed by numerous state, county, and municipal regulations. Recently, municipalities have dramatically increased their involvement in recycling by directly entering the market as recyclers, by contracting out for recycling services, and by putting more regulations on recycling businesses.
The Texas Legislature enacted extensive recycling regulations in 1991. The TNRCC, along with the General Land Office, the General Services Commission, and the Texas Department of Commerce, provide support for and coordinate the recycling activities in Texas, and pursue an economic development strategy that includes development of recycling industries and markets. State agencies are encouraged to purchase recycled materials, and schools and local agencies are required to develop recycling programs. The legislature also has set up programs for recycling newsprint, lead-acid batteries, tires, and other products.
Real Estate Transactions
Under Texas law, a seller of residential real property must fill out a form disclosing whether the seller is aware of any hazardous, toxic waste, or asbestos components on the property. State law does not require that the owner certify property to be clean prior to transfer.
As stated earlier, "innocent landowners" have some protection from liability related to contamination of real property. However, to use this defense, an owner must have exercised due diligence in determining the condition of the property at the time of purchase. An environmental site assessment can apprise a purchaser of a site's condition and any potential liability. A review of TNRCC and EPA records relating to the property and adjacent land is recommended. Often, an ounce of prevention is worth a pound of cure when it comes to environmental problems stemming from real estate deals. It can be very wise to have a thorough site investigation performed before purchasing any property that may be contaminated or that might contain an underground storage tank. An experienced environmental law attorney can advise on how best to protect one's business in routine real estate transactions.
Resources
The Texas Natural Resource Conservation Commission (TNRCC) is the primary state-level environmental agency in Texas. It is located at P.O. Box 13087, Austin, TX, 78711-3087. For general information, call (512) 239-1000. The Public Information and Education Division can be reached at (512) 239-0010 or 239-0050. To report a hazardous waste emergency, call (512) 463-7727.
The TNRCC oversees the Texas Waste Management Office, P.O. Box 13087, Austin, TX, 78711, (512) 239-2104.
Other hazardous waste emergencies may be reported to the State Emergency Response Commission, c/o Department of Public Safety, Energy Management Division, 50805 Lamar Street North, P.O. Box 4087, Austin, TX 78773-0001, (512) 465-2138 (24 hours).
For questions about permitting and enforcement regarding air pollution, call Air Pollution Control, Permitting and Enforcement, (512) 239-5445.
The permitting section of the Water Pollution Control Department can be reached at
(512) 239-4300.
Questions about solid waste should be directed to Waste Management Programs, Deputy Executive Director, (512) 239-2104; hazardous waste is handled by the Industrial and Hazardous Waste Division, (512) 239-2334.
The United States Army Corps of Engineers, Southwestern Division, can be reached at 1114 Commerce Street, Dallas, TX, 75242-0216, (214) 767-2500.
Federal environmental laws are enforced by the Environmental Protection Agency, 401 M Street S.W., Washington, DC 20460, Agency Locator Service, (202) 260-2090; Region VI, 1445 Ross Dallas, TX, 75202-2733, (214) 665-6444.