Our Texas Environmental Litigation Frequently Asked Questions

Over the 16 years of his practice, environmental litigator Michael Goldman has heard thousands of questions. He presents detailed answers to the most common questions he gets here. If you don’t find the answer you need, feel free to call our office.

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  • What are the typical vapor-forming chemicals with respect to vapor intrusion?

    According to the EPA’s website, vapor-forming chemicals may include:

    • Volatile organic compounds (VOCs), such as trichloroethylene and benzene;
    • Select semi-volatile organic compounds, such as naphthalene;
    • Elemental mercury; and
    • Some polychlorinated biphenyls and pesticides.

    You can learn more about Vapor Intrusion at the EPA’s website at: https://www.epa.gov/vaporintrusion/what-vapor-intrusion 

    Do you have questions? You can get our FREE ebook, Environmental Litigation: What Every Attorney and Environmental Professional Needs to Know, just by providing your name and email address at this link.  We promise your information won’t be shared with third persons. And if you’d like to speak with me about your case, I welcome your phone call at 972-850-8490. I look forward to speaking with you.

  • What is vapor intrusion?

    According to the EPA’s website, vapor intrusion occurs when there is a migration of vapor-forming chemicals from any subsurface source into an overlying building. Recognition of soil vapor intrusion to buildings and other enclosed spaces occurred in the 1980s with concerns over radon intrusion. Subsequently, there was an increasing awareness that anthropogenic chemicals (e.g., petroleum hydrocarbons and chlorinated solvents) in soil, ground water, and sewers and drainlines could also pose threats to indoor air quality via the vapor intrusion pathway.

    In extreme cases, the vapors may accumulate in dwellings or occupied buildings to levels that may pose: near-term safety hazards (e.g., explosion) and acute health effects.

    In buildings with lower concentrations of vapor-forming chemicals arising from vapor intrusion, the main concern is whether the chemicals may pose an unacceptable risk of health effects due to long-term (i.e., chronic) exposure to these lower levels.

    A complicating factor in evaluating the potential chronic risk from vapor intrusion is the potential presence of some of the same chemicals from emission sources in the building

    (i.e. household solvents, gasoline, and cleaners) that may pose, separately or in combination with vapor intrusion, a significant human health risk.

    You can learn more about Vapor Intrusion at the EPA’s website at: https://www.epa.gov/vaporintrusion/what-vapor-intrusion 

    Do you have questions? You can get our FREE ebook, Environmental Litigation: What Every Attorney and Environmental Professional Needs to Know, just by providing your name and email address at this link.  We promise your information won’t be shared with third persons. And if you’d like to speak with me about your case, I welcome your phone call at 972-850-8490. I look forward to speaking with you.

  • Does the RRC also have a voluntary cleanup program?

    Yes.  The Voluntary Cleanup Program (“RRC-VCP”) provides an incentive to remediate oil and gas related pollution by participants as long as they did not cause or contribute to the contamination.   Applicants to the program receive a release of liability to the state in exchange for a successful cleanup.  

    When cleanup is completed, the RRC will issue a certificate of completion, which embodies the release of liability to the state for a participant (and subsequent owners) who did not cause or contribute to the contamination and did not acquire the certificate by fraud, misrepresentation, or knowing failure to disclose material information.  

    Some practitioners have argued that the RRC-VCP is not as attractive as the equivalent program under the TCEQ.   With regard to the TCEQ program, current owners oftentimes have exposure for cleanup even if they did not cause the contamination and will enter the TCEQ VCP in order to avoid enforcement and to obtain a certificate of completion which permits them to more easily sell the property.  

    However, with respect to the RRC-VCP, non-operating surface interest owners generally do not have liability for oil field contamination and are therefore, less likely to volunteer to clean it up.  

    In addition, the statutory authority for the TCEQ program also permits cost-recovery claims against the responsible parties.   However, the authority for the RRC-VCP does not have an equivalent provision.  Accordingly, a person who is not otherwise liable for cleanup has less incentive to volunteer to clean it when there is no hope of collecting their costs against the responsible party.

    You can learn more about the RRC’s Voluntary Cleanup Program at the RRC’s website at: http://www.rrc.state.tx.us/oil-gas/environmental-cleanup-programs/site-remediation/voluntary-cleanup-program/

    Do you have questions? You can get our FREE ebook, Environmental Litigation: What Every Attorney and Environmental Professional Needs to Know, just by providing your name and email address at this link.  We promise your information won’t be shared with third persons. And if you’d like to speak with me about your case, I welcome your phone call at 972-850-8490. I look forward to speaking with you.

  • What is the Texas Oil Field Cleanup Fund?

    In 1991, the Texas Legislature created the Oilfield Cleanup Fund (“OFCF”) within the RRC to deal with the burgeoning abandoned well problem.   Funding for the program came from regulatory fees, permit fees, and bond fees paid by the oil and gas industry.  

    According to the RRC, “[a]n abandoned site becomes a candidate for state cleanup when the responsible party fails or refuses to take action, or is unknown, deceased or bankrupt.  Cleanup prioritization is based on public health, safety, and the protection of the environment.”

    You can learn more about the Texas Oil Field Cleanup Fund at the RRC’s website at: http://www.rrc.state.tx.us/oil-gas/environmental-cleanup-programs/oil-gas-regulation-and-cleanup-fund/

    Do you have questions? You can get our FREE ebook, Environmental Litigation: What Every Attorney and Environmental Professional Needs to Know, just by providing your name and email address at this link.  We promise your information won’t be shared with third persons. And if you’d like to speak with me about your case, I welcome your phone call at 972-850-8490. I look forward to speaking with you.

  • How is groundwater regulated in Texas?

    In Texas, groundwater ownership rights are subject to regulation and control by both the courts and the state legislature.   Groundwater may either be managed individually by landowners under the “rule of capture” or collectively by landowners and groundwater conservation districts (“GCDs”).  

    Under the “Rule of Capture,” landowners may pump as much water as they choose, without liability to surrounding landowners who might claim that the pumping is depleting their wells.  There are very few restrictions to the rule of capture.” 

    The Texas Legislature has authorized the creation of GCDs as the State’s preferred method of groundwater management.  These districts are empowered and charged to conserve, preserve, protect, recharge, and prevent waste of groundwater resources within their boundaries.  GCDs may be created through a special legislative act, a landowner petition process to the TCEQ, a landowner petition process to join an existing GCD, or TCEQ initiative in a priority groundwater management area.  

    It should be noted that section 36.117 of the Texas Water Code prohibits the issuance of a permit for the drilling of a water well used solely to supply water for a rig that is actively engaged in drilling or exploration operations for oil and gas.  

    In addition, the RRC regulates groundwater in Texas.  According to the RRC, much of the water used in association with hydraulic fracturing activities is saline or brackish water produced from the same formations where the oil fields are located.  

    A very small percentage of the water used for enhanced recovery is fresh water or slightly saline water produced from outside sources as needed to replace the volume of oil removed.  Saline or brackish water is drawn from underground reservoirs that are below the base of usable quality water.  The RRC requires a permit for wells associated with oil and gas activities that draw such water from formations below the base of usable quality water. 

    Recently, the Texas Supreme Court held that landowners have an ownership interest in the water beneath their property that cannot be taken for public use without adequate compensation under the Texas Constitution.   Texas courts have long held that landowners have ownership in oil and gas beneath their property, and the court found no reason to treat groundwater differently.   Accordingly, under Texas law, landowners are regarded as having absolute title in severalty to the groundwater in place beneath their land.   The Court stated that “[t]he only qualification of that rule of ownership is that it must be considered in connection with the law of capture.”   Therefore, “a landowner has a right to exclude others from groundwater beneath his property, but one that cannot be used to prevent ordinary drainage.”   Moreover, landowners have a constitutionally compensable interest in groundwater.   On remand, the lower court must determine whether an agency’s denial of a landowner’s application for a drilling permit constitutes a taking under the facts of this case. 

    Do you have questions? You can get our FREE ebook, Environmental Litigation: What Every Attorney and Environmental Professional Needs to Know, just by providing your name and email address at this link.  We promise your information won’t be shared with third persons. And if you’d like to speak with me about your case, I welcome your phone call at 972-850-8490. I look forward to speaking with you.

  • How is surface water regulated in Texas?

    In Texas, the water that flows in creeks, rivers, and bays is owned and managed by the state.   If a person diverts such water, he must have authorization (or a water right) from the state through the TCEQ.   Consequently, a person who withdraws surface waters for hydraulic fracturing activities must obtain a water rights permit from TCEQ. 

    Do you have questions? You can get our FREE ebook, Environmental Litigation: What Every Attorney and Environmental Professional Needs to Know, just by providing your name and email address at this link.  We promise your information won’t be shared with third persons. And if you’d like to speak with me about your case, I welcome your phone call at 972-850-8490. I look forward to speaking with you.

  • What is a plaintiff entitled to in a citizen suit?

    The citizen suit provisions allow the violator to be fined a maximum penalty for each day it is in violation. The amounts have increased several times over the years. For instance, the CWA originally provided a maximum penalty of $25,000, which has now increased to $37,500 per day.

    The monetary exposure for a defendant can quickly add up if the lawsuit involves violations over several years.  All fines awarded by the court are payable to the federal treasury rather than the citizen group. 

    Do you have questions? You can get our FREE ebook, Environmental Litigation: What Every Attorney and Environmental Professional Needs to Know, just by providing your name and email address at this link.  We promise your information won’t be shared with third persons. And if you’d like to speak with me about your case, I welcome your phone call at 972-850-8490. I look forward to speaking with you.

  • Are citizen suits asserted in pollution lawsuits?

    Yes.  I represent both plaintiffs and defendants throughout the United States in lawsuits in which citizen suits have been asserted.  In addition to “cost-recovery” claims under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”) or a state equivalent, for instance under the Texas Solid Waste Disposal Act (“SWDA”), plaintiffs sometimes also assert citizen suits under several federal environmental statutes (e.g. “RCRA”) as “private attorney generals” which entitles them to statutory penalties, injunctive relief as well as attorney’s fees.  

    RCRA is essentially a codification of common law public nuisance remedies and, therefore, incorporates the legal theories used for centuries to assess liability for creating a public nuisance (including the theories of tort, negligence, and strict liability) and to determine the appropriate remedies.

    RCRA contains two citizen suit provisions which permit a party to file suit on behalf of the federal government as “private attorney generals” in order to enforce its provisions.  Section 6972(a)(1)(A) provides that any person may commence a civil action against any person who is alleged to be in violation of any permit, standard, regulation, condition, requirement, prohibition, or order. 

    Section 6972(a)(1)(B) allows an action against any person who has contributed or is contributing to the past or present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste which may present an imminent and substantial endangerment to health or the environment. 

    The continued presence of waste previously disposed of is actionable if it presents an imminent and substantial endangerment to health or the environment.   Typically, contaminants present above state action levels meet this standard and therefore this claim is an option in pollution lawsuits.

    Do you have questions? You can get our FREE ebook, Environmental Litigation: What Every Attorney and Environmental Professional Needs to Know, just by providing your name and email address at this link.  We promise your information won’t be shared with third persons. And if you’d like to speak with me about your case, I welcome your phone call at 972-850-8490. I look forward to speaking with you.

  • What is a citizen suit?

    The enforcement mechanisms of the environmental statutes in the 1960s were both cumbersome and ineffective.  As interest in environmental protection grew, awareness of the lack of adequate enforcement also increased. This awareness led to a significant enhancement of enforcement tools in the 1970s as well as the creation of citizen suits which were intended to be actions by “private attorneys general”—that is, lawsuits that were brought under federal environmental statutes in the public interest by citizens seeking to enforce violations of environmental laws.

    The citizen suit was initially launched as part of the Clean Air Act (“CAA”). Thereafter, similar provisions were included in most new federal environmental statutes or amendments to existing statutes including the Endangered Species Act (“ESA”), the Clean Water Act (“CWA”), the Resource Conservation and Recovery Act (“RCRA”), and many others. 

    The citizen suit sections of the various environmental statutes are virtually identical, being patterned closely after the CAA’s.  For the most part, those sections authorize “any person” to commence suit to enforce the requirements of the acts against “any person” alleged to be in violation.

    Do you have questions? You can get our FREE ebook, Environmental Litigation: What Every Attorney and Environmental Professional Needs to Know, just by providing your name and email address at this link.  We promise your information won’t be shared with third persons. And if you’d like to speak with me about your case, I welcome your phone call at 972-850-8490. I look forward to speaking with you.

  • How are environmental enforcement matters resolved?

    Settlements in administrative actions are often in the form of consent agreements/final orders (CA/FOs) or administrative orders on consent (AOCs).  Settlements in judicial actions are in the form of consent decrees signed by all parties to the action and filed in the appropriate court. 

    A party typically negotiates civil penalties which are monetary assessments paid by a person or regulated entity due to a violation or noncompliance. Supplemental Environmental Projects (SEPs) and Mitigation can also be part of an enforcement settlement.  In criminal matters, defendants pay fines imposed by a Judge at the sentencing. In addition to criminal penalties, the defendant may be ordered to pay restitution to those affected by the violation.

    Do you have questions? You can get our FREE ebook, Environmental Litigation: What Every Attorney and Environmental Professional Needs to Know, just by providing your name and email address at this link.  We promise your information won’t be shared with third persons. And if you’d like to speak with me about your case, I welcome your phone call at 972-850-8490. I look forward to speaking with you.