Wednesday, February 13, 2013

ENVIRONMENTAL DEFENSE

WHEN MOTHER NATURE CALLS

     Being charged or investigated for an environmental violation is not only time consuming, but expensive, stressful, and humbling.

     The Travis County District and County Attorney have joint and statewide jurisdiction of all environmental prosecutions at the state level in Texas.  Their investigative and prosecution powers extend to civil as well as criminal penalties.

     On the civil side, the powers of these governmental entities extend to the enforcement of subdivision regulations, stormwater violations, fire code violations, floodplain violations, and nuisances.  On the criminal side, violations can be prosecuted under the Health and Safety Code, Transportation Code, or the Texas Water Code, and others.

     The substantive areas covered are WATER, LAND, and AIR.

   WHO IS RESPONSIBLE--Individuals and non-individuals can be held criminally responsible.  Non-individuals include: corporations, LLC's, partnerships, associations, and trusts.  Also, facilitators such as those involved in the causing, suffering, permitting, or allowing of the activity.

     PUBLIC NUISANCES/SOLID WASTE--Anything that typically interferes with the use and enjoyment of the land is generally considered a public nuisance.  Generally, land conditions such as junked cars, refuse, unsightly, unsafe, or unsanitary conditions will draw the attention of these enforcers.  Solid waster regulation usually falls under Health & Safety Code Chapters 361 & 365, 30 Texas Administrative Code 330, and various County Codes.  What is the difference?  LOCATION, DURATION, & CONDITION!

     Solid Waste can be garbage or litter, Municipal or Industrial.  It can be in an unapproved place or disposed of in an unapproved manner.  It can depend on how it is processed, stored, transported, or received.  It can be prosecuted according to weight or volume.  It doesn't matter if the accused didn't dump it, or it was on their own property, or they are recycling it, or they didn't know it was wrong, or they are still using it.

     WATER/AIR POLLUTION--For water, the relevant codes are Texas Water Code Chapters 7 & 26.  The Discharge of waste or pollutants can be either permitted or non-permitted.  For air, the Health & Safety Code Chapter 382, Texas Water Code 7.177(s)(5) and 30 TAC 101, 106, 111 govern.  Yes, outdoor burning is governed by these codes, but there are exceptions-What, Why, How, Where, & When.

      What is not proper to burn?  Insulation, treated lumber, plastics (non-packaging), non-wood construction and demolition materials, heavy oils, asphaltic materials, potential explosives, chemical wastes, items containing rubber, tires, furniture, and carpet.  This can include smoke, fumes, or odors that harm humans, animals, or vegetation.

CONTAMINANTS-Pb, HAPs, VOCs, PM10, NOx.  Permitted?  Maybe, for surface coating, food processing, surface preparation, metallurgy.

CONCLUSION-Mother nature laws can be tough, encompassing, expensive, and time-consuming.  My office will diligently pursue a defense to any accusations and fight to minimize any effect on your business or personal exposure to civil or criminal liability.


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