Regulatory Compliance Counseling
UH Law School
Environmental Law Practicum
February 3, 2016
Jed Anderson
Principal Attorney
AL Law Group PLLC
Jed Anderson
(281) 852-8064
Keith Lapeze
(713) 739- 1010
David Tuckfield
(512) 576-2481
Environmental law. Big firm experience. Twice the value.
Susan Zachos
(512)773-0690
Eric Storm
(512) 593-1881
The AL Law Group attorneys all originate from leading Texas
law firms or Fortune 500 companies and each has more than 10
years environmental legal experience. For more information
about how AL Law Group can handle all your environmental
needs with less of your budget, visit www.allawgp.com.
Trends in
Environmental
Regulatory
Counseling
• More rules
• More complexity
• Never a greater need for talented attorneys to help clients negotiate the size and
complexity of environmental law
• More counseling being performed in-house
• More counseling being performed by non-attorneys
• Environmental attorneys need to think of creative ways to add value and become
usable resources to people who desperately need our help in this growlingly
complicated system
Current Direction of
Environmental Compliance
Counseling
Amount
Time
The federal environmental statutes that Congress has addressed to EPA run to more than 2,700 pages in the
two large, maroon-colored United States code volumes. The legally binding regulations issued by EPA to
implement these statutes fill the 31 ocre-colored volumes of the Code of Federal Regulations. The guidance
and other documents issued by EPA to explain or interpret its regulations fill around one million pages and
are represented by the 1,250 grey-colored loose-leaf volumes. This does not include the millions of pages of
State and local statutes, rules, and guidance that implement the millions of pages of Federal statutes, rules,
and guidance.
---“I hate that each sector has 17 to 20
rules that govern each piece of equipment
and you've got to be a neuroscientist to
figure it out”. ---Gina McCarthy, U.S. EPA Administrator
How can counsel a client in a
growingly complicated environmental
regulatory system?
Simplify. Simplify. Simplify.
When Client Counseling on Nature
. . . Think Nature
 “Nature operates in the shortest way possible.” ― Aristotle
 “Nature is pleased with simplicity. And nature is no dummy.”
― Isaac Newton
 “Nature does not multiply things unnecessarily; that she
makes use of the easiest and simplest means for producing
her effects; that she does nothing in vain, and the like”. —
Galileo
Simplicity and Environmental Client Counseling
• “The definition of genius is taking the complex and making it
simple.” ---Einstein
• “That's been one of my mantras - focus and simplicity. Simple
can be harder than complex: You have to work hard to get your
thinking clean to make it simple. But it's worth it in the end
because once you get there, you can move mountains. ---Steve
Jobs
• “In building a statue, a sculptor doesn't keep adding clay to his
subject. Actually, he keeps chiselling away at the inessentials
until the truth of its creation is revealed without obstructions.”--Bruce Lee
• “All the great things are simple.” --- Churchill
Basic Thoughts on Environmental
Compliance Counseling
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Be a general problem
Be solutions oriented
Listen
Consider non-legal aspects affecting matter
Simplify communications, solutions, etc.
Be available
Be timely
Think outside the box
Goal is not to make yourself look good . . . but make your client look
good wherever possible
What to do
when a client
calls with a
compliance
question?
What to do when a
client doesn’t call
with a regulatory
counseling question?
Call them!
Approaches to Regulatory
Counseling Questions
• Start with the underlying regulatory language . . . and sometimes the statutory or constitutional
language
• Listen to the direction your client wants to go. This might not eventually be your advice, but it is
important I think to get their initial impressions and leanings.
• Gather the facts
• Get a big picture view
• Don’t reinvent the wheel if you don’t need to
• Reach out to colleagues
• I often cut and paste from various resources into a word document (making sure I have the
electronic link) and use this then as a worksheet for the memo or email I will prepare
• Most clients don’t want a legal treatise . . . they want the answer in as few words as possible
Questions for Consideration
1. Question on Environmental Recordkeeping
2. Question on MACT JJJ compliance for a pressure relief device
3. Question on potential environmental actions of Presidential
candidates
Examples of Developing Innovative
Compliance Counseling Legal
Products/Services
Our Approach at The AL Law Group
The AL Law Group has created a new platform for offering
outside environmental legal services. This new platform allows
us to increase quality while significantly decreasing costs. How
can we do both? Unlike traditional large law firms, the AL Law
Group has only “partner-level” attorneys charging “associatelevel” rates to address our clients’ legal needs. The AL Law
Group is neither encumbered nor distracted by the traditional
law firm model that requires (1) keeping junior-level associates
very busy, (2) compensating senior-level partners extremely
well, and (3) maintaining significant and costly physical
infrastructure. Our novel approach enables us to devote
higher-level resources at lower-level costs.
The attorneys in the AL Law Group all originate from leading
Texas law firms or Fortune 500 Companies and each has over
10 years environmental legal experience. Our goal is to
provide the highest quality one-stop environmental legal
representation in Texas at about half the cost of traditional,
large law firms
Environmental law.
Big firm experience.
Twice the value.
How do I get my Texas
permits ASAP?
The AL Law Group’s
Expedited New Project
Authorization Strategies
Service
Examples of Authorizations
*Some authorizations must be obtained prior to start of construction
*Some authorizations require significant lead-times
*Some authorization costs and time-frames can be mitigated or avoided based on legal strategies
Customer Number (CN)
Water Well Permits
Industrial Permits for Specific Substances TRRC Approvals (ex. pipelines)
Regulated Entity Number (RN)
CAA General Conformity Review
Customer Number (CN)
EPA ID Number
EIS/NEPA Review
Oil Spill Prevention & Response
Certificate
Operating Permit for Certain Substances
Solid Waste Registration (NOR)
MTP/TIP Transportation Planning
Pollution Prevention (P2) ID
Air Emissions Account Number
TPDES Wastewater Permit
Special Tax Registration for Certain
Substances
DOT HazMat Registration
PBR Registration(s)
Hazardous Waste Permit Number
Weights and Measures Certificate
SIC Code
TRI ID Number
No Migration Petition
Direct Payment Sales Tax Permit
DOT HazMat Registration
New Source Review Permit (Air)
USACE Permits (Section 404, Section10)
Controlled Substance/Regulated
Chemical Registration Certificate Chemical Exporter Registration
Pesticide Establishment Number
Title V Permit (Air)
UIC Permit
Controlled Substance/Regulated
Chemical Registration Certificate Chemical Distributor Registration
Dun & Bradstreet Number
Regulated Entity Number (RN)
NAICS Code
How quickly authorizations can be obtained
affects the bottom-line and the ability to
attract new projects
Ex./ Facility makes $50k per day x 100 days
earlier on authorizations = $5 million more
in profits available for reinvestment in
environmental and other improvements
General Strategies to Mitigate Authorization Costs and Time
• Identify all authorizations upfront (if you miss one it can cost money and
time) (AL Law Group performs this service for clients)
• Consider lead-times (if an authorization takes 6 months and you need to
build in 3 months . . . that’s a problem) (AL Law Group performs this service for clients)
• Review legal strategies to avoid unnecessary authorizations where
appropriate (AL Law Group performs this service for clients)
• If an authorization is needed, consider not only legal exemptions, but the
scoping of the rule and whether arguments apply that mitigate the cost
and timing of the authorization (AL Law Group performs this service for clients)
• Even if no exemptions or mitigating factors apply, consider legal
precedent allowing certain pre-construction activities to proceed prior to
authorization (AL Law Group performs this service for clients)
 Ex./ Company wanted to perform certain water-side pre-construction
activities prior to obtaining an NSR permit. The AL Law Group
provided legal guidance saving company time and money to proceed
without demobilizing and mobilizing equipment and creating
additional mobile source emissions.
Specific Example where Cost and Time can be Saved in
Securing Texas Authorizations
Ex./ Texas New Source Review Air Authorizations
• Some authorizations allow you to start construction tomorrow . . .
without even registering the facility
• Other authorizations can take millions of dollars and over 2 years to
obtain
• Legal factors that many companies do not fully consider can affect
whether you can build tomorrow, in 3 months, or in 2 years in Texas*
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Ex./ Can emission reduction strategies be “front-loaded” to reduce
environmental impacts and obviate Major Source or other regulatory
thresholds?
Is the facility >1/4 mile from “support” facilities?
What is the corporate relationship between the project entities?
Is the facility “phased-construction”, or is there a valid and appropriate
assertion that the facility will later be built-out based on market
demands?
Would it make sense to outsource certain emission generating activities
to obviate major source thresholds (ex. wastewater)?
*The AL Law Group has numerous other client tools to help mitigate cost and time
and increase environmental performance for those interested in further discussions.
Other Tools for Mitigating Cost and Time for a Texas
NSR Authorization*
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New tools available via Texas Senate Bill 709 (this bill passed last legislative session):
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Improved permitting process to make it more predictable, reasonable, and equitable
Established the presumption that a draft permit issued by the TCEQ satisfies all applicable statutory and regulatory requirements.
Requires a hearing on a permit application to be completed in 180 days
Codifies recent court decisions related to who may qualify to request a contested case hearing
Requires that an association that requests a hearing must identify a member of the organization who has standing to request a hearing
Requires that any party requesting a hearing to have raised their concerns about the permit during the initial opportunity for public
comment following public notice of the application
Texas has implemented “expedited permitting”—where companies can pay TCEQ staff for working over-time on their permit
(similar to Louisiana)
Consider applying as a “Governor’s Economic Development Project” – Governor’s projects receive expedited permitting
(generally takes 6 months compared to 11 months)(AL Law Group has experience with this)
Consider contested case thresholds and how to mitigate this possibility with the AL Law Group
Fully consider how the project can best be legally structured to mitigate cost and time of authorization with the AL Law
Group (see previous slide)
Important factor in obtaining timely permit issuance is the agency relationship and timely responses both from the company,
technical consultants, and agency staff on the permit application. The AL Law Group helps clients to facilitate timely
responses and streamlining of work. The AL Law Group also has successfully pursued litigation, rule changes, guidance
changes, statutory changes, and Congressional assistance to help clients maximize environmental performance and minimize
cost and time.
*The AL Law Group has numerous other client tools and methods to help mitigate cost and time and increase environmental
performance for those interested in further discussions.
AL Law Deviation/STEERS
Reporting Legal Service
Company
LOGO
AL Law Deviation/STEERS Reporting Legal Service
"The AL Law Group Deviation Report Review was a great
investment for our Company. The insights were welcomed by the
internal client and we are making improvements to our processes
based on the advice received.”
-------In-house Counsel of Fortune 100 Company
AL Law Deviation/STEERS Reporting Legal Service
Why hire the AL Law Group to review my deviation/STEERS reports?
 A company’s stock dropped because of a STEERs report—temporarily losing the company a billion
dollars. A facility operator reported in STEERS that a “catastrophic line failure occurred”. The report was
picked up by a national news service and resulted in a billion dollar short-term stock loss according to the
company.
 STEERS reports are available via the internet for the public, plaintiff’s attorneys, the press, and
regulators to review and use for lawsuits, newspaper articles, enforcement actions, permit challenges, rule
developments, etc.
 Companies must “reasonably inquire” into Title V compliance. Both the company and personnel are
potentially subject to civil and criminal liability.
 Companies overseas are apparently making a business out of collecting information via the internet and
packaging and selling this information to plaintiff’s attorneys in the United States.
 Deviation reports are also public information. Although not currently available on-line, it is likely a matter
of time
 TCEQ, EPA, plaintiff’s attorneys, and the public are increasingly turning toward STEERS reports and
deviation reports as evidence and basis for lawsuits and enforcement actions.
Examples of Emission Event Descriptions
We Found on the Internet
“Catastrophic seal failure . . .”
“The compressor was brought down suddenly [. . .] as excessive corrosion caused leaks
. . . .”
“Electricians tried to locate the problem because it kept acting differently all the time.”
“[T]he rupture disk failed . . . due to fatigue caused by age.”
“Production people did something that caused our inlet rates to keep steadily
climbing.”
“Operator was distracted due to working in a severe thunderstorm.”
“He made adjustments on the unit . . . but was not agressive enough in his adjustments
. . .” [sic.]
“Lost just about everything at the plant.”
AL Law Deviation/STEERS Reporting Legal Service
Which of the following Title V deviation descriptions would you rather have
read to a jury?
“Failure of a rupture disc that resulted in a butadiene emissions
release to the atmosphere”
Or
“Rupture disc performed as designed”
The law requires you to provide an accurate description of your deviation/upset. You do not
however need to further legally harm or endanger yourself as you go about doing this. The
AL Law Group can review your submittals and suggest legal wording improvements to help lower
your legal and financial risks.
AL Law Deviation/STEERS Reporting Legal Service
Let Us Help You
 The AL Law Group can review your deviation/STEERS submittals and suggest legal
wording improvements to help lower your legal and financial risk to information that may
be used against you in an administrative, civil, or criminal proceeding or in a public
forum.
 The AL Law Group has skilled and experienced environmental attorneys who assist
numerous companies with these reports—allowing us to draw from a variety of and
multiple experiences.
 The AL Law Group is designed to increase quality while significantly decreasing the
costs of environmental legal services. We offer this environmental reporting legal
service on a flat-fee or traditional hourly fee basis. For more information please contact
us at (281) 852-8064 or info@allawgp.com
“Over-Compliance”
Environmental
Legal Assessment
Service
Examples of Developing Innovative
Compliance Counseling Legal
Products/Services