Recent Developments

State Case Law

City of Keller v. Wilson, (Ct. App.-Ft. Worth, June 22, 2006). 
The City failed to build a portion of its Master Drainage Plan on the defendant’s property despite completing portions upstream and downstream.  The court affirmed a jury award of damages caused by subsequent flooding and, pursuant to the Texas Water Code § 11.086, rejected the City’s contention that the water was not considered “surface water” because it had been “touched by the hands of man.”

Guitar Holding Co., LP v. Hudspeth County Underground Water Conservation Dist. No. 1, (Ct. App.-El Paso, Sept. 4, 2006). 
Upholds groundwater regulations and sustainability rules of Hudspeth County Underground Water Conservation Dist. No. 1 and allows Conservation District to recover attorneys’ fees and costs.

In re Edwards Aquifer Authority, (Ct. App. – Austin, October 18, 2006, orig. proceeding). 
Writ of mandamus conditionally granted when trial court set review of administrative hearing under the substantial evidence de novo rule before a jury.  Court required the district judge to: (1) reverse her earlier order that plaintiffs receive a jury trial; and (2) review the case under the more deferential substantial evidence standard of review. The case also states that the remedies under Ch. 36 of the Texas Water Code are exclusive, thereby raising a potential conflict with the Edwards Aquifer Authority v. Chemical Lime Ltd. case (Ct. App. – Austin, September 14, 2006, pet. filed), which awards attorney fees under the Declaratory Judgment Act.

Tex. Dept of Ins. v. Lumberman’s Mutual Casualty Co., (Ct. App.- Austin, October 24, 2006). Advisories issued by the agency void as ad hoc rulemaking.
Hicks v. Robertson, (Ct. App.-Waco, October 18, 2006). Specified part of Hog Creek is navigable stream and the general public is entitled to its use.

Texas Attorney General Opinions
Opinion No. GA-0446.  Clarifies conflict of interest disclosure requirements for local government officers and persons who contract with local governmental entities.
Go to: http://www.oag.state.tx.us/opinions/op50abbott/ga-0446.htm

Federal Case Law

Rangra v. Brown (W.D. Tex. Nov. 2006)
Texas Open Records Act does not violate public officials right to free speech.
United States v. Chevron Pipe Line Co. (N.D. Tex. June 2006).  Court invoked the “significant nexus” test from Rapanos v. United States (2006) in holding that oil, which spilled into a dry intermittent stream and that did not reach any water was not within the Clean Water Act’s jurisdiction.

Aviall Services Inc. v. Cooper Industries LLC (N.D. Tex. Aug. 2006). 
Court dismissed Aviall’s claims for contribution under Section 107 of the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), 42 U.S.C. § 9607.  The court found that, under CERCLA, potentially responsible parties were restricted to bringing claims for contribution under CERCLA § 113(f), 42 U.S.C. § 9613(f).

Tex Tin Corp. v. United States (S.D. Tex. Aug. 2006). 
Court held chemical company was not liable under CERCLA for contamination resulting from its sale of acids to metal smelting facility.  The court noted that in the Fifth Circuit, factors used to assess liability of entities that arrange for disposal of hazardous waste include “(1) an obligation or authority to exercise control over the disposal of the hazardous substance; (2) ownership of the substance; (3) the intent of the parties to the transaction who decided to place the substance at the facility, e.g., whether the transaction was engaged in for the purpose of waste disposal.”

Evanston Insurance Co. v. Adkins (N.D. Tex. Oct. 2006). 
Court held that pollution exclusion clause within a welders commercial general liability policy does not bar a claim for property damage caused by molten metal particles released during welding.  The court held the damage claim did not meet all of the conditions for triggering application of the pollution exclusion clause. 

Vine Street LLC v. Keeling (E.D. Tex. Nov. 2006). 
Court held that a manufacturer and distributor of dry cleaning machines that installed the equipment, including plumbing, which was routed directly into an on-site sewer system, could be held liable under CERCLA as an arranger for disposal of hazardous substances when dry cleaning solvents leaked into area groundwater.

Regulatory

All Appropriate Inquiry Rule, 40 C.F.R. Part 312. 
The Environmental Protection Agency’s (“EPA’s”) final rule for conducting “all appropriate inquiry” in commercial real estate transactions went into effect on November 1, 2006. 

Grant Guidelines to States for Implementing the Inspection Provisions of the Energy Policy Act of 2005, EPA.  On November 22, 2006, the EPA released draft guidelines detailing requirements for states receiving federal funding for implementing inspections of underground storage tanks.

Protocol for Delinquent Fees and Penalties, Texas Commission on Environmental Quality (“TCEQ”), September 1, 2006.  Under the TCEQ’s new policy, it will stay issuance of environmental permits to persons/entities with outstanding fees or penalties.

Do you know about a matter, particularly of a Texas flavor, that should be included in the Recent Developments? Send it to craigpritzlaff@andrewskurth.com