News

Volunteers Needed for State Park Cleanup

Several Tennessee state parks are still in need of volunteers to assist with various volunteer initiatives. Areas of need include trail work, park beautification projects, or lending a hand with annual events.
 
Visit the Tennessee State Parks website to learn more about becoming involved and register for a project in your region.
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Environmental Law Section to Sponsor Belmont Law's Energy and Environmental Law Society

In its most recent meeting, the TBA Environmental Law Executive Council voted to sponsor the newly established Belmont College of Law's Energy and Environmental Law Society. The society intends to offer a forum for both law students and professionals to discuss current and future issues involving environmental law.
 
Belmont Law School student and founding member Nikki Hashemian anticipates the group will expose students to this aspect of law and possible career paths in the field while forging a relationship among the school, area law firms and lawyers who share the practice area. 
 
The Energy and Environmental Law Society will host no fewer than four annual events, the first of which will feature a presentation by Environmental Law Section Chair Lauran Sturm. “The Environmental Law Section’s Executive Council enthusiastically supported the EELS sponsorship. We look forward to working with the EELS and are excited to promote the practice of environmental and energy law, especially in Tennessee,” said Sturm, who was instrumental in establishment of the project.
 
The initial presentation is to take place at the law school in January 2018. 
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Safety Manager Destroyed Evidence of Kingston Fly Ash Danger to Workers

Three supervisors from the Kingston coal ash cleanup said in affidavits that they witnessed the safety manager on the project intentionally destroy evidence of dangerous levels of toxic chemicals, Knoxnews reports. Tom Bock worked for Jacobs Engineering, the government contractor tapped by TVA to manage the cleanup, and is now accused of allegedly destroying or altering results and knowingly endangering workers. Hundreds of the 900 cleanup workers are now sick and some have died. Many of the sick and survivors of the dead are suing Jacobs.  
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TVA Will Appeal Ruling Over Gallatin Coal Ash Cleanup

The Tennessee Valley Authority filed a notice of appeal yesterday indicating that it will challenge an August court ruling ordering it to clean up coal ash at a Gallatin plant, the Knoxville News Sentinel reports. Previously, the TVA was found to have violated the Clean Water Act by storing coal ash in an unlined storage pond. The TVA argued that the coal ash’s effect on the environment was minimal. However, experts at the trial contended that by its own records, the TVA had leaked 27 billion gallons of coal ash into the Cumberland River over decades.
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New Referee Appointed to Nashville Environmental Court

Judge Allegra Walker has appointed attorney Renard Hirsch Sr. as the new referee for the Nashville General Sessions Environmental Court, the Nashville Post reports. Hirsch has practiced for more than 30 years and also once served as an instructor at the Nashville School of Law. He is taking over for John Manson, who was appointed to become a night court judicial commissioner. Hirsch is coming into the job shortly after the creation of a new short-term rental complaint hotline, and as the Metro Council considers updates to short-term rental regulations.
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TVA Estimates Gallatin Coal Ash Cleanup Will Take 24 Years

The Tennessee Valley Authority (TVA) said that it will take an estimated 24 years to comply with a court order to move a power plant’s coal ash, The Tennessean reports. In a filing from yesterday, TVA said it will start the cleanup process at a Gallatin plant within 30 days, barring a judge’s order. It’s still considering whether it will appeal a court ruling that ordered the cleanup, after its coal ash storage was found to be leaking pollutants into the Cumberland River.
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Contractor in Coal Ash Lawsuit Wants TVA to Pay Legal Defense Bills

A contractor named in a lawsuit related to the Kingston coal ash spill wants to invoke a clause in its contract that would force Tennessee Valley Authority ratepayers to pay for the company’s legal defense, the Knoxville News Sentinel reports. Jacobs Engineering is accused of lying to workers about safety risks associated with working on the coal ash spill cleanup efforts, as well as denying workers protective gear and threatening their jobs if they persisted in asking for such gear. The TVA has not responded to whether it will foot the bill or not.
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Judge Dismisses Lawsuit Against Chattanooga, Electric Power Board

A Hamilton County judge dismissed a lawsuit filed by a lighting company against the city of Chattanooga and the Electric Power Board, alleging that they conspired to block implementation of a new energy-efficient street lighting system, the Times Free Press reports. Circuit Court Judge J.B. Bennett ruled that the suit was not based on appropriate claims against a municipality and public officials. Bennett gave plaintiffs Global Green Lighting and its owner Don Lepard, 30 days to submit a new lawsuit.
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Federal Judge Rules Against TVA in Coal Ash Lawsuit

A federal judge ruled on Friday against the Tennessee Valley Authority in a dispute over how it stores its coal ash near a Gallatin power plant, USA Today reports. The ruling comes after claims that the agency violated the Clean Water Act by storing coal ask in unlined storage ponds. The Southern Environmental Law Center argued the case on behalf of the Tennessee Scenic Rivers Association and the Tennessee Clean Water Network. The ruling requires TVA to excavate the unlined ponds and store the coal ash in a safe, lined landfill.
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DA: Probe Needed for Kingston Coal Ash Workers

A Roane County prosecutor is taking steps to launch a criminal probe of the treatment of workers in the nation’s largest coal ash spill, USA Today confirmed today in the Knoxville News Sentinel. Ninth Judicial District Attorney General Russell Johnson, whose district includes Roane County, is pushing for a state investigation following the paper's publication of its probe into the treatment of workers in the cleanup of the December 2008 coal ash spill at the TVA Kingston Fossil Fuel Plant.

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Dozens of Sick, Dying Coal Ash Cleanup Workers Sue Company That Handled Spill

More than 50 sickened workers and the survivors of deceased workers are suing Jacobs Engineering, the California company that handled the cleanup of the 2008 Kingston Coal Ash Spill on behalf of the Tennessee Valley Authority. The Knoxville News Sentinel reports that the complainants allege workers weren’t told to wear protective clothing or masks despite the highly toxic conditions they were working in and warnings from the Environmental Protection Agency. At least 17 workers from the site have died since 2008. The case is set for trial in 2018.
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Appellate Court Rules Landowners May Challenge TDOT Pipeline Permit

A judge found that two landowners do have standing to challenge a Tennessee Department of Transportation permit granted to US Nitrogen, which operates two 10-mile pipelines running along two state highways and could be intruding on the owners’ property, the Knoxville News Sentinel reports. Appeals Court Judge Brandon O. Gibson’s ruling completely reverses the decision of a lower court. US Nitrogen could be forced to remove the pipelines, which are being utilized in the production of ammonium nitrate, after the case goes back to Chancery Court to determine the legality of TDOT’s permits. 
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Item of Interest

Below is an article that was published in the the Disability Section Connect. We thought it had information that would be of interest to those of you in this section as well.  

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EPA Withdraws WOTUS Rule, Earns Praise from Tennessee AG

The Trump administration moved to withdraw the “Waters of the United States” rule yesterday, Reuters reports, and subsequently received praise from Tennessee Attorney General Herbert Slatery. The 2015 rule updated the Clean Water Act to define what waterways can be regulated by the federal government. Slatery said in a release that the rule “unlawfully encroaches on the states’ traditional roles as the regulators of land and water resources.”
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Thanks To Our Sponsor

EnSafe is a global professional services firm providing engineering, environmental, health and safety and technology services to both commercial and government clients. EnSafe was founded in 1980 in Memphis and has grown to over 350 professionals in 28 locations throughout the U.S. from Connecticut to California.

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Update on Hazardous Waste Generator Improvements Rule

The Resource Conservation and Recovery Act (RCRA) was enacted by Congress and signed into law in 1976; the regulations governing hazardous waste management followed and were finalized in 1980. The U.S. Environmental Protection Agency (EPA) has recently updated the hazardous waste rules to afford waste generators additional flexibility in how their hazardous waste is managed.

The U.S. EPA Administrator signed the final Hazardous Waste Generator Improvements Rule on Oct. 28, 2016, and the final rule was published in the Federal Register on Nov. 28, 2016. The final rule incorporates over 60 changes to the hazardous waste generator regulations and is a culmination of an effort that began in 2004 to streamline the regulatory program governing the management of hazardous waste. Although many of the rule changes lessen the stringency of the previous requirements, a number of the changes impose more stringent requirements.

Summary of the Rule

The final rule both changes and reorganizes the regulations governing hazardous waste generators. The revised regulations move the requirements for what was previously defined as a “conditionally exempt small quantity generator” (CESGQ) from 40 Code of Federal Regulations (CFR) Part 261 to the generator standards found in 40 CFR Part 262. In addition to consolidating the requirements into one section of the regulations, the final rule replaces term “CESQG” with the term “very small quantity generator” (VSQG). The regulations did not change the established monthly hazardous waste generation rates for the three generator types: large quantity generator (LQG), small quantity generator (SQG), and VSGQ. Some of the more notable changes enacted by the new rule are summarized below.

  • The rule addresses episodic incidents that change hazardous waste generation rates/generator status. Under the previous rules, if a VSQG or SQG generated more than was allowed in any given month, such generation triggered more stringent generator requirements. The final regulations ease this regulatory burden by allowing a VSQG or SQG to occasionally exceed the established monthly waste generation limits and keep their VSQG or SQG status. In the event a VSQG or SQG experiences such an “episodic generation” event that results in the facility generating more hazardous waste than allowed under their current classification, the facility must provide notification to the regulatory authority and manage the waste as prescribed by the rule. Hazardous waste generated during an episodic event is required to be labeled and managed as “episodic hazardous waste.” Episodic generation events may be planned or unplanned in nature, but relief under the new rule is allowed only once per year.
  • The final rule allows VSQGs to send waste to an LQG. Such transfers are allowed in cases where the VSQG and LQG are under common ownership. This change was implemented in order to allow flexibility and make it easier for companies to ensure hazardous wastes are properly treated and disposed in an environmentally sound manner.
  • The final rule requires tanks and labels to indicate the hazards of their contents. This can be done by a variety of methods, including National Fire Protection Association hazard labels, Department of Transportation labels, and Occupational Safety and Health Administration hazard statements or pictograms.
  • Historically, SQGs only had to notify U.S. EPA one time unless the facility generator status changed. Under the new regulations, SQGs must now submit an updated notification every four years.
  • The final rule allows LQGs to apply for a waiver from the local fire marshal, affording relief from the requirement that containers holding ignitable or reactive hazardous waste be located at least 50 feet from the generator’s property line.
  • The final rule now includes the Local Emergency Planning Committees as an emergency planning organization with which a generator may make response arrangements. In addition, the final rule requires that LQGs prepare and submit a quick reference guide that is supplied to local responders as part of the overall contingency plan. Existing LQGs must develop this guide when updating their existing contingency plan.

Also, an aspect of rule that has resulted in some consternation in the regulated community relates to U.S. EPA’s attempt (in the rule and preamble language) to establish a distinction between what are considered to be “independent requirements” and requirements that they consider to be “conditions for exemption.” The concerning implication being that violations of “conditions for exemptions” (which could include such things as failure to conduct weekly inspections of container areas, or labeling-related violations) could theoretically result in a hazardous waste generator facility being considered an unpermitted hazardous waste storage facility, and trigger associated enforcement actions.

Rule Implementation

The regulations became effective in unauthorized states (i.e., states where the RCRA program is administered by the U.S. EPA) on May 30, 2017. The effective date for states – such as Tennessee – that are authorized by U.S. EPA to administer the RCRA program is upon adoption of the rule by the individual state. Authorized states will be required to adopt the rule provisions that are more stringent than the current RCRA generator regulations in order to retain their authorized status, but they are not required to adopt those provisions that are less stringent than the previous version of the federal rule. Preliminary indications are that the Tennessee Department of Environment and Conservation intends to adopt the entire rule, although the new requirements will likely take one to two years to become effective in Tennessee.


Bry Roberson is an environmental, health and safety consultant and principal at Ensafe.
— Jerry Truitt is the Resource Conservation and Recovery Act (RCRA) Service Area Lead at EnSafe.

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Now that I have a “No Further Action” Letter, is it Admissible into Evidence?

In an article appearing in the last Section newsletter, I addressed the issue of just how beneficial a “no further action” letter may be in a given situation. The main point that I made was that a “no further action” letter cannot be read as indicating that the property has no other environmental conditions or that no additional environmental response action will be required.

In this article, I address the issue of whether a “no further action” letter is admissible in a legal proceeding.

A “no further action” letter may be admissible in a proceeding by a property owner against a party causing contamination on the property. In the case of Langfan v. O’Donnell, 2012 WL 10863 (W.D. Mich. January 3, 2012), a court determined that a “no further action” letter issued by the Michigan Department of Environmental Quality was admissible in a separate legal action filed in state court by the owner of the property against Goodyear Tire & Rubber Co., the tenant. The “no further action” letter was issued following the completion of assessment activities and a soil removal action at an auto service center operated by Goodyear. In the separate legal proceeding, the plaintiff alleged that Goodyear was evading its remedial obligations and sought damages for undue waste, for failing to return the property in substantially the same condition as when let, and for indemnification.[1] The court noted that both Goodyear and the plaintiff were free to make arguments as to the “no further action” letter’s scope and weight. Id., at *5.

In the case of Suzuki v. Helicopter Consultants of Maui, Inc., 2016 WL 6275385 (D.C. Hawaii, October 26, 2016), the court, on a motion in limine filed by the plaintiff, held that a “no further action” letter issued by the Hawaii Department of Health was admissible. The plaintiff was the owner of property where a helicopter crash occurred. The defendant was the owner and/or operator of the helicopter. It appeared that at the time of the crash, approximately 60 gallons of fuel was on board the helicopter, and the impact of the crash produced a large fire at the property. Environmental assessment work did reveal that at one location petroleum hydrocarbons existed at a level exceeding Hawaii’s “unrestricted” action levels. No soil removal action was required by the Department. The plaintiff sought damages and injunctive relief and alleged that the defendant had failed to properly remediate the crash site.

The court held that the “no further action” letter was relevant under Rule 401 of the Federal Rules of Evidence and admissible under Rule 803(8) of the Federal Rules of Evidence. Rule 803 outlines the exceptions to the rule against hearsay. More specifically, Rule 803(8) permits, in civil actions, the admission of a record or statement of a public office that sets out factual findings from a legally authorized investigation, as long as the opponent does not show that the source of information or other circumstances indicate a lack of trustworthiness. The court concluded that the “no further action” determination was a factual finding of a government agency and that the plaintiff had failed to demonstrate that the letter, or the circumstances under which it was obtained, were untrustworthy. The court was not convinced of the plaintiff’s argument that the “process” had all the markings “of a travesty of cronyism and special treatment” or a “virtual hijacking.” The plaintiff complained that he was not included within the process of obtaining the “no further action” letter and that the Department of Health was not provided complete information. The court determined that such evidence, and particularly evidence that the Department had failed to consider certain information, goes to the weight and scope of the letter’s conclusions.

As an endnote, in the trial of the merits in both the Langfan and the Suzuki litigation, the plaintiff apparently prevailed, either in whole or in part, on his claims associated with the contamination that remained on the property.


Randy Womack is an attorney with Glankler Brown PLLC in Memphis and serves on the TBA Environmental Law Section Executive Committee. 


[1]  The Langfan case arose as a result of an action filed in federal district court by the plaintiff, the property owner, in an effort to challenge Goodyear’s use of the “no further action” letter in the legal action pending in state court. The plaintiff alleged in his federal court complaint that the issuance of the “no further action” letter by Michigan Department of Environmental Quality violated his rights under the due process clause of the 14th Amendment and that Goodyear’s use of the “no further action” letter constituted an abuse of process. The court dismissed the action on a Rule 12(b)(6) motion to dismiss. On appeal, it was determined that the plaintiff lacked standing, and the matter was remanded with an instruction to the district court to dismiss the action for lack of subject matter jurisdiction. Langfan v. Goodyear Tire & Rubber Co., 529 Fed. Appx. 460 (6th Cir. 2013).

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Nashville Lawyer Anne Davis to Focus on Dean's Campaign

Anne Davis, Southern Environmental Law Center’s Nashville office managing attorney, is leaving the position “to focus her energies on her husband Karl Dean’s campaign to become the next governor of Tennessee,” the Nashville Post reports. As SELC looks for a new local managing attorney, the head of SELC’s Asheville, North Carolina, office, D.J. Gerken, will serve as acting Nashville director. Dean, former mayor of Nashville, launched his bid for the Democratic gubernatorial nomination in February.

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Message from the Chair

It has been a privilege for me to serve as chair of the Environmental Law Section. The past couple months have been busy and productive for our section. In April, we reviewed the law student entries for the Jon E. Hastings Memorial Writing Competition. The first place winner is Ben Raker of Vanderbilt University Law School, whose article, "The Minimum of the Maximum, Navigating SB 1830's Fluid Standard for Tennessee Stormwater Permits," is published in this newsletter. A big thank you to Bob Tuke and Jim Lenschau who took the lead in communicating with law schools regarding the competition and joined me in judging the entries.

In May, the 46th Annual Solid and Hazardous Waste Conference Environmental Show of the South was held in Chattanooga. Highlights of the program included a Wednesday afternoon session inspired by the change of location. David Higney, Mike Mallen, Erin Sutton and Troy Keith led a discussion on Chattanooga Brownfields Redevelopment, which included a tour of nearby sites from St. Elmo to the Riverfront aboard CARTA's electric shuttle buses. After the CLE session concluded, we gathered for the annual TBA Environmental Law Section-sponsored commissioner's reception, which was held on the rooftop of The Edney Innovation Center, overlooking Chattanooga's downtown innovation district. Despite the 90-degree heat, the food, drinks and conversation were enjoyable as always. Next year, we will make plans for air conditioning! Thank you to our additional reception sponsors: Grant Konvalinka & Harrison; Baker Donelson; BDY Natural Sciences Consultants; Burr Forman; and Chambliss, Bahner & Stophel.

I am so appreciative of everyone who serves on the Executive Council and the many section members who devote their time and expertise to raising awareness of emerging and ongoing environmental issues and contribute to the professional development within our section. In particular, I want to thank Lauran Sturm, vice-chair and Jenny Howard, newsletter editor, for their help this year. And as always, a big thank you to Jenny Jones, who provides support to our section throughout the year and Abigail Philips and Lauren Hopper Lee, who helped coordinate our annual CLE in January.

-- Willa Kalaidjian
2016-2017 Section Chair

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Proposed Slate of Officers: TBA Environmental Law Section, 2017-2018

The slate of officers listed below will be voted on at the June 15 meeting of the TBA Environmental Law Section.

PROPOSED - TBA Environmental Law Section 2017-2018 Slate of Officers

Chair - Lauran Sturm, Tennessee Dept. Environment & Conservation (Nashville)
Vice-Chair – Jenny Howard, Tennessee Dept. Environment & Conservation (Nashville)
Immediate Past Chair - Willa Kalaidjian, Chambliss, Bahner & Stophel PC (Chattanooga)
Secretary/Treasurer - Bob Tuke, Trauger & Tuke (Nashville)
Newsletter Editor – Robert “Jaz” Boon, Waller Law (Nashville)

Middle Tennessee Delegates:

Beth Alexander, Southern Environmental Law Center (Nashville)
Scott Thomas, Bass, Berry & Sims PLC (Nashville)
Gregory T. Young, Burr Forman LLP (Nashville)

West Tennessee Delegates:

Randy Womack, Glankler Brown PLLC (Memphis)
Robert McLean, Farris Bobango Branan PLC (Memphis)
Jim Lenschau, Martin, Tate, Morrow & Marston PC (Memphis)

East Tennessee Delegates:

Ashley Lowe, Baker Donelson Bearman Caldwell & Berkowitz PC (Knoxville)
David Higney, Grant, Konvalinka & Harrison PC (Chattanooga)
Rick Hitchcock, Chambliss, Bahner & Stophel PC (Chattanooga)

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Environmental Law Section to Meet at TBA Convention

Please make plans to join the TBA Environmental Law Section for a business meeting that will be held in conjunction with 2017 TBA Convention. The TBA Environmental Law Section meeting is scheduled as follows:

Date/Time:

Thursday, June 15, 2017
4 – 5 p.m. Eastern

Location:

MeadowView Marriott
1901 Meadowview Parkway
Kingsport, TN 37660
(423) 578-6600

Room Location – Bays Mountain Boardroom

A conference call will be available for those unable to join us in person. The following are the instructions for joining the call:

You will dial in on the following number: 1-855-795-9620

You will then be prompted to enter the following conference ID number, followed by the pound (#) sign: 5722409#

Items for discussion include:

  1. Election of 2017-2018 Slate of Officers
  2. Ideas for CLE programming and webcasts
  3. What items would you like to see in your inbox?  Getting the most out of your Section Connects and Newsletters
  4. Pro Bono Opportunities
  5. Networking and Mentoring within the Section

There is still time if you would like to register for TBA Convention. You may register by calling the TBA at (615) 383-7421 or register online at:

2017 TBA Convention

You do not have to be registered for convention to attend this section meeting. We hope to see you there!

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Vanderbilt Law Student Wins 2017 Hastings Writing Competition

The TBA Environmental Law Section has announced Ben Raker, a student at Vanderbilt University Law School, is the winner of the 2017 Jon E. Hastings Memorial Award Writing Competition. This writing competition is sponsored by the Environmental Law Section in memory of Jon E. Hastings, one of the section's founding members. Raker's paper, "The Minimum of the Maximum: Navigating SB 1830’s Fluid Standard for Tennessee Stormwater Permits," addresses stormwater regulations in Tennessee.
 
The annual Jon E. Hastings Memorial Award Writing Competition is a juried competition for the best legal writing on a topic of Tennessee or federal environmental law and is open to law students enrolled in a Tennessee law school. The full article can be found here.
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The Minimum of the Maximum: Navigating SB 1830’s Fluid Standard for Tennessee Stormwater Permits

Introduction

Two things keep coming to Tennessee and stopping here: warm air and people. Warm air from the Gulf and the Atlantic picks up water and moves inland, getting backed up by the Southern Appalachians, and releasing that water as rain. This process results in about 53 inches of precipitation across the state each year, twenty inches more than Seattle,[1] and wet weather events are only expected to increase as the climate gets warmer.[2] People from all over the country seem to get backed up by the Southern Appalachians as well. The University of Tennessee expects the State’s population to grow by two million in the next twenty five years,[3] and the greater Nashville area is experiencing rapid growth, with as many as fifty to a hundred people moving to the region every day.[4] To the average observer more rain and more people might only mean a slight uptick in umbrella sales. But to those concerned about water quality in Tennessee, it means something much more serious: stormwater runoff.

More people means more development, and more development means more construction of impervious surfaces – land that no longer soaks up rain water. This leads to greater discharges of stormwater in water bodies after rainfalls, with potentially devastating impacts. Rainfall can pick up various pollutants including bacteria and heavy metals.[5] Large discharges of stormwater can affect the temperature and flow of rivers, as well as deposit clouded sediment.[6] All of this results in harm to aquatic species, toxins in drinking water supplies, and aesthetic and recreational harms.

Tennessee needs to manage stormwater runoff to protect the admirable strides that have been made in water quality throughout the state. Last year, however, the Tennessee legislature passed SB 1830, which aims to limit the Tennessee Department of Environment and Conservation’s (TDEC’s) ability to employ creative solutions to the problems stormwater presents.[7] This article will discuss some of the confusing language in SB 1830 and why it may have more bark than bite. Specifically, the bill prohibited TDEC from imposing post construction stormwater regulations beyond “the minimum requirements of federal law.”[8] But, as  this paper will demonstrate, the “minimum requirements of federal law” are far from clear. 

Riders on the Storm: The Problem and Effects of Stormwater

Stormwater runoff, particularly as a result of construction in urban and suburban areas, is a paradigmatic example of pollution: it is nobody’s problem but The Commons. The cost to each property owner of implementing control measures to treat their own stormwater outweighs, at least initially, the benefits that each individual owner would capture. The polluted water, after all, literally “runs off” their property.[9] Unlike the traditional negative externalities that result from, say, manufacturing, with stormwater there is not a clear benefit that justifies asking the owner to internalize the cost. In other words, a widget producer gains a widget per unit of pollution produced; a homeowner simply “gains” a roof over their head in a storm. It is much more difficult to convince the later that they have to internalize that cost than the former.

Although the issue of responsibility makes stormwater policy contentious, the essential problem and general solutions are relatively straightforward. The problem results largely from development.[10] Development means less natural ground cover, and that means more, and more polluted, stormwater. Less pervious ground cover means rainstorms produce more runoff because less water can soak into the ground. The physics may be quite obvious but the result is “striking”: impervious ground can result in thousands more gallons of runoff than pervious ground.[11] In addition to this intense increase in volume, the water that runs off impervious ground – often into public waterways – is also more polluted. Stormwater runoff picks up a variety of pollutants, from sediment to pathogens and heavy metals.[12] Stormwater runoff can be more polluted than discharges from a sewage plant.[13]

If the problem is impervious ground, then one straightforward solution is less of it. Unlike impervious ground, soil acts a natural filter, literally cleaning chemicals and other pollutants out of the water.[14] This makes green infrastructure a popular way of managing stormwater.[15] “Green infrastructure” generally “refers to management systems that mimic nature by infiltrating or storing stormwater.”[16] For instance green infrastructure could include rain gardens, special kinds of pavement that absorb water, or simply more green space on any developed acre.[17] One method of regulation that encourages such practices is mandating a retention amount, where, for example, the first inch of rain – the most polluted water – has to be retained on the development.[18] Such a requirement could be met with green infrastructure that absorbs the first inch of rainwater. This approach has been used in Tennessee,[19] though the future of such a requirement is up in the air given recent changes in Tennessee law. Before discussing that statutory change, this paper will first explain some of the background on stormwater regulation.

Designing a Law for a Rainy Day: The Clean Water Act and Stormwater Regulation

Congress passed the Clean Water Act in 1972 and tasked the nascent Environmental Protection Agency (EPA) with implementing the Act’s ambitious goals.[20] The implementation of the Clean Water Act proceeded in a manner that, in hindsight, makes sense: EPA began with more obvious, discrete polluters and moved to less obvious and more insidious forms of pollution. EPA first tackled discrete discharges from “point sources”: the classic pipe gushing toxic ooze that silenced the spring. As the “Environmental Decade” progressed, EPA expanded its jurisdiction over point sources and raised water quality standards.[21] In the late 1970s and 80s concerns arose over non point sources, such as agricultural and silvicultural runoff, and the EPA made efforts to curb that pollution.[22] Finally, nearly twenty years after the Act’s passage, and after ample prodding from NGOs, Congress and the courts, EPA moved on to the final frontier of the Clean Water Act: stormwater runoff.[23]

Throughout this decades long story, EPA failed to meet several deadlines for promulgating regulations to cover different sources.[24] Relatively early on in 1973, one year after the Act’s passage and faced with the seemingly impossible task of implementing a permitting program for hundreds of thousands of sources, EPA categorically exempted municipal stormwater systems from the national permitting program.[25] In 1977, the D.C. Circuit held that such blanket exemptions in the name of administrative infeasibility were not proper,[26] and that the Clean Water Act required EPA to cover municipal stormwater dischargers.[27] By 1987, EPA still had a long way to go to meet that requirement. In that year, Congress passed amendments to the Clean Water Act, known as the Water Quality Act, which mandated that EPA promulgate rules regulating municipal separate storm sewer systems (MS4s).[28]

Of most importance to stormwater, the Water Quality Act added Section 402(p) to the Clean Water Act.[29] Section 402(p) required EPA to promulgate rules covering permits for MS4s – a task which the EPA separated into different phases for different sized jurisdictions. The so-called “Phase 1” permits covering larger cities were tackled first.[30] By the end of the 1990s EPA moved on to permitting for the “Phase 2” small MS4s.[31]

Section 402(p) also provided a standard that MS4 permits had to meet, and this standard is particularly relevant for understanding some of the problems with the Tennessee legislature’s recent stormwater legislation. Under 402(p), MS4 permits had to require “controls to reduce the discharge of pollutants to the maximum extent practicable.”[32] This is known as the “maximum extent practicable,” or “MEP” standard, and it constitutes a more flexible approach than the Clean Water Act usually employs.  

The Clean Water Act generally deals with sources of pollution through effluent limitations: specific numerical limitations on a particular pollutant, either at the end of the pipe or in the water body.[33] Municipal storm water systems, however, do not easily fall under the traditional source categories the Clean Water Act envisioned.[34] That is, MS4s are a little bit point source and a little bit non-point. There is ultimately a discrete conveyance of polluted water, making them seem like point sources. But that polluted water is the result of numerous disparate sources, and is more akin to runoff from an agricultural operation – which looks like a non-point source. This may be why Congress, in the form of 402(p), “took a different regulatory approach to urban stormwater.”[35] Instead of requiring MS4 permits to follow the traditional effluent limitation approach, 402(p) requires an “iterative” regulatory approach,[36] asking permitting authorities to regulate stormwater to the “maximum extent practicable,” as well as consider different “management practices” and “design and engineering methods.”[37]

In 1990, EPA issued its final rule implementing the Water Quality Act for Phase I MS4s,[38] but did not provide much in the way of particulars when it came to what “maximum extent practicable” meant. EPA discussed the legislative history of the amendments, noting that “Congress was aware of the difficulties in regulating discharges from [MS4s] solely through traditional end-of-pipe treatment and intended for EPA and . . . States to develop permit requirements that were much broader in nature than requirements which are traditionally found in . . . permits for [similar dischargers].”[39] According to the EPA, the intermittent nature of rainfall as well as the diversity of sources that lead to stormwater pollution contribute to a type of pollution that was better handled through a comprehensive approach instead of traditional end-of-pipe effluent limitations.[40] One municipality submitted comments on the rule asking for as much flexibility as possible due to the fact that national and even state wide numerical regulations can fail to take into account differences in geography and weather.[41] EPA agreed, stating that “as much flexibility as possible should be incorporated into the program.”[42]

Nearly a decade later EPA issued their final rule for Phase II small MS4s.[43] These EPA regulations provided six “minimum control measures.”[44] This may sound like a clear regulatory floor that a permitting authority could meet to comply with the MEP standard, but EPA did not envision these as a minimum path to MEP. For instance, EPA assumed that implementation of the six minimum control measures might still lead to non-attainment of a necessary water quality standard, in which case the permitting authority would need to “expand or better tailor [best management practices] to create a satisfactory permit that meets the MEP standard.”[45] Furthermore, these “control measures” are really approaches that permitting authorities can focus on, but the details still need to be worked out by the permitting authority in an iterative, locally-tailored manner. As EPA explained, they “intentionally [did] not provide[] a precise definition of MEP to allow maximum flexibility in MS4 permitting. MS4s need the flexibility to optimize reductions in storm water pollutants on a location-by-location basis.”[46] This flexible approach constitutes the legal background against which the Tennessee legislature sought to address stormwater regulation, and the next section of this paper will detail the legislature’s successful efforts to change Tennessee’s stormwater laws in 2016.  

The Minimum of the Maximum: The Substance of SB 1830

On January 19, 2016, while TDEC was considering comments on a new Phase II MS4 permit, Senator Steve Southerland (R-Morristown) introduced SB 1830, a bill relating to MS4 permitting and construction.[47] The primary concern of the bill was potential post construction requirements in TDEC’s general permit.[48] Construction sites are regulated under the same general permit that covers MS4s,[49] as construction can often be a major driver of stormwater pollution.[50] Construction sites generally have to conform to regulations to deal with sediment and other pollutants, as well as seek approval when sites turn pervious surfaces into impervious ones, which can dramatically increase the flow and degrade the quality of stormwater.[51] Of particular concern to developers, however, is the possibility of post construction requirements.[52] Post-construction requirements can vary tremendously in detail,[53] but in general terms attempt to accomplish the same goal: requiring builders to include features that retain or treat stormwater.[54] For example, a permit could require a certain amount of land remain pervious (e.g. through construction of rain gardens), thus limiting the amount that a particular development adds to stormwater flow. Construction firms and development associations are concerned with these possible regulations for a variety of reasons, including the possibility of increased cost and greater administrative difficulty in the planning stages of new construction.[55] They are especially concerned that such requirements might encumber property with binding conditions that extend well beyond the completion of the project.[56]

SB 1830 dealt with the concerns of homebuilders and developers by amending T.C.A. §69-3-108, which covers the State’s Clean Water Act permitting scheme.[57] First, SB 1830 prohibits specific Clean Water Act permits from imposing “post-construction storm water requirements, except to the extent necessary to comply with the minimum requirements of federal law.”[58] Second, the bill prohibits the State from requiring local governments that administer MS4s to themselves require post construction controls.[59] Last, the bill requires that any local government which adopts any control measure that “exceed[s] the minimum requirements of federal law,” to do so by an ordinance or resolution.[60] Essentially, SB 1830, which passed the legislature and went into effect in April 2016, prohibits TDEC from requiring post construction controls beyond “the minimum requirements of federal law,” and makes it harder for local governments in Tennessee to do the same. As TDEC’s General Counsel Jenny Howard said of the prohibition during a hearing on SB 1830, “how’s [a] city supposed to defend that they’re doing the minimum of the maximum extent practicable?”[61]

There are reasonable concerns regarding post construction requirements. Any additional construction requirements will at least initially increase the cost of construction projects, and management practices that favor, for instance, green infrastructure could disrupt private construction plans. Some of these requirements, however, can add long term value to developments, making a residential area or apartment complex more attractive because of, for instance, gardens, dog parks, or more attractive types of pervious parking.[62] Beyond these potential individual benefits, there are the traditional environmental regulatory arguments in favor of post-construction controls: they force developers to internalize costs that are otherwise borne by the community at large. In other words, whether builders like or not, the problems of stormwater all come out in the wash. Degradation of streams and lakes, clouded water and algal blooms, and even increased flooding all harm the community, and can bring down the price of real estate as well. Beyond these normative reasons for rethinking the policy goals of SB 1830, the rest of this paper will focus on a positive hurdle in the legislation. Namely, prohibiting regulations beyond the “minimum requirements of federal law” is a tough mandate when the federal law does not have clear minimum requirements, and is generally flexible and adaptive, as described above. The following section will briefly detail some litigation in other states that highlights how confusing and malleable the MEP standard is, and why the minimum of the maximum is likely to be an unworkable standard.

A Fluid Standard: Litigation Over MEP

The MEP standard was intended to facilitate an “iterative” and adaptive process, and has therefore defied strict definition.[63] Still, some regulated parties have attempted to prove that particular requirements in MS4 permits are beyond MEP and therefore invalid under federal law.[64] In California, a building industry trade group (“Building Association”) sued the state permitting authority over requirements in their MS4 permit that the trade group claimed were beyond the federal MEP standard.[65]

The primary area of contention was whether MEP provided a ceiling for regulation in an MS4 permit.[66] The statute states that MS4 permits “shall require controls to reduce the discharge of pollutants to the maximum extent practicable, including management practices, control techniques and system, design and engineering methods, and such other provisions as the [EPA] Administrator or the State determines appropriate for the control of such pollutants.”[67] The Building Association argued that permits could only have controls to the “maximum extent practicable,” and that everything after “including” was a list of what could constitute MEP requirements.[68] The California court, however, took the alternative view. The legislative history suggested that “Congress did not intend to substantively bar the EPA/state agency from imposing a more stringent water quality standard.”[69] In other words, regardless of what, precisely, MEP means it does not provide a regulatory ceiling: if, “based on its expertise and technical factual information [the permitting agency], found [a higher water quality based] standard to be a necessary and workable enforcement mechanism to achieving the goals of the Clean Water Act,” then the permitting agency was within the law to require permitees to meet that standard.[70] Therefore, it is worth noting that even requirements beyond MEP may not constitute requirements beyond “the minimum requirements of federal law.”

The court, however, went on to discuss the malleability of the MEP standard in general. The Building Association made an argument that they were not required to present evidence on the infeasibility of meeting the permit requirements because any standard beyond MEP was necessarily not “practicable” and thus not feasible.[71] MEP, however, “is not defined in the Clean Water Act or applicable regulations,” and therefore the court essentially adopted the definition provided by the state permitting agency.[72] That definition, the court held, was “highly flexible,” and more of a “term of art” instead of a “phrase that [could] be interpreted solely by reference to its everyday or dictionary meaning.”[73]

The California court did, however, note that “maximum extent practicable” did not entail the highest level of regulation possible.[74] That interpretation is in line with other courts, and does admittedly create the possibility that MEP could be exceeded by certain requirements, as SB 1830’s drafters apparently feared. In Washington State, a county (and another building association) sued over the State’s general MS4 Phase 1 permit, arguing that certain requirements violated state law.[75] The State permitting authority argued that the permit had to have those provisions because the MEP standard required it, and the federal law preempted state law.[76] The court held that federal law was not preemptive here in part because the statute “does not require controls to reduce the discharge of pollutants to the maximum extent possible,” only to the maximum extent practicable.[77] Similarly, in a Ninth Circuit case, an environmental organization challenged Arizona’s permit on the ground that it did not include traditional numeric limitations in order to ensure water quality standards.[78] Although the environmental organization argued that “maximum extent practicable” required such numeric limits – that Arizona had to do all that they could to limit pollutants in stormwater – the court held that MEP was not so demanding.[79] In fact, they held that that the statute is unambiguous in that it does not require MS4s to meet other more stringent provisions of the act.[80]

Still, the Ninth Circuit’s decision also demonstrates why MEP is not exactly a great candidate for a regulatory floor. MEP may not require numeric limitations universally, but the court did not hold that MEP necessarily excluded numeric limitations either.[81] Put differently, while there may be instances when MEP does not require certain control measures, those are not categorical limits on MEP. Rather, MEP was designed as a flexible, locally tailored standard that would allow state permitting authorities and local municipalities to craft regulations that fit the specific needs of different municipalities and water bodies. In other words what constitutes a regulation to the “maximum extent practicable,” in Washington State may be different from what constitutes the “maximum extent practicable” in Tennessee.[82] In fact, it may be different in Memphis as opposed to Nashville.[83]

Beyond the inherent difficulties in policing the MEP standard, SB 1830’s language presents an additional wrinkle. SB 1830 is designed to prevent regulations beyond the federal minimum specifically in regards to post construction control measures. But EPA’s regulations implementing the Water Quality Act for Phase II MS4s outline post construction run-off control as one of the six minimum control measures.[84] Even if a legislative prohibition on regulations beyond MEP were workable in general, something which the above mentioned cases suggest it is not, that prohibition becomes even more unclear in the context of post construction controls. Due to the EPA regulations, a permitting authority would have a strong argument that whatever the minimum of the maximum may be, it at least allows for post construction runoff controls.        Ultimately, these cases demonstrate that courts have a hard time determining what exactly constitutes MEP for a given permit, a conclusion that the legislative history and subsequent EPA interpretation of the statute would suggest. SB 1830, which sets the “minimum requirements of federal law” as the regulatory ceiling, may have more bark then bite given the fluid nature of federal law in this context.

Conclusion

There’s no reason to think Tennessee is going to see less people or less weather any time soon. That means that the Tennessee legislature, as well as local governments throughout the state, need to think comprehensively about growth, and stormwater. There are ways of moving forward on stormwater regulation that have broad benefits for Tennesseans, without creating infeasible requirements for homebuilders or needlessly driving up the cost of construction. That movement, however, requires the flexible approach to stormwater that Congress envisioned when they passed the Water Quality Act three decades ago. Legislation like SB 1830, while understandable in its goal of limiting regulation and keeping costs low for builders, impedes progress by attempting to constrain what should be an adaptive and iterative process, and dictates an ill considered and unworkable standard in doing so. What exactly constitutes the minimum of the maximum is nearly impossible to determine. What is possible to determine is a better way to encourage growth and protect water quality, and that begins with a flexible permitting approach and good science.


— Ben Raker, a student at Vanderbilt University Law School, is the winner of the 2017 Jon E. Hastings Memorial Award Writing Competition


[1]See NASA, On Top of the Smokies, All Covered in Light Rain, (Apr. 20, 2012) https://www.nasa.gov/

topics/earth/features/smokies.html; U.S. Climate Data, Tennessee, http://www.usclimatedata.com/climate/tennessee/

united-states/3212; U.S. Climate Data, Seattle, Washington, http://www.usclimatedata.com/climate/seattle

/washington/united-states/uswa0395.

[2]Jeff Tollefson, Global Warming Already Driving Increases in Rainfall Extremes, Nature (Mar. 7, 2016), http://www.nature.com/news/global-warming-already-driving-increases-in-r....

[3]Tennessee Today, Study: Tennessee on Track for Steady Population Growth, (Aug. 20, 2015), http://tntoday.utk.edu/2015/08/27/study-tennessee-track-steady-populatio....

[4]Getahn Ward, How Many People Are Really Moving to Nashville Every Day?, The Tennessean, May 2, 20116, http://www.tennessean.com/story/opinion/2016/05/01/how-many-people-reall....

[5]See Julie Moore, Stormwater Runoff from Developed Lands, 17 Vt. J. Envtl. L. 766 (2016).

[6]Douglas A. Miltenberger, Development On The Banks Of The Letort Spring Run: What Can Be Done To Save Pennsylvania’s Waterways From Post Construction Stormwater Runoff?, 11 Penn St. Envtl. L. Rev. 127, 127 (2002).

[7]See Municipal Utilities—Sewers And Sewer Systems—Construction, 2016 Tennessee Laws Pub. Ch. 1007 (S.B. 1830).

[8]Id. at Section 1.

[9]See Roopika Subramanian, Rained Out: Problems And Solutions For Managing Urban Stormwater Runoff, 43 Ecology L.Q. 421, 425 (2016).

[10]National Research Council, Urban Stormwater Management in the United States 23, (Oct. 2008), available at https://www3.epa.gov/npdes/pubs/nrc_stormwaterreport.pdf (“Nearly all of the associated [stormwater] problems [with urbanization] result from one underlying cause: loss of the water-retaining function of the soil and vegetation in the urban landscape.”).

[11]Miltenberger supra note 6, at 129.

[12]Id. at 127.

[13]Id.

[14]Meghan Sindelar, Soils Clean and Capture Water, Soil Science Society of America (Apr. 2015), available at https://www.soils.org/files/sssa/iys/april-soils-overview.pdf.

[15]See, e.g., JoAnne L. Dunec, Banking on Green: A Look at How Green Infrastructure Can Save Municipalities Money and Provide Economic Benefits Community-Wide, 27-FALL Nat. Resources & Env't 62 (2012).

[16]Samuel Brown and Gerald Olsen, Stormwater – The Next Phase, 30-WTR Nat. Resources & Env’t 53, 53 (2016).

[17]See Subramanian, supra note 9, at 432.

[18]NPDES General Permit for Discharges from Small Municipal Separate Storm Sewer Systems (2010) at 16, available at http://environmentonline.tn.gov:8080/pls/enf_reports/BGWPC.GET_WPC_DOCUM...

=12091007328916555.

[19]Veto Request from John McFadden et al. to Governor Bill Haslam (Apr. 12, 2016) available at http://www.harpethriver.org/resources/sm_files/Joint%20consv%20groups%20letter%20to%20Gov%20Request%20for%20Veto%20HB%201892.pdf (“Many Tennessee communities decided long ago that [federal stormwater quality standards were] best achieved by requiring new housing and commercial developments to retain and slowly release or infiltrate (allow to soak in) the first, and most polluted, inch of rain from any storm.”).

[20]See 33 U.S.C. §1251(a)(1), (a)(2) (outlining the Act’s goals). 

[21]  Natural Resources Defense Council, Inc. v. Costle, 568 F.2d 1369 (D.C. Cir. 1977) (holding that EPA must increase jurisdiction over point sources); Water Quality Standards Regulation, 63 Fed. Reg. 36742, 36745-46 (July 7, 1998) (discussing history of water quality standards).

[22]See Debbie Shosteck, Pronsolino v. Marcus, 28 Ecology L. Q. 327, 331-37 (2001).

[23]See National Pollutant Discharge Elimination System Permit Application Regulations for Storm Water Discharges, 55 Fed. Reg. 47990, at 47991-94 (Nov. 16, 1990) [hereinafter Phase I Regulations] (discussing background of stormwater regulation).

[24]See Costle, 568 F.2d at 1372-73.

[25]See id.

[26]Id. at 1382.

[27]Id. at 1379.

[28]Water Quality Act of 1987,Pub. L. No. 100–4,101 Stat 7 (1987); see also Phase I Regulations at 47992 (discussing the Water Quality Act and its requirements).

[29]33 U.S.C. §1342(p).

[30]See Phase I regulations at 48038 (1990) (discussing strategy with regards to large and medium municipal storm sewer systems).

[31]See National Pollutant Discharge Elimination System—Regulations for Revision of the Water Pollution Control Program Addressing Storm Water Discharges, 64 Fed. Reg. 68722 (Dec. 8, 1999) [hereinafter Phase II Regulations].

[32]33. U.S.C. §1342(p)(B)(iii).

[33]See id. at §1311.

[34]Melissa K. Scanlan & Stephanie Tai, Marginalized Monitoring: Adaptively Managing Urban Stormwater, 31 UCLA J. Envtl. L. & Pol’y 1, 18 (“Part of the difficulty of establishing a regulatory structure for MS4s is that they do not easily fit into the point and nonpoint regulatory categories Congress established in the Clean Water Act.”).

[35]Id. at 19.

[36]Id.

[37]See 33 U.S.C. § 1342(p); see also Phase I Regulations at 47999 (“Congress established a different framework to address discharges from small municipal separate storm sewer systems . . . . [P]ermits for municipal storm sewer systems require controls on storm water discharges “to the maximum extent practicable,” as opposed to the BAT/BCT requirements of section 301(b)(2). Yet, all industrial storm water discharges must comply with section 301(b)(2).”).

[38]See generally Phase I Regulations.

[39]Id. at 48037-38. Specifically, EPA compared these permits to permits for industrial process discharges and publicly owned treatment works. See id.

[40]Id. at 48038.

[41]Id.

[42]Id. This is not generally considered an erroneous agency interpretation. See Scanlan & Tai, supra note 34, at 7 (“Congress gave wide latitude to municipalities to structure their urban stormwater programs.”).

[43]Phase II Regulations at 68722.

[44]Id., at 68843, codified at 40 C.F.R. 122.43.

[45]Id., at 68753 (1999).

[46]Id.at 68754; see also id. (“One commenter observed that MEP is not static and that if the six minimum control measures are not achieving the necessary water quality improvements, then an MS4 should be expected to revise and, if necessary, expand its program. This concept, it is argued, must be clearly part of the definition of MEP and thus incorporated into the binding and operative aspects of the rule . . . . EPA believes that it is.”)

[47]See SB 1830 Bill History, http://wapp.capitol.tn.gov/apps/Billinfo/default.aspx?BillNumber=SB1830&... (last visited Mar. 16, 2017).

[48]Hearing on SB 1830 Before the S. Comm. On Energy, Agriculture, and Natural Resources, 2016 Leg.,109th Sess. (Mar. 14, 2016) (remarks of Bill Penny, counsel for Homebuilders Association of Tennessee, at 3:29:20) video available at http://wapp.capitol.tn.gov/apps/videowrapper/default.aspx?CommID=601000 [hereinafter Hearing on SB 1830]

[49]Leah F. Pilconis, Prepare for Changes to Stormwater Permitting and Enforcement: What Construction Lawyers Need to Know, 37-WTR Construction Law. 6, 9 (“Typically, to obtain authorization to discharge under a general permit, a discharger (e.g., any owner(s)/operator(s) of the construction site) submits to the permitting authority a Notice of Intent (NOI) or state equivalent to be covered under the general permit.”).

[50]See Miltenberger, supra note 6, at 131 (“Construction activity is the largest direct source of human-made sediment loads.”).

[51]See id. at 129.

[52]See, e.g., Nat’l Assoc. of Home Builders, EPA Drops Plans for New Post-Construction Stormwater Rule, NAHBNow.com (Mar. 24, 2014),http://nahbnow.com/2014/03/epa-drops-plans-for-new-post-construction-stormwater-rule/. (referring to the EPA’s proposed post-construction rule as “a five-year bureaucratic battle.”).

[53]See, e.g., EPA, Post-Construction Performance Standards & Water Quality-Based Requirements: A Compendium of Permitting Approaches (June 2014), available at https://www3.epa.gov/npdes/pubs/sw_ms4_compendium.pdf.

[54]See EPA, Stormwater Phase II Final Rule Fact Sheet: Post –Construction Runoff Control Minimum Control Measure (Dec. 2005), https://www3.epa.gov/npdes/pubs/fact2-7.pdf.

[55]See Nat’l Assoc. of Home Builders, supra note 52(“ [B]uilders who employ these practices have estimated that they add at least 10-15% to the cost of a developed lot, depending on location and soil type.”).

[56]See Pilconis, supra note 49, at 14 (“Construction lawyers should pay close attention to potential scenarios that would saddle the contractor with the long-term legal liability for the performance of permanent stormwater controls after the construction firm leaves the project.”).

[57]Municipal Utilities—Sewers And Sewer Systems—Construction, 2016 Tennessee Laws Pub. Ch. 1007 (S.B. 1830); Tenn. Code Ann. § 69-3-108 (West).

[58]Id. Section 1.

[59]Id.

[60]Id.

[61]Hearing on SB 1830 (remarks of Jenny Howard, TDEC General Counsel, at 3:49:29).

[62]See, e.g., EPA, Experimental Permeable Pavement Parking Lot and Rain Garden for Stormwater Management, https://www.epa.gov/water-research/experimental-permeable-pavement-parki... (last visited Mar. 22, 2017); see generally Dunec, supra note 15.

[63]Phase II Regulations, at 68731 (describing the EPA’s regulatory approach as “iterative”).

[64]See Bldg. Indus. Ass’n of San Diego Cty. v. State Water Res. Control Bd., 22 Cal. Rptr. 3d 128, 130 (2004), as modified on denial of reh’g (Jan. 4, 2005); Nat. Res. Def. Council, Inc. v. N.Y. State Dep't of Envtl. Conservation, 120 A.D.3d 1235, (N.Y. 2014). These challenges also raise the compelling argument that SB 1830 may be entirely superfluous, because if any control measure in a permit truly did go above the MEP standard, that measure may be invalid under the CWA, regardless of state law.

[65]Bldg. Indus., 22 Cal. Rptr 3d at 130-131.

[66]See id. at 139

[67]Id. (quoting 33 U.S.C. §1342(p)(3)(B)(iii)) (emphasis and alteration in the original).

[68]Id.

[69]Id. at 142.

[70]Id.

[71]Id. at 144-45.

[72]Id. at 145.

[73]Id.

[74]Id.

[75]Snohomish Cty. v. Pollution Control Hearings Bd., 368 P.3d 194, 196, rev’d, 386 P.3d 1064 (2016).

[76]Id. at 205.

[77]Id. at 206. The opinion was reversed on other grounds. See Snohomish Cty. v. Pollution Control Hearings Bd., 386 P.3d 1064 (2016) (en banc).

[78]Defs. of Wildlife v. Browner, 191 F.3d 1159, 1161-62 (9th Cir.),opinion amended on denial of reh’g, 197 F.3d 1035 (9th Cir. 1999).

[79]Id. at 1161, 1166.

[80]Id. at 1164 (holding that the statute is not ambiguous under Chevron step one, and that it does not require that MS4 permits meet the requirements of 33 U.S.C. §1311(b)(1)(C)).

[81]See id. at 1166.

[82]See note 46supra and accompanying text.

[83]See Anne Passino, Southern Environmental Law Center, Comments on Draft General Permit for Small Phase II MS4s (TNS000000) at 3, (May 11, 2016), available at http://environmentonline.tn.gov:8080/pls/enf_reports/

BGWPC.GET_WPC_DOCUMENTS?p_file=551986522638428998 (“It is irrelevant that different delegated states’ programs have different, flexible interpretations of MEP if the national goal is to achieve the maximum pollutant removal possible.”).

[84]Phase II Regulations, at 68843, codified at 40 C.F.R. 122.43. 

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Thanks to Our Section Leaders

Thanks to the members of the 2016 - 2017 TBA Environmental Law Section Executive Council for their service to the section this year. In addition to the production of CLE programming for the members, the executive council met regularly throughout the year to produce news to the members and the recent Jon E. Hastings Memorial Award Writing Competition. Thanks to all for their dedication and hard work on behalf of the TBA Environmental Law Section.
 
• Willa Kalaidjian, Chair
Chambliss, Bahner & Stophel, P.C. (Chattanooga)
 
• Lauran Sturm, Vice Chair
Tennessee Department of Environment & Convservation (Nashville)
 
• Bob Tuke, Secretary/Treasurer
Trauger & Tuke (Nashville)
 
• Jenny Howard, Newsletter Editor
Tennessee Department of Environment & Conservation (Nashville)
 
MIDDLE TENNESSEE DELEGATES
 
• Anne Davis
Southern Environmental Law Center (Nashville)
 
• Scott Thomas
Bass, Berry & Sims PLC (Nashville)
 
• Gregory T. Young
Stites & Harbison PLLC (Nashville)
 
WEST TENNESSEE DELEGATES
 
• Randy Womack
Glankler Brown PLLC (Memphis)
 
• Robert McLean
Farris Bobango Branan PLC (Memphis)
 
• Jim Lenschau
Martin, Tate, Morrow & Marston, P.C. (Memphis)
 
EAST TENNESSEE DELEGATES
 
• Ashley Lowe
Baker Donelson Bearman Caldwell & Berkowitz, PC (Knoxville)
 
• Rick Hitchcock
Chambliss, Bahner & Stophel P.C. (Chattanooga)
 
• David Higney
Grant, Konvalinka & Harrison, PC (Chattanooga)
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Turn Your Expertise into a Magazine Article

It’s no surprise that some of the best articles in the Tennessee Bar Journal have come from TBA section members. Your membership in this section shows that you have a keen interest in trends, developments and case law in this practice area. Sharing this knowledge with your colleagues is one of the best traits of the profession.

How can you become a Journal author? Think of and refine your topic. It should be of interest to Tennessee lawyers, which is a broad criteria. This could mean you might explain a new state law, explain a complicated area of law, or take a larger issue and connect it to what it means for Tennessee attorneys and the justice system. Find a global issue within your particular experience or knowledge and tell about it and how it affects Tennessee law. Then take a look at the writer’s guidelines at http://www.tba.org/submit-an-article, which will tell you about length, notes and other details. Once it’s in the proper format, send it in! It goes to the editor, Suzanne Craig Robertson, who will then get it to the seven members of the Editorial Board for review.

If you are published, you may apply for CLE credit for your work under Supreme Court Rule 21 Section 4.07(b). For details on claiming the credit, check with the Commission on CLE & Specialization at http://www.cletn.com/.

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