News

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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TBA Convention in Kingsport is Just Around the Corner

Registration is open for the 2017 TBA Annual Convention. This years programming offers plenty of opportunities to make new friends and renew acquaintances with colleagues from across the state. The highlight comes Thursday night with the Kingsport Karnival at the downtown Farmers Market. Along with fabulous food and drink, there will be live music from two bands, an aerialist, juggler, magician, body and face painters, caricaturist and more. Plus, you'll have access to the fabulous Kingsport Carousel, the delightful project of community artisans. Special thanks to Eastman for support of this event! 

This years convention also offers 12 hours of CLE programming, highlighted by sessions on the Hatfields and McCoys, The Neuroscience of Decision-Making, and the popular Better Right Now wellness program. It is all set at the beautiful MeadowView Marriott Conference Resort & Convention Center. To receive the TBA $129 room rate, you must book your reservation by May 23. Book your room online now or call 423-578-6600.

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Call For Submissions — Law Practice Pointers

One of the benefits of being a TBA Section Member is having access to information from experienced practitioners to assist in your day-to-day practice. The sharing of this information amongst colleagues is one of the best traits of the profession. It is also a way of helping each other to maneuver the evolving legal market and strengthen your legal practice.

How can you help your fellow Section Members?  If you have some Law Practice Pointers you would like to share with your fellow section members, write an article between 300-500 words and submit it to the Section Coordinator for review and approval. These Law Practice Pointers can be related to a court opinion, piece of legislation, or current event or industry trend that affects the practice of law as it relates to the specific Section. The main requirement is to make sure the article gives lawyers practical tips, based on experience, to include in their day-to-day practice.

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Plaintiff Won’t Drop TVA Tree Suit, Despite Concessions

Plaintiffs suing the Tennessee Valley Authority over its tree-clearing policies won’t back off their fight, despite TVA promises to stop applying the policy, Knoxnews reports. Attorney for the plaintiffs Don K. Vowell filed a response Wednesday in U.S. District Court requesting that the TVA explain what policy they will use instead of the old one. The controversy centers around TVA’s “15-foot-rule,” in which any tree in a transmission line right of way that could grow over 15 feet is deemed a potential threat to the line and should be removed.
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Symposium Looks at Aftereffects of Wildfires

Experts in risk management, environmental impacts and the law gathered at a wildfire symposium Thursday at Lincoln Memorial University's Duncan School of Law in downtown Knoxville. WBIR reported that much of the discussion focused on November's deadly Sevier County wildfires, which left 14 people dead and damaged or destroyed some 2,500 structures.

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No Further Action Letters; Know Their Limitations

As most of you know, the Department of Environment and Conservation has, on a historical basis, utilized “no further action” letters to acknowledge and document the Department’s determination that it will not require a liable or responsible party [1] to take further environmental response action at a site. Before the amendment to the voluntary oversight and assistance program statute (T.C.A. §68-212-224) in 2001 that authorized the Department to enter into brownfield voluntary agreements and brownfield consent orders, a “no further action” letter was the established method that the Department could provide any comfort or assurance that a party had taken the appropriate action at a contaminated property.

But how comforting or assuring is a “no further action” letter? Environmental practitioners can read a typical “no further action” letter and understand that it has limited effect. “No further action” letters typically contain cautionary language to the effect that if additional information should be discovered concerning the site, the Department reserves the right to reevaluate the no further action status of the site. I counsel clients and other parties that a “no further action” letter is simply an “administrative closure” and is limited in effect. It is not a contractual commitment, and it does not commit the Department to any course of conduct. Another potentially limiting effect of a “no further action” letter is that it may be issued to address a specific action undertaken in a limited area of a contaminated site. In simplest terms, 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.

Despite the limitations of a “no further action” letter, they do serve to reduce the risk for a property owner or a prospective property owner. And like many of you, I have been involved in real estate transactions where a “no further action” letter was one of the conditions of closing. However, many people associated with real estate transactions do not appreciate the limitations of a “no further action” letter—they assume that a “no further action” letter provides a promise that no additional environmental response action will be required at a property.

How a “no further action” letter can be misunderstood can be observed in the following scenario. An owner of a gasoline retail store decides to sell the property to a drug store chain. The store owner removes the underground storage tanks, and in the process, petroleum contamination is discovered. Some soil removal work is completed, and a “no further action” letter is issued by the Division of Underground Storage Tanks following a review of sampling results. As is the typical case, some contamination remains at the property. The drug store acquires the former gasoline retail store property and the neighboring parcel (from a separate owner) for the development of a drug store. As the drug store chain starts site work, they are advised that the remaining contamination at the property will complicate the site work (a substantial amount of soil “cutting” work was required to level the construction site). Both parties to the contract were surprised by the effort that was going to be required to deal with the remaining petroleum contamination at the site, and a dispute developed as to the extent to which the drug store chain would be entitled to an adjustment of the purchase price established in the contract.

In this scenario, the parties simply did not fully understand the effect of the “no further action” letter. They assumed that the “no further letter” would lead to little complication of the site work associated with the construction of the drug store. The parties may have been warned about the effort that would be needed by language found in the “no further action” letter. That language, found near the end of the “no further action” letter, provided that “if soils are excavated and removed from the UST site for use at another location, then the Division of Solid Waste Management must be contacted regarding the proper disposal and/or use of those soils.”

If the use of property was going to remain the same (gasoline retail store), then there would have likely been little impact on the site work. However, in this situation, the property was going to be used for a different commercial purpose. A separate property (not associated with the former underground storage tank site) was being incorporated into the development, and the existence of contaminated soils on the former underground storage tank site limited, without the Department’s approval, the use of the contaminated soils on the other property. In addition, any contaminated soils not required for the site work associated with the drug store had to be treated as waste and transported for disposal at a permitted disposal facility.

What is the lesson? Despite their accepted use, “no further action” letters do present some level of risk and uncertainty. As long as everyone involved in a particular transaction or remediation effort appreciates that risk and uncertainty, then “no further actions” letters will continue to have a part in many responses to environmental conditions at a site.


[1]For purposes of this article, when I refer to a “responsible party,” I do not necessarily mean a party that is or may be liable under federal and/or state law for an environmental condition at a property. I refer also to a party (such as a prospective purchaser or innocent purchaser) who may voluntarily undertake environmental response actions in order to put a property to beneficial use.


— Randall B. Womack practices with Glankler Brown PLLC in Memphis

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Thanks To Our Sponsor

Geosyntec is a specialized consulting and engineering firm that works with private and public sector clients to address new ventures and complex problems involving our environment, natural resources, and civil infrastructure. 

For more detailed information, visit the Geosyntec website.

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Winning The Brownfields Gambit

Urban landscapes in most cities show the pockmarks of long-gone industry in the form of derelict buildings, silent factories, and fenced vacant lots fenced. These properties tend to cause several problems for their host communities ranging from lost tax revenue to havens for the homeless to convenient locations for illicit transactions. Transforming these properties is not for the faint of heart; however, buyers and sellers who understand Brownfields regulations and the costs and liabilities associated with the environmental management of old industrial sites can achieve successful redevelopment and reasonable return on their investment. Multi-party “win” outcomes should be the goal of every Brownfields project with favorable outcomes for buyers, sellers, cities, and the general public. As more communities work toward revitalizing areas fallen into disuse and developers recognize the value of these latent real assets, attorneys will see increasing opportunities to support buyers, sellers, communities, and lenders both directly and in collaboration with environmental consultants and constructors.

Brownfield Redevelopment

Since many Brownfields properties exist in desirable locations, putting the land back into productive use is a high priority for federal, state, and local governments. The United States Environmental Protection Agency (USEPA) and most states, including Tennessee, have Brownfields programs that encourage redevelopment of these properties because of the positive impacts to the local communities.

The Small Business Liability Relief and Brownfields Revitalization Act (a.k.a the Brownfields Law) set up a grants program administered by the USEPA for the purpose of assisting communities, states, redevelopment agencies and other quasi-governmental agencies set up by local or state governments, regional councils, tribes, and land clearance authorities in real property revitalization. Specific areas available for grant funding include assessments, revolving loan fund grants, cleanup grants, Brownfields area-wide planning programs, and environmental workforce development and job training grants. Assistance for private developers is limited; however, in certain cases municipalities and counties may be willing to make special provisions to assist high value developments. Tax increment funding, new market tax credits, rezoning, and local infrastructure improvements that aid the development are ways the public may choose to help a private developer.

The State of Tennessee offers technical assistance to prospective buyers and sellers of Brownfields properties through the Tennessee Department of Environment and Conservation (TDEC). Key outcomes from involving TDEC early include a greater degree of engagement by TDEC in the project’s success, early guidance on cleanup requirements, metrics for declaring the site either clean or adequately managed to allow development and reuse, and avoidance of consent orders and other state mandated actions which often complicate the cleanup process. TDEC also controls another critical piece in the Brownfields redevelopment process — the “No Further Action” letter. From a lender/investor perspective, no further action eliminates from the project’s financial strategy a hard to understand and difficult to estimate liability.

A Brownfields Voluntary Agreement (BVA) involving the new owner, sometimes the previous owner who has responsibility for environmental conditions predating the sale (or lease), and TDEC is negotiated. The BVA offers an innocent owner liability protection for real or perceived contamination; protection for third party contributions; and concurrence from TDEC’s regulatory experts that a property is safe for future planned uses.

The process of taking a potentially contaminated site from a state where it is unfit for reuse to a condition that allows either unencumbered or restricted reuse can take several paths that are best navigated with the help of an attorney and an environmental consultant including: (i) the party responsible for site contamination assesses and remediates the site under TDEC guidance through the Voluntary Cleanup, Oversight, and Assistance, Program, or a consent agreement; (ii) the responsible party and the buyer negotiate a BVA with TDEC to articulate the seller’s responsibility and the buyer’s lack of responsibility for existing environmental issues with the seller retaining liability; (iii) the buyer seeks a BVA with TDEC, independent of the seller, and based on his own due diligence; or (iv) working with or without a BVA, a savvy buyer may estimate the cost to remediate a contaminated site, negotiate a reduction in the sale price, and conduct the cleanup himself.

Once TDEC has determined the site to be clean or remediated to the extent practicable, TDEC may issue a “No Further Action” or “Action Complete.” Caveats may accompany the letter such as: (i) “No further action at this time” allows remediation activities to cease but the case is left open so TDEC can require additional actions if conditions change; and (ii) “No further action at this time with long term monitoring” statements issued for sites where remediation was unable to fully cleanup the site but risk assessments indicated that potential exposures to residual contamination are acceptable with long term monitoring in place to assure that exposure risks remain acceptable.

For those sites where residual contamination persists but not to an extent that would prevent certain reuse plans, a Soil (or Environmental) Management Plan defines how contaminated media on the property will be handled. This critical document should be written with an eye toward constructability, flexibility in disposal options, cost implications, and protection of workers and the public. The important point for the developer is to recognize early on that contaminated soil, possibly contaminated surface water or groundwater, and vapor mitigation can impart significant costs to the project.

Case Study

Readers familiar with the University of Tennessee may recall the old Fulton Bellows factory situated on Kingston Pike between the Agricultural Campus and the Main Campus. Metalworking and foundry operations were the principal activities conducted at that property from at about 1917 until 2005. At one time the factory lead the world in metal corrugation and precision welding technology while employing hundreds of workers. However, time and technological advances bypassed the factory until all that was left was the environmental legacy of soil and groundwater contamination. The property owner set out to carefully characterize site contamination and understand how to best manage the environmental liability associated with this surplus property. Following detailed site investigations, focused remediation, and demolition of buildings down to the slabs, TDEC agreed that environmental conditions could be managed through administrative controls, proper environmental health and safety and worker notification procedures, and mitigation measures for potential vapor intrusion. 

TDEC-approved land use restrictions (LUR) were finalized for the property and recorded with the deed. Additionally, a BVA was achieved for the site. The LURs imposed requirements for any future development of the property and these were reiterated without modification in the BVA and included:

1.     At the completion of property redevelopment, soil should remain covered to the current extent to limit infiltration of precipitation and potential contaminant leaching to groundwater.

2.     Certain activities (e.g., installation of foundation elements and utilities) may require contact with soil and groundwater that may be contaminated. These activities must be conducted under a TDEC-approved Environmental Health and Safety Plan that describes how workers, the public, and the environment will be protected from potential contamination and how soil and groundwater will be managed to prevent environmental releases. 

3.     The LURs indicated that future occupants of the site must be protected from potential exposures to vapors emanating from the soil. The purchase agreement further clarified this requirement by stating that an area with known high soil vapor concentrations would not have ground level occupied space (this area was used as a parking area below second story retail space, i.e., not enclosed space and, therefore, compliant with the requirement). Ground level enclosed/occupied space was allowed elsewhere on the property with an active vapor mitigation system installed beneath the floor to eliminate potential vapor intrusion into the buildings.

The property which had achieved “no further action at this time with long-term monitoring” was sold to a buyer who met the seller’s criteria for understanding the environmental liabilities of the site. The purchase agreement contained provisions aimed to protect the seller from acts of negligence by the buyer that could exacerbate environmental liabilities and the buyer from existing contamination that remained at the site. The buyer engaged an environmental attorney and shared the seller’s environmental consultant to finalize the BVA; prepare the Notice of Intent to Develop, Health and Safety, and Environmental Management Plans; and preserve knowledge of environmental conditions by linking the environmental consultant to the property rather than either the buyer or the seller.

The project, known as University Commons, was a private Brownfields development and; therefore, not eligible for any federal Brownfields funding. However, the City of Knoxville recognized the value of the development and contributed to the success of the project through the creation of a Redevelopment Area, Tax Increment Financing  valued at $10M, New Market Tax Credits of $15M, modifications of zoning and parking requirements, and $1.5M in capital funds for the purpose of assisting with public infrastructure to the site including a bridge and traffic signals.

Complications from the site environmental conditions increased the development costs by approximately $2M and included: (i) 3,500 cubic yards of soil disposed under a special waste permit at a subtitle D landfill; (ii) proper off-site disposal of over 800,000 gallons of contaminated groundwater produced during foundation installation; (iii) onsite health and safety oversight to protect workers from potential exposures to contaminated media; and (iv) design and installation of a vapor mitigation system beneath all ground level occupied space.

In spite of considerable risks, the care exercised by the seller and buyer and assistance from the City resulted in a project where the seller received a good price for the property, the developer successfully transformed the property into a profitable development, and the City gained a new source of tax revenue and a base for additional economic development in the area. The project created more than 620 construction jobs during the 18 months of construction. Among a big box retailer, a large grocery store, and the numerous smaller businesses occupying the site, over 1,080 permanent service and retail jobs have been created. The annual community payroll impact has been estimated at approximately $50M.  The total economic impact to the area is estimated to be more than $220M annually. This project demonstrates the value to all involved parties of a well-conceived Brownfields redevelopment project that starts with a responsible seller, a committed developer, and a City willing to cooperate and assist.


 — Duane Graves, Geosyntec Consultants Inc.

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Registration Now Open: Environmental Show of the South

Make your plans now to attend the Environmental Show of the South scheduled for May 17-19 at the Chattanooga Convention Center. The CLE portion of the program, sponsored by the TBA Environmental Law Section, will focus on updates on government/industry developments and trends, with a particular focus on solid and hazardous waste issues. 

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USEPA Under The Trump Administration: What Will Happen When Reality Hits...

With all the controversy surrounding the election of Donald Trump as our president and his promise to roll back environmental regulations, specifically, the Clean Water Act and the implementation of regulations, I offer the following analysis regarding what is likely to unfold. What will happen when reality sets in?

I predicate this note by saying I have spent over 40 years working with regulatory issues ranging from obtaining environmental permits for farm ponds to nuclear power plants. These years include the better part of a decade working as a senior scientist for a federal agency, serving on U.S. Environmental Protection Agency (USEPA) committees establishing water quality criteria, peer reviewing USEPA research grants, and managing USEPA-funded research. The other 30+ years were spent in the private sector working with the same regulatory issues. In summary, I have had “up close and personal” experience with USEPA and other federal regulatory agencies – how they work and how they have changed and how they have reacted to political dicta. First, I share with you the experience of a noted USEPA scientist regarding his experience with employee activism within his agency.

Almost a quarter century ago a retired USEPA scientist published a chapter in a book titled Predicting Ecosystem Risk[1]. Dr. Donald Mount was a highly respected USEPA scientist among his federal agency and academic peers, and I knew him through various interagency meetings and task force groups while serving as a senior scientist for TVA back in the 1980s. In his paper, written following his retirement, he attempted to answer the question of “What evidence of ecosystem risk is necessary to influence regulatory decisions?” I remember the paper well and it has stuck with me all these years because he addressed, head on, the role environmental activism and lack of accountability played in biasing the decision-making process by USEPA regulatory staff during his tenure. What is so remarkable about his analysis is that it is just as valid, maybe even more so today as it was then; not just at USEPA, but other federal agencies involved in environmental decision making. The following is taken from the section of his paper titled, “Accountability”:

As my time in USEPA grew to 30 years of service, I became more and more impressed with the role of relatively low level staff in shaping decisions of widespread geographic scope and even policy. Because bias does play such a decisive role in decision making, motivated individuals can wield untold power in shaping regulatory action. The list of decisions that were so shaped would fill volumes.

There is almost no need to observe that the motivated individual is the key to the power that environmental activist groups hold. Such people, whether in public agencies or in pressure groups, rely heavily on the saying “You cannot unring a bell”. We are fortunate to have had the 1970 Earth Day era. Without it, cleanup in the United States might not have happened or might have been slowed to a snail’s pace. The power of “the motivated individual” is clearly present in regulatory agencies as well. These people probably chart the agency course and set policy to a greater extent than the policy makers themselves.

More directly, with regard to accountability, a careful study of who really makes most of the environmental decisions would reveal a characteristic about the decision maker not generally appreciated. Most of the day-to-day decision making is performed by mid-level to entry-level staff in regulatory agencies who will feel no direct effect of the decisions made. They are almost totally insulated by management from the consequences. The end result of this situation is that the individual making the decisions feels no true responsibility for the consequences of the decision. Many times I have discussed with such folks their actions. Their response showed how detached they themselves felt from the impact of the decision. To them they had a mandate, given or self-imposed, to be as hardnosed on dischargers as possible and “By God that is what they were doing.” When that happens, management and nominal decision makers fell (sic) frustrated and out of control. They then spend all their energy on the defensive, protecting the policy they get locked into and never really decide if the decision is correct.

The accountability issues involved here are not unlike a politician making decisions — but, a politician who never has to face re-election! I hope, as environmental decision making matures and more experienced staff emerge, that this lack of accountability can be corrected. If it can be, the United States will move to a much more lofty plateau of sophisticatio — a benefit to the environment for certain.

My experience mirrors that of Dr. Mount. Unfortunately, his hope that these issues would be corrected has not turned out to be the case. Environmental activism is rampant within today’s regulatory world, so for those who are looking to the Trump administration to rein-in USEPA regulators, don’t count on it. What you are more likely to see is an increase in conflict among agency personnel, i.e., politically appointed upper management may change policy but getting the white collar lower level career management to carry it out will not go smoothly[2]. Neither will all state environmental agencies follow USEPA’s lead; remember that in enacting the Clean Water Act, Congress purposefully allocated varying levels of regulatory and enforcement responsibility to the states. When you consider this, along with the fact that local and national environmental activist groups will challenge any attempt by USEPA to weaken or avoid compliance with the federal Clean Water Act, the likely outcome, at least in the beginning, could easily result in regulatory chaos and increased litigation. Where things go from there is anybody’s guess, but I would bet that USEPA will survive.


[1] Predicting Ecosystem Risk (Advances in Modern Environmental Toxicology) by John Cairns (Author), B. R. Niederlehner (Author), David R. Orvos (Editor) Specialist Journals (June 1992).

[2] EPA employees are represented by the American Federation of Government Employees Council 238, a union that represents thousands of EPA employees. “People are upset. Some people took the day off because they were depressed,” said John O’Grady, president of American Federation of Government Employees Council 238. After Election Day, “people were crying,” added O’Grady, who works in EPA’s Region 5 office in Chicago. “They were recommending that people take sick leave and go home.” http://www.eenews.net/stories/1060045642

Richard C. Young is a consulting natural resource scientist in Nashville, TN. 

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Message From the Chair

With the transition of administrations, it is clear that there will be significant shifts in federal environmental and energy policies. While the political climate regarding environmental regulation may be uncertain, I am encouraged by companies that continue to push forward with sustainable practices and scientists and concerned citizens who work tirelessly to solve our global environmental problems from cleaning up our air, land and water to pushing for clean energy to heat our homes and drive our transportation needs.

This January, we held our annual 2017 Environmental Law Forum. Topics included land redevelopment and remediation considerations in commercial real estate transactions, an update on solar power initiatives, and security considerations in an evolving legal market. Thank you to our speakers, who shared a wealth of information as experts in their fields. If you were unable to attend, but would like to view the programs, the videos will be available soon online at TBA.org. As always, our section's goals and purpose include promoting dialogue among environmental agencies and practitioners, staying abreast of emerging legal trends, and promoting legal education on a variety of environmental issues.

I encourage our members to stay connected and involved in section events. This spring TDEC's annual Environmental Show of the South will be held in Chattanooga and there will opportunities for education and socializing among our members. Please make plans to attend!

Willa B. Kalaidjian of Chambliss Bahner in Chattanooga is chair of the TBA Environmental Law Section

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Gas Pipeline Company Sues Metro Nashville

The company behind an embattled $124 million gas compressor filed suit against Metro Nashville on Friday, the Nashville Post reports. In addition to the lawsuit, the Tennessee Gas Pipeline Co. also asked the federal district court in Nashville for an injunction after the Metro Nashville Council passed ordinances that would hinder the company’s ability to begin construction. In both filings, the company argues Metro's regulatory purview is subordinate to that of the federal government.
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TBA Mashup and Mini Legal Hackathon this Friday

In conjunction with the Law Tech UnConference CLE this Friday, the TBA is also offering a variety of free events and programs for lawyers we’re calling a Mashup. One program will teach you about Legal Hackathons and see one in action. A Legal Hackathon is a collaborative effort of experts in the legal profession collaborating with a computer programmer to find a technology assisted solution to a problem in the legal industry. Join the TBA Special Committee on the Evolving Legal Market for a mini legal hackathon that will demonstrate the power of collaborative minds at work. We will have tasty beverages and snacks to help you get your collaborative juices flowing.  
 
Other programs that will be a part of the Mashup include Pro Bono In Action which will show you various pro bono programs you can participate in to help your fellow Tennesseans and Member Benefit Programs that will provide you information on  Fastcase 7, health insurance options for small firms, ABA retirement funds and professional liability insurance.
 
Please sign up now to let us know you are coming.

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Lawmaker Requests AG Opinion on Parks Privatization

Tennessee Sen. Janice Bowling, R-Tullahoma, has requested an opinion from Attorney General Herbert Slatery III on whether Gov. Haslam’s plans to privatize hospitality services at parks violate state procedures. The Times Free Press reports that Bowling, whose district includes the Falls Creek Falls state park, asked for the opinion at the request of park employees.
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Federal Clean Water Lawsuit Against TVA Set for Pretrial Motions

The Nashville Scene has an in-depth cover story about the lawsuit against the Tennessee Valley Authority (TVA), which is set for pretrial motions next week in U.S. District Court. Judge Waverly Crenshaw will hear the suit, which centers around the Gallatin Fossil Plant, located on the banks of the Cumberland River, and the way TVA stores the facility’s toxic coal ash byproduct. Environmental groups are concerned about potential contamination to the Cumberland and the area surrounding the site.
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Have You Heard About the TBA Mashup?

Interested in observing a legal hackathon or getting a hands-on demonstration of the new Fastcase 7 platform? Both will be part of the first TBA Mashup, a full-day of activities and free programming set for Feb. 17 at the Tennessee Bar Center in conjunction with the annual TBA Law Tech UnConference CLE program.

In addition to the hackathon and Fastcase 7 demo, the TBA Mashup will feature sessions on: 

  • Current State of Health Insurance for the Small Firms
  • Professional Liability Insurance - What to look for in YOUR Policy
  • A Demo of Fastcase TopForm, a powerful bankruptcy filing software
  • Retirement Planning Guidance from the ABA Retirement Funds
  • Pro Bono in Action: How to help with pro bono events and how to take part in online options

At the annual TBA Law Tech UnConference CLE program, you can take as many or as few hours as you need. Registration will be open all day. Payment will be determined at checkout based on the hours you need. Topics will include: 

  • Bill & Phil Tech Show
  • Ethical Considerations for Cyber Security in Law
  • Evolution of the Legal Marketplace
  • Making e-Discovery Affordable 
  • Drone Law
  • Encryption for Lawyers

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Environmental Law Writing Competition Underway

The TBA Environmental Law Section has announced the 10th annual Jon E. Hastings Memorial Award writing competition for law students enrolled in a Tennessee law school in 2016 or 2017. The competition is held in memory of one of the section's outstanding founding members and has a cash prize pool of $1,200. It is a juried competition for the best legal writing on a topic of Tennessee or federal environmental law. Entries are due by April 1. The competition rules and announcement are available here in downloadable format.

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Did Government Err in Oregon Occupation Case?

Seven defendants were caught on camera taking over and occupying an Oregon wildlife refuge, many with guns, yet last week a jury acquitted all of them on weapons charges and conspiracy to intimidate federal workers. Many in the legal profession are wondering how that happened, Today's General Counsel reports. One juror offered his thoughts to the Oregonian: “All 12 jurors felt that this verdict was a statement regarding the failure of the prosecution to prove ‘conspiracy’ in the count itself – and not any form of affirmation of the defense’s various beliefs, actions or aspirations.” An opinion piece in the Los Angeles Times suggests the verdict should remind the U.S. Justice Department that a case, and a conspiracy, that might seem obvious to a prosecutor, is not necessarily obvious to a jury.

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Bundy’s Lawyer Tasered, Arrested after Acquittals

The lawyer representing Ammon Bundy was shocked with a Taser, tackled and arrested after he objected to his client’s continued detention after a jury last week acquitted Bundy and six others of occupying a wildlife refuge in Oregon. The judge in the case refused to release Bundy after the acquittal, saying there is a U.S. Marshal’s hold on him due to a pending federal indictment in Nevada. Bundy’s lawyer, Marcus Mumford, yelled at the judge and struggled with marshals while continuing to argue his client should be released. The ABA Journal has the story and links to other media coverage.

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Judge Approves $15B Volkswagen Settlement

A federal judge has approved one of the largest consumer settlements in U.S. history, a nearly $15 billion deal that sets in motion a massive vehicle buyback program and environmental remediation effort. According to the Tennessean, U.S. District Court Judge Charles Breyer approved the sweeping agreement between consumers, the government, California regulators and the German automaker Volkswagen. The settlement comes about a year after the company admitted rigging 11 million vehicles worldwide with software designed to evade emissions standards. The company is still facing investigations by the U.S. Justice Department and German prosecutors, which could lead to additional financial penalties and criminal indictments. Those impacted can visit VWCourtSettlement.com for more information.

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