LeAnn Mynatt, Chair TBA Environmental Law Section Baker, Donelson, Bearman, Caldwell & Berkowitz PC  900 S Gay St Ste 2200 Knoxville Phone: (865) 549-7000 Email: lmynatt@bakerdonelson.com

Water, water everywhere

And all the boards did shrink;

Water, water every where,

Nor any drop to drink.

Samuel Taylor Coleridge, The Rhyme of the Ancient Mariner

Water.  It’s critical to our very existence.  I smiled as I watched LSU center Sylvia Fowles reach down and grab her cramping calves during the NCAA Regional semifinal game against my beloved Lady Vols.  The Lady Vols knew what Big Syl forgot: stay hydrated during the game.  But what does that have to do with environmental law, you ask?  Hey, I had to squeeze in the Lady Vols somehow, but I also wanted to introduce you to this issue of our newsletter, which is dedicated to our valuable water resource.  David Jackson, P.G. of BDY Natural Sciences Consultants updates us on current legislative activities, including the issuance of ARAP permits and groundwater classifications.  David Higney and Tom Gautreaux of Grant, Konvalinka & Harrison report the latest on TDEC’s groundwater regulatory requirements to report discovered contamination.  And TDEC Assistant General Counsel Devin Wells has written an insightful article on the ability of nonlawyers to appear before the Tennessee Water Quality Control Board, with some recent cases providing guidance on this important topic.  With the drought affecting Tennessee and the Southeast, we have all come to recognize the importance of protecting our limited water resources.  Whether you represent or regulate a developer, a manufacturer, or a nonprofit advocacy group, this issue highlights an important area of our legal practices and our lives.

I also hope to see you at the TDEC Solid and Hazardous Waste conference in Gatlinburg April 30 – May 2.  For more information, go to:    http://www.state.tn.us/environment/swm/conference/

37th Annual Solid/Hazardous Waste Conference & Exhibition

The conference begins at 9:00 am Wednesday morning April 30 and concludes on Friday May 2 at the Gatlinburg Convention Center. 

Environmental Law Track:

Environmental Crimes

Legislative Update and Hot Cases

Ethics

So You Don’t Want to Hire an Attorney… Part 2

Environmental Obligations in Bankruptcy

What Attorneys Dealing with TDEC Need to Know

Beyond the U.S. Supreme Court case of Atlantic Research

Waters of the U.S.? Waters of the State?

Brownfield Update

by David E. Jackson, PG

Three proposed bills affecting water quality permitting by the Tennessee Department of Environment & Conservation (TDEC) are under consideration in the state legislature this session.  The bills are sponsored by the Tennessee Responsible Water Use Coalition.

SB3796/HB3772 “ Permit Applicant Bill of Rights”

This bill would modify TDEC’s current review of applications for Aquatic Resource Alteration Permits (ARAP) and §401 Water Quality Certifications by adding the following requirements to the agency’s process:

• Appointment of a permit advocate to assist in the permit process
• Provide applicants with reasonable estimates of time and cost for permit processing
• Establish a 30-day deadline to inform an applicant of his or her permit’s “completeness”
• Codify an applicant’s right to a timely permitting decision
• Provide notice to the applicant of the identity of and contact information of the permit reviewer.

SB4116/HB4184  “Reporting Bill”

Under the provisions of this bill, TDEC would report annually to the House and Senate Environment committees with the following information pertaining to the preceding calendar year:

• Number of enforcement orders
• Number of consent orders and final orders, including average damages assessed
• Numbers of contested cases before the Water Quality Control Board
• Final decisions by the Water Quality Control Board and resulting appeals to Chancery Court
• Number of permit applications, actual and average time to deem permits complete, and actual and average time to decide permit applications.

SB4119/HB4185 “Limited Resource Waters”

This bill would add a new classification of “limited resource waters” to the definition of waters of the State and exempt such waters from TDEC regulation.  The bill has been introduced to reduce the increasingly numerous jurisdictional disputes regarding small streams characterized by limited flow and commensurately limited support of default designated uses (i.e., irrigation, recreation, livestock watering and wildlife, and fish and aquatic life.

• Cites water chemistry and hydrology as fundamentally necessary for supporting designated uses
• Recognizes physical features such as substrate, stream morphology, and habitat as necessary components of supporting waters
• Clearly informs TDEC policy toward regulating low-flow features in the absence of a statutory definition of “stream” or alternative legislative guidance.

These bills are currently in various stages of consideration in the legislature and their progress is being avidly followed by the regulated community, environmental activists, and agency staff.  For more information, contact Richard Young or David Jackson at BDY Environmental.

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David Jackson is a licensed Professional Geologist and a Principal of BDY Natural Sciences Consultants in the Nashville, Tennessee office located at 2004 21st Avenue South. 

The Need for Attorneys:  Understanding Corporate Representation Before Administrative Boards
by Devin Wells

Prior to 2004, it was the practice that all corporations that appeared in a contested case before administrative boards would need attorney representation. Although corporations must still be represented by counsel before administrative boards, In The Matter of A.E. Staley, Tennessee Air Pollution Control Board, Docket Number 04.09-057318A (June 16, 2004) called into question the extent to which an “authorized representative” must be represented by counsel. In Staley, Judge Thomas Stovall ruled that the co-petitioner, Tennessee Environmental Council (“TEC”), must be represented by counsel as required by law but, nevertheless, that the co-petitioner would be permitted to participate in the administrative proceedings. “If an attorney is not retained, a duly authorized representative of the organization will be allowed to participate in the hearing in a non-legal capacity. That representative will be allowed to give direct testimony on the organization’s behalf, but will not be permitted to question or cross examine witnesses or make opening and closing statements.”   In the Staley case, the Tennessee Environmental Council was represented by counsel so the representation question was moot. However, Staley set the stage for a debate of the extent that a non-lawyer could represent a corporation before an administrative board.

In an unrelated matter, TEC would later file a petition for declaratory order before the Tennessee Water Quality Control Board asking that the permit be revoked for a planned commercial marina, Cumberland Yacht Harbor, in Nashville, Tennessee.  Although TEC had sought representation after the filing of the petition, no attorney stepped forth to take on the task on a pro bono basis. TEC believed that the Staley case afforded its executive director the opportunity to represent TEC before the Tennessee Water Quality Control Board.  The Tennessee Department of Environment and Conservation (the “Department”), through its Office of General Counsel, filed a Motion To Dismiss and Motion To Prevent The Unauthorized Practice of Law. The Administrative Law Judge (the “ALJ”) gave Petitioner TEC additional time to hire a lawyer, but held that if TEC failed to do so the case would be dismissed.   TEC then acquired the services of an attorney, but only to represent them in a motion for reconsideration regarding the representation question.  The case was dismissed by the ALJ when TEC failed to hire a lawyer before the hearing date.    TEC appealed the dismissal to the Davidson County Chancery Court.

During this time TEC filed a petition for declaratory order regarding Tosh Farms, a separate matter involving a concentrated animal feeding operation (CAFO).  The Department filed a Motion To Dismiss For The Unauthorized Practice of Law when it became clear that TEC, the petitioner, would not be represented by an attorney.  The ALJ dismissed the petition, on the grounds that the non-lawyer’s representation of the corporation in that matter constituted the unauthorized practice of law in violation of Tenn. Code Ann. § 23-3-101.    TEC again obtained counsel to ask for reconsideration. The motion for reconsideration was denied.  TEC, through an attorney, appealed the decision to Chancery Court.

Thus, two attorney representation cases were appealed by Petitioner TEC to Davidson County Chancery Court and, subsequently, heard by two different Chancellors. Chancellor Ellen Hobbs Lyle upheld the dismissal in the Cumberland Yacht Harbor case, but Chancellor Carol McCoy reversed the Tosh Farms decision and awarded the appellant $10,000 in attorney fees pursuant to the Equal Access To Justice Act (EAJA).  Chancellor Lyle relied on the ALJ’s ruling, a recent Attorney General’s Opinion regarding representation, and In re petition of Burson, 909 S.W.2d 768, 772-73 (Tenn. 1995).   Chancellor McCoy relied on Haverty Furniture Co. v. Foust, 124 S.W.2d 694 (Tenn. 1939) and Tenn. Code Ann. § 4-5-305(a). Haverty Furniture relied on remuneration as the basis for whether someone was practicing law.   The representative was not being paid as an attorney, thus he could represent the corporation.  And, Tenn. Code Ann. § 4-5-305 states: “Any party may participate in the hearing in person or, if the party is a corporation or other artificial person, by a duly authorized representative.”   Since there were conflicting opinions regarding non-attorney representation and the applicability of Tenn. Code Ann. § 4-5-305, the Davidson County Chancery Court decisions in Cumberland Yacht Harbor and Tosh Farms were appealed to the Tennessee Court of Appeals.

Judge Frank Clement authored two opinions which reconciled the two cases.    Judge Clement wrote that Tenn. Code Ann. § 4-5-305 allows a representative of a corporation to participate in an administrative hearing but does not allow the representative to “practice law.”   The practice of law requires the professional judgment of a lawyer. “Therefore, when the participation by a non-lawyer as the representative of a corporation is put at issue, a determination must be made concerning ‘whether the non-lawyer’s participation may require the exercise of professional legal judgment.’”   “The fact-dependent analysis by the Administrative Judge would include an inquiry of whether the petition merely triggers an informal, information gathering proceeding or, alternatively, formal adversarial proceedings as in a contested case proceeding.”   The court also found that the Chancellor in Tosh should not have relied on Haverty Furniture, but should have relied on the Burson case which instructs that the determinative factor is whether the services required by the non-attorney requires the exercise of the professional legal judgment of a lawyer. The Tosh Farms court, citing Burson, held that the Tennessee Supreme Court alone holds the right to regulate and prevent the unauthorized practice of law.   The Tosh Farms court reversed the trial court, upheld the ALJ’s decision and went on to find “the record reveals that the complexities of the issues presented in the [Tennessee] Environmental Council’s petition for a declaratory order require that its representative exercise the professional judgment of a lawyer, and since its representative was not a licensed attorney, his actions constituted the unauthorized practice of law.”

The Cumberland Yacht Harbor and Tosh Farms decisions do not nullify all filings of a non-attorney submitted on behalf of a corporation to an administrative board.  In fact, the Tosh Farms court is careful to note “that we are not holding that all petitions submitted by corporations in administrative matters require the signature and participation of a licensed attorney.”   The two cases must be considered, however, when an artificial entity such as a corporation determines the need for representation by an attorney in an administrative matter. 

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Devin Wells is an Assistant General Counsel of the Tennessee Department of Environment and Conservation. He is a graduate of the University of Tennessee and the Nashville School of Law.  His primary areas of environmental practice are water resources and water pollution control.  He has argued several cases before the Tennessee Water Quality Control Board, including Cumberland Yacht Harbor.  The views expressed in this contributed article are solely those of the author and are not attributable to the Department.

Endnotes:

In The Matter of A.E. Staley, Tennessee Air Pollution Control Board, Docket No. 04.09-057318A, June 16, 2004.

In The Matter of Cumberland Yacht Harbor, Tennessee Water Pollution Control Board, Docket No. 04.30-059216A, August 25, 2004.

In The Matter of Tosh Farms, Tennessee Water Pollution Control Board, Docket No. 04.09-057318A, September 17, 2004.

Attorney General Opinion No. 04-160 (November 10, 2004).  The opinion relied heavily on Old Hickory Engineering & Machine Company, Inc. v. Henry, 937 S.W.2d 782 (Tenn. 1996).

Tenn. Code Ann. § 4-5-305(a).

Tennessee Environmental Council, Inc. v. Water Quality Control Bd.,  2007 Westlaw 2827470 (Tenn.Ct.App.  Sept. 27, 2007) (Cumberland Yacht Harbor) and Tennessee Environmental Council, Inc. v. Tennessee Water Quality Control Bd., 2007 Westlaw 2917733 (Tenn.Ct.App.  Oct. 3, 2007) perm. appeal denied (March 10, 2008) (Tosh Farms).

Cumberland Yacht Harbor, 2007 WL 2827470 at *5; Tosh Farms, 2007 WL 2917733 at *1.

Tosh Farms at *8, citing Cumberland Yacht Harbor at *8.

Tosh Farms at *8, citing Cumberland Yacht Harbor at *8.

Tosh Farms at *3-7.

Tosh Farms at *10.

Tosh Farms at *11.

Amendments to the ground water classification rules (Tenn. Rules & Regs. Chapter 1200-4-3-.07 to -.11) and the debated provision on reporting requirements (Tenn. Rules & Regs. Chapter 1200-4-3-.12) for certain identified ground water contamination, reported in this Section’s March 2008 newsletter have been reviewed and approved by the State of Tennessee Attorney General’s Office, and sent to the Department of State for publication.  A summary of the new reporting rule states:

This new rule [Rule 1200-04-03-.12] requires reporting of identified ground water that someone is drinking and that is not safe to drink, that is a current explosive hazard, or that is causing toxic vapors to enter an existing building at levels identified as a health hazard. This reporting requirement was reduced to the lowest level possible that allows the commissioner to identify serious ongoing hazards that need to be addressed. 

Small business should share the benefit from this identification of serious problems by protecting the health of their workers and by avoiding possible litigation. There is no obligation to actually perform sampling but only to share the existence of identified serious problems with the commissioner.

A link to the published rules can be found in the pending rules section at http://state.tn.us/sos/rules_filings/03-12-08.pdf. and the rules are scheduled to become effective on June 7, 2008.

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We regret our oversight and failure to properly attribute an article appearing in the March 2008 newsletter, State of Mississippi's Lawsuit Against Memphis, that was authored by this Section's Immediate Past-Chair Randy Womack.  Randy is a partner at Glankler Brown, PLLC, in Memphis.