 |
Environmental Law Section Fall 2001 Newsletter New Brownfield Law From the Chair Review of the 2001 Solid/Hazardous Waste Conference The Carter Gray Raft and Learn Deliverance CLE Extravaganza Development of Environmental Law On-line CLE Course Mark Your Calendar! |
|
New Brownfield Law By James C. Wright Effective July 11, this year Tennessee has a new Brownfield law. The preamble to the act states that it is: “An act to encourage the redevelopment of brownfield properties.” The act amends substantially Tenn. Code Ann. 68-212-224 — the Voluntary cleanup oversight and assistance program. The section now specifically provides that the program is for brownfield projects as now defined at Tenn. Code Ann. 68-212-202. The definition is broad — encompassing screening, investigation, monitoring, control or remediation of any property — whether abandoned, idled, or under-utilized as a result of real or even perceived environmental conditions. Importantly the act allows a purchaser (a person not responsible for the original problem) to enter into an agreement or a consent order with the department that defines the scope of any remedy and sets forth or apportions the liability protection needed by third parties trying to develop brownfield properties. The applicant must submit to the commissioner a “summary description” of any environmental studies or reports as well as a description of the environmental condition of the property. Also the names of any persons that may be responsible are to be provided. The applicant should describe a proposed remedial action plan that may include monitoring and maintenance. The $5,000 fee remains. However the statute provides a way out. Now rather than the statute mandating the fee, it allows the commissioner to waive all or any portion of the amount. It appears that the fee pursuant to the amendments may be geared more to the state’s over-site costs. The apportionment statute is specifically referenced to give the commissioner the authority to apportion liability, if any, to the third party purchaser. The statute references that the commissioner may limit the obligations to those set forth in the order and exempt from further liability “under any statute administered by the department … ” Importantly this liability protection can be extended to successors in title, contractors working on the site, developers, tenants, lenders, fiduciaries or insurers. Note the statute says the commissioner may extend this liability protection. The statute does not automatically grant such protection. Therefore the order or agreement apparently must specify that this protection has been extended as to each such entity. This liability protection does not extend to tort liability whether for personal injury or property damage. Therefore a purchaser must carefully consider third party tort liability. Note to try to provide a safe guard to the purchaser, the statute provides that any agreement or order is not admissible as evidence against the purchaser or other person receiving liability protection in any proceeding. The agreement would be admissible in an action to enforce the agreement or order. Contribution protection is available from other potentially responsible third parties if those third parties have been provided “actual or constructive notice” and had an “actual or constructive opportunity to comment.” Constructive notice may be accomplished by publication in a newspaper of general circulation at least thirty (30) days prior to the effective date of the agreement. Note there is also a public comment/public notice provision. Upon completion of the terms and conditions of any agreement or order the commission is required to issue a letter advising that all conditions have been satisfied and that no further action is required. Additionally the commissioner is required to respond to requests for interim status letters setting forth whatever conditions remain. The commissioner has also been given the authority to impose land use restrictions and require the filing of a “Notice of Land Use Restrictions” in the register of deeds office. This act provides the commissioner with the statutory authority and direction to enter into appropriate orders to promote the development of brownfields. Consideration of other areas that would encourage the use of existing properties should be looked into. Those familiar with financial incentives for infrastructure development could help shape a reuse attitude. These issues are not truly limited to environmental law considerations but all aspects of planning and growth. A unified and multi-disciplined consideration must be given to protect our resources. James C. Wright is a partner at Butler, Vines and Babb. An Order of the Coif graduate of the University of Tennessee Law School, he has practiced in the environmental law area since 1983. He has taught at numerous seminars and practices in a number of areas including toxic torts, business representation and business litigation. His practice includes plaintiff and defense work. From the Chair Welcome old and new members to the Environmental Section of the Tennessee Bar Association. The executive committee of the section is looking forward to many programs designed to enhance your practice of environmental law. A survey is included in this newsletter, please take the time to fill out the survey. The section is interested in providing programs and newsletters that better serve the entire section. The executive committee has met on three occasions. We have outlined our goals and objectives for the year. This year we plan to provide four newsletters under the direction of Jim Wright. Our bi-annual Environmental Law Forum is scheduled for December 13, 2001, it is under the direction of Bill Penny. We plan to have an on-line CLE program, which shall include environmental information as it relates to real estate transactions, under the leadership of Jason Hollaman. Steve Stout, vice chair, is working on enhancing the section’s web page and links. Past Chair, Carter Gray shall continue in his search for the perfect float trip/CLE program. The section will provide a CLE program at the Tennessee Solid Waste Convention with the assistance of the Tennessee Department of Environment and Conservation, Office of General Counsel. And finally the section looks forward to sponsoring a white water rafting trip down the Ocoee at the annual meeting in June 2002. If you are interested in assisting any one of these leaders, please contact them and become involved in one of the section’s programs. I look forward to working with everyone this year. n — Sheri Jacobs, 2001-2002 Chair Meet the Chair Sharon (Sheri) Jacobs is a partner at Wyatt, Tarrant and Coombs in the firm’s environmental practice group. She has concentrated her practice in the areas of environmental law and administrative law. Jacobs has environmental experience at the federal, state and local levels. This experience includes matters associated with leaking underground storage tanks, Brownfield Redevelopment, water pollution, hazardous waste, solid waste, Superfund, and air pollution while working closely with state and federal regulators on regulatory compliance issues and associated litigation. Prior to joining the firm, Jacobs served as Assistant Attorney General for the Tennessee Attorney General & Reporter, Environmental Division; Assistant General Counsel for the Tennessee Department of Environment and Conservation; and as a Special Assistant Attorney General for the Tennessee Attorney General & Reporter, Criminal Division. Jacobs co-authored West Publishing’s “Medical Waste Handbook” 1999, 2000 Editions. She has presented various seminars on environmental topics for the Tennessee Bar Association and for businesses. She served on the U.S. EPA Region IV Underground Storage Tank Workgroup. Jacobs is a Life Member to “The National Registry of Who’s Who.” She has been admitted to practice before the U.S. Supreme Court. In addition to her work with the Tennessee Bar Association’s Environmental Law Section, She is a member of the Nashville (Environmental Law Committee, Vice Chair, 1997; and Chair, 1998), Tennessee (Newsletter Editor, 1998, Secretary/Treasurer of the Environmental Law Section, 1999) and Missouri Bar Associations and the Lawyers Association for Women. She received her B.A. degree in 1984 from the University of Georgia and her J.D. degree in 1990 from the University of Missouri. She is Licensed to Practice in Tennessee (1991) and Missouri (1992). Review of the 2001 Solid/Hazardous Waste Conference Karen Stachowski It was a benchmark year for the Solid/Hazardous Waste Conference in Gatlinburg, Tenn It was the 30th Anniversary of the conference. The years of experience have paid off with a well-organized, well-run conference. As in years past, the conference schedule included concurrent sessions of hazardous waste, solid waste, and community assistance seminars. However, for the first time the conference schedule included a concurrent environmental law sessions. The conference was fortunate to have speakers who not only had a wealth of knowledge and experience but also had diverse backgrounds. And unique to this conference, the attendees had a variety of backgrounds due to the diversity of the programs offered resulting in lively discussions at these seminars. Brownfields: This was a great introduction to this area of the law and the conditions of the Brownfields programs at both the state and federal level. Moderator: Jason Holleman, Office of the Attorney General. Panelists: Robert Lipscomb, Barge Waggoner Sumner & Cannon; Andy Shivas, TDEC, Division of Superfund; Tom Rinehart, USEPA, State Programs Liaison. Geographic Information Systems: A conference favorite, it is a wonderful tool for conceptualizing data and other information into a visual format. Moderator: James M. Weaver, Waller Lansden Dortch and Davis PLLC. Panelists: from Breedlove Dennis Young & Associates, Inc., W. Michael Dennis, Richard C. Young and Babak Negahban. Alternative Dispute Resolution: A hot topic, the seminar explained the process of ADR and the reasons behind its growing popularity. Moderator: Steve Stout, TDEC, Office of General Counsel. Panelists: Blair Scoville Morgan, Administrative Law Judge, Secretary of State; G. Scott Thomas, Bass Berry & Sims, PLC. Professional Ethics: With a hypothetical reminiscent of law school exams, the seminar addressed common problems faced by attorneys practicing law, as well as, problems unique to environmental law. Moderator: Karen Stachowski, TDEC, Office of General Counsel. Panelists: William T. Penny, Wyatt Tarrant & Combs LLP; Lucian T. Pera, Armstrong Allen Prewitt Gentry Johnston & Holmes PLLC; and Carl A. Pierce, UT Knoxville, School of Law. Criminal Enforcement: Always a popular seminar, perspectives and experiences of investigators, prosecutors and defense attorneys in environmental prosecutions. Moderator: E. Joseph Sanders, TDEC, Office of General Counsel. Panelists: Matt Morris, US Attorney Office; Jon Seaborg, Davidson County District Attorney Office; Joseph Cole, USEPA, Criminal Investigation Division; and William T. Penny, Wyatt Tarrant & Combs LLP. Migratory Birds & Landfill Siting: This seminar explained the recent Supreme Court decision, other relevant caselaw, state regulatory activities with wetlands, and the practical impact all this will have on environmental protection and compliance. Speaker: J. Andrew Goddard, Bass Barry & Sims, PLC. Next year’s conference is scheduled for May 1-3, 2001 at the Gatlinburg Convention Center. For information or comments regarding the Solid/Hazardous Waste Conference, please contact Karen H. Stachowski at 312 8th Avenue, North, Nashville, TN 37243 or kstachowski@mail.state.tn.us Section Thanks to Carter Gray Our good friend Carter Gray has now completed his term as chair of the Environmental Law Section. He fought the good fight and did an excellent job for the section. The section expresses its profound thanks for a job well done. Carter has spent most of his professional career in public service. We know he will be there to be counted on again in the future if the need arises. In addition to serving as chair of the Tennessee Bar Association’s Environmental Law Section, Carter has served as the president of the organization of local air pollution control agencies for Region IV of the EPA: Metro IV. He has received the Environmentalist Award from Shelby County in recognition of his efforts, particularly those related to household hazardous wastes. Carter has also been active in his son’s Boy Scout activities as a leader. A leader — committed to family and public good — would sum up Carter, except for the fact that he is genuinely a nice guy. Thanks, Carter, for your service. The Carter Gray Raft and Learn Deliverance CLE Extravaganza Past-chair Carter Gray has been working on a float / raft continuing legal education program. In this issue we ask for your input through a survey but we also ask for your input on this program. We really would like to know the extent of interest in a CLE program that would encompass a rafting or float trip. To express your interest in this CLE float trip, please contact Carter Gray (cgray@co.shelby.tn.us, 901-379-7840) OR Sheri Jacobs (sjacobs@wyattfirm.com, 615-244-0020). Carter has proposed potentially scheduling this program in each of the grand divisions. There would be some “classroom lecture” and then a learning “hands on” experience on the water. The following agenda has been proposed: 8:00 – 8:30 Registration 8:30 – 9:30 Clean Water Act review “What’s a Permit Meant To Protect” (Whoever we can pull together) Point Source – NPDES Non-Point Source TDML’s Recent Development in Citizen Standing (Laidlaw Case) 9:30 to 10:30 Wetlands — I Know it When I See It (Presenter From the Corp of Engineers?) National Permits Effected Projects and Time Tables The recent Illinois Case on what Isn’t a navigable waterway 10:30 – 10:45 Break 10:45 -11:45 Recent examples of the process at work and in failure Watershed Management Local Review of ARAP’S — Is it Working? 11:45 – 1:30 Travel and Lunch 1:30 – 4:00 On the River (1 Hour Credit) Where the Stuff hits the River — Visiting a NPDES Outfall Allowable limits and impairment Biology for Barristers — Evaluating the impact on natural resources in establishing emission standards and damages in natural resources cases Some of the issues for finalizing plans for this seminar would be the locations — what rivers or bodies of water would be best for ease of access as well as provide the most opportunity for learning water quality issues. Also the section is open as to the topics to be discussed and lecturers. This is your section and we all benefit from your input. Development of Environmental Law On-line CLE Course The Environmental Law Section is developing an on-line continuing legal education program. Jason Holleman, of the General Counsel’s office is coordinating the development of the program along with the assistance of Steve Stout, also of the General Counsel’s office. The idea for the on-line continuing legal education program is to develop an interactive web class that would focus on environmental problems related to commercial real estate transactions. The reason for this focus is to expand the participant pool beyond attorneys that strictly practice environmental law and to include information that would be useful to general practice firms that may encounter some environmental issues during the course of routine practice. Currently, the on-line CLE committee has identified five main issues to address: 1) underground storage tanks, 2) the phase 1 assessment for Superfund, 3) asbestos, 4) pcb transformers, and 5) lead-based paint. The next step is to develop outlines of the law pertaining to these topics, and then, to convert this information into an interactive question-and-answer format. The committee is also in the process of arranging technical support and exploring its options for financing this project. Volunteers willing to assist with the substantive research and development of the outlines for the selected topics are being actively sought for this project. If anyone is interested, they can either contact Jason Holleman (615-741-4612), or Steve Stout (615-532-0138). Any assistance with the website design and programming would also be greatly appreciated. Mark Your Calendar! December 13, 2001 has been selected as the date for the Environmental Law Section’s Environmental Law Forum. The primary focus for this CLE program will be Smart Growth and Preventing Urban Sprawl, ISO 14,000 and the ability of the state or EPA to bind the other. The ABA Section of Environment, Energy, and Resources Spring 2001 issue of Natural Resources and the Environment points to the dynamic problems created by urban sprawl and some of the ways in which regulators are having to dealing with it. For more than the 25 years that this author has dabbled in a study of urban planning, urban planners have warned as to the dangers of spreading further into undeveloped areas and leaving behind the old. Brownfield redevelopment is a concept we are more familiar with in regard to trying to reuse sites. States are now battling sprawl in other ways to limit impact to the air, the water and soil resources. States are also beginning to recognize that their historical policies have actually promoted sprawl and the abandoning of existing resources and infrastructure in favor of more expanded growth. One such area is the use of development grants. These grants focus on new development — when instead they should provide an incentive for use of the old infrastructure and resources before the taking of new resources. The tension created by this can either become a battlefield between developers and regulators and planners or a new means of partnering for the protection of our resources. The issue of the state or EPA to bind the other has been of concern to lawyers and businesses in entering into agreements and orders. Is there res judicata effect to an order? Can one agency’s order protect a company from further action by another agency? There will be a discussion of recent case law on this issue to enable the lawyer to be able to better advise his client. A discussion of ISO 14,000 will bring corporate counsel as well as outside counsel greater understanding of environmental management systems. Planning, implementation, check and review of systems — How does ISO 14,000 effect your organization, your client? Watch for more information on this important forum coming up December 13, 2001. 
© Copyright 2001 Tennessee Bar Association |
|
