Environmental Law Section November 1997 Newsletter Articles

 

Meet Milton H. Hamilton Jr.
Interview Conducted by J. Wayne Cropp

From the Chair
by Susan Lee

Brownfields Project Update

The following is an interview with Milton H. Hamilton, Jr., conducted by J. Wayne Cropp, of the Chattanooga law firm of Grant, Konvalinka & Harrison, P.C., on September 12, 1997. The interview has been edited.

Milton Hamilton was born in Community Pride, Tennessee, September 8, 1932. A life-long resident of Obion County, he was educated in Obion County public schools and attended Memphis State University before receiving his B.A. Degree from Murray State University. In 1992, he received Murray State University's Distinguished Alumni Award. He holds the rank of Colonel in the Tennessee National Guard, retired. Succeeding his father in 1964, Hamilton served in the Tennessee General Assembly for 32 years. He held virtually every leadership post in the Senate including Deputy Speaker, Majority Leader, Floor Leader, as well as Chairman of the Finance, Ways and Means Committee. Hamilton has been an active member of the Reelfoot Lake Task Force Study Committee which was created for the preservation of Reelfoot Lake, the State's treasured natural lake. He became Commissioner of the Tennessee Department of Environment and Conservation in January of 1997.

Cropp: You had a long-term career in the Legislature holding a number of key positions of leadership. What has it been like making the transition from the Legislative Branch to working for the Executive Branch?

Hamilton: Well, probably the biggest thing that's changed is that I can immediately implement some of my visions for the future. In the Legislature, it took so much time building consensus to get to the point that you had 17 votes in the Senate, or 50 votes in the House, to pass an idea that you may have had. Here, if you have your management team together, and you need to make a change of direction, you can see it happen much faster, and you see the results of your ideas.

Cropp: One of the strengths you bring to the Commissioner's position is your relationship with the Legislature. You know the Legislators on a personal basis and a professional basis. What is your relationship now that you're in a different position?

Hamilton: If it could have been any better, I don't know what it would be. I have been able to relate to each one of them. They know when they call here that they are going to get service. I made sure that we provide that kind of service by putting out a form that I wanted completed if a Legislator made contact with the Department. I wanted to know who the Legislator contacted, and what disposition was made of their request -- if it was denied or whatever -- so that I would know that the Legislators are being served. This is not an attempt to treat Legislators better than anyone else, I just feel compelled to make sure that constituent needs are serviced.

Cropp: You talked about being able to implement your visions. What is your vision for the Department itself?

Hamilton: Let me talk, first, about state parks because that's part of my responsibility and, of course, environmentally, we have a lot of green areas and trails in the parks. The main thing that I came in here knowing about parks is that we give too much power to park superintendents. We let superintendents run inns and restaurants, which they may not be trained to do. They take great care of the grounds and things of that nature, but we cannot lose track of who our customers are, and the parks are not to be run for the park superintendents -- they are to be run for the people that use them. My philosophy is that the park superintendents should be responsible for keeping the inns and restaurants clean and to provide good quality food and a safe environment for people to recreate in. That's very simply put, but that's our mission. We have so many new inns and restaurants now that we need to go to professional inn managers -- just like Holiday Inn -- because it is a business, and the public has said that they want us to make money so the taxpayers don't have to provide so much support.

Another mission is to protect our parks and to add buffers around our parks to make sure that there is no encroachment on the park system. That's the fun side of my job, believe me.

Shifting from there to the environment. When I was in the Legislature, I had a pre-conceived notion about how this division operated. Some of it was from people I represented that had problems with the environmental community over here, and I brought that with me. Very quickly though, I began to dispel some of that, because of the quality of the people I have here -- Paul Davis, Tom Tiesler, Wayne Scharber, Rick Sinclair and others. These are quality people that have a great background in this business. They've been here a while, they know it completely, so that bubble burst real quick, because I found that the people I have are really high quality.

The bubble that didn't burst was that I believe that we are too hard to do business with. Based upon that, I had Lynn Robertson do a self-study of us. Lynn came back with a whole dossier of things that he didn't think we were managing properly. We didn't have control over our field offices, and I absolutely concurred with him. The first thing I did, I brought John Leonard up here from Memphis -- a member of the field office staff -- and put him over the field offices, so that he could make sure that we are providing equal treatment from Johnson City to Memphis -- so that a (small) stream in East Tennessee is classified the same as in West Tennessee.

Then, I began to talk with my senior staff about taking a long, hard look at Environment. EPA was willing to give us a half-million dollar grant to hire AT Kearney Company, and they set out about five re-engineering processes for us. I bid on two of them initially. One, I wanted to go to a simple permit, so it doesn't require a Ph.D. to complete our forms. We are in that process now, and it is being done by our people within the division -- and they have come up with their recommendations on simple permits.

Then, we want a single point of entry, so someone can come in and be told how many permits they need, and who they had to go see to get them. In order to do this, we are going to realign our field offices into what we call Environmental Assistance Centers. When a customer goes in -- a corporation of whatever -- and they want to be permitted, we are going to assign an Environmental Assistance Specialist that will tell them how many permits they need, and we are going to assign permits to our folks, and we are going to track it. If it lays on a desk for a week without any action, we're going to know it. We are going to cut down on the review time, and we are not going to get into all of this old stuff that they have been into -- where we say, "Well you've got to do this, this and this," and when you get ready to get your permit, we say, "And oh yes, you've got to do this, too." We're trying to make this user friendly. And in all this process, we're not going to do anything to harm the environment. Everybody needs to understand that simple permitting and a single point of entry do not equate to a relaxation of our environmental rules or laws.

The next step starting in October is to re-engineer our enforcement program.

Cropp: We went off on two separate tracks. Let me go back, first, to the parks. Funds are obviously a concern, and there's a lot of talk that we need to upgrade the maintenance and repair of some of the parks. What will be done to address those issues?

Hamilton: We have estimated that it will cost somewhere between $20-$50 million--and I would say the actual figure is closer to $50 million than $20 million -- to really bring the park system up to absolute maintenance. But, we can't spend that much money wisely in the short term. The department already has $5 million. There is also an additional $1.14 million dollars in a West Tennessee Tributary Fund that (under the right circumstances) could be programmed to upgrades. Then I would like for the Legislature to add $3-$5 million for park maintenance. We can spend $10 million wisely and not throw money away -- and then, hopefully, be able to budget an additional $5 million per year, so that over the long term, we're able to really look at the parks system and determine what has to be done and spend that money in the best interests of the taxpayer.

Cropp: So, now moving back to the environmental side, how's the re-engineering process moving along? Are we on track?

Hamilton: We are right on track. We have just completed the comprehensive study. I have now named an implementation team headed by Wayne Gregory, who is very active and intelligent, along with Barbara Hamilton, who is working on the simple permitting; Joey Holland, who is doing the single point of entry; and Steve Simpson, who is working on the informational system to make sure that all of that is tracked at the same time. My priority is to get the money to buy the hardware and software necessary to put this thing together because our current computer system just won't do it.

Cropp: What kind of money are we talking about for the informational system?

Hamilton: We're talking about at least 1.5 million dollars.

Cropp: Okay, that's something that will have to be appropriated in the next legislative session?

Hamilton: Well, we've got a way to do it, and I've got half of that money right now -- in reserves -- and what I'm looking at is trying to borrow some money from the systems development revolving loan fund in the Department of Finance and Administration, and repaying it over time. Of course, the best option would be if the money was appropriated, but I've got sense enough to know that hard financial times are here. But, we are going to make our plans -- and I've asked John Hankinson for a half million dollar grant, and he's really working on it for me.

Cropp: So, what kind of time frame are we looking at?

Hamilton: A year to 18 months for completion.

Cropp: Does any other component get implemented if the informational system isn't in place -- for instance, can the single point of entry be implemented?

Hamilton: Yes, sir, but -- it's not as effective. We can do it, but we are missing some things right now. We don't have a tracking system for all of the different plants that are owned by the same company. So, when we have a bad actor sitting over here, we can't put him up on our screen because we don't have complete information. The whole thing really depends, I think, on getting the informational system.

Cropp: Well, you sort of threw out a teaser at me, and that was the enforcement side. What are you looking at down the road on re-engineering enforcement?

Hamilton: Well, since I am not an attorney, I don't know that much about it, but I'll tell you what I perceive to be needed. As an example, I think we need decentralization here. Everything's been done up here with Commissioner's Orders, but now I have delegated to my Directors the right for them to sign Director's Orders up to a certain point. If we go to this program where permits are being issued through the Environmental Assistance Centers, rather than being permitted here, then we are going to have to move some of our enforcement stuff down to the point of entry -- that's where a company is going to do all of its business -- enforcement and everything else.

The thing that I am really ticked off about in enforcement is that we don't get treated fairly in the public eye. Since I've been here, I've signed 115 Commissioner's Orders. I've got 11 criminal convictions since January 1, more than all-time put together. We issued the first Director's Order the other day -- to get this thing started. So, what I really want to do through the enforcement re-engineering process is to let everybody know that we are taking care of the environment. We are going to enforce our environmental laws. My interest initially and right now is to get the criminal -- the guy that is really contaminating stuff -- let's get him first, and then we move on to the administrative problems. We'll get to that as soon as we can, but it's not my #1 priority. Folks out there don't understand that. They want everything done now, but there is just so much time, and I don't have but eight or nine lawyers in my division, so it makes it very difficult.

Cropp: How is your relationship with EPA, Region 4, and John Hankinson, the Regional Administrator?

Hamilton: He's come here, and I've met with him in Washington. I've been to Atlanta to meet with him and he understands where I am going and what I want to do. He knows this thing is going to change for the better. So, the relationship I have had with him has been real good.

Cropp: So, how would you characterize Tennessee-EPA relations?

Hamilton: I'd say, right now, they're really good -- especially between the leadership, Stan Meiburg [Deputy Regional Administrator] and John Hankinson. And I think we're developing a lot better relationship with some of the folks down there that head some of the divisions through John Leonard on our staff. The two or three biggest issues that I see are the DOE problem at Oak Ridge and the Columbia Dam issue. Basically, those are the problems.

Cropp: Tell me more about the Columbia Dam issue.

Hamilton: Well, TVA wants to get rid of the lands. The number one priority that we have for the Columbia Dam is that we want to make sure that area has water -- that's the only avenue that we've got, and who is going to repair that dam -- who's going to build that dam? You are looking at 30 million dollars to rebuild that dam. TVA wants to give it to us, and we want to make sure that we've got the money, that they live up to their commitment as far as being sure the water supply is there.

Then the argument turns to what to do with all of the lands that were condemned for public use. What most people say is that they want those lands maintained for recreational purposes. Now, there are two recreational purposes -- we control parks and trails, and the Tennessee Wildlife Resources Agency controls hunting and fishing. No decision has been made, but they are discussing which division will control the lands.

Cropp: What's the Commissioner's position been like, now that you've been in it for a little while? How have you been able to deal with the technical issues?

Hamilton: Well, I've always been smart enough to know when I need someone around who knows the subject. That's one reason I brought Rick Sinclair in as my Deputy. Rick is a Ph.D., trained at Vanderbilt, and he provides me a strength that I don't have. Maybe I give him a strength that he doesn't have, because I understand the political aspects of it all. We've promoted Jim Haynes into the Superfund position because that's an important position for us, and Jim is very knowledgeable and knows his way around. Bringing John Leonard up here gives us some additional strength. I have had to use (General Counsel) Joe Sanders a lot because whatever I do, I want it to be legally correct. I want every "i" dotted and every “t” crossed because I know that when I do something to somebody that they don't like, they're going to take us to court. It better be defensible and maybe that in itself has slowed things down a little bit. Of course, Justin Wilson was a lawyer himself and he could read a lot of that stuff for himself. I can understand it, but I may not understand it to the full extent of the law. So, I rely an awful lot on my attorneys.

Cropp: Anything that you want to add -- anything that I left out?

Hamilton: There needs to be some way that we can get our message out about the changes we are making and how we are protecting the environment -- the water is cleaner, the air is cleaner, and the soil is better protected than it has ever been. But to hear some folks, we must be awful over here. They need to come up here and see what we do to protect the environment.

Cropp: What message do you want to convey specifically to the environmental bar?

Hamilton: I'd say to them that when they come over here representing a client, we are going to be fair, but we are also going to be firm in our protection of the environment. Have your act together when you come here.

In any group, there are individuals who stand out as leaders. We are fortunate to have many such persons in the Environmental Law Section, such as the members who serve on the Executive Committee. We are twice-blessed because these leaders are also committed to the hard work necessary to bring ideas to fruition. This quarter, we will see both results from and the inception of projects led by such leaders of the Section.

First, Bill Penny of Manier, Herod deserves accolades for his tireless efforts to organize the November Environmental Law Forum. Bill has arranged for an incredible cast of speakers with diverse views on current environmental issues. Details concerning the seminar, which will include a brown bag luncheon with a guest speaker co-hosted by the Environmental Law Section of the Nashville Bar Association, are provided in an article in this newsletter.

Second, Jim Wright of Butler, Vines and Steve Stout of TDEC have worked hard to organize the Brownfields Project. A report concerning the results of the October organizational meeting also appears in this newsletter.

Last, but certainly not least, special thanks go to Ed Callaway of Waller Lansden and Wayne Cropp of Grant, Konvalinka for their contributions to the newsletter. Wayne has obtained an informative and interesting interview of TDEC Commissioner Hamilton, which appears in this newsletter. Ed has again organized and edited the newsletter.

Even though we are a relatively small Section of some 150 members, there are many persons such as those listed above who are striving to improve the Section for its members. A group is only as strong as its members. It takes members willing to commit their time and energy to the work necessary to make the Section what it is — and what you want it to be. Please consider attending the forum, joining the Brownfields Project or otherwise participating with us to improve the Section for all of its members. Together we can work toward a better environment.

An organizational meeting for the Section’s Brownfields Project was held on October 1, 1997, in Nashville. The meeting was attended by seventeen people and there were many interesting discussions. Attendees were invited to introduce themselves and give their perceptions of main issues standing as obstacles to Brownfields site re-development. There was a diversity of perspectives due to the inclusion of representatives at the meeting from the environmental consulting firms, the Tennessee Association of Business and the field of insurance.

The group decided that the project committee would be organized into eight subcommittees, each focusing on a specific issue and sharing information with the full committee. By a conference call scheduled for November 5,1997, the subcommittees were to have met, selected leaders and agreed to a process for working on the assigned issues. There is still plenty of room for more participation. The project committee plans to hold monthly conference calls to keep participating committee members informed.

The subcommittee topics are:
1. Determination of the number of Brownfield sites
across the state and the various causes for
existence of sites,
2. Prospective purchaser agreements, comfort letters
and other protections, and state/federal
coordination,
3. Site-specific clean-up standards, land use controls
or orders,
4. Lender concerns/assurances,
5. The Tennessee Voluntary Clean-Up Program —
Existing Benefits and shortfalls,
6. Tax and Financial Incentives,
7. Insurance Products/Cost Effectiveness and
8. Survey of other states’ Brownfield legislation and
programs.

Please feel free to contact either of the two co-chairs of the project committee, Jim Wright at (423) 637-3531 or Steve Stout at (615) 532-0126, for more information. The conference call will be through a toll-free number and the committee members on the current list will be provided reminder notice about the call and the number and access code for the conference call by the Tennessee Bar Association staff prior to the scheduled date for the call. Please call the co-chairs if you are interested in the project and for the details on the scheduled conference call. The short- and long-range goals for the project are yet to be decided. The leaders of the subcommittees will soon be identified and become contacts for information on the work of their particular subcommittees.