Environmental

Thanks to Our Section Leaders

Thanks to the members of the 2018 – 2019 TBA Environmental Law Section Executive Council for their dedication and hard work on behalf of the TBA Environmental Law Section. In addition to the production of CLE programming for the members, the executive council meets regularly throughout the year to produce news to the members and sponsors the Jon E. Hastings Memorial Award Writing Competition.
 
OFFICERS
 
Jenny Howard, Chair
Tennessee Department of Environment & Conservation (Nashville)
 
Robert "Jaz" Boon, Vice-Chair
Waller Lansden Dortch & Davis LLP (Nashville)
 
Lauran Sturm, Immediate Past Chair
Tennessee Department of Environment & Conservation (Nashville)
 
Bob Tuke, Secretary/Treasurer
Trauger & Tuke (Nashville)
 
Ashley Ball, Newsletter Editor
Tennessee Department of Environment & Conservation (Nashville)
 
MIDDLE TENNESSEE DELEGATES
 
Alexa Witcher
Tennessee Department of Environment & Conservation (Nashville)
 
Elizabeth Alexander
Southern Environmental Law Center (Nashville)
 
Katherine Barnes
Tennessee Department of Environment & Conservation (Nashville)
 
Gregory T. Young
Stites & Harbison PLLC (Nashville)
 
Scott Thomas
Bass, Berry & Sims PLC (Nashville)
 
WEST TENNESSEE DELEGATES
 
Jim Lenschau
Wyatt Tarrant & Combs (Memphis)
 
Randy Womack
Glankler Brown PLLC (Memphis)
 
Robert McLean
Farris Bobango Branan PLC (Memphis)
 
EAST TENNESSEE DELEGATES
 
Ashley Strittmatter
Baker Donelson Bearman Caldwell & Berkowitz PC (Knoxville)
 
David Higney
Grant, Konvalinka & Harrison PC (Chattanooga)
 
Rick Hitchcock
Chambliss, Bahner & Stophel PC (Chattanooga)
 
Willa Kalaidjian
Chambliss Bahner & Stophel, P.C. (Chattanooga)
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Recent EPA News

  • President Trump recently announced Andrew Wheeler as the new Acting Administrator of the Environmental Protection Agency. Mr. Wheeler will step in for Scott Pruitt, who resigned on July 5, 2018. More information about Wheeler can be found here and you can view his address to EPA Employees using this link.
  • Two subsidiaries of Stanley Black & Decker, Inc. have agreed to clean up contaminated sediment at the Centredale Manor Restoration Project Superfund Site in Rhode Island. Litigation regarding contamination of the site had been on-going for eight years. Under the terms of the settlement, the subsidiaries will reimburse EPA for $42 million in past costs as well as future costs to EPA and the State of Rhode Island. The goal is to eventually restore full access to the Woonasquatucket River for fishing and swimming. 
  • The EPA, Tennessee Department of Environment and Conservation, Virginia Department of Environmental Quality, and Virginia Department of Mines, Minerals, and Energy announced that they have extended their 2008 Memorandum of Understanding another 10 years. The Clinch and Powell Rivers contain several rare fish and mussels, “including 20 federally endangered freshwater mussel species.” The agencies along with other partners hope to accelerate restoration efforts and reduce pollutants into the rivers.

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Overcoming Environmental Challenges and How Brownfield Redevelopments Can Work Well With Effective Management

Every Brownfield redevelopment story is unique, with challenges and strategies that make them successful. Overcoming redevelopment obstacles is something PM Environmental (PM) is well equipped to do. PM works closely with all needed parties such as private developers, local governments, various state agencies, and the EPA to help entities secure proper funding for Brownfield & and economic development projects ready for the hurdles that rear their head. Two notable projects that have included their own unique set of obstacles to overcome are those of Jackson Kayak in Upper Cumberland area and The Standard at Knoxville. Funding for these redevelopments was pieced together from a variety of federal grants including; EPA and other loan funds, tax incentives, and private investment. PM was instrumental in helping write and succeed in procuring these funds.
 
Jackson Kayak, Sparta, Tennessee
 
One of the larger exporters of goods in the state of Tennessee was looking to expand operations after outgrowing the facility they had been solely operating out of for six years. As a leading kayak, paddleboard and cooler manufacturer, Jackson Kayak found themselves at the doorstep of what was once the illustrious Phillips Luminaries Plant but was now a vacant warehouse on the auction block to be reduced to scrap metal, just three miles away from their current plant. PM Environmental was retained by the Upper Cumberland Development District at the request of Jackson Kayak to assist with updating a Phase I Environmental Site Assessment (ESA) report on the property under an active EPA brownfield grant that the District had available for just such projects. This led to a subsequent Phase II, where samples were taken to test for possible contamination in and around the 300,000 square-foot property, which also consisted of 3 vacant buildings and 44 acres of land. Based on the findings of PM’s Phase II ESA, potential health risks may have been present in the building unless the soil gas impacts identified onsite were removed or mitigated through corrective action. This led to PM preparing the engineering design plans for a Vapor Intrusion Mitigation System. The recommended system consisted of a sub-slab depressurization (SSD) system. PM assisted the client on EPA brownfield incentives and state programs, successfully entering into the TDEC Voluntary Oversight and Assistance Program (VOAP). A Brownfield Voluntary Agreement was successfully negotiated prior to the property purchase so that all parties could identify responsibilities in the future and quantify any associated risk. Once the risks were known and identified the project also was able to leverage a $6.5 million Revolving Loan Fund from the Upper Cumberland Development District. Renovations to the building were completed by the end of 2015, and over 250 new full-time jobs were created, with more anticipated in the future. 
 
The Standard at Knoxville - University Walk Project
 
The University of Tennessee, with a student body of nearly 30,000, was growing rapidly and student housing was in high demand. A development firm saw a prime opportunity to redevelop and repurpose an underutilized commercial property that did not fit with nor add value to the surrounding community. Plans included 1, 2, 3 and 4 bedroom rental units (508 beds) with clubhouse, parking lots, sidewalks and landscaped leisure areas. Beyond that, the development would ultimately increase the tax revenue to the community and space would become even more valuable. The company’s ambitious project was prepared for the challenges of developing a contaminated, former commercial site; however, the surprisingly poor soil quality proved to be a significant challenge that threatened the project mid-stream. The six-acre property is located at the northern margins of the Fort Sanders neighborhood, an area with an impressive lineup of historic homes, but in a section historically used for commercial and industrial operations.  The property had a varied history, which included fill placement dating back to at least 1953 through to the early 1970’s, prior to the advent of modern environmental regulations.
 
This property was partially developed in the 1950’s with an auto service garage and residence in the southeast, both of which were demolished prior to 1992, and further developed in 1980 with the construction of two warehouse buildings on the remaining southern half of the property. The property and warehouse buildings were operated by a wholesale produce company through 2013, which also used a diesel underground storage tank (UST) system for fueling of its delivery fleet. Pre-purchase due diligence activities, including a Phase I Environmental Site Assessment (ESA), Pre-Demolition Hazardous Materials Inspection, and Phase II ESA were conducted by PM Environmental (PM) between 2012 and 2013 to document the environmental condition of the property and determine whether any conditions existed that could impede or complicate development. The Phase I ESA identified several recognized environmental conditions (RECs) pertaining to historical fill placement/landfilling, historical auto-service operations, the potential for orphan USTs to be present, potential for releases associated with the diesel UST system and fleet fueling operations, and contaminant migration from a chemical manufacturing plant immediately to the north with a documented groundwater plume that had not been fully defined towards the property.
 
Based on the conclusions of the Phase I ESA, soil borings, monitoring wells, and soil gas monitoring points were installed and sampled during a comprehensive Phase II ESA, which confirmed the presence of fill soils at the property. The analytical results of the samples collected identified elevated concentrations of petroleum products and chlorinated solvents in soil, groundwater, and soil gas throughout the entire property that would require special management and/or engineering controls to redevelop the property, including the design and installation of vapor barrier systems to prevent vapor intrusion to newly constructed building structures, and installation of engineered surface barriers on exterior portions of the property.
Despite the challenges posed by site conditions, the development company was committed to making the project a reality and worked closely with TDEC using the VOAP to ensure that its development plan met or exceeded all regulatory requirements and resulted in a fully developed property that was safe for the planned residential use and protective of residential occupants.
The project also included a Brownfield Voluntary Agreement with TDEC; developing comprehensive plans for diesel UST system removal, sampling, and reporting; soil and groundwater management during and following construction; designing vapor barrier and venting systems for all of the on-site structures; and engineering building foundations, pavement cover areas, and an 18-inch thick clay cap over the entire property to act as a dermal contact barrier to contaminated soils, all of which were overseen by PM.
 
Redevelopment of the property began in mid-2013 with the demolition of all building structures, the removal and sampling of the diesel UST systems, and submittal of associated regulatory reports to TDEC. Although the soil management plan envisioned re-use of the majority of onsite soils during redevelopment, construction-phase geotechnical monitoring determined that the shallow soils at the site, which were documented to be contaminated, were unsuitable for re-use. The level of soil removal required an increase in the volume of foundation sub-base materials at each of the onsite buildings, which affected the vapor barrier installation schedule.  However, the vapor barrier system installation was completed per the planned design, with subsequent performance testing documenting the effectiveness of the vapor barriers at each building.
 
Despite the unanticipated financial burden and logistical and scheduling challenges associated with the added soil removal during construction, the development company stayed the course and worked closely with TDEC, which provided valuable input and project guidance through the entire process, to ensure compliance with all associated regulatory requirements.  This also included the collection, removal and permitted discharge of 227,200 gallons of impacted groundwater during foundation and utility installation, in cooperation with the Knoxville Utilities Board, and amendments to the original surface cap plan. In the end, good work by all parties allows University Walk to stand out as the area’s most modern residential facility and provides the UT community with comfortable living spaces and amenities promoting health, fitness, socialization, and professional on-site management.
 
In conclusion, PM has the steady hand and expertise to help a project from beginning to end, utilizing all of the known factors and working to mitigate the unknown factors that present themselves.

—Alan Green is the Regional Sales Representative for PM Environmental, Inc. Green can be contacted at green@pmenv.com or 615.861.9240.

About PM Environmental, Inc.: PM Environmental is an environmental risk expert focused on business-minded solutions. PM Environmental has over 25 years of experience in consulting and managing a wide variety of environmental, engineering, industrial hygiene, energy and development projects. Ranked the #1 environmental consulting and engineering services company in Michigan and in the top 20 nationally, PM’s services include Risk Reviews, Transaction Screens, Phase I & II Environmental Site Assessments, Property Condition Assessments, Brownfield Redevelopment, Site Remediation, Environmental Compliance Audits, Industrial Hygiene, Underground Storage Tank Management, LEED and Energy Auditing Services, and more.  PM has offices throughout the United States and provides services nationwide.
 
* Source: EDR ScoreKeeper™
 
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University of Tennessee College of Law Student Wins 2019 Hastings Writing Competition

The TBA Environmental Law Section has announced Virginia Whitener, a student at the University of Tennessee School of Law, as the winner of the 2019 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. Whitener’s paper, "Protecting the Jefferson National Forest Against the Mountain Valley Pipeline," addresses a controversial interstate natural gas pipeline that would cross 83 acres of the Jefferson National Forest.
 
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. You can read the essay here.
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Tennessee May Receive Increased Funding for Parks

U.S. Senator Lamar Alexander, R-Tenn., recently gained Senate committee approval for a bill he sponsored — the National Park Restoration Act — that intends to allocate increased funding for the maintenance backlog at national parks, The Herald-News reports. The project will be funded using excess money from energy leases for onshore and offshore federal land to pay for the repairs. The bill is expected to have a great impact on Tennessee, providing money to restore campgrounds, trails and roads in the Smokies, Cherokee National Forest, and the Skinner Mountain Forest among others. The legislation is now ready for consideration by the full Senate.

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Newly Obtained Documents Show Effort to Influence Trump on Paris Accord

Bob Murray, CEO of Ohio-based Murray Energy, sent the Trump administration drafts of executive orders for withdrawing from the Paris climate accord, reports USA Today. The orders also would have rolled back coal regulations that Murray thought were a burden to his industry. The documents, originally obtained by E&E News, only needed Trump’s signature to become directive.

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Tennessee Landfills Deviate From National Trends

Despite capacity problems at waste sites elsewhere, most of Tennessee's landfills have enough space for at least a decade's worth of garbage, The Commercial Appeal reports. According to an evaluation published by the Tennessee Department of Energy and Conservation (TDEC), of 31 landfills operating across the state, 13 have more than 25 years' capacity remaining, while another nine have at least 10 years’ worth of space, with only four waste sites having 5 years or less worth of space available. 
 
Likely contributors to the profusion of space are recycling and composting operations, along with energy-producing incinerators, which divert trash from landfills. Tennessee is an outlier in this aspect as long-term national landfill capacity in the U.S., by some estimations, may drop by more than 15 percent in the next five years. You can read TDEC’s full report here.
 
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White House, EPA Delay Results of Chemical Pollution Study

The EPA and White House sought to block publication of a federal health study on a nationwide water-contamination crisis after one Trump administration aide warned it would cause a "public relations nightmare," Politico reports. The intervention early this year when the U.S. Department of Health and Human Service's (HHS) Agency for Toxic Substances and Disease Registry was preparing to publish its assessment of a class of toxic chemicals that have contaminated water supplies near military bases, chemical plants and other sites from New York to Michigan to West Virginia.

The study would show that the chemicals endanger human health at a far lower level than EPA has previously called safe, according to emails obtained by the Union of Concerned Scientists through the Freedom of Information Act. The draft study remains unpublished, and HHS says it has no scheduled date to release it for public comment. The chemicals at issue in the HHS study, perfluorooctanoic and perfluorooctanesulfonic acids, have been linked with thyroid defects, problems in pregnancy and certain cancers, even at low levels of exposure. 

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Commissioner's Reception Tomorrow

The TBA Environmental Law Section invites its members to a reception honoring the new Tennessee Department of Environment and Conservation Commissioner Shari Meghreblian. The reception will be held in Chattanooga on May 16, coinciding with the Environmental Show of the South. This is a great opportunity to network with section members and other professionals in the Tennessee environmental community while welcoming Shari into her new role as commissioner. Here are the key details:

  • When: Wednesday, May 16, 5 p.m., EDT
  • Where:  Chattanooga Convention Center, South Rotunda, 1150 Carter St, Chattanooga, TN 37402

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Correction: TDEC Announces New Commissioner Shari Meghreblian

This article has been updated to reflect the correct spelling of Shari Meghreblian's name.
 
Shari Meghreblian, the deputy commissioner for the Tennessee Department of Environment and Conservation since 2011, is Gov. Bill Haslam's new pick to lead the department reports The Nashville Post. Meghreblian will replace Bob Martineau, who recently joined the new Nashville office of Knoxville-based real estate development firm LHP Capital.
 
Meghreblian assisted in creating a statewide plan addressing future water availability and is a board member of the West Tennessee River Basin Authority. She holds a Ph.D. degree in environmental management and a master’s degree in engineering from Vanderbilt University. Meghreblian will begin her new position on May 1.
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