Next Week: Environmental Show of the South

The 48th annual Environmental Show of the South, the largest and most comprehensive environmental conference and trade show in the region, returns to the Chattanooga Convention Center May 15-17. This forum has proven to be a must-see, must-do event for environmental agencies and lawyers alike, featuring timely information on regulations, compliance and other hot topics relevant to your practice.
Network with colleagues, learn about new developments and meet vendors offering a full spectrum of environmental goods and services, all while obtaining necessary CLE credits. You can view the conference agenda here.
• When: Registration begins May 15, 7:30 a.m., EDT
• Where: Chattanooga Convention Center, 1150 Carter St, Chattanooga, TN 37402
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Tennessee Riverkeeper Offer Earth Day Events with Robert F. Kennedy Jr.

Tennessee Riverkeeper will host two special events in Nashville on April 19. The first will be a luncheon and panel discussion on civil rights and the environment, with Robert F. Kennedy Jr. and others. It will be held at Woolworth on 5th from 11:30 a.m. to 1:30 p.m. The second event will be held at Acme Feed & Seed beginning at 6 p.m., featuring an exclusive VIP meet and greet with Kennedy, along with musical performances from Emmylou Harris, the Shawn Camp band and more. Here’s the key info:
Woolworth on 5th 
211 5th Avenue North Nashville, TN 37219
11:30 a.m.–1:30 p.m. 
Acme Feed & Seed
101 Broadway Nashville, TN 37219
6 p.m., Meet and Greet
7:30 p.m .– 9:30 p.m., Performances
Host Committee for the event include:
  • John Esposito
  • Bill Freeman
  • Sarah Finklea
  • Stephen Glicken
  • Emmylou Harris
  • Robert F. Kennedy, Jr.
  • Robert F. Kennedy, III
  • Tom Morales
  • Nissan North America
  • Stephanie & Thomas O’Keefe
  • Josh Segall
  • Dolores Seigenthaler
  • John Michael Seigenthaler
  • Peter Shapiro
  • Guthrie Trapp
  • David Whiteside
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Are Aerosol Cans the Next Federal 'Universal Waste' to be Recycled?

Remember back in the ‘60s or ‘70s or ‘80s when, against all of the rules, kids in the neighborhood would play ‘Army’ and create a flamethrower from certain items around the house? [Warning: don’t be a knucklehead and try to recreate the memories!!!] These days, very stringent regulations pursuant to the federal Resource Conservation and Recovery Act (“RCRA”) generally apply to those aerosol canisters due to the ignitability characteristics that used to fascinate so many of us. Now, EPA has recently proposed a rule — 83 Fed. Reg. 11654, March 16, 2018 — to redefine hazardous waste aerosol cans as ‘Universal Wastes,’ a classification the agency believes can enhance recycling if it applies the lower standard to discarded aerosol cans. This will ease the management and handling requirements for aerosol cans by adding many of those to a federal ‘universal waste’ list that includes other ubiquitous items such as fluorescent bulbs or lamps, some pesticides and certain batteries.
The EPA believes the rule change may encourage aerosol can recycling. The EPA also proposes criteria for puncturing/draining the vessels. The rule changes, if adopted, would allow longer collection/storage periods for the cans at retail stores or a facility and the changes could increase (up to five times greater) the amount that one could accumulate on-site. The EPA has published the proposed rule on its website. Comments on the proposal are encouraged by April 16 and must be submitted to the government no later than May 15 at Docket Number EPA-HQ-OLEM-2017-0463 for consideration. If you would like to discuss this proposed rule, preparing a comment to be submitted, or any other environmental matter, please contact David at dhigney@gkhpc.com, or call him at 423.756.8400, ext. 230.

David Higney is a past chair of the Tennessee Bar Association’s Environmental Law Section and continues to serve on the Section’s Executive Council. Higney is licensed in both Tennessee and Georgia and has concentrated his practice in business litigation and environmental matters (regulatory and advocacy) before state and federal agencies/tribunals for over 25 years.
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Chicken Plant Rejected by Kansas Town Finds New Home in Gibson County

A chicken plant originally planned and rejected by a Kansas town has found a new home in Gibson County, reports The Tennessean. Tyson Foods, the world's largest processor and marketer of chicken, beef and pork, has announced that the plant will be located at the Gibson County Industrial Site with close proximity to rail and Interstate 40. As part of the deal, Tyson has been awarded $18 million in incentives through the state's FastTrack grants that will go toward additional infrastructure, and the county has offered a tax abatement deal estimated to total $16 million over the next 20 years. 
Gibson County Economic Development Director Kingsley Brock says he and other local officials were aware of the Kansas pushback and vetted Arkansas-based Tyson accordingly. "I knew we had something good. It was just a matter of time," said Brock. "It turned out we were at the right place at the right time." Tyson said it was drawn to the available workforce in Gibson County, proximity to grain and available infrastructure. Jobs will have wages ranging from $13 to $20 an hour, plus benefits. Many management and administrative jobs also will be offered. 
One of the biggest complaints about the Tyson project in Kansas was the infrastructure needed to accommodate both the plant and an expected to be an influx of new residents taking jobs there. Roads would need upgrades to support the heavy trucks, the sewer system would need to be extended and schools could be overwhelmed, residents said. The county had planned to issue $500 million in industrial bond revenue to support the facility, along with $7 million for utilities and another $1 million for sewer lines. Residents also objected to the perceived secrecy surrounding the project prior to the announcement and raised concerns about smells associated with chicken farms, possible exposure to ammonia and the potential for water pollution. The debate came to a head at a crowded town hall meeting in September, drawing about 2,000 people, according to media reports.
Other concerns raised involve reports of the company releasing more than 20 million pounds of toxic chemicals into U.S. waterways in 2014, more than any other agricultural company, according to a 2016 report from Environment America Research & Policy Center. Tyson spokesman Worth Sparkman disputed the report as inaccurate and misleading. Water from plants is returned to streams after it is treated by government-regulated systems and most farmers raising animals are required to follow nutrient management plans, he said. Tyson was also among chicken companies sued in 2005 for polluting the Illinois River with chicken waste. In 2015, the company settled a case in Missouri for chemical releases that killed more than 100,000 fish in a Missouri creek. 
Regarding water concerns, Gibson County Mayor Tom Witherspoon says he has full confidence in the Tennessee Department of Environment and Conservation (TDEC) to regulate the chicken plant and contributing farms. But, under new legislation signed into law in February, chicken farmers raising poultry for Tyson will no longer be required to obtain TDEC permits. TDEC spokeswoman Kim Schofinski said the state can still enforce against water quality violations, mostly identified through complaint investigations or TDEC's routine sampling. "Our investigative process, as well as routine water quality monitoring, can potentially identify a link between an impact and a specific activity or source," she said in an emailed statement.
Having watched what unfolded in Kansas, Witherspoon said local officials sought to engage the community and involve them in the process early on. They held meetings with area farmers and talked with community leaders about the Tyson prospect ahead of the announcement, made in November, and the project has been well-received by farmers and the business community. Any pushback Witherspoon said he has received has been from a handful of residents who fear the jobs will attract an influx of immigrants to the area, a concern he brushes off. "Anybody who wants to come to Gibson County, get here legally, get up and go to work every day, pay their bills, provide for their families and obey our laws and keep their yard picked up, they are welcome," he said.
Tyson currently maintains a plant in Obion County, employing 1,000 people in Obion County's Union City and is adding 300 more jobs as part of an $84 million expansion “They have been a blessing to Obion County and surrounding counties with their employment," Obion County Mayor Benny McGuire said.  “The company's presence has sustained Obion County’s tax base, paying for schools and roads.” In Gibson County, officials are optimistic the plant will trigger new business creation and help them lure more companies to the area and to the industrial site, once Tyson is established.
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Thanks to Our Sponsor


Wood is a global leader in the delivery of project, engineering and technical services to energy and industrial markets operating in more than 60 countries. Wood provides performance-driven solutions throughout the asset lifecycle, from concept to decommissioning across a broad range of industrial markets, including upstream, midstream and downstream oil & gas, chemicals, environment and infrastructure, power & process, clean energy, mining, nuclear and general industrial sectors. 

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Thanks to Our Section Leaders

Thanks to the members of the 2017 - 2018 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 meets regularly throughout the year to produce news to the members and the Jon E. Hastings Memorial Award Writing Competition. Thanks to all for their dedication and hard work on behalf of the TBA Environmental Law Section.
• Lauran Sturm, Chair
Tennessee Department of Environment & Conservation (Nashville)
• Jenny Howard, Vice-Chair
Tennessee Department of Environment & Conservation (Nashville)
• Willa Kalaidjian, Immediate Past Chair
Chambliss, Bahner & Stophel PC (Chattanooga)
• Robert "Jaz" Boon, Newsletter Editor
Waller Lansden Dortch & Davis LLP (Nashville)
• Bob Tuke, Secretary/Treasurer
Trauger & Tuke (Nashville)
• Elizabeth Alexander
Southern Environmental Law Center (Nashville)
• Gregory T. Young
Stites & Harbison PLLC (Nashville)
• Scott Thomas
Bass, Berry & Sims PLC (Nashville)
• Jim Lenschau
Wyatt Tarrant & Combs (Memphis)
• Randy Womack
Glankler Brown PLLC (Memphis)
• Robert McLean
Farris Bobango Branan PLC (Memphis)
• 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 Protection Agency and Department of Justice Write-ups

1.       EPA Year in Review for 2017-2018
a. The Environmental Protection Agency (EPA) Administrator Scott Pruitt released a report of its accomplishments under the Trump Administration’s first year in power.  The report touts, among other things, 22 deregulatory actions taken by the EPA, the removal of seven sites from the National Priority List, and action on 322 State Implementation Plans.
2.       October 31, 2017 Directive from Scott Pruitt, EPA Administrator
a. Environmental Protection Agency (EPA) Administrator Scott Pruitt established certain principles and procedures for the Agency to follow when establishing the membership of EPA federal advisory committees.  The principles include strengthening member independence, increasing state, tribal and local government participation, enhancing geographic diversity, and promoting fresh perspectives.  Mr. Pruitt’s stated intent is to improve the internal management of the EPA although maintaining the discretion to depart from the new procedures.
3.        Directive Promoting Transparency and Public Participation and Consent Decrees and Settlement Agreements
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Jon E. Hastings Memorial Award Writing Competition

The Environmental Law Section of the Tennessee Bar Association is sponsoring an Annual Writing Competition, titled the Jon E. Hastings Memorial Award, in memory of one of its outstanding founding members.  
This is a juried award selection for the best legal writing on a topic of Tennessee or federal environmental law.
Law Students enrolled in a Tennessee law school in 2018 or 2019.
Law students who comply with these criteria may submit an entry in accordance with the Rules of Competition. The Rules of Competition are available from Environmental Law professors or may be obtained by sending an email to Jarod Word at the Tennessee Bar Association, jword@tnbar.org.
One of the primary purposes of the Environmental Law Section of the Tennessee Bar Association is to improve environmental compliance in Tennessee. We accomplish this goal through a number of means, including assisting our members to stay current on issues and promoting a dialogue on substantive environmental law topics.  
The Jon E. Hastings Memorial Award Writing Competition has several goals including the following:
A. To improve the understanding of environmental law in Tennessee through the publication of scholarly articles on pertinent and timely environmental law topics;
B. To strengthen the relationship among environmental law professors, environmental law students and environmental practitioners in Tennessee;
C. To recognize Jon E. Hastings, a founding member of the Tennessee Environmental Law Section, for his contributions to the body of environmental law in the State of Tennessee.  
To accomplish these goals, the Environmental Law Section is pleased to extend an opportunity to law students to participate in a writing competition.  The winning entry or entries will be published in the Newsletter of the Environmental Law Section.
This competition will be judged by a panel of environmental law practitioners, members of the judiciary, and/or professors selected by the Environmental Law Section of the Tennessee Bar Association.
The Award Winning paper(s) must be released from copyright or other restrictions for the purpose of publication in the Newsletter.
Jon E. Hastings was a founding member of the Environmental Law Section of the Tennessee Bar Association, and an attorney with Boult, Cummings, Conners & Berry PLC, who passed away at the young age of 45 on Aug. 22, 2004 after a two-year battle with cancer.  Jon was a proud member of the Environmental Law Section and an outstanding lawyer in the fields of environmental, telecommunications, and public utility law.  Jon was listed in the 2003 - 2004 edition of "The Best Lawyers in America" and found the energy to devote time on behalf of numerous philanthropic causes and civic groups. 
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Part 2 of 2: Per- and Polyfluoroalkyl Substances (PFASs):

Emerging Contaminant Litigation Despite Federally Promulgated Rule

By Shalene Thomas and Brad Glisson
Per- and Polyfluoroalkyl Substances (PFASs) are a widely used class of synthetic chemicals of emerging concern to human health and the environment. These chemicals repel oil and water from clothing, carpet, furniture  and cookware and are used to suppress fires. PFASs have been ubiquitously used in aqueous film-forming foam (AFFF) to extinguish hydrocarbon-based fires and in manufacturing processes related to photolithography, photographic coatings applications, electroplating mist suppressants and aviation hydraulic fluids. Although chemicals in the emerging class have been used ubiquitously in commerce since the 1960s, and health effects were first uncovered in the 1970s, there continues to be no Federally promulgated drinking water and clean-up rules around this class of chemicals. Despite this, more than a dozen cases have ensued involving PFASs and specifically Perfluorooctane sulfonate (PFOS), Perfluorooctanoic acid (PFOA), and most recently GenX.
Initial litigation focus was on the manufacturers themselves, primarily DuPont (and spin-off Chemours) and 3M and primarily on PFOS and/or PFOA. For example, the first class-action lawsuit for PFASs was filed in 2004 (Leach, et al v. E. I. DuPont deNemours and Co.) on behalf of West Virginia residents across six different water districts exposed to PFOA releases from DuPont's Washington Works plant in Parkersburg, WV. A settlement was reached with DuPont in the original (Leach v. E. I. DuPont) class action lawsuit. The entire settlement was approved in February 2005 with $70 million for a health and education project, the installation of state-of-the-art water treatment technology for the six identified water districts and private well, $30 million to fund a PFOA health study, and funds available (up to $235 million) for the medical monitoring of class members. In the last few years, DuPont and Chemours have agreed to pay hundreds of millions of dollars to settle lawsuits related to PFOA, including a $670.7 million global settlement last February to settle 3,550 lawsuits in multidistrict litigation centered in Ohio.
Issues at the Washington Works plant appear to be continuing despite the nearly two decades of litigation. Earlier this month, Ohio's attorney general sued DuPont and its spin-off Chemours Co. for restitution and damages resulting from PFOA at the Washington Works plant in Parkersburg, WV. The Attorney General is seeking relief including 1) A declaration of DuPont’s duty to compensate Ohio for expenses related to the contamination, 2) Damages for injury to Ohio’s natural resources, including the economic impact to the state and its residents, 3) An award of present and future costs to clean up PFOA contamination, and 4) Restitution damages for profits DuPont obtained through the conduct.
In more recent years, the umbrella of litigation has grown past the manufacturer to include water utilities, product users, and secondary manufacturing applications. For example, in 2017, Tennessee Riverkeeper filed a lawsuit under the federal Resource Conservation and Recovery Act, against 3M, BFI Waste Systems of Alabama, the city of Decatur, Morgan County and other entities to clean up landfills and wastewater treatment plants that Tennessee Riverkeeper states are still releasing PFOS and PFOA into the Tennessee River and local groundwater. In another example, a class-action lawsuit was filed against Saint-Gobain Performance Plastics and Honeywell International Inc. on behalf of residents in Hoosick Falls, N.Y., after discovering they were drinking water containing high levels of PFOA. Similar cases were filed in New Hampshire and Vermont against Saint-Gobain. The plant does not manufacture PFOA but rather applies it to fabric to make coated fabrics for application in sporting complexes, hazmat suits for the first responder, and shelters for mobile medical units. In a final example, a class action lawsuit was filed last October against five manufacturers of aqueous firefighting foams ("AFFF") containing PFOS and PFOA for the contamination of the groundwater relied upon by the residents of Yaphank, New York. The class action complaint was filed in the Supreme Court for the State of New York, Suffolk County, and names 3M, and several foam manufacturers (Tyco Fire Products L.P., Buckeye Fire Protection Co., National Foam, Chemguard) as Defendants. As cases continue to develop around AFFF, some have taken a proactive approach to address potential environmental and human health risks. The US Air Force as an example has already spent $210 million dollars on PFOS/PFOA actions to date to respond to AFFF-contaminated drinking water at 19 installations across the country. A total of 203 installations have been evaluated and 190 of them are expected to require further site inspections. 
The latest trend in PFAS litigation is currently towards other chemicals in the emerging contaminant class. For example, late last month, lawyers filed a new class action lawsuit against DuPont and Chemours claiming that the two firms contaminated the Cape Fear River in North Carolina with PFASs. The filing consolidates three class action suits filed since October 2017 by lawyers representing thousands of people who claim they are ill or could get ill because they drank water from the Cape Fear River and from wells surrounding the plant, now run by DuPont spin-off Chemours. The suit seeks funding for an epidemiological study to gauge the impact of PFOA, other polyfluoroalkyl substances, and GenX—which Chemours considers a safer alternative to PFOA — on residents along the Cape Fear River. It also seeks undetermined compensatory and punitive damages for illness, reduced property value, and the cost of water filtration
As hundreds of sites are identified across the United States, liability associated with the environmental and health implications of PFASs continues to grow exponentially. As science around the emerging contaminant class develops, additional PFASs become scrutinized and state regulatory requirements expand to accommodate them. Litigation associated with PFASs is expected to continue for years to come. 

—Shalene Thomas (Derouard), PMP is the Emerging Contaminants Program Manager with Amec Foster Wheeler Environment & Infrastructure Inc.  (Note, effective Oct. 9, 2017, Amec Foster Wheeler joined Wood, PLC).  Shalene can be contacted by email at Shalene.Thomas@woodplc.com or by phone at (612) 252-3697.

—Brad Glisson, CHMM is a Senior Environmental Scientist in the Amec Foster Wheeler’s Nashville, Tennessee office.  He can be contacted at brad.glisson@woodplc.com and (615) 333-0630.
Additional Information
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250k Tree Day Postponed

Due to the ongoing rain this week, as well as the thunderstorms forecasted for Saturday, the 250k Tree Day will be postponed to March 10 in order to ensure the safest and most effective project possible. Please email Jaclyn Mothupi directly by March 6 if you are signed up, but unable to volunteer on the new date. 
WHEN: Saturday, March 10, 10 a.m. - 12 p.m. CST
WHAT: Planting and mulching trees at Long Hunter State Park. Limited shovels and gloves will be provided. If you are able to bring your own shovel and gloves, it is very much appreciated. Wear comfortable work clothes and closed-toe shoes. Morning coffee and refreshments will be provided. If the event is canceled due to weather, volunteers will receive an email alert with cancelation.  
WHERE: Long Hunter State Park, 2910 Hobson Pike, Hermitage, 37076. The tree planting will occur in the large field directly behind the Visitor Center. As you enter the park look for directional signage to the registration tent and flagged and designated parking area in the field. 
If you have any questions on the day of the event, you can reach Jaclyn by phone at 615-487-7814.
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