The Tennessee Bar Association is "the most vivid example in the bar world" of effective use of the game format for online CLE programs, Dan Kittay writes in the latest issue of the ABA’s Bar Leader magazine. The TBA has spent five years researching different approaches to gamification, and also which software is best for creating interactive games, TBA CLE director Mindy Thomas Fulks told the magazine. Advocates of gamification say that it offers an alternate approach that is proving successful. Fulks credits TBA Executive Director Allan Ramsaur with striving to keep the bar “trendsetting.”

Looking for a unique way to earn those CLE hours?  Take a look at all the online gaming options the TBA CLE Department has to offer.

 

If you practice or are interested in International Law, Communications Law, Local Government Law, Animal Law or LGBT issues, the Tennessee Bar Association would like to hear from you. The TBA’s Membership Committee is considering the creation of new sections for each of these five areas, but first needs to gauge member interest in these practice areas. You can learn more about the potential sections on the TBA.org website and contact Membership Director Kelly Stosik if you are interested in joining or helping to form one or more of these sections.

 

The TBA Environmental Law Section has announced the eighth annual Jon E. Hastings Memorial Award writing competition for law students enrolled in a Tennessee law school in 2014 or 2015. The competition is held in memory of one of the section's most outstanding founding members and has a cash prize pool of $1,200. It is a juried competition for the best legal writing on a topic of Tennessee or federal environmental law. Entries are due May 1, 2015. The competition rules and announcement are available here in downloadable format.

 

Lucian Geise joins TDEC as Senior Counsel for Legislative Affairs.  Lucian previously served as Executive Director for the Fiscal Review Committee (since 2011) for the Tennessee General Assembly.  Prior to his leadership for Fiscal Review, Lucian was Senior Legislative Attorney for the Senate Finance, Ways and Means Committee.  He has also served as an Assistant Attorney General in the Consumer Advocate and Criminal Justice Divisions of the Tennessee Attorney General’s Office.  At TDEC, Lucian will work closely with the executive team and Office of General Counsel on legislative strategies and enhancing relationships with members of the General Assembly.  Lucian holds a bachelor’s degree from the University of Memphis and earned his Juris Doctor from the University of Memphis Cecil C. Humphreys School of Law.

 

Chair - Rachel Jakubovitz, TN Dept. Environment & Conservation (Nashville)
Vice-Chair - Darlene Marsh, Dickinson Wright PLLC (Nashville)
Immediate Past Chair - Catherine Anglin, Paine, Tarwater, and Bickers, LLP (Knoxville)
Secretary/Treasurer - Bob Tuke, Trauger & Tuke (Nashville)
Newsletter Editor - Willa Kalaidjian, Chambliss, Bahner & Stophel, P.C. (Chattanooga)
 

West TN Delegates:

Randy Womack, Glankler Brown PLLC (Memphis)
Robert McLean, Farris Bobango Branan PLC (Memphis)
Jim Lenschau, Martin, Tate, Morrow & Marston, P.C. (Memphis)

Middle TN Delegates:

Anne Davis, Southern Environmental Law Center (Nashville)
Scott Thomas, Bass, Berry & Sims PLC (Nashville)
Gregory T. Young, Stites & Harbison PLLC (Nashville)

East TN Delegates:

Ashley Lowe, Baker Donelson Bearman Caldwell & Berkowitz, PC (Knoxville)
Stephanie Matheny, Tennessee Clean Water Network (Knoxville)
Rick Hitchcock, Chambliss, Bahner & Stophel, P.C. (Chattanooga)

 

by Rachel Jakubovitz, TBA Environmental Law Section Chair

The December 22, 2008, Tennessee Valley Authority (TVA) Kingston disaster—in which 5.4 million cubic yards of coal ash was released into the Emory River, its tributaries, and surrounding lands—was the largest single environmental release in the history of Tennessee.

Local, state, and federal agencies worked together to respond to this event. The Tennessee Department of Environment and Conservation (TDEC) continues to work in cooperation with the U.S. Environmental Protection Agency (EPA) on cleanup oversight and environmental monitoring activities to ensure the community is protected and the area is restored.

The December 2008 ash pond failure in Kingston was not due to a lack of regulations or the chemical properties of fly ash. The cause of this coal ash event was found to be the failure of a surface impoundment retaining wall.

As a result of the TVA ash spill the structural stability of coal ash impoundments came to national attention. EPA is proposing to regulate the disposal of coal combustion residuals (CCRs) from electric utilities and independent power producers. Frequently Asked Questions, EPA, (last visited May 8, 2014) [hereinafter Questions]. In order to address the risks from the disposal of CCRs, EPA is proposing two alternative regulations: regulating CCRs under Subtitle C of Resource Conservation and Recovery Act as special waste, and regulating CCRs under Subtitle D of RCRA (Part 258) as a solid waste. Id.

Under both alternatives EPA is proposing to establish dam safety requirements to address the structural integrity of surface impoundments to prevent catastrophic releases. A chart comparing the two approaches can be found on the EPA website. Coal Combustion Residual—Key Differences Between Subtitle C and Subtitle D Options, EPA, (last visited May 8, 2014).

What Are CCRs?

CCRs are residuals from the combustion of coal. For purposes of this article, CCRs are:

•  Fly Ash - a product of burning finely ground coal in a boiler to produce electricity. Fly Ash, EPA,  (last visited May, 9, 2014). It is removed from the plant exhaust gases primarily by electrostatic precipitators or baghouses, and secondarily by scrubber systems. Id. Fly ash is useful in cement and concrete applications.Id.The shape and particle size distribution of fly ash also make it a good mineral filler in hot mix asphalt applications. Fly ash has other uses in concrete production and is also used as an ingredient in waste stabilization and/or solidification.

•  Bottom Ash - ash particles, formed in coal furnaces, which are too large to be carried in the flue gases and fall through open grates to an ash hopper at the bottom of the furnace. Bottom Ash, EPA,  (last visited May 9, 2014). Bottom ash can be used as a replacement for aggregate and lightweight concrete applications. Id. It may also be used in the production of cement and often as snow and ice traction control material.

•  Boiler Slag - the molten bottom ash collected at the base of certain furnaces that is quenched with water. Boiler Slag, EPA,  (last visited May 9, 2014). Boiler slag applications include its use as a component of blasting grit and roofing granules, mineral filler in asphalt, fill material for structural applications/embankments, and raw material in concrete products and snow/ice traction control material.

•  Flue Gas Desulfurization (FGD) Material - a product of a process typically used for reducing SO2 emissions from the exhaust gas system of a coal-fired boiler. Flue Gas Desulfurization Material, EPA,  (last visited May 9, 2014). The physical nature of these materials varies from a wet sludge to a dry powdered material depending on the process. Id. FGD material applications include its use as a raw material for wallboard, feed stock in the production of cement, raw material in concrete products and grout as well as an ingredient in waste stabilization and/or solidification.

Regulation of CCRs

One of EPA’s proposed options is to regulate under RCRA Subtitle C. Under this option, EPA is proposing to list CCRs from electric utilities and independent power producers when destined for disposal in a landfill or surface impoundment as a special waste; EPA would enforce these rules. Coal Combustion Residuals—Proposed Rule, EPA (last visited June 5, 2014). Under this proposal, if a waste exhibits a hazardous characteristic or is listed under Subtitle C, then it is subject to the requirements of RCRA Subtitle C and the implementing regulations found in 40 C.F.R. parts 260 through 268, parts 270 to 279, and Part 124. 40 C.F.R. §§ 260–268, 270–279, 124 (2014). These CCRs would be regulated from the point of their generation to the point of their final disposition, including during and after the closure of any disposal unit. Question, supra. It would include generator, transporter, facility and management permits, fees and multiple restrictions by enforcers. Id.

EPA’s alternate proposal regulates CCRs disposed of in surface impoundments or landfills under the RCRA Subtitle D requirements. Id. Under this approach, the CCRs would remain classified as a non-hazardous RCRA solid waste, and EPA would develop national minimum criteria governing facilities for their disposal units. Id. If minimum nationwide criteria were promulgated, states would adopt them, consistent with their state laws and administrative procedures. Id. States would enforce these rules.

Multiple comments regarding these proposed rules have been received, representing many different points of view. Many of the comments received by EPA are available for review on its website. One particularly concise, nonpartisan comment was received from the Environmental Council of the States (ECOS). ECOS is the nonpartisan association of state environmental commissioners. The Environmental Council of the States’ Comment Letter on Proposed CCR Regulation, ECOS (Nov. 19, 2010), (last visited May 8, 2014). The association’s position is that CCRs should be regulated under RCRA Subtitle D. Id. ECOS states that there is no scientific basis to suggest that regulating CCRs as hazardous wastes under RCRA Subtitle C would be more protective to public health or the environment than effective regulation as a solid waste under Subtitle D. Coal Combustion Residuals, U.S. Environmental Protection Agency, (last visited May 8, 2014). ECOS further states that CCR does not contain chemical constituents at the level of risk to public health and the environment that are present in currently defined hazardous waste (Subtitle C). Id. Therefore, argues ECOS, regulating CCR as a hazardous waste would complicate its management in a way that is wasteful of resources, energy, and capacity, whereas Subtitle D Part 258 criteria represent a reasonable balance between ensuring the protection of human health and the environment from the risks of CCRs and the practical realities of facilities’ ability to implement the criteria. 78 Fed. Reg. 34,432, 34,442 (2013). Further, regulation of CCR as a hazardous waste would adversely affect the many beneficial uses of CCR. The Environmental Council of the States’ Comment Letter on Proposed CCR Regulation, ECOS (Nov. 19, 2010), (last visited May 8, 2014).

Beneficial Uses of CCRs

Beneficial use in the U.S. energy industry, more specifically the coal combustion industry, is defined as the reuse of CCRs in a product to replace virgin raw materials that would otherwise be obtained through extraction, thus conserving natural resources. Supra, Questions. The primary positive impacts of the reuse of CCRs include environmental and economic impacts and performance benefits. This is exemplified most easily in the concrete construction industry.

One of the most significant beneficial uses of CCRs is in the construction industry, commonly in concrete production, replacing the portland cement component. Traditional cement production requires the cement to be “fired” in order to form concrete, using an incredibly large amount of energy. Fly ash can be used in place of cement, and does not need to be fired, using approximately 85 percent less energy than traditional kiln firing. Ed Dodge, Can Coal Fly Ash Waste Be Put to Good Use? (Feb. 18, 2014), (last visited June 5, 2014). Repurposing CCRs into cement production can also reduce the need to mine for cement materials, thereby saving energy and water, as well as limit landfill space needed to hold CCRs.

Overall, the environmental benefits such as reduced greenhouse gas emissions, reduced need for disposing in landfills, and reduced use of virgin resources lead to the economic benefits such as reduced costs associated with CCR disposal, increased revenue from the sale of CCRs, and savings from using CCRs in place of other, more costly materials, which in turn lead to performance benefits such as improved strength, durability, and workability of materials (e.g., concrete) and hence longer lasting products. Supra, Questions.

EPA has the massive responsibility of keeping the people and environment of the United States safe while regulating the materials that could harm both. EPA has put two proposals for the safe disposal and management of coal ash from coal-fired power plants out for public comment. The two regulatory options proposed have encouraged a robust dialogue on the methods of addressing human health concerns, structural integrity issues associated with impoundments and landfills and all others issues brought forth during the public comment period. The predominant waste product of burning coal, fly ash, iscertainly adding to the green/sustainable economy growing here in the United States. EPA’s website states that 37 percent of CCRs are reused or recycled. Going from waste product to viable product is one of the goals of the green economy. As the reuse of the products of burning coal increase, the need for disposal (landfill costs and space) will decrease correspondingly. Regarding this issue, EPA’s website states: “EPA wants to ensure that the ultimate decision is based on the best available data and is taken with the fullest possible extent of public input.” We, the general public, now wait and see what the final decision on this will be.

This article is being republished from the July 2014 ABA Energy and Environmental Markets and Finance Committee Newsletter. Vol. 5, No. 1.

 

Close to 400 health care lawyers from across Tennessee and the Southeast gathered at the TBA's Annual Health Law Primer and Forum this week in Cool Springs. Produced by the TBA Health Law Section's Chair Christie Burbank of Miller & Martin PLLC, the Forum is now in its 26th year. The Primer, produced by Chair-elect Jesse Neil of Community Health Systems Professional Services Corp., is in its 14th year. Photos by Jenny Jones.

The TBA Environmental Law Section has announced the eighth annual Jon E. Hastings Memorial Award writing competition for law students enrolled in a Tennessee law school in 2014 or 2015. The competition is held in memory of one of the section's most outstanding founding members and has a cash prize pool of $1,200. It is a juried competition for the best legal writing on a topic of Tennessee or federal environmental law. Entries are due May 1, 2015. The competition rules and announcement are available here in downloadable format.

Please make plans to join the TBA Environmental Law Section at their annual business meeting and election of officers to be held in conjunction with TBA Convention 2014.  The slate of officers is listed below. The Environmental Law Section meeting is scheduled as follows:

Date/Time:

Thursday, June 12, 2014
1:00 – 2:00 p.m. Central / 2:00 – 3:00 p.m. Eastern Time

 

Location:

Park Vista Hotel
Mountainview C
705 Cherokee Orchard Road
Gatlinburg, TN
(800) 421-7275
www.parkvista.com

 

• A conference call will be available for those unable to join us in person. The following are the instructions for joining the call:

You will dial in on the following number:   

1-888-721-8686

 

You will then be prompted to enter the

following conference ID number,

followed by the pound (#) sign:

5722409 #

 

• There is still time if you would like to register for TBA Convention.  You may register by calling TBA at 1-800-899-6993 or in Nashville at 383-7421 or register online at:

           TBA Convention 2014

 

• You do not have to be registered for Convention to attend this Section meeting.   

 

We hope to see you there!

 

Thank you!

Jenny Jones, TBA Sections and Committees Coordinator
jjones@tnbar.org

 

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TBA Environmental Law Section 2013 – 2014 Slate of Officers

 

 

Chair - Catherine Anglin, Paine, Tarwater, and Bickers, LLP (Knoxville)

Vice-Chair - Rachel Jakubovitz, TN Dept. Environment & Conservation (Nashville)

Immediate Past Chair - Rick Hitchcock, Chambliss, Bahner & Stophel P.C. (Chattanooga)

Secretary/Treasurer - Bob Tuke, Trauger & Tuke (Nashville)

Newsletter Editor – Darlene Marsh, Burr & Forman LLP (Nashville)

 

 

Middle TN Delegates:

Anne Davis, Southern Environmental Law Center (Nashville)

Scott Thomas, Bass, Berry & Sims PLC (Nashville)

Gregory T. Young, Stites & Harbison PLLC (Nashville)

 

West TN Delegates:

Randy Womack, Glankler Brown PLLC (Memphis)

Robert McLean, Farris Bobango Branan PLC (Memphis)

Jim Lenschau, Martin, Tate, Morrow & Marston, P.C. (Memphis)

 

East TN Delegates:

Ashley Lowe, Baker Donelson Bearman Caldwell & Berkowitz, PC (Knoxville)

Willa Kalaidjian, Chambliss, Bahner & Stophel, P.C. (Chattanooga)

Stephanie Matheny, Tennessee Clean Water Network (Knoxville)

Please make plans to join the TBA Construction Law Section for a business meeting that will be held in conjunction with TBA Convention 2014.  The TBA Construction Law Section meeting is scheduled as follows:

Date/Time:

Thursday, June 12, 2014
2:00 – 3:00 p.m. Central / 3:00 – 4:00 p.m. Eastern Time

Location:

Park Vista Hotel
Mountainview C
705 Cherokee Orchard Road
Gatlinburg, TN
(800) 421-7275
www.parkvista.com

 

• A conference call will be available for those unable to join us in person. The following are the instructions for joining the call:

You will dial in on the following number:   

1-888-721-8686

 

You will then be prompted to enter the

following conference ID number,

followed by the pound (#) sign:

5722409 #

 

• There is still time if you would like to register for TBA Convention.  You may register by calling TBA at 1-800-899-6993 or in Nashville at 383-7421 or register online at:           

TBA Convention 2014

 

• You do not have to be registered for Convention to attend this Section meeting.  We hope to see you there!

 

Thank you!

Jenny Jones, TBA Sections and Committees Coordinator
jjones@tnbar.org