TBA Law Blog


Posted by: Lynn Pointer on Dec 20, 2013

by Darlene Marsh

Recently back from a trip to coastal redwood forests of Northern California, Alan Leiserson graciously agreed to sit down for an interview about his years with the Department.   He shared some career highlights, as well as practice tips for interacting with the Office of General Counsel (“OGC”).  Although I have known Alan for a number of years, I was impressed and inspired by all of his contributions to environmental law practice in Tennessee.  

Alan spent his first three years of law practice with legal aid in West Tennessee, where he gained exposure to a wide variety of legal issues and disputes, thus laying a foundation for his later service at TDEC. 

When Alan joined the Department (then known as the Department of Health & Environment) in 1983, Bill Barrick was Assistant Commissioner and General Counsel for the Department.  It was under Bill’s leadership that all of the environmental attorneys were consolidated into a single location as the OGC. 

Our own Bill Penny (Chair of the ABA, Section of Environment and Energy Resources and interviewed in last month’s newsletter) oversaw an original OGC-E (the environmental satellite office) of six attorneys.  Three members were dedicated to mining issues and the remainder of OGS, consisting of Alan, Bill and Mary Johnson covered everything else statewide!  Joe Sanders, our current General Counsel, joined the team a few months later as did Steve Stout within several years.

Career Highlights

Alan has been involved in so many landmark cases, as well as legislation, that it would be impossible to include anything like a comprehensive listing.  However, short descriptions of some of his more memorable cases follow.

?               Rejection of the “You Should Have Told Us” defense in the North American Rayon (“NAR”) case.Seven miles of the Watauga River had been impacted and were devoid of aquatic life.  NAR appealed civil penalties after addressing its zinc discharge when the problem remained.  Their argument was that the Department could not assess penalties when it did not inform them of all the parameters that needed to be addressed! 

 

?               Sixth Circuit’s affirmation of the police power exception to the bankruptcy automatic stay for enforcement actions in Commerce Oil.  Additional Sixth Circuit authority for administrative expense priority for postpetition remediation costs.

 

?               Restoration of vegetative and aquatic to Copper Hill’s North Potato and Davis Mills Creeks based on a clean-up standard that looked at upstream biological integrity.  Alan gives much credit to the Superfund Division for their efforts on this site.

 

?               The transformation of the Obion Forked Deer River Basin Authority into the West Tennessee River Basin Authority, as a unit within TDEC. After the General Assembly enacted the bill that changed its mission, the new organization under David Salyer’s leadership now works both to maintain channels with “light touch” methods and increasingly, to re-establish meandering stream channels. Its projects have confirmed the self-cleaning effects of meandering stream beds, as well as their flood prevention properties. 

 

?               Drafting the Interbasin Water Transfer Law based on the concept of large watersheds without reference to state boundary lines in the definition, thereby greatly enhancing its constitutional compliance with interstate commerce clause jurisprudence.  

 

One of the last projects he worked on may have the most impact on the practice of environmental law in Tennessee, Public Chapter 181, effective July 1, 2013. This far reaching amendment to most of the environmental statutes changes the way contested cases are handled at the administrative level. Specifically, the first level of appeal is now heard by an Administrative Law Judge (“ALJ”) sitting alone, but subject to the provisions of the Administrative Procedures Act (“APA”).  Scheduling orders are required within 30 days of filing the appeal and the hearing must occur within 180 days of the scheduling conference, unless an extensions is agreed by the parties or ordered by an ALJ for good cause. 

The initial ALJ order is issued within 60 days of the hearing and becomes final, unless appealed by a party within 30 days, or the relevant Board passes a motion to review the ALJ decision within the later of 30 days or 7 days following the first Board meeting occurring after entry of the ALJ order.  ALJ orders that become final without any action by the Board are considered decisions of the Board for purposes of subsequent judicial review, but are not binding on the Board in later cases. 

The next level of appeal lies to the relevant regulatory board, i.e. Air Pollution Control Board; Board of Water Quality, Oil & Gas and Underground Storage Tank and Solid Waste Disposal Board.  It is an appeal de novo, on the record, but without any presumption of correctness.  Parties are afforded the opportunity to file briefs and present oral argument. Further appeals are to Chancery Court are conducted in accordance with the APA. 

There are many benefits to this approach, including eliminating possible due process concerns that may arise when a contested case hearing is continued to the next monthly (or later) Board meeting, where a different ALJ might be assigned to the case. 

One open issue is whether a group of ALJs will be assigned/dedicated to hear appeals of environmental cases.  Such an approach would seem appropriate given the technical nature of the subject matter and would likely result in speedier resolution and surer determinations on relevancy objections, dispositive motions, etc.

Practice Tips

Finally, Alan shared a few practice tips:

1.Start the dialogue with OGC on both enforcement and permitting issues as early as possible.

2.Explore alternative permit conditions prior to issuance.

Following these recommendations will increase the likelihood of a good result, given the increasing trend toward greater transparency that results from posting of information on the internet.

Alan will be greatly missed both inside and outside TDEC.  We wish him all the best and envy the time he will be spending on environmentally responsible tree climbing, hiking, photography and biking.  Alan will also be volunteering with a non-profit organization, NVC Nashville (that’s Non-Violent Communication) as well as his church.  They are lucky to have his talent!