Tennessee Environmental Law Blog

TDEC PERSONNEL CHANGES AFFECT LONG TIME DIRECTORS

We learned yesterday that long time Solid and Hazardous Waste Director Mike Apple, will be leaving the TDEC effective February 15, 2012. Apple was with TDEC for 42 years. Paul Estille Davis, long time Director of the Division of Water Pollution Control will also be leaving about the same time. Paul Davis' was with the Department nearly 40 years. Both of these long term TDEC staffers contributed tremendously to improving the environment and regulatory programs of the State and their service will be missed. We wish them the best!

Department of Justice Gets Conviction for Factory Demolition

The Department of Justice today issued a press release announcing the conviction of David Wood, Donald Fillers, James Mathis and Watkins Street Project LLC, for illegally demolishing the Standard Coosa Thatcher Plant on Watkins Street in Chattanooga while still containing large amounts of asbestos. Regardless of the issues, this case is a good example that prior to demolition of property the air pollution control authority (either TDEC or locally authorized program). Sentencing is yet to come.

TDEC Commissioner Martineau Announces Departmental Reorganization

TDEC Commissioner Bob Martineau today unveiled some significant reorganization plans. While not necessarily in the order described in the briefing paper, probably the most significant from a day to day regulatory standpoint is the redirection of field office personnel. Prior to the reorganization, personnel in substantive program areas (air, water, solid waste, and UST) reported to a field office director, with no direct reporting to the respective director of that division. Now each respective field office program manager will report directly to the director of their respective divisions and the field office director position is eliminated. It is hoped that this will lead to more consistency throughout the state.

TDEC is also reaching out to external stakeholders by creating an Office of External Affairs in the Commissioner's Office, led by Tisha Calabrese-Benton, and a new position in each field office called Regional Director for External Affairs. They will serve as the primary point of contact for the public and stakeholders in a particular TDEC region. David Owenby, will become the Commissioner’s Chief of Staff. Brenda Apple will become the TDEC Emergency

Services Director to provide agency-wide oversight for the department's emergency

service capability, and Lori Munkeboe will lead a new TDEC Office of Sustainable Practices to advance a culture of sustainability across the department, state

government and with our various partners.

LEGISLATION PROPOSED TO CONSOLIDATE SOME ENVIRONMENTAL BOARDS

Legislation filed last week as House Bill 2387 by McCormick, if passed, will restructure four environmental boards within the Department of Environment and Conservation (“TDEC”). This bill appears to be supported by the Haslam Administration. One of the consolidation proposals will merge the Oil and Gas Board into the Water Quality Control Board. The new name will be the “Tennessee Board of Water Quality, Oil and Gas." The members of the board would include the current mix of members on the Water Quality Control Board as well as one member representing the oil and gas industry and one representing oil and gas property owners. Thus the total number of appointed board members would be (9). With the Commissioners of Agriculture, Health and TDEC added, the total number of Board members would be increased to 12. The Oil and Gas Board is abolished with the existing statutory language for the Water Quality Control Board remaining. Members that will not be on the new board from the Oil and Gas Board include one representative of mineral interests, the chair of the conservation commission, and the commissioner of the Department of Economic and Community Development.

The second proposal is to merge the Underground Storage Tank (“UST”) Board into the Solid Waste Disposal Control Board with the new name of “Underground Storage Tanks and Solid Waste Disposal Control Board.” It retains all the members of the current solid waste disposal control board and adds a person employed by a private petroleum concern recommended by the Tennessee Fuel and Convenience Store Association and one person employed by a private petroleum concern recommended by the Tennessee Petroleum Council. The UST Board is then abolished with remaining governance with the solid waste disposal control board. The merger eliminates from the former UST board the two consumer members, but the others appear to be merged into the new board, for a total of 13 members.

Other than consolidation no other changes are proposed.

DEPARTMENT OF ECONOMIC AND COMMUNITY DEVELOPMENT ISSUES REGULATORY REFORM REPORT

The Department of Economic and Community Development recently released a much awaitedRegulatory Reform Report on the state of State Government. Not surprisingly, environmental programs as well as the department of environment and conservation itself were put under the microscope.

Following Governor Haslam’s inauguration last year the Governor tasked the Department of Economic and Community Development (ECD) with the responsibility of regulatory review as part of Gov. Haslam’s Jobs4TN plan. According to ECD, the goal of this task was to produce a report and set of recommendations to the governor in order to make improvements to state government’s regulatory system as well as the way it conducts business. During this process, ECD worked with existing Tennessee businesses, business advocacy groups and state departments to identify federal and state laws, regulations and processes inhibiting job growth.

The report notes at page 41, “There was a general consensus that state government should do everything in its power to remove regulatory or legislative uncertainty for businesses. Many businesses expressed concern regarding risking significant capital investments prior to the settling of this uncertainty (mainly at the federal level).”

While we have referenced the entire report in the first paragraph,, I think it is helpful to pull out the findings and recommendations. These findings and recommendations could have substantial impact on future environmental programs.

Findings and Recommendations

A. Findings

Much of the input that was received during this process indicated that Tennessee does not have the specific problems with individual regulations that plague other states in our country; however, this process highlighted numerous regulatory and operational issues within our government. The most common findings are detailed below:

Regulatory Interpretation

Numerous examples were provided during this process regarding uneven regulatory interpretation and the lack of transparency of such interpretation in our state. The common problem addressed involves situations where departmental regulators or inspectors enforce the same regulation inconsistently in different regions of the state even when there is no apparent reason for doing so. Businesses expressed that playing a regulatory “guessing game” was inefficient, expensive and contributed to uncertainty that would give businesses hesitancy to further invest in this state.

Regulatory Enforcement Inefficiency

Whether individuals who enforce regulations in certain departments are given the proper training or have the proper skill set required to enforce regulations is a concern across the state. Additionally, there is a perceived lack of accountability in regards to state inspectors. Many concerns were expressed regarding inspector misconduct, such as poor treatment or perceived intimidation of businesses they are inspecting.

Relationship with Federal Agencies

The relationships certain departments have with federal agencies and whether a state department will adequately represent Tennessee’s interests or simply capitulate to the wishes of the federal agency should also be evaluated. The most common complaint addressed situations where the state departments have latitude to interpret a regulation differently than a federal agency and instead simply rely on “guidance” from the federal agency, regardless of whether this “guidance” is appropriate or not.

Transparency

The lack of information set forth by boards, commissions and departments regarding the regulatory process in the state makes it difficult to monitor this process and perpetuates inconsistencies. Many expressed concern that there was not proper oversight and accountability of the boards and commissions process.

Departmental Culture

In addition to the concerns regarding the regulatory process, there were an overwhelming number of concerns regarding the lack of “customer service” the state provides. Serious and severe problems were addressed and involved: departmental inefficiencies; lack of response to constituents; poor attitude; rude treatment of constituents; threats made towards constituents; and general lack of management and accountability.

B. Recommendations

Assessing Future Regulations

Implement a process that assesses all regulations prior to becoming final. This process should include requirements for boards, commissions and departments to ensure a full and open regulatory process, ensure stakeholders have proper input in the process, and include a written statement from the promulgating body as to why the rule is needed and whether the affected stakeholders have been considered. This information should be included on the regulatory transparency website.

Culture of Compliance

Require regulatory enforcement entities to make efforts to work with constituents to help them comply with regulations and to help them understand inspector expectations. One of the more common complaints received during this process was the perception that certain departments and inspectors play a game of “gotcha” instead of working with the businesses to assist them in complying with regulations.

Culture of State Government

Assess reforming aspects of the state employment process. Many of the complaints during this process surrounded the lack of accountability of state employees and the lack of professionalism encountered while interacting with the state government. Employees should be held accountable for their actions. State employees that do not properly conduct themselves or fulfill their duties should be easily disciplined or dismissed by their supervisors.

The state should assess the benefits of providing customer service training to employees and developing customer service standards. Employee performance reviews should take into account these standards and hold those accountable for not complying with these standards.

Eliminating Unnecessary Regulation

Direct each department to begin the process of eliminating or modifying the regulations provided during the departmental review of this process.

Federal Regulations

Conduct an annual survey to businesses tracking problematic federal regulations. The results of this survey will further guide the state’s ability to work with the Tennessee congressional delegation to improve or eliminate these regulations.

Interdepartmental Interaction

Review all procedures or processes that are performed by more than one department to assess whether these procedures and processes can be streamlined. A number of complaints during this process revolved around departments failing to work together on the same matter. This failure leads to costly delays for businesses.

Legislative Opportunities

Search for legislative or regulatory opportunities to address business concerns regarding certain laws such as worker's compensation or unemployment laws.

Regulatory Interpretation

Require that every department enforcing regulations create uniform regulatory guidance, where applicable, in order to promote regulatory certainty and oversight within this process. Implementing this process would provide businesses with certainty and add transparency to the regulatory system.

Regulatory Transparency

Develop an interactive, “one stop” website. Develop an interactive website that allows constituents to easily find regulatory information and require each department, board, or commission to post notices on this website and to create an updating service that constituents can receive all notices regarding potential rulemaking. A fairly common complaint, especially among small- and medium-size businesses, was that it was very difficult to engage in the regulatory process without the costly process of hiring an attorney. All agreed that having an easier method for finding information would be beneficial and make the regulatory system easier to navigate.

Assess the necessity of each board and commission. Many concerns addressed the necessity of certain boards and commissions within this process and whether these entities have proper oversight and accountability. Many of these entities are duplicative, unnecessary, or can be consolidated. This system tends to lead to confusion regarding the rulemaking process. Where appropriate, boards and commissions that fit this description should be eliminated or consolidated.

TDEC Sets New Public Hearings Based on Revisions to the Triennial Review Rules

TDEC announced today that it will be hold two public hearings on February 23, 2012 to accept additional comments to the proposed triennial review rules in light of changes the Division recommended at the November Water Quality Control Board meeting. The live hearings will be on the 17th Floor Conference Room, L & C Tower at 1:30 and 6:30 p.m. Central Time. Click here for the notice in full. Click here for the redline version of the changes from the original. The notice provides opportunity for teleconference at locations across the state for the public hearings. The Division went out out on public notice for the triennial review rules late in 2009. Yet it was not until November 2011, some two years later that the Division made its recommendations. The triennial review must be conducted every three years, so it appears the process will start all over again next year.

The reason for the new public hearings is related to some last minute changes TDEC made to the rules that went out on public notice two years ago. These changes appear primarily related to resolving issues raised in In a Chancery Court decision issued October 17, 2011, Pickard v. Water Quality Control Board, No.09-228-III described in our October 17, 2011 posting on this blog. A number of NGO's and others expressed concern at the abrupt revisions to the rules. In addition, TDEC changed some of the procedural aspects of the antidegradation process for Exceptional Waters, from the original proposal, by eliminating the public meeting but including it with the public hearing for the actual permit. TDEC also retracted its recommendation to adopt the 1996 recommended selenium national criterion for fish and aquatic life and recommended staying with the existing 1987 criterion. The 1996 revision was not supported by industry or NGO's (for different reasons). Industry recommended that the Board adopt the 2004/2008 draft National Criterion to account for the different ionized states of selenium and the influence of sulfates on the selenate form.

Comments will be taken at the public hearing on February 23, 2012 but TDEC will accept comments through March 6, 2012.

EPA Issues First National Standards for Mercury and Air Toxics

In a press release issued today, the U.S. EPA announced that it has issued the first national standards regulating power plant emissions of mercury and toxic air pollutants like arsenic, acid gas, nickel, selenium, and cyanide. The Mercury and Air Toxics Standards, which are being issued in response to a court deadline, are based on the latest data and provide industry significant flexibility in implementation through a phased-in approach and use of already existing technologies.

The standards are the product of some 20 years for drafting and compromise. The 1990 Clean Air Act Amendments passed by a bipartisan Congress mandated that EPA require control of toxic air pollutants including mercury. To meet this requirement, EPA worked extensively with stakeholders, including industry, to minimize cost and maximize flexibilities in these final standards. There were more than 900,000 public comments that helped inform the final standards being announced today. Part of this feedback encouraged EPA to ensure the standards focused on readily available and widely deployed pollution control technologies, that are not only manufactured by companies in the United States, but also support short-term and long-term jobs. EPA estimates that manufacturing, engineering, installing and maintaining the pollution controls to meet these standards will provide employment for thousands, potentially including 46,000 short-term construction jobs and 8,0a00 long-term utility jobs.

As part of the commitment to maximize flexibilities under the law, the standards are accompanied by a Presidential Memorandum that directs EPA to use tools provided in the Clean Air Act to implement the Mercury and Air Toxics Standards in a cost-effective manner that ensures electric reliability. For example, under these standards, EPA is not only providing the standard three years for compliance, but also encouraging permitting authorities to make a fourth year broadly available for technology installations, and if still more time is needed, providing a well-defined pathway to address any localized reliability problems should they arise.

Today, more than half of all coal-fired power plants already deploy pollution control technologies that will help them meet these achievable standards. Once final, these standards will level the playing field by ensuring the remaining plants—about 40 percent of all coal fired power plants—take similar steps to decrease emissions of these pollutants.

Tennessee Attorney General Issues Opinion on Navigability and Ownership of Land Under Waterways

The Office of the Attorney General in Tennessee issued an opinion yesterday regarding the determination of navigability and ownership of land beneath a river.

Opinion No. 11-75 addressed two main questions: (1) When is a river legally deemed navigable, and how does such a determination affect ownership of the land beneath the river? (2) Assuming a river is deemed navigable by the U.S. Army Corps of Engineers, then is the river navigable in a legal sense?

Our Attorney General held that whether a particular waterway is navigable in the legal sense is a question of fact to be determined by a jury. If the waterway is legally navigable, then the bed of the waterway (to its low-water mark) is publicly owned by the stated. If the waterway is legally non-navigable, then the land beneath may be privately owned; the public maintains a right “to free and uninterrupted use of the waterway for all the purposes of transportation and navigation to which it is naturally adopted” regardless of private ownership of the river’s bed. Federal law gives the U.S. Army Corps of Engineers the power to declare waterways navigable for the purpose of furthering its mission. While a jury may consider and give substantial weight to a Corps’ determination that a waterway is navigable for purposes of determining ownership rights, that determination is not binding. According to 33 C.F.R. § 329.3, precise definitions of “navigable waters of the United States” or “navigability” are ultimately dependent on judicial interpretation and cannot be made conclusively by administrative agencies. Thus, the Corps’ determination is evidence that may influence the jury in reaching its conclusion on a question of fact, but not conclusive per se.

The Attorney General’s opinion references an interesting 1913 Tennessee case, States ex rel. Cates v. West Tennessee Land Co., 158 S.W. 746 (1913), involving Reelfoot Lake and an exception to the general rule. In Cates, Reelfoot Lake was deemed legally navigable. Nonetheless, the Tennessee Supreme Court held that land underneath the lake that had been granted by the State of North Carolina prior to the creation of the State of Tennessee could be privately owned, stating that “the mere fact that they have since become submerged by a body of navigable water does not deprive the owners of their title to the land as long as they can be reasonably identified.”

Perhaps not coincidentally, certain aspects of these issues are currently before the U.S. Supreme Court in the “navigability for title” case of PPL Montana, LLC v. Montana. The issue in PPL Montana is whether a court looks at whether the river is navigable now or instead whether it was navigable when the state joined the Union to determine legal navigability. According to the private hydroelectric energy company PPL Montana and some supporting commentators, the Montana Supreme Court overturned more than 100 years of state property law concerning navigable waters by effectively converting the title in hundreds of miles of riverbeds to the state. The majority of that court ruled that the entirety of the Missouri, Clark Fork, and Madison rivers were navigable at the time of Montana’s statehood, producing a broad holding that eradicates property rights to the rivers and riverbanks that Montanans had enjoyed for over a century. The ruling meant that PPL Montana would be required to pay over $40 million in back-rent, as well as yet-to-be-determined future rent, for use of the rivers to generate hydroelectric power. Montana has argued that the question presented raises a core issue of federalism. The Court is expected to hear oral argument on December 7, 2011.

DAVIDSON COUNTY CHANCERY COURT ISSUES RULING ON ANTIDEGRADATION STATEMENT FOR UNAVAILABLE WATERS

In a Chancery Court decision issued October 17, 2011, Pickard v. Water Quality Control Board, No.09-228-III, Chancellor Ellen Hobbs Lyle granted summary judgment on a challenge to the TDEC’s application of a portion of the Water Quality Control Board’s antidegradation statement. At issue was whether or not the antidegradation statement’s requirement for “unavailable” waters was triggered for a stream that is biologically impaired. TDEC argued that the water quality criteria relating to “biological impairment” for waters with fish and aquatic life uses was not a parameter. According to the antidegradation statement at 1200-4-3-.06(2):

Unavailable conditions exist where water quality is at, or fails to meet, the criterion for one or more parameters. In unavailable conditions, new or increased discharges of a substance that would cause or contribute to a condition of impairment will not be allowed (emphasis supplied).

Chancellor Lyle disagreed with TDEC’s interpretation and found that biological impairment was indeed a parameter and triggered the antidegradation act’s requirements. Chancellor Lyle refused to invalidate the rule, but noted the Petitioners had a remedy by requiring TDEC to enforce the requirement.

The case also presented a procedural twist. The case was a followup in part to its ruling in Pickard v. Water Quality Control Board, 09-2297-III, April 11, 2011, where Chancellor Lyle expounded on the ability of combining a declaratory order procedure with a permit appeal. A third party permit appeal is authorized under Tenn. Code Ann. § 69-3-105(i). However, the Petitioners reviewed the draft permit and learned that TDEC did not consider the waters in question as “unavailable” though they may have biological impairment or habitat impairment. Rather than waiting for the permit to be issued and appeal, they filed a Petition for Declaratory Order under Tenn. Code Ann. § 4-5-223. When the Board refused to hear the Petition, Petitioners filed a lawsuit in the Chancery Court of Davidson County under Tenn. Code Ann. § 4-5-225. TDEC and the Attorney General argued that the Petition was not ripe in that the final permit had not been issued and even if it were the exclusive way to appeal a permit was through the procedure in 69-3-105(i). Chancellor Lyle disagreed saying that that provision was not the only means for reviewing legal issues that might relate a particular permit, and it was appropriate to obtain a ruling as a matter of law on an important topic.

At this time, it is unclear as to whether the state intends to appeal the decision.

New Logo and Assistant Commissioner for TDOT

The Tennesseee Department of Transportation has a new logo and a new assistant commissioner for environment and planning.

As reported today, Republican Gov. Bill Haslam hired a new chief environment and planning officer and replaced a green logo introduced by his Democratic predecessor, Gov. Phil Bredesen. The new logo (above) features the department’s TDOT acronym on a red field patterned on the Tennessee flag and in the shape of the state. It replaces a green-themed symbol (below) introduced by former Gov. Phil Bredesen as part of an effort to emphasize environmental priorities.

Adetokunbo “Toks” Omishakin, director of healthy living initiatives for Nashville Mayor Karl Dean, took over the vacant position of TDOT’s assistant commissioner for environment and planning today. Transportation commissioner John Schroer previously elevated his top engineer, Paul Degges, and new chief administrator, Joseph Galbato III, to deputy commissioners. But Omishakin remains at the lower assistant commissioner level.

Southern Environmental Law Center Names Anne Davis As New Nashville Director

We here at Tennessee Environmental Law Blog have received good information that Southern Environmental Law Center has named Anne Davis as the director and managing attorney of its Nashville office.

Anne Davis has practiced civil and criminal litigation with Bass Berry & Sims and Neal & Harwell. After graduating from Vanderbilt Law School (Order of the Coif) in 1981, she clerked for Judge Thomas P. Grisea of the U.S. District Court for the Southern District of New York before entering private practice. She began teaching at Vanderbilt in 1989, initially conducting a seminar in white-collar crime. She has since taught for almost 20 years in Vanderbilt's Trial Advocacy and Legal Writing programs, and has taught Legal Writing since 2001. She is also married to Nashville mayor Karl Dean.

According to SELC’s mission statement, the group “was born out of a love of the South, its natural treasures, and its strong sense of place. Twenty five years ago, this special region needed a champion: an organization capable of taking on big issues, and smart and tough enough to challenge the toughest opponents and get the job done.”

Congratulations to Anne Davis and SELC!

Nissan Announces Founding Partnership with Urban Green Lab, Nashville’s First Community Center for Sustainability

At a press conference held today, Nissan Americas announced a founding partnership with Urban Green Lab, Nashville’s first community center for sustainability and sustainable living, at the center’s future site. Bill Krueger, vice chairman of Nissan Americas, presented a $100,000 check to Urban Green Lab to support construction of the non-profit group’s state-of-the art green building and learning complex. Nissan also committed to match gifts from local residents and businesses up to an additional $100,000, plus another $175,000 over the next three years.

“This is an historic day in Nashville,” said Dan Heller, co-founder and president of Urban Green Lab. “As Nissan joins us as our founding partner, we are sending a message that different parts of our community can come together to support an innovative project that will help our city, protect the environment and change lives for generations to come.”

Urban Green Lab will break ground in 2012 at the intersection of McGavock Pike and Maxey Lane in the Inglewood neighborhood of East Nashville. As one of the first platinum-certified LEED buildings built in Tennessee, Urban Green Lab will showcase green design, interactive displays, and a working community garden. Experts will lead hands-on workshops on a range of topics, from home weatherization to urban agriculture. The nonprofit will also offer a cutting-edge learning environment for Nashville public schools while serving as a sustainable meeting place for area universities, non-profit organizations, business owners, and government agencies.

“When Nissan learned about Urban Green Lab’s innovative approach to creating a more sustainable community here in Middle Tennessee, we knew it was a great fit for us,” said Vice Chairman Krueger. “Today, we’re encouraging others throughout the community join in supporting Urban Green Lab’s unique commitment to the environment, education, and humanitarian aid.”

“Urban Green Lab will serve as a model for cities across the country,” said Mayor Karl Dean. “We all have a role to play when it comes to sustainability, and this project, which partners a grassroots nonprofit with one of our area’s biggest companies, is real proof that people throughout our community are serious about making Nashville the greenest city in the Southeast.”

To continue the momentum of Nissan’s $100,000 matching challenge, Urban Green Lab is kicking off a series of fundraisers, concerts and other events. To get involved or to make a direct contribution, visit www.urbangreenlab.org or contact Corinne Martin, Secretary of Urban Green Lab’s Board of Directors.

Many thanks to Nissan and all who made today's press conference a success. Stay tuned for more announcements!

Lawsuit Against USGBC Dismissed

A class action lawsuit for $100 million dollars against the U.S. Green Building Council has been dismissed. The plaintiffs, professionals in the environmental engineering and design industry, brought claims based on the alleged false advertising of the USGBC, effectively asserting that USGBC was falsely claiming that the buildings it certifies through its Leadership in Energy and Environmental Design (LEED) system are energy efficient.

On August 15, the judge dismissed the lawsuit. Federal law claims were dismissed with prejudice on the grounds that (1) that the named plaintiffs and USGBC were not competitors for purposes of the strong categorical test under the Lanham Act, which is a federal law prohibiting false representation of goods or services in commerce; and (2) that despite being professionals and consultants in a related industry, the plaintiffs could not show either a likely injury or a causal nexus to any false advertising. State law claims for false advertising and deceptive trade practices were also dismissed but without prejudice.

Bill Penny Elected to Vice Chair of the ABA Section of Environment, Energy, and Resources

At the American Bar Association’s (ABA) Annual Meeting in Toronto, Canada this week, Tennessee Environmental Law Blog's own William L. (Bill) Penny was elected Vice Chair of the American Bar Association’s 10,000-member Section of Environment, Energy and Resources (SEER). By rotation, he will become the Section’s Chair-Elect for 2012-2013 and then take over as Chair for 2013-2014.

“Bill is a tremendous asset to Tennessee’s legal community and the legal profession as a whole,” said Stephen Price, executive member at Stites & Harbison. “His knowledge and passion for key issues make him a valuable leader in the environmental field.”

A member of Stites & Harbison’s Environmental, Natural Resources and Energy Service Group, Penny has approximately 30 years of experience in environmental law. His practice has covered a broad range of administrative, regulatory, and litigation matters. He has worked on issues concerning water, stormwater, low-level radioactive waste, RCRA, CERCLA, solid waste, surface coal mining, and brownfield redevelopment, among others.

“I am honored to serve as Vice Chair for the Section,” said Penny. “The Section is the premier forum for strategies and information for environmental, energy, and resource lawyers, and I am proud to be a part of that tradition.”

Penny has been an active leader within the ABA’s Section of Environment, Energy and Resources for years. He has served as the Section’s budget officer, council member, and chaired committees. He also co-authored the Tennessee chapter of the ABA’s book on Brownfields.

He holds a bachelor’s degree in political science from The University of Tennessee, Knoxville, and a doctor of jurisprudence from the Nashville School of Law. He is an instructor in Environmental and Administrative Law at the Nashville School of Law.

With nearly 400,000 members, the ABA is the largest voluntary professional membership organization in the world. As the national voice of the legal profession, the ABA works to improve the administration of justice, promotes programs that assist lawyers and judges in their work, accredits law schools, provides continuing legal education, and works to build public understanding around the world of the importance of the rule of law.

We are proud to work with Bill and look forward to the next several years of his leadership with the Section. Congratulations, Bill!

USEPA Approves Emergency Fuel Waiver for Tennessee

On August 11, 2011, the EPA working in coordination with the Department of Energy and at the request of Governor Bill Haslam granted a temporary waiver of certain federal clean gasoline requirements for parts of western Tennessee, namely Shelby County. This fuel waiver comes in response to a fire that shut down Valero Energy Corporation’s Memphis refinery, prompting a disruption in the supply of fuel.

The EPA exercised its authority under the Clean Air Act in granting this waiver to allow greater flexibility for the fuel distribution system to support an adequate supply in Shelby County. The waiver is effective for 20 days and waiver applies to 7.8 psi low Reid Vapor Pressure (RVP) and ethanol requirements in the Memphis metro area. It allows the sale of 9.0 psi conventional gasoline in Shelby County’s low RVP covered area, rather than the maximum 7.8 psi gasoline required under the applicable regulations. This fuel waiver is limited as much as possible in terms of both geographic scope and duration to mitigate any impacts on air quality the Clean Air Act.

EPA Administrator Lisa P. Jackson, working with Tennessee officials, determined that extreme and unusual supply circumstances exist, which are likely to result in a shortage of gasoline compliant with federal regulations. Federal fuel waivers help ensure an adequate supply of gasoline in the affected area until normal supply to the region can be restored.