In the current instance, DUST gives assurance to a prospective purchaser of a site that had a release discovered in 1988 from a registered UST system. After removal of the leaky USTs in 1988, the tank owner performed all investigatory and remedial actions at the site required to date by TDEC in response to the release. Further, the prospective purchaser was unrelated to the current owner or operator of the site, did not cause or contribute to the leaks, and agreed to reasonably cooperate with the DUST in any further investigation or remediation of existing contamination at the site, including the granting of reasonable access to the site.
Given the circumstances, DUST, while recognizing that the prospective purchaser arguably falls within the definition of a responsible party under the UST law, nevertheless determined that the prospective purchaser would have no exposure under the UST law because its apportioned share of liability would be zero. The apportionment of liability under the UST law is based on each responsible party's share of the total volume of petroleum at the site. Under the circumstances addressed in the letter, the equities at the site favor the imposition of zero liability (would impose no apportioned share) on the prospective purchaser.
Certification as an Environmental Law Specialist is not currently available in Tennessee.
The DUST prospective purchaser letter is consistent with TDEC's department-wide efforts to facilitate the redevelopment of brownfields when the circumstances warrant, which also benefit TDEC while promoting environmental remediation (it is to the benefit of TDEC, and environmental remediation is not hindered). This may be a useful tool for prospective purchasers of sites (particularly sites ineligible for the UST Fund) with known or suspected UST leaks.
ARMY CORPS OF ENGINEERS NATIONWIDE PERMIT 26 SET TO EXPIRE; MORE NARROW REPLACEMENT PERMITS TO BE ISSUED
Nationwide Permit 26 (NWP 26), which regulates discharges into above headwater non-tidal rivers, streams and adjacent wetlands or into above headwater lakes and isolated lakes and adjacent wetlands, is set to expire on December 13, 1998. The Corps of Engineers is currently conducting a rulemaking on NWP 26 to decide whether the present restrictions that prohibit the use of NWP 26 for any projects affecting over 500 linear feet of streambed and prohibit the "stacking" or use of NWP 26 with another general permit should be maintained. General mitigation for all projects impacting over one third of an acre to any water of the United States will continue to be required for the new general permits.
In addition, the Corps is proposing two new general conditions to all NWPs: (1) a prohibition on any substantial increase in downstream or upstream flooding; and (2) additional measures to preserve water quality in states where water quality standards are deemed by the Corps to be inadequate or unenforced. The Corps is seeking public comments on these various proposals. Comments are due on the NWP 26 rulemaking by February 24, 1998.
The Corps of Engineers is also scheduled to begin a rulemaking to develop replacement permits for the NWP 26. The replacement permits will be issued for only sixteen specific activities. Examples of these sixteen activities are residential and commercial development, stormwater management facilities, oil and gas development, aggregate mining, hard rock mining, stream restoration and enhancement, and agricultural activities. Within each regulated activity, however, numerous conditions are listed including a maximum number of acres or fractions of acres of non-tidal waters or wetlands that may be impacted, along with notification requirements. These acreage limitations vary widely amongst the sixteen listed activities. Activities excluded from this list will require an individual permit. The replacement permit rulemaking is scheduled to begin in March and will include a sixty-day comment period.
TDEC REENGINEERING ENFORCEMENT PROGRAM
TDEC has undertaken an ambitious effort to "reengineer" its enforcement process from the ground up. An internal TDEC committee is examining the entire enforcement process and has developed initial proposals for consideration. TDEC recently presented the proposals to a select group of external stakeholders, including Waller Lansden attorney Bob Martineau.
Among the proposals being considered: (1) creation of "certified field inspectors" empowered with much greater authority to issue notices of violation; (2) implementation of consistent enforcement processes and procedures among all media to foster multi-media enforcement; and (3) creation of an environmental court by the legislature to handle all appeals from TDEC enforcement actions in lieu of administrative contested case proceedings before the various pollution control boards. The TDEC committee tasked with this responsibility hopes to finalize its recommendations this spring and then begin steps to implement the proposals.
TDEC REENGINEERING PUBLIC PARTICIPATION PROCESSES
TDEC is also reengineering the public participation processes for both its permitting and rulemaking activities. TDEC's internal Public Participation Team recently outlined its draft recommendations to, and solicited comments from, a small group of "external stakeholders," including Waller Lansden attorney Mike Pearigen (who also serves on the TDEC Steering Committee for Environmental Permitting).
Among the proposals outlined at the external stakeholders' meeting: (1) instituting a 3-tier system for permitting, with a sliding scale of public notice and participation (for example, new facilities and those perceived to present a higher risk to public health and environment or with a bad compliance record would be afforded more public notice/participation than others); (2) shifting public participation responsibilities from TDEC's Central Office to Regional Offices; (3) standardizing public participation requirements across divisional lines; (4) encouraging more participation in rulemaking proceedings from those outside the regulated community; and (5) perhaps the most novel, establishing a Citizen Advocate who would provide legal assistance to private citizens to appeal departmental decisions and assist in their participation in permitting and rulemaking proceedings. Other issues, such as "environmental justice," are still being evaluated and a revised public participation proposal is anticipated to be issued by TDEC's Public Participation Team around mid-March.
EPA REGION IV EXAMINES TDEC TITLE V TRANSITION VARIANCES
Enforcement officials from EPA Region IV recently examined the TDEC Division of Air Pollution Control files of companies which have triggered Title V air permit "transition variances" during the Title V application process. The Title V transition variance is a mechanism developed by TDEC to allow sources to report a discrepancy between regulatory requirements and source operations discovered during the preparation of a Title V operating permit application. In triggering the variance, the source must commit to remedying the discrepancy, but the source can continue to operate while doing so. EPA has never officially sanctioned the transition variance and the purpose of EPA's file review is unclear.
TDEC, DIVISION OF SOLID WASTE MANAGEMENT, ISSUES POLICY ON REPORTING REQUIREMENT FOR DISCLOSURE OF UNPERMITTED DISPOSAL SITES
TDEC, Division of Solid Waste Management ("DSWM"), issued a "policy" document on December 15, 1997 outlining the DSWM's position on reporting of "unpermitted disposal sites." The policy is attached.
Reporting obligations for certain releases in Tennessee exist under the federal Clean Water Act and CERCLA, and there are certain reporting obligations imposed on "small" and "large" generators of hazardous waste and Treatment, Storage and Disposal (TSD) facilities under RCRA and analogous state law. The statutory authority for the purported reporting obligation referenced in Section 1 of the DSWM policy is unclear.
UPDATE ON TDEC, DIVISION OF WATER POLLUTION CONTROL, CULVERTING POLICY FOR AQUATIC RESOURCE ALTERATION PERMITS
Waller Lansden's October 7, 1997 Environmental Bulletin reported on a new policy by which TDEC, Division of Water Pollution Control ("DWPC"), would evaluate all Aquatic Resource Alteration Permit ("ARAP") applications involving the use of culverts. The ARAP culverting policy was the subject of discussion at the December 1997 and January 1998 meetings of the Tennessee Water Pollution Control Board ("the Board"), at which questions were raised regarding the substance of the policy and the manner in which it was adopted. At it's January meeting, the Board voted to receive further input on this subject from DWPC staff at its March meeting and to decide whether to institute a rulemaking process which would address the subject of the ARAP culverting policy and perhaps other ARAP issues as well.
ENVIRONMENTAL LEGISLATION IN 1998 TENNESSEE GENERAL ASSEMBLY
A large number of environmental and conservation bills introduced in the 1997 Session of the Tennessee General Assembly have been held over to the 1998 Session and a number of new bills have been introduced since the first of the year.