2019 Environmental Law CLE Seminar Handbook
Total Page：16
File Type：pdf, Size：1020Kb
2019 Environmental Law CLE Seminar Sponsored by the Kentucky Bar Association Environment, Energy & Natural Resources Law Section Kentucky Bar Association 514 West Main Street Frankfort, Kentucky 40601 502.564.3795 www.kybar.org The Kentucky Bar Association Environmental Law Section presents 2019 Environmental Law CLE Seminar This program has been approved in Kentucky for 7.50 CLE credits including 1.00 Ethics credit Compiled and Edited by: The Kentucky Bar Association Office of Continuing Legal Education for Kentucky Bar Association Environment, Energy & Natural Resources Law Section © 2019 All Rights Reserved Published and Printed by: The Kentucky Bar Association, April 2019. Editor’s Note: The materials included in this 2019 Environmental Law CLE seminar book are intended to provide current and accurate information about the subject matter covered. The program materials were compiled for you by volunteer authors. No representation or warranty is made concerning the application of the legal or other principles discussed by the instructors to any specific fact situation, nor is any prediction made concerning how any particular judge or jury will interpret or apply such principles. The proper interpretation or application of the principles discussed is a matter for the considered judgment of the individual legal practitioner. The faculty and staff of the Kentucky Bar Association disclaim liability therefor. Attorneys using these materials or information otherwise conveyed during the program, in dealing with a specific legal matter, have a duty to research original and current sources of authority. 2019 Environmental Law CLE Seminar Table of Contents Agenda............................................................................................................................. i Speakers ........................................................................................................................ iii Legislative Update ........................................................................................................... 1 Downwinders at Risk et al. v. USEPA Petition for Review ............................................. 47 State of New York et al. v. USEPA Petition for Review .................................................. 53 Comments on 40 CFR Part 122 Clean Water Act Coverage of “Discharges of Pollutants” via a Direct Hydrologic Connection to Surface Water ........... 39 Recent Groundwater Rulings Chart ............................................................................... 61 Revised Definition of “Waters of the United States” ....................................................... 63 Comments on Revised Definition of “Waters of the United States” ................................ 65 EPA Interpretative Statement on the Application of the NPDES Program to Releases of Pollutants from Point Sources to Groundwater Fact Sheet ........................ 69 House Bill 199 Summary ............................................................................................... 73 Senate Bill 256 Summary .............................................................................................. 75 Reading the Tea Leaves: The U.S. Supreme Court & Environmental Law in 2019-2020 .......................................................................................................... 77 Interstate Air Pollution ................................................................................................... 85 Kentucky’s Environmental Audit Program ...................................................................... 91 Louisville’s Air Quality ................................................................................................... 97 The Rising Tide of Climate Change Litigation .............................................................. 111 The Attorney Discipline Process in Kentucky .............................................................. 123 Program Sponsor & Exhibitors .................................................................................. .131 2019 Environmental Law CLE Seminar April 26, 2019 Louisville, Kentucky 8:15-8:50 Registration & Continental Breakfast 8:50-9:00 Welcome & Introduction Gregory T. Dutton, Section Chair 9:00-10:00 Legislative Update (1.00 CLE credit) R. Clay Larkin, Bingham Greenebaum Doll LLP Randal A. Strobo, Strobo Barkley PLLC 10:00-10:15 Break 10:15-11:45 Frankfort Environmental Law Update (1.50 CLE credits) Kentucky Department for Environmental Protection Melissa K. Duff, Director, Division for Air Quality Carey Johnson, Assistant Director, Division of Water Michael Kroeger, Director, Division of Enforcement Jon Maybriar, Director, Division of Waste Management Kentucky Department for Natural Resources Lance C. Huffman, Assistant General Counsel Kentucky Public Service Commission J.E.B. Pinney, Acting General Counsel 11:45-1:00 Luncheon & Keynote Speaker Reading the Tea Leaves: The U.S. Supreme Court & Environmental Law in 2019-2020 (1.00 CLE credit) Dean Colin Crawford, University of Louisville Brandeis School of Law Luncheon Sponsored by Terracon Consultants 1:00-2:00 Air Panel (1.00 CLE credit) Rachael Hamilton, Louisville Metro Air Pollution Control District Jacquelyn A. Quarles, Deputy General Counsel, Energy & Environment Cabinet Robin B. Thomerson, Dinsmore & Shohl LLP 2:00-3:00 Climate Change Litigation (1.00 CLE credit) Gregory T. Dutton, Frost Brown Todd LLC Ashley D. Wilmes, Wilmes Legal i 3:00-3:15 Break 3:15-4:15 Waste Disposal/Landfills (1.00 CLE credit) Daniel C. Cleveland, Office of General Counsel, Energy & Environment Cabinet Tom FitzGerald, Director, Kentucky Resources Council, Inc. 4:15-5:15 The Attorney Discipline Process in Kentucky (1.00 Ethics credit) Jane H. Herrick, Chief Bar Counsel, Kentucky Bar Association 5:15-5:45 Annual Section Meeting & Election of New Officers ii SPEAKERS Gregory T. Dutton Frost Brown Todd LLC 400 West Market Street, Suite 3200 Louisville, KY 40202 (502) 779-8557 [email protected] Gregory Dutton is a member of Frost Brown Todd, LLC in Louisville, where he focuses his practice on environmental compliance and litigation, utility regulation, and energy law. Prior to joining the firm, Mr. Dutton started the environmental & energy practice at a mid- sized Louisville law firm. Before that, he held an appointed position within the Kentucky Attorney General’s Office where he represented Kentucky in numerous federal lawsuits concerning environmental issues, and before the Kentucky Public Service Commission on a variety of utility matters. He has also worked for the U.S. Environmental Protection Agency in Washington, D.C., where he focused on water permitting and policy issues. Mr. Dutton received his bachelor’s degree from Miami University and his J.D. from Pace Law School. He is a member of the American, Kentucky, and Louisville Bar Associations, and currently serves as Chair of the KBA Environment, Energy & Natural Resources Law Section. Mr. Dutton also serves on the Board of Directors for the Louisville Bar Foundation and KMAC Museum. R. Clay Larkin Bingham Greenebaum Doll LLP 300 West Vine Street, Suite 1200 Lexington, KY 40507 (859) 278-3355 [email protected] Clay Larkin is a partner in the Business Services Group of Bingham Greenebaum Doll LLP, practicing out of the firm’s Lexington, Kentucky office. Mr. Larkin’s practice focuses on the representation of energy and manufacturing clients in transactional, environmental, and litigation matters. He serves on the Board of Directors and as General Counsel and Secretary to the Kentucky Coal Association and is active on legal and policy matters impacting the energy industry as a member of the Kentucky Chamber of Commerce Environmental Policy Committee, and the Commerce Lexington Public Policy Committee. Mr. Larkin is also a Trustee and member of the Executive Committee of the Energy & Mineral Law Foundation. He received his J.D., Order of the Coif, from the University of Kentucky College of Law and his undergraduate degree from Western Kentucky University. iii Randal A. Strobo Strobo Barkley PLLC 239 South 5th Street, Suite 917 Louisville, KY 40202 (502) 290-9751 [email protected] Randy Strobo is an attorney with Strobo Barkley, PLLC in Louisville, where his primary areas of practice include environmental, civil, administrative, and appellate litigation across a range of issues including environmental damage, land use, planning and zoning, property, eminent domain, personal injury, permitting and regulation, industrial pollution, air and water quality, conservation planning, agricultural and historical preservation, and energy. He also provides legislative and policy guidance, urban land use planning, and conservation planning with a focus on management, sustainability, ecosystem services, and green infrastructure to various state, national, and international clients. Mr. Strobo joined the faculty of Bellarmine University’s School of Environmental Studies in 2012 teaching classes on environmental law and policy and environmental innovation. He also currently serves as President of the ACLU of Kentucky’s Board of Directors. In 2011, Mr. Strobo received a master’s degree in environmental management from the Yale School of Forestry and Environmental Studies after receiving his law degree from the Brandeis School of Law at the University of Louisville in 2008. He graduated from the University of Kentucky with a B.S. in biology in 2002. Mr. Strobo is the immediate past Chair of the Kentucky Bar Association Environment, Energy & Natural Resources