Special Issue: Environmental Law June 04 Cover and Back1.Qxp 5/11/2004 3:25 PM Page 2

June 04 Cover and Back1.qxp 5/11/2004 3:25 PM Page 1

June 220000404 mmberber 6

Special Issue: Environmental Law June 04 Cover and Back1.qxp 5/11/2004 3:25 PM Page 2

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State Bar of Georgia We’re here for you!

Law Practice Management Program The Law Practice Management Program is a member service to help all Georgia lawyers and their employees put together the pieces of the office management puzzle. Whether you need advice on new computers or copiers, personnel issues, compensation, workflow, file organization, tickler systems, library materials or software, we have the resources and training to assist you. Feel free to browse our online forms and article collections, check out a book or videotape from our library, or learn more about our on- site management consultations and training sessions. Consumer Assistance Program The Consumer Assistance Program has a dual purpose: assistance to the public and attorneys. CAP responds to inquiries from the public regarding State Bar members and assists the public through informal methods to resolve inquiries which may involve minor violations of disciplinary standards by attorneys. Assistance to attorneys is of equal importance. CAP assists attorneys as much as possi- is ble with referrals, educational materials, suggestions, solutions, advice and preventive information to help the help attorney with consumer matters. The program pledges its onlya best efforts to assist attorneys in making the practice of law more efficient, ethical and professional in nature. Lawyer Assistance Program This free program provides confidential assistance to Bar members whose personal problems may be interfering call, with their ability to practice law. Such problems include stress, chemical dependency, family problems and mental or emotional impairment. or Fee Arbitration click The State Bar of Georgia, on behalf of the Georgia Supreme Court, administers the the Fee Arbitration program as a service to the general public and lawyers of Georgia. The actual arbitration is a hearing conducted by one or more persons not involved in the dispute. In most e-mail cases, two experienced attorneys and one non-lawyer public member serve as the arbitrators. Like judges, they hear the arguments on both sides and decide the outcome of the dispute. Arbitration is impartial and usually less expensive than going to court. The purpose of the pro- away. gram is to provide a convenient mechanism for the resolution of disputes between lawyers and clients over fees.

404.527.8700  800.334.6865  www.gabar.org 6-04GBJ.qxp 5/11/2004 5:04 PM Page 2

JJuneune 2200004 mbmberer 6

Legals 12 Dining on the Alphabet Soup of Environmental Law: An Overview for Non-EEnvironmental Lawyers On the Cover By Bill Sapp and Kate Grunin The environmental-themed issue is made possible by the 24 Speaking Whale: support of the Environmental The Impact of Georgia's New Nonattainment Law Section of the State Bar Designations on the Georgia Business Community of Georgia. By Randy E. Brogdon and Debra S. Cline Cover photo by Kevin B. Smith 32 Georgia's Hazardous Site Response Act: Growing Pains for Georgia's Baby Superfund By Robert D. Mowrey and Shelly Jacobs Ellerhorst Features 38 Environmental Groups in Georgia— Searching for a Tipping Point Departments By Allison Burdette and Chad Baum 4 From the Section Chair 46 2004 Georgia General Assembly 6 From the President Water Legislation Update 8 From the Executive Director By Julie V. Mayfield 10 From the YLD President 52 Water, Growth Management Are Georgia's Most Serious Issues: A Conversation with 68 Bench & Bar EPA Region 4 Administrator Jimmy Palmer 72 Office of the General Counsel By Jeffrey S. Dehner 74 Lawyer Discipline 56 2004 General Assembly: An Action-PPacked Adventure 76 Law Practice Management By Mark Middleton 78 South Georgia Office 60 Keeping Prior Commitments to Money 80 Pro Bono and Special Interests Out of Judicial Races 84 Section News By R. William Ide 86 In Memoriam 63 Spring 2004 Board of Governors Meeting Summary 87 CLE Calendar By C. Tyler Jones 89 Notices 66 The DeKalb County Courthouse at Decatur: 91 Classified Resources The Grand Old Courthouses of Georgia By Wilber W. Caldwell 6-04GBJ.qxp 5/11/2004 5:04 PM Page 3

Quick Dial Editorial Board Attorney Discipline (800) 334-6865 Rebecca Ann Hoelting ext. 720 Editor-in-Chief (404) 527-8720 Scott Fain Bertschi W. Fray McCormick Consumer Assistance Program (404) 527-8759 Bill Bost E. Peyton Nunez Conference Room Reservations (404) 527-8712 Fee Arbitration (404) 527-8750 Elizabeth Lee Branch Erick H. Rock CLE Transcripts (404) 527-8710 Erin Reynolds Chance Cynthia B. Smith Diversity Program (404) 527-8754 Charles Madden Cork III Robert R. Stubbs ETHICS Hotline (800) 682-9806 Lynda Carney Crum Kristin H. West (404) 527-8741 John Michael Gross Pamela Y. White-Colbert Georgia Bar Foundation/IOLTA (404) 588-2240 Georgia Bar Journal (404) 527-8736 Sarah Howard Lamar W. Scott Wright Lawyer Assistance Program (800) 327-9631 Marcus David Liner Lawyers Foundation of Georgia (404) 659-6867 Advisors Law Practice Management (404) 527-8772 Theodore Harris Davis Jr. Membership Records (404) 527-8777 D. Scott Murray Meetings Information (404) 527-8790 Pro Bono Project (404) 527-8763 Marisa Anne Pagnattaro Professionalism (404) 225-5040 Editors Emeritus Sections (404) 527-8774 Marisa Anne Pagnattaro, 01-02 L. Dale Owens, 87-89 Unauthorized Practice of Law (404) 526-8603 Young Lawyers Division (404) 527-8778 D. Scott Murray, 00-01 Donna G. Barwick, 86-87 William Wall Sapp, 99-00 James C. Gaulden Jr., 85-86 Manuscript Submissions Theodore H. Davis Jr., 97-99 Jerry B. Blackstock, 84-85 The Georgia Bar Journal welcomes the submission of L. Brett Lockwood, 95-97 Steven M. Collins, 82-84 unsolicited legal manuscripts on topics of interest to the Stephanie B. Manis, 93-95 Walter M. Grant, 79-82 State Bar of Georgia or written by members of the State Bar of Georgia. Submissions should be 10 to 12 pages, William L. Bost Jr., 91-93 Stephen E. Raville, 77-79 double-spaced (including endnotes) and on letter-size Charles R. Adams III, 89-91 Robert H. Walling, 75-77 paper. Citations should conform to A UNIFORM SYSTEM OF CITATION (17th ed. 2000). Please address unsolicited Officers of the State Bar of Georgia articles to: Rebecca Ann Hoelting, State Bar of Georgia, William D. Barwick President Communications Department, 104 Marietta St. NW, George Robert Reinhardt Jr. President-elect Suite 100, Atlanta, Ga., 30303. Authors will be notified Robert D. Ingram Secretary of the Editorial Board’s decision regarding publication. J. Vincent Cook Treasurer The Georgia Bar Journal welcomes the submission of James B. Durham Immediate Past President news about local and circuit bar association happen- ings, Bar members, law firms and topics of interest to Andrew W. Jones YLD President attorneys in Georgia. Please send news releases and Laurel P. Landon YLD President-elect other information to: C. Tyler Jones, Director of Derek J. White YLD Past President Communications, 104 Marietta St. NW, Suite 100, Atlanta, Georgia 30303; phone: (404) 527-8736; Communications Committee [email protected]. S. Kendall Butterworth Chairperson Aasia Mustakeem Vice-Chairperson Disabilities If you have a disability which requires printed Communications Staff materials in alternate formats, please contact the ADA C. Tyler Jones Director coordinator at (404) 527-8700 or (800) 334-6865. Sarah I. Bartleson Assistant Director Daniel L. Maguire Administrative Assistant Headquarters 104 Marietta St. NW, Suite 100 Publisher’s Statement Atlanta, GA 30303 (800) 334-6865 (404) 527-8700 FAX (404) 527-8717 The Georgia Bar Journal (ISSN-1085-1437) is published six times per year Visit us on the Internet at www.gabar.org. (bi-monthly) by the State Bar of Georgia, 104 Marietta St. NW, Suite 100, Atlanta, Georgia 30303. © State Bar of Georgia 2004. One copy of each South Georgia Office issue is furnished to members as part of their State Bar dues. 244 E. Second St. (31794) P.O. Box 1390 Subscriptions: $36 to non-members. Single copies: $6. Periodicals postage Tifton, GA 31793-1390 paid in Atlanta, Georgia and additional mailing offices. Opinions and con- (800) 330-0446 (912) 387-0446 clusions expressed in articles herein are those of the authors and not necessarily those of the Editorial Board, Communications Committee, Officers FAX (912) 382-7435 or Board of Governors of the State Bar of Georgia. Advertising rate card will be furnished upon request. Publishing of an advertisement does not imply endorsement of any product or service offered. POSTMASTER: Send address changes to same address. 6-04GBJ.qxp 5/11/2004 5:04 PM Page 4

Environmental Law:

Chair How it Affects You

ronmental law similarly has become more reetings from the State Bar of challenging, presenting new opportunities for Georgia’s Environmental Law environmental lawyers. This complexity increases our responsibility to reach out to Section. The section appreciates our communities, schools and public officials G to explain the relevance and importance of the opportunity to share our practice area with environmental law and policy initiatives. the Bar’s general membership. The State Bar’s Our section benefits from the diversity and experience of its members. We have attor- Environmental Law Section has been in exis- neys who practice across a wide range of spe- tence for over 30 years and is dedicated to serv- cializations, representing industrial, commercial and development interests, governing the interests of over 400 members through mental agencies at every level and environ- educational programs and publications. mental and citizens organizations. Many of the members have contributed from the Section The section sponsors several informational their time and talent to section activities, as “brown bag” lunches throughout the year, authors for our newsletter, speakers at CLE with speakers on a variety of topics and an programs and participants in our section annual summer seminar, which is attended lunches. Of course, we welcome new mem- by our numerous members throughout the bers and I hope that the information present- state. The section also publishes an informa- ed in the Bar Journal piques your interest in tional newsletter presenting articles on a environmental law. range of environmental topics. Several years ago, the Fulton County Daily Susan Hearne Richardson is a Report issued a report indicating the demise partner with Kilpatrick Stockton, of environmental law. I am happy to say that LLP, in Atlanta, where she prac- environmental lawyers are still very active in tices environmental law. She is Georgia. It is likely that almost all lawyers, the chair of the State Bar of regardless of their practice area will Georgia’s Environmental Law encounter environmental issues at some time Section. She graduated from the University in their career, as environmental law touches of Tulsa in Tulsa, Oklahoma (B.S. 1984) and earned her law degree from Tulane Law many disciplines. School (magna cum laude, 1991). She may From the real property lawyer who be reached at surichardson@kilpatricstock- encounters an abandoned gasoline tank on a ton.com. property to the litigation attorney trying a toxic tort case to the corporate attorney wrestling with difficult environmental liabil- The Georgia Bar Journal would like ity issues in a transaction, environmental law to offer a special thanks to Lynda permeates legal life. Even criminal law attor- Crum and Jeff Dehner, both of the neys and trust estate lawyers are not immune Environmental Law Section, for their from environmental issues. hard work in organizing and making Further, as environmental issues have this special issue possible. become more complex, the practice of envi-

4 Georgia Bar Journal 6-04GBJ.qxp 5/11/2004 5:04 PM Page 5

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President By William D. Barwick Closing Argument

access to online computer research of t seems like only yesterday Georgia case law and statutes for an annual charge of nine dollars. We that I was taking the oath of have arranged for financing to be in office from Judge Duross place for the completion of the State from the I Bar Center, including a 500 car Fitzpatrick at the start of my year as garage available free of charge to any State Bar President. And yet here I member of the State Bar with downtown Atlanta parking needs. The Bar sit, contemplating a list of proposed Center itself will be completed by early 2005, making it the planned presidential pardons and apologies center for future section, committee that should be made to certain and ICLE meetings. We have significantly revamped interns, as well as composing my the way we will train and mentor new lawyers. We have proposed to last “President’s Page.” When I “Thanks once the Supreme Court of Georgia the started this year, I knew that it abolishment of the dreaded “nine again to the trial experiences” that were neces- members of our would necessarily end with some sary before a young lawyer could be assigned any significant court- regrets, mostly over unfinished profession who room work. We will also likely business. I resolved, however, that I revamp the Bridge the Gap CLE have made this a program, which has also been wonderful year for would not back away from a project hugely popular with younger lawyers over the years. In their simply because it could not be com- me. I am very place, we have proposed a more pleted in a year. In other words, I intense and inclusive mentoring proud to be a program that will allow every first have clearly bitten off more than I Georgia lawyer.” year lawyer in this state to have could chew. access to the counsel of an older lawyer to discuss anything and We have had a number of success- everything that tends to arise in the es. This year, we will begin our sub- practice of law: legal research, scription to Casemaker, giving every client relations, ethics, professional- member of the State Bar of Georgia ism, billing and more.

6 Georgia Bar Journal 6-04GBJ.qxp 5/11/2004 5:04 PM Page 7

After an intense three-year effort, cases were simply not complex of SunTrust Banks, Inc. Fortin is to it took a special session compromise enough. Venue in a particular be congratulated for his tenacity bill agreed to by the governor, chief county would remain unchanged, and perseverance in pursuing the justice and legislative leaders, to but the physical site of the court is goal of a business court, and the agree to fund the newly created anticipated to be located in Fulton importance of this project to many Georgia Indigent Defense Standards County, with an assigned senior litigators and business lawyers in Council, whose mission is to ensure judge responsible for a limited case- this state serves as a reminder that the indigent defense program is load of approximately three to five access to justice issues are just as fully, fairly and independently lawsuits per year. important to corporate litigants as funded. These would be the types of they are to the victims of a person- Other programs have been put cases that are both document and al injury. in place that will, I hope, reap ben- technology intensive. Although In concluding this last editorial, I efits down the road. In previous certain factual disputes may be would also like to thank the many articles in the Georgia Bar Journal, I subject to resolution by a jury or lawyers throughout this state who have described my thoughts about other fact-finder, it is anticipated have written or e-mailed me the way in which we select, elect that the types of cases in the busi- throughout the year regarding a and retain judges in this state, and ness court would be predominately wide variety of Bar-related topics. I believe that we will have both subject to summary adjudication. Not all of them have been compli- guidelines and proposed legisla- Expense of the court would be mentary, and some were even com- tion in place by the end of the year deferred in large part by increased posed by cut out words from a that will impact judicial elections. filing fees, although staff and newspaper, but I have attempted to Of course, a great deal depends administrative costs will ultimately answer them all. In addition, I have upon the tenor of the upcoming need to be approved by the made it a habit throughout my legal judicial campaigns, which include Administrative Office of the career to answer my own telephone, an unusually high number of con- Courts, and subject to budgeting but with the advent of caller ID, I tested races. by the Legislature. must confess that I didn’t always By next year’s legislative session, In addition to the sections refer- reach for the receiver as quickly as I we also anticipate the creation of a enced above, the business court have in the past. For the most part, I business court in Georgia, which has received substantial support have enjoyed the opportunity to will be empowered to handle com- to date from the State Bar’s speak with and write to so many plex commercial litigation. Executive Committee, the chief lawyers on a wide variety of mat- Modeled on similar business courts justice and the judges of the ters of mutual interest. in 15 other states, this project was Superior Court of Fulton County. Thanks once again to the mem- partially inspired by the loss of mil- Although numerous lawyers and bers of our profession who have lions of dollars in attorneys’ fees judges have worked on this proj- made this a wonderful year for me. several years ago in North ect, the lead standard bearer has I am very proud to be a Georgia Carolina, resulting from a con- been Ray Fortin, general counsel lawyer. tentious merger/takeover battle between two major banks. Both the Business Law Section and the Corporate Counsel Section of the State Bar took note, and decided that the time was right to investigate the creation of a model program in Georgia. The proposed version for Georgia would be voluntary, both on the part of the litigants and the court itself, which would have the discretion to determine that certain

June 2004 7 6-04GBJ.qxp 5/11/2004 5:04 PM Page 8

By Cliff Brashier Lawyers Urged to Use LPM Services

tioner in Atlanta, about the value of he Law Practice this State Bar service in his practice: Management service Dear Mr. Brashier: Thank you so much for having offers a wealth of infor- T Natalie Thornwell on your staff. As director of Law Practice Management,

Executive Director mation designed to help members she is not only extremely qualified, but with the business side of their law is a great “people person.” I feel incredibly fortunate to be a member of a Bar practice. Many members already where I have access to professionals take advantage of this opportunity, with Natalie’s abilities. As a solo practitioner, it is essential that I have the but many others do not think about resources to effectively handle all aspects of the practice of law, and with- it as a resource or are unaware that out Natalie’s help, I would be at a sig- from the it is available. nificant disadvantage. I have overheard my colleagues com- I urge you to consider using this plain many times about the high cost of program in three ways. First, attend Bar membership. However, as a mem- “The Law Practice the Annual Solo and Small Firm ber of the District of Columbia and Institute and Technology Showcase. Pennsylvania Bars, it is apparent that Management It will help you keep up with law the Georgia Bar is truly committed to firm technology and is one of the service offers a serving its members. This recent “first highest rated (by the attendees) sem- hand” experience has certainly proven inars in Georgia. Second, call Natalie wealth of infor- to me how valuable the membership is. Thornwell or Pam Myers at (800) My paralegal and I decided, around 334-6865 or (404) 527-8700 when you mation designed the end of last year, to purchase and use need information or an opinion on Amicus and PCLaw for time manage- any law practice management issue to help members ment and billing. When my part-time that may arise in your practice. Third, bookkeeper of several years unexpected- with the business invite Natalie to speak at one of your ly quit to pursue other career goals, I local bar meetings or CLE seminars. called Natalie, in desperation, for help. side of their law She consistently receives excellent We were feeling totally overwhelmed reviews on her presentations. by the task of learning how to handle practice.” I am pleased to share the opinion the billing/bookkeeping functions pre- of Ronne G. Kaplan, a solo practi-

8 Georgia Bar Journal 6-04GBJ.qxp 5/11/2004 5:04 PM Page 9

viously performed by my bookkeeper. sensitive during this difficult period. It Finally, watch for the State Bar of As a solo practitioner, I am particular- has been somewhat overwhelming to Georgia Casemaker Service to be ly dependent on a bookkeeper to get out deal with the business aspects of run- operational around the end of 2004. bills and handle the financial aspects of ning a law office and handling the For many members, this could well the practice. responsibility of litigating in the area be the best member benefit that the Although I had heard Natalie speak of family law. Knowing that Natalie State Bar offers. I will include more at several related functions, I did not will be working with me has allowed on this over the next several call her until a few months ago when me to sleep easier. I do not feel alone months. If you would like a pre- she assisted me with learning Amicus. and unable to compete successfully in view, please see page 65 ‘of this However, that training was much less the competitive environment of Journal or read “Board of Governors stressful than needing to process Atlanta law firms. Approves a New Major Member billing and balance accounts. Natalie Please let me know if there is any- Benefit” at www.gabar.org. agreed to train me and my paralegal in thing I can do to ensure that Natalie’s Your thoughts and suggestions PCLaw, assuring me that she will not service to the Bar is recognized and well are always welcome. My telephone only help us through the painful compensated. I believe she is a great numbers are (800) 334-6865 (toll process of learning the software, but asset and that the members need to be free), (404) 527-8755 (direct dial), will also make sure that we are able to better aware of her skills and service. (404) 527-8717 (fax) and (770) 988- process the billing and handle all the With kindest regards, I am 8080 (home). banking aspects of this practice. She Sincerely yours, has been incredibly understanding and Ronne G. Kaplan

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June 2004 9 6-04GBJ.qxp 5/11/2004 5:04 PM Page 10

By Andrew W. Jones What a Year President

and productive. Without their help, t’s hard to believe that my term there is no way I could have managed all of the successful projects as YLD president has come that the younger lawyers are doing and gone. It seems like just yes- around the state. YLD I I also want to thank the younger terday I was getting sworn in as pres- lawyers who helped to organize our ident by the Hon. Justice Carley. meetings. Specifically, Chuck Auslander and Rich Connelly of As they say, time flies when Athens who did a great job organiz- you’re having fun. The primary goal ing our fall meeting for the Georgia of my term was to increase involve- vs. Alabama game. Chuck and Rich ment by the younger lawyers of the were the architects of one of the large Atlanta firms in the YLD. I am most successful tailgate parties I from the happy to report that the YLD has have ever had the pleasure of seen large firm involvement attending. The event was such a suc- increase dramatically over the last cess that Laurel Landon, the incom- year. New faces and new ideas are “Thank you for the ing YLD president, has scheduled what help keep the YLD strong and the YLD Fall Meeting in Athens for opportunity to vibrant. I hope the large Atlanta law the Georgia vs. LSU game, and I’m firms will continue to encourage sure she will call upon Chuck and serve as the presi- their younger lawyers to participate Rich to organize the event. in the YLD. In addition to being I also want to thank all of the dent of this fine good for your career, Bar work is younger lawyers from around the rewarding and a great way to state who took time out of their busy organization. It has improve the overall opinion of schedules to come to our business lawyers in our communities. meetings. While several community been a rewarding Without the help of many people service and committee issues are dis- my term as president would not cussed, the primary focus of the meet- and humbling have run as smoothly and been as ings is for younger lawyers from enjoyable. Special thanks go out to experience, and around the state to get together in a all of the members of the YLD exec- social setting. The opportunity to one that I will utive counsel, committee chairs meet with other younger lawyers and committee volunteers. I espe- around the state is good not only from never forget.” cially want to thank all of the a marketing standpoint but is also younger lawyers who agreed to helpful in coordinating projects in dif- serve on the YLD board of direc- ferent communities around the state. I tors. Everyone involved helped to hope all of you who have participated keep the YLD committees focused will continue to do so in the future.

10 Georgia Bar Journal 6-04GBJ.qxp 5/11/2004 5:04 PM Page 11

Special thanks also goes out to formatting and editing our As I have mentioned in my past YLD Coordinator Deidra newsletter. columns, the Georgia YLD is a Sanderson and the entire staff of A true reflection of the hard great organization that every the State Bar of Georgia who work and commitment to expand- younger lawyer in the state of worked behind the scenes to make ing involvement in the younger Georgia should participate in. Not my presidency a success. All the lawyers was seen at our Spring only do you get a chance to net- lawyers in Georgia are very fortu- Meeting. April 16-19, the YLD held work with younger lawyers from nate to have such a competent and their Spring Meeting during a around the state, you also have an organized Bar association that three-day cruise to the Bahamas. opportunity to give something makes service to the Bar and the Over 80 people participated and we back to your community. Being a community a real pleasure. had a record 23 first time attendees. lawyer isn’t just about billing hours Special thanks also goes out to Several of the first time attendees and winning cases. There is a the wonderful slate of officers I were from large Atlanta law firms. responsibility that goes with this worked with. President-Elect Hopefully, this exposure to the noble profession which requires Laurel Landon, Secretary John younger lawyers will encourage giving of your time to help others. Pope and Treasurer David Gruskin them to participate in the future. I Thank you for the opportunity to were always available with their had the opportunity to meet these serve as the president of this fine time and ideas. I also want to thank new participants and am excited organization. It has been a reward- the editor of our newsletter, Brian about their becoming involved with ing and humbling experience, and Scott, who gave countless hours the younger lawyers. one that I will never forget.

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June 2004 11 6-04GBJ.qxp 5/11/20045:04PMPage12

of EnvironmentalLaw Alphabet Soup Dining onthe

- E

By Bill Sapp and Kate Grunin

t a l L a w y e r s

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the remains of your drink. 2) the purpose of the act, 3) how it s you were some- Sputtering, gagging, and feeling works, and 4) how it is faring. ridiculous, you head to the bar for what clumsily slic- a refill. Safely disengaged from the THE MEAL ing the hinge muscle conversation, you resolve that it’s A time to learn some of the basics of The First Course — The of an oyster at the Savannah Bar’s environmental law, if only so you National Environmental annual oyster roast, a rival bar will not have to repeat this scene at Policy Act the next bar function or, more member, who delights in exposing importantly, when entertaining A Dollop of NEPA History your favorite client. your ignorance on any legal topic, The history of NEPA shares the This article is for people bearing history of all environmental strides over to you and says, “So a resemblance to the lawyer in the statutes because NEPA is an vignette above—in short, for those umbrella statute that guards did you hear about that TMDL1 who know very little about, but against all environmental are motivated to make some sense case up there in Atlanta?” Having impacts—or at least tries to. of, the alphabet soup of environ- Whether a given project is destined never practiced a day of environmental law—CERCLA, RCRA, to pollute the water, soil, or air, TMDLs, WQSs, NEPA, ESA, NEPA theoretically is there to mental law in your decade-long CWA, CAA, and every other encourage federal decision-makers obscure environmental acronym career, but not wanting to admit to do the right thing. Thus, all the clogging the West reporters. environmental crises that led to the that shortcoming in mixed compa- Fortunately (or unfortunately, specific environmental statutes dis- depending on your perspective), cussed below also contributed to ny, you smoothly reply, “Yeah, it there will be little “beef” in this President Nixon’s signing of NEPA article. If you want more than just sure was a doozy,” hoping that this on Jan. 1, 1970. the broth, and the pasta letters that This law, more than any other, parry will steer the conversation float around in it, you will have to resulted from the general realiza- turn to the articles that follow this toward more familiar ground. tion that arose during the 1960s one. There you will find enough to that Americans were destroying Unfortunately, a follow-up thrust satisfy the heartiest of environ- America—the Land of the Free was mental law appetites. becoming the Land of the Freely comes just as several stalwart bar Polluted. Throughout the first half THE MENU th members join the conversation. of the 20 Century, most people This article serves up the five fed- thought of the environment as a “Well,” your nemesis replies, eral environmental laws that are most sponge that could soak up every likely to come up in conversation dur- environmental spill. In the 1960s it “which do you think is worse, that ing legal functions in the state of became clear that the sponge was 5 Atlanta TMDL case or the Georgia. They are: a) the National saturated and there was no place to Environmental Policy Act (NEPA);6 wring it out. Waycross PCB2 case?” b) the Clean Water Act (CWA);7 c) the One of the first individuals to 8 Not knowing a PCB from an Clean Air Act (CAA); d) the recognize this dilemma was Rachel ESD3, or a TMDL from an ACL4, Comprehensive Environmental Carson, a renowned nature author you quickly decide that you have Response, Compensation, and and a former marine biologist with 9 only two options: 1) pretend to cut Liability Act (CERCLA); and e) the the Fish and Wildlife Service. In yourself shucking an oyster, or 2) Resource Conservation and Recovery her work, Carson dared to suggest 10 pretend to choke on the lime Act (RCRA). For each of the “Big that spraying our crops and our wedge in your gin and tonic. You Five,” this article will provide the fol- neighborhoods with DDT was not 11 choose the latter and throw back lowing: 1) some history about the act, a particularly good idea. She was Illustration by Wendy S. Smith Illustration by Wendy June 2004 13 6-04GBJ.qxp 5/11/2004 5:04 PM Page 14

able to show that as DDT climbed nificantly affecting the quality of the fumes. As a result, in an air inver- up the food chain, it could have human environment” is being pro- sion, a city can soon become dramatic and deadly effects.12 posed.13 For projects that fall below engulfed in its own pollution. Understandably, Carson’s book this threshold, the federal agencies The first inversion of note made a lot of people realize that, if must prepare an environmental occurred in Donora, Pa., in 1948.19 for no other reason, we need a assessment (EA). The purpose of the Twenty died. Although it sparked clean environment because we are EA is typically to determine some research into the causes of air part of that food chain. Many of whether an EIS is warranted.14 pollution, little was done to correct those people banded together to Although the federal agencies are this “state” problem.20 It was not organize environmental protests required under NEPA to take a “hard until the “Killer Smog” took resi- during the 1960s and the first Earth look”15 at how the environment dence over London in 1962 that Day in 1970. At the Earth Day would be treated if the project were people on both sides of the Atlantic marches across the country that pursued, it is important to note that took notice. In that inversion, at year, environmentalists celebrated NEPA does not prevent a decision- least 340 people died.21 Not to be the passage of NEPA and called for maker from making an informed, but outdone by the Brits, New York more environmental legislation. “bad” decision that would negatively suffered a similar inversion the fol- President Nixon and Congress impact the environment.16 lowing year in which 200 to 400 22 heard and answered these calls. How NEPA is Faring people died. Although these inversions NEPA’s Purpose Initially, NEPA was a powerful prompted the passage of the 1963 By enacting NEPA, Congress tool for environmentalists, who Clean Air Act and later amend- required federal agencies to take the were able to slow down many fed- ments to this act, it was not until environment into account in author- eral and federally permitted proj- the 1970 amendments that izing projects and in granting per- ects while the courts and federal Congress finally decided that the mits. This might seem like a basic agencies attempted to interpret the federal government needed to take concept now, but it was somewhat act.17 Nowadays, federal agencies charge of this interstate problem revolutionary at the time. and project consultants are savvier and impose national air quality about writing EAs and EISs, so How NEPA Works standards.23 NEPA is not as much of a factor in The act, as it has been interpret- environmental litigation. Yet when A Spoonful of Purpose ed and implemented, provides that someone is considering attacking a As explained in the 1990 amend- before the federal government proposed project, NEPA is often the ments to the Clean Air Act, takes any “action” that may affect starting point in putting together an Congress designed the act to 1) the environment either positively opposition strategy.18 protect and enhance the quality of or negatively, the “decision maker” the nation’s air resources, 2) initiate must consider the impact that the The Second Course — and accelerate research to prevent action may have on the environ- The Clean Air Act air pollution, 3) ensure that the fed- ment. Consequently, when the federal government could provide eral government considers funding A Lite History of the technical and financial assistance to or permitting a project, it must Clean Air Act state and local air pollution control ensure that an “environmental The Clean Air Act was enacted efforts, and 4) encourage and assist assessment” or an “environmental due in large measure to a series of the development and operation of impact statement” is prepared episodic inversions that had deadly regional air pollution prevention assessing the alternatives to the side effects. In such an inversion, a and control programs.24 project and detailing the potential layer of warm air moves in over a environmental harm and benefits town or city and traps colder air How Does the Clean Air Act associated with the project. beneath it. Since hot air rises only Work? The environmental impact state- while it is hotter than the air The Clean Air Act was amended ment (EIS) is the more detailed of around it, the layer of warm air in in 1977 and again in 1990. In out- the two documents and is called for these inversions acts as a ceiling to line form, the current act looks like when a “major federal action[] sig- the rising smokestack and tailpipe this:

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n Title I—regulates stationary n Particulate matter of 10 microm- sion reduction that has been ade- sources (factories, etc.), regulates eters or less30 (e.g., asphalt con- quately demonstrated to control hazardous air pollutants, crete plants); NAAQS emissions.38 requires national ambient air n Sulfur dioxide (e.g., coal-fired The Clean Air Act also regulates quality standards, provides for electrical power plants; causes Hazardous Air Pollutants (HAPs), the prevention of significant acid rain); pollutants that are not covered deterioration (PSDs); n Nitrogen dioxide (e.g., fossil-fuel under the National Standards. In n Title II—regulates mobile fired steam generators); and the 1990 amendments to the CAA, sources (planes, trucks, and n Lead31 (e.g., lead-acid battery Congress provided EPA with a list automobiles); manufacturing plants).32 of 189 toxic air pollutants to be n Title III—provides for general With these criteria pollutants in regulated.39 Each of these HAPs administration, citizen suits, mind, the states were then tasked receives special treatment. labor standards, air quality mon- with developing State itoring; Implementation Plans (SIPs or n Title IV—covers noise control; State Plans) to ensure that the n Title IV25—covers acid rain; National Standards were not n Title V—requires that “major exceeded. Unfortunately, many sources” of air pollution obtain urban areas around the country operating permits; were already exceeding these stan- n Title VI—covers stratospheric dards back in 1970 when the CAA ozone protection. was enacted. Thus, there was much Weighing in at 900 pages, the work to be done. Clean Air Act is a very meaty States will typically have many Air statute. Considering the scope of Regions.33 These regions will either this overview, we will only discuss be designated “attainment,” if they the parts most relevant to are meeting the National Standards, Georgia.26 or “nonattainment” if they are not Title I: To begin, it is important meeting one or more of them. In to understand the general Georgia, for example, Atlanta is in approach Congress took to regu- nonattainment for ozone.34 The lating stationary sources under worse the air quality in an Air Title I. Under the act, the newly Region, the worse the label and the formed EPA had to divide the more strict the requirements. Atlanta country up into Air Quality was just elevated from SERIOUS to Control Regions (AQCR or Air SEVERE35 and as a result, new com- Regions).27 And after conducting panies thinking of locating in Atlanta numerous studies, EPA had to will have to comply with stricter air establish National Ambient Air quality control requirements.36 In Quality Standards (NAAQS or developing their State Plans, states National Standards).28 The current have free reign to come up with their list of pollutants for which nation- own cocktail of controls as long as the al standards have been developed mix looks like it will bring the prob- includes the following (the paren- lem area into attainment.37 theticals are possible sources of Whether in a nonattainment area that pollutant): or not, certain “problem indus- n Ozone29 (e.g., beverage can and tries” (ones with high emissions) automobile surface coating facil- must comply with New Source ities); Performance Standards (NSPS). n Carbon monoxide (e.g., tail pipe These standards are based on the emissions); best technological system of emis-

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In those areas of Georgia and the not yet turned the corner on air pol- navigable waters by 1985.48 rest of the country where air quality lution, it may be a while before air Another interim goal was to make is better than the National quality starts improving on a consis- these same waters “fishable and Standards, the applicable State Plan tent basis. One thing is clear, howev- swimmable” by 1983.49 must include measures to ensure er, CAA restrictions have markedly How Does the Act Work? that there is no significant deteriora- decreased the amount of emissions Since 1972, the Clean Water Act tion of air quality. “Major Emitting released by cars, trucks, and facto- has been amended twice, in 1977 Facilities”40 within these areas are ries. Unfortunately, the number of and in 1987.50 Currently, the act is subject to stringent preconstruction tailpipes and smokestacks has arranged as follows: review requirements, including a increased. n Title I—goals, policies and permit system for imposing emis- The Third Course—The research; sion limitations and technology n Title II—grants for sewage treat- requirements on specific sources. Clean Water Act ment plants; Title II: Title II of the act regu- A Cup Full of Clean Water n Title III—effluent limitations for lates mobile sources such as cars, Act History industrial and municipal treat- trucks and planes by establishing In 1969 the pollutant-laden ment systems; emissions standards. With the Cuyahoga River in Cleveland n Title IV—permits and licenses exception of the “California caught fire. Some claim that it was (NPDES, TMDLs, and wetlands); Standards,” the emission standards the back draft from this fire44 that n Title V—citizen suits, defini- are uniform across the county. ignited Congress to take action to tions, judicial review; and California was allowed to keep the save our lakes, rivers, streams and n Title VI—state-run revolving emission standards that it set in coastlines. Whether that is true or loan funds to finance sewage 1966, because they were in place at not is unclear; what was true dur- treatment facilities. the time the Clean Air Act was ing the 1960s is that earlier legisla- The title that comes up most in enacted.41 Furthermore, they were tion, such as the Federal Water conversation in Georgia and in more restrictive than the federal Pollution Control Act of 1948,45 most other states is Title IV. Title IV emission standards. was simply not working to keep includes the wetlands provisions Title V: Because of the Title V our waters clean. And the attempts (Section 404),51 the National operating permit requirements that being made by the Army Corps of Pollution Discharge Elimination came out of the 1990 amendments Engineers to enforce the Refuse System (NPDES) provisions to the CAA, any facility that has the provision of the even older Rivers (Section 402),52 and within Section potential to be a “major source” and Harbors Act of 1899, was also 402, the Total Maximum Daily under the act has to take a hard proving unsatisfactory.46 Load (TMDL) provision. Each of look at its air emissions.42 If it looks To rectify this situation, these provisions has had its share as though the emissions could be Congress passed the Federal Water of time in the spotlight over the last over a certain threshold, the facility Pollution Control Act Amendment couple of years. has to go through the permitting of 1972. It was not until this act was process. Although this process is Jurisdiction amended again in 1977 that often arduous, it provides a neces- One of the most important issues Congress renamed the entire statue sary regulatory handle to control that has been and continues to be the “Clean Water Act.” air pollution. debated in the courts regarding the CWA is the scope of the act’s juris- How is the Clean Air Act What was the Initial Goal diction. The act covers discharges Faring? for the Act? Congress designed the Clean of “pollutants” from “point Considering Congress’s initial Water Act to “restore and maintain sources” into “navigable waters.”53 goal for the act was to have the entire the chemical, physical, and biologi- “Pollutants” include such things as nation to be in attainment with the cal integrity of the Nation’s “dredged spoil, solid waste, incin- National Standards by 1975, the act waters.”47 A specific “national erator residue, sewage, garbage, is not doing so well.43 And consider- goal” of the act was to eliminate the munitions, heat, rock and sand.”54 ing major cities such as Atlanta have discharge of pollutants into the The courts are even called upon to

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decide when water can be a pollu- itations that have been developed A-AA-AA tant.55 A “point source” is any dis- under Title III of the act, as well as ATTORNEY REFERRAL SERVICE crete conveyance, which includes any other limitations that are nec- pipes, ditches, and even heavy essary to protect the receiving Is your phone ringing like it equipment, such as backhoes and water.61 Each receiving water used to? Last month we bulldozers.56 should have “water quality stan- referred over 17,000 callers to Although there are jurisdictional dards” (WQS) in place.62 If WQS our attorneys. Are you ready to start getting referrals? issues surrounding both “point are exceeded, that means the Call us today! sources” and “pollutants,” the cur- receiving water is not safe for the rent jurisdictional hotbed involves “designated use” of the water. (800) 733-55342 the definition of “navigable Designated uses are uses that the 24-hhour paging: waters.” The U.S. Supreme Court state has set for that water.63 In (888) 669-44345 recently declined three petitions many cases, that designated use is for certiorari that posed the ques- swimming and fishing. tion of whether “navigable waters” Section 402 permits must also be NEW HOME means routes of waterborne com- secured for storm water runoff. For CONSTRUCTION merce and adjacent wetlands or all example, facilities that have stock- COMPLAINTS those waters, plus tributaries (to piles of material that are exposed to Residential Construction include intermittent and ephemer- the rain may well need to get a & Development Expert al streams) and their adjacent wet- Section 402 permit and comply • Code & Inspection lands.57 In the three cases that were with its requirements to ensure Compliance the subject of the petitions for cer- that the material does not get • Cost/Quality Analysis tiorari, two from the Fourth Circuit washed into neighboring creeks. • Materials & Labor Evaluation and one from the Sixth Circuit, the Similarly, construction sites often 770-922-4411 reviewing courts held that the must obtain “storm water” per- www.danielturnerbuilders.com jurisdiction of the CWA should be mits, install silt fencing, and take interpreted broadly.58 The Courts other measures to try to prevent SENTENCING CONSULT@TION of Appeals in the Seventh and the streams and rivers from running Ninth Circuits have issued similar red with Georgia clay. & @PPE@LS decisions.59 TMDLs: The water quality stan- WHEN IT’S TIME FOR A Only the Fifth Circuit Court of dards operate much like the CHANGE Appeals has suggested that the NAAQS under the Clean Air Act. Georgia and All Federal Circuits narrower interpretation of CWA And like under the CAA, if the FEDERAL CRIMINAL LAW jurisdiction is appropriate. The water quality standards are not CENTER court did so in dicta in two deci- met, the state has to make modifi- Voice: 404-633-3797 sions.60 Thus, for now at least, the cations to its plan of action. In the Fax: 404-633-7980 broader interpretation of CWA case of the CWA, this triggers the www.MSheinLaw.com jurisdiction prevails. It will be TMDL process.64 Under this [email protected] interesting to see how the other cir- process, states identify through cuit courts address this fundamen- stream testing those water bodies Earn up to 6 CLE credits for tal issue in the years to come. that are not meeting water quality authoring legal articles and Section 402: Section 402 does the standards. The state, or in some having them published. lion’s share of the work in trying to cases the EPA, then calculates a Submit articles to: restore this country’s waters. TMDL for each water body, which Rebecca A. Hoelting Before a point source can discharge is the amount of the pollutant (that Georgia Bar Journal a pollutant—other than “dredged is causing the impairment) that the 104 Marietta St. NW, Suite 100 or fill material,” which is covered water body could assimilate on a Atlanta, GA 30303 under Section 404—it must secure daily basis (with a margin of safe- Contact [email protected] for an NPDES permit. This permit will ty) before the water body would more information or visit the Bar’s Web site, www.gabar.org/gbjsub.asp. include any applicable effluent lim- exceed the WQS. By analogy, the

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In order to obtain an individual permit69 from the corps to fill in a wetland, you must first show that you have avoided the wetlands to the extent practicable, you have minimized the impacts that are unavoidable, and you are willing to mitigate for those unavoidable impacts.70

TMDL is the number of spoonfuls to within 12 inches of the ground Upper Chattahoochee River was cho- of sugar you add to your sweet tea surface for at least 5 percent of the sen as a focus area for a recent nation- before it becomes too sweet. To growing season.68 al water quality study commissioned implement the TMDL, the “num- In order to obtain an individual by the Environmental Protection ber of spoonfuls” must be divided permit69 from the corps to fill in a Agency. The study found that up among the contributors of that wetland, you must first show that “[w]ater quality in the Upper particular pollutant to the water you have avoided the wetlands to Chattahoochee River, particularly in body. How this apportionment will the extent practicable, you have the vicinity of Atlanta, has improved occur is still being debated. minimized the impacts that are dramatically . . . . Chemical, physical, Section 404: Before discharging unavoidable, and you are willing and biological data all indicate a dredged or fill material into a water to mitigate for those unavoidable great improvement in water quality of the United States, you must first impacts.70 The corps reviews the when compared to data from investi- secure a permit from the Army permit application under the terms gations done in the 1940s, 1950s, Corps of Engineers.65 The only of the 404(b)(1) guidelines, which 1960s and 1970s.”74 Unfortunately, exceptions to this requirement are were developed by the EPA and the rate of improvements during the found in Section 404(f) of the act. spell out when a wetland is suit- 1970s and 1980s leveled out during Section 404(f) provides exceptions able for permitting.71 the 1990s. Rapid urban and suburban for such activities as the construction Wetlands serve a variety of func- development has led to increased of farm ponds, certain farm roads, tions and values such as: flood con- sediment loading and general water certain silviculture activities and cer- trol, wildlife habitat, water quality quality degradation. To keep pace tain maintenance activities.66 enhancement, recreation (hunting with growing development pres- Although all waters of the & fishing) and green space. When a sures, federal, state, and local govern- United States are covered by the wetland is destroyed, the goal is to ments will have to be even more vig- Clean Water Act, it is a special replace those functions and values ilant in protecting Georgia waters type of water that is most impact- in as close a proximity to the wet- from point and nonpoint source pol- ed by Section 404 of the act—wetland impacted as possible.72 lution so that the CWA gains of the lands. Wetlands are those areas Agricultural areas where wetlands 1970s and 1980s are not washed that meet the three parameter test have been drained in the past often away in the new millenium.75 for wetlands established by the serve as fertile ground for wetland The Fourth Army Corps of Engineers and mitigation sites. If wetlands cannot EPA; namely, they have 1) hydric be restored, created or enhanced Course—Resource soil, 2) a predominance of wetland nearby, then offsite “mitigation Conservation and plants, and 3) the appropriate banks” often serve as a substitute. Recovery Act of 1976 hydrology.67 Swamps, bogs, At these previously restored wet- marshes, wet meadows, pine flat- lands, one can buy mitigation cred- A Pinch of RCRA History woods, as well as many other per- its at a price determined on the The Resource Conservation and manently and seasonally wet areas open market.73 Recovery Act established the feder- fall into this category of waters of How is the Clean Water Act al program regulating solid and the United States. Even areas that Faring? hazardous waste management— never look wet at all can be wet- who takes out the “trash,” what the To gauge the success of the Clean lands. The usual test for hydrolo- “trash” is allowed to include, where Water Act, we need look no further gy is whether groundwater comes it is taken, and how it is disposed.76 than the Chattahoochee River. The

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These are critical questions, because Subtitle C covers hazardous waste. amount of “trash” had been this country generates a lot of solid And Subtitle I covers underground improperly buried and abandoned and hazardous waste and the storage tanks. Subtitle D requires long before RCRA was enacted. For amount has grown dramatically states to design and implement example, the Hooker Chemical over the last few decades. At the comprehensive plans to manage Company, formerly located near end of World War II, the United non-hazardous industrial solid Niagara Falls, N.Y., took out many States industrial machine was gen- waste and municipal solid waste, barrels of “trash” in the form of off erating roughly 500,000 metric tons sets criteria for municipal solid spec chemicals and buried them in of hazardous waste per year. By waste landfills, and prohibits the the “Love Canal.”84 To Hooker, 1995 this number had increased to open dumping of solid waste. this abandoned canal appeared to 279 million metric tons, a more than Subtitle C establishes a system be a suitable hiding place for the 500-fold increase.77 using manifests that tracks haz- chemicals. However, houses and a Not surprisingly, the advances in ardous waste from “cradle to school were soon built over the site waste management that were made grave”—from the time it is generat- and it wasn’t too long after that, during this same period were rap- ed to the time it is disposed. that the barrels started leaking. idly eclipsed by the rising tide of Subtitle I regulates underground During the “nationally televised” solid and hazardous waste. Much tanks that store hazardous sub- cleanup, the entire neighborhood of the hazardous waste produced stances and petroleum products.81 had to be relocated. And although was entering the environment and In the event that hazardous Love Canal was remediated, it threatening ecological systems and wastes are released into the envi- demonstrated that there was a hole public health in ways that we did ronment from a RCRA facility, the in the environmental statutory fab- not even begin to realize or appreci- EPA can order the responsible party ric. None of the existing statutes ate.78 However, in the wake of to take corrective action to remedi- covered a “Love Canal.” NEPA, the CAA, and the CWA, the ate the damage to the environment. What was the Initial environmental movement and How is RCRA Faring? Purpose for the Act? Congress turned its attention to the Based on the 2001 National Congress was in too much of a problem of solid and hazardous Biennial RCRA Report, the EPA hurry to include a purpose section waste disposal. By 1976, the and the states regulate 40,821,481 in CERCLA, but it remedied that Resource Conservation and tons of hazardous waste that is six years later when it included Recovery Act was on the books.79 generated each year by 19,024 facil- Section 213(a) in the Superfund What was the Initial ities.82 In addition, approximately Amendments and Reauthorization Purpose for the Act? 3,700 sites are undergoing correc- Act of 1986. In Section 213(a), The goal of RCRA was to get a tive action, almost three times the Congress explains the purpose of handle on where the waste in this number of sites found on the CERCLA in the following: country was being generated, Superfund National Priorities List, The area known as Love Canal where it was going, and how it was which is the subject of the next sec- located in the city of Niagara being disposed of. In keeping with tion.83 Falls . . . was the first toxic waste this overall purpose, the act has The Fifth Course — site to receive national atten- four main goals: to protect human tion. As a result of that attention health from improper waste dis- Comprehensive Congress investigated the prob- posal, to encourage recycling, to Environmental lems associated with toxic reduce the amount of waste gener- Response, waste sites and enacted CER- ated and to ensure that wastes are Compensation, CLA to deal with these prob- 80 85 properly managed. and Liability Act lems. How Does the Act Work? In short, CERCLA was enacted to deal with future Love Canals. To accomplish these goals, A Dash of CERCLA History Congress established three distinct, As successful as RCRA has been How Does the Act Work? yet related programs in the statute. in curbing the improper disposal of Typically, what happens in a Subtitle D covers solid waste. hazardous wastes, a substantial superfund case is that EPA will dis-

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cover a release of hazardous sub- How is CERCLA Faring? between these positions, he com- stances and take immediate action to Since 1980 EPA, working with pleted a federal clerkship and prevent any further releases at the the states and tribes, has assessed practiced environmental law at site. The removal actions typically nearly 44,418 sites. Seventy-five Alston & Bird, LLP, in Atlanta. He earned his J.D. from Harvard Law last less than a year and cost less percent of these have been School in 1990, and his LL.M., than $2 million dollars.86 If addition- removed from the superfund with highest honors, from George al work needs to be done at the site inventory to help encourage eco- Washington University in 1995. after the removal is complete, EPA nomic redevelopment. The remain- will apply to have the site assessed ing 11,312 sites remain in the site Kate Grunin is a third for the National Priority List (NPL). assessment program or have been year law student at The site will be scored using the listed on the National Priority List. Emory University Hazardous Ranking System (HRS) The cleanups at 846 sites are com- School of Law. She is and all sites that score above 28 plete. And enforcement actions currently a summer points are placed on a list for future against Potentially Responsible associate at Mendes & funding, with the most hazardous Parties have yielded approximately Mount, LLP, in New York City. Kate sites receiving funding first. $20.6 billion.87 received her B.A. from Brandeis The preferred funding avenue, University and expects to receive however, is to track down the par- “Check Please” her J.D. from Emory in May 2005. ties that caused the contamination Now that you have had your and make them pay for the fun, or not, as the case may be, din- Any opinions expressed in this arti- removal work that was done and ing on environmental law, here is cle are solely those of the authors and convince them that it is in their best the bill—go out there and do some- should not be attributed to the interests to perform the remedial thing good for the environment. Environmental Protection Agency or work that needs to be completed. Become a member of one of the any other government agency dis- The rule of thumb in the CERCLA environmental groups described in cussed in the article. arena is that the Potentially this issue, participate in a river Endnotes Responsible Parties (PRPs) can do a cleanup, participate in a canoe race, 1. Total Maximum Daily Load, 33 cleanup much more cheaply than vote for a politician who likes the U.S.C. § 1313(d)(1)(C)-(D). the federal government so the PRPs environment, or simply go out and 2. Polychlorinated biphenyls are toxic have a big incentive to work out enjoy the environment. Until more chemicals that are regulated under the Toxic Substance Control Act, their differences. people take ownership of the envi- 15 U.S.C.A. §§ 2601 to 2692 and Before a PRP or PRP Group can ronment, we will continue to have under other environmental laws. take over a cleanup, however, the the pollution problems that plague 3. When the EPA makes a change to EPA must fully investigate the site, this nation. a record of decision at a Superfund site, it often issues an ESD or have public meetings, and come up Now that wasn’t such a bad “explanation of significant differ- with an appropriate remedy. The price to pay for this environmental ences” to explain the change. 42 document that contains this reme- appetizer. For those of you who U.S.C.A. § 9617(c). dy is the Record of Decision (ROD). still have an appetite for more, turn 4. Alternate Concentration Limit. 42 U.S.C.A. § 9621(d)(2)(B)(ii). The superfund itself is used to the page and dine on. 5. Notice I did not say the five “most fund the removals and those reme- important” environmental statutes. diations where there are no PRPs Bill Sapp is the lead The Endangered Species Act, for starters, is a very important or where the PRPs are not willing wetlands attorney for statute, it simply is not as “hot” a Region 4 of the to do the cleanup. The money to conversation topic at the moment. fund the “Superfund” originally Environmental 6. 42 U.S.C.A. §§ 4321 – 4370(f). came from taxes on the petroleum Protection Agency. He 7. 33 U.S.C.A. §§ 1251-1387. began his legal career 8. 42 U.S.C.A. §§ 7401-7671(q). and chemical industries, as well as by working in the Army Corps of 9. 42 U.S.C.A. §§ 9601-9675. from “cost recovery” actions Engineers, Office of the Chief 10. 42 U.S.C.A. §§ 6901-6992(k). lodged against PRPs. More recent- 11. Erin Perkins, 2001 Yearbook: Counsel, from 1990 to 1994. He ly, superfund has been funded by Hazardous Materials and Energy: started with the Environmental The Stockholm Convention on congressional appropriations. Protection Agency in 2001. In Persistent Organic Pollutants: A

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Step Towards the Vision of Rachel 28. 42 U.S.C.A. § 7409. 42. 42 U.S.C.A. § 7661(a). Carson, 2001 Colo. J. Int’l Envtl. L. 29. Ozone is a secondary pollutant in 43. See Train v. Natural Resource & Pol’y, 191, 191 (2001). that it is not directly emitted from Defense Council, 42 U.S. 60, 63-67 12. Id. at 193. smokestacks or tailpipes. It forms (1975). 13. National Environmental Policy Act in the atmosphere when volatile 44. The Cuyahoga River in Cleveland of 1969, 42 U.S.C.A. § 4332(C). organic compounds (VOCs), caught fire on June 22, 1969. Some, 14. 40 C.F.R. 1508.9. Nitrogen Oxide, Nitrogen Dioxide, such as Hillary Clinton, view the 15. Kleppe v. Sierra Club, 427 U.S. 390, and Oxygen mix. Originally, EPA fire as a watershed moment in the 410, n.21 (1976). chose the broader array of “photo- environmental movement. Others 16. See Fund for Animals v. Rice, 85 chemical oxidants” as the criteria contend that it played a much F.3d 535 (11th Cir. 1996). pollutant, but later changed the smaller role. 17. For example, the Tennessee- chemical designation to ozone in 45. 33 U.S.C.A. §§ 1251-1387. Tombigbee Waterway through 1979 and excluded about 10 per- 46. The Refuse provision makes it a Alabama was slowed down by cent of the compounds previously misdemeanor to discharge refuse NEPA litigation. Nonetheless, the covered. matter of any kind into the naviga- Army Corps of Engineers perse- 30. In 1987, this criteria pollutant was ble waters of the United States vered and the canal was built. changed from particulate matter, without a permit. Environmental Defense Fund, Inc. to particulate matter measuring 10 47. 33 U.S.C.A. § 1251(a). v. Corps of Engineers of United micros in size or less. It was deter- 48. 33 U.S.C.A. § 1251(a)(1). States Army, 492 F.2d 1123 (5th mined that the small particles were 49. 33 U.S.C.A. § 1251(a)(2). Cir. 1974). more harmful to human health. 50. Clean Water Act of 1977, Pub. L. 18. For example, when organizers met 31. In 1970, hydro-carbon was the No. 95-217, 91Stat. 1566; Water to discuss how they could derail sixth criteria pollutant. It was elim- Quality Act of 1987, Pub. L. No. the Athens to Atlanta Commuter inated in 1983 as a criteria pollu- 100-4, 101 Stat 7. Line, one of the first questions the tant because it was determined 51. 33 U.S.C.A. § 1344. organizers raised was whether the that hydro-carbons were not harm- 52. 33 U.S.C.A. § 1342. commuter rail proponents had ful to human health. However, 53. 33 U.S.C.A. § 1311. done an EIS. Conversation with a lead was added as a criteria pollu- 54. 33 U.S.C.A. § 1362(6). member of a community group tant in 1978, so we still have six 55. The question of whether water can located on the rail line, (November criteria pollutants. be a pollutant is currently being 1, 2002). 32. See 40 C.F.R. § 50. debated. In South Fla. Water 19. JONES, CLEAN AIR: THE POLI- 33. 42 U.S.C.A. § 7407. Mgmt. Dist. v. Miccosukee, 541 TICS AND POLICIES OF POLLU- 34. EPA, Nonattainment Area Web U.S. ___, ___ (2004), 2004 Lexis TION CONTROL 26 (1975). Site, 2376, the U.S. Supreme Court, 20. DAVIES, THE POLITICS OF POL- http://www.epa.gov/air/data/no before remanding the case to the LUTION 51 (1970). (The Bureau of nat.html?st~GA~Georgia. lower courts, recently wrestled the Budget stated that “unlike 35. EPA, Green Book, Currently with the issue of whether water water pollution, air pollution¼ is Designated Nonattainment Areas pumped from one side of a large essentially a local problem.”) for all Criteria Pollutants weir structure to the other side 21. A. REITZE, JR., AIR POLLUTION (http://www.epa.gov/oar/oaqps triggered the requirement for a LAW 2 (1993). /greenbk/ancl.html). Section 402 permit. The 22. Id. 36. There are five possible classifica- Miccosukee Indians argued that 23. Although the Air Quality Act of tions for nonattainment (in ascend- the water being pumped was dirti- 1967 sought to set air quality stan- ing order of magnitude): Marginal, er than the receiving water, and dards throughout the nation, it did Moderate, Serious, Severe, and thus, the permittee, the Florida not take the next, crucial step of Extreme. See 42 U.S.C.A. § 7418(a). Water Management District, establishing uniform national stan- 37. Train v. NRDC, 421 U.S. 60 (1975). should have to secure a section 402 dards. Id.at 4. 38. 42 U.S.C.A. § 7411. permit. The District argued, 24. Clean Air Act, 42 U.S.C.A. § 39. 42 U.S.C.A. § 7412. among other things, that the water 7401(b). 40. 42 U.S.C.A. § 169(1). Section 169(1) in this nation is all one unitary 25. No this is not a typo. There are defines “major emitting facility” to body, and therefore, no permit is two Title IV’s to the Clean Air Act. include any source falling into one required. Since the “unitary water Congress added the second Title of the twenty-six listed categories, theory” had not been briefed IV in the 1990 amendments. This is which emits, or has the potential to before the lower courts, the U.S. yet further evidence that attorneys emit, 100 tons per year or more of Supreme Court remanded the mat- cannot count or do math of any any air pollutant regulated under ter to the lower courts for further kind. the act. In addition, a facility can development. 26. You can find a more thorough be regulated under the act even if 56. Avoyelles Sportsmen’s League, overview of the Clean Air Act in it does not fall in one of the listed Inc. v. Marsh, 715 F.2d 897, 922 the following article: Henry A. categories if it emits or has the (5th Cir. 1983). Waxman, An Overview of the Clean potential to emit over 250 tons per 57. Lance D. Wood, Don’t be Misled: Air Act Amendments of 1990, 21 year or more of any air pollutant CWA Jurisdiction Extends to All Envtl. L., 1721 (1991). regulated under the act. Non-Navigable Tributaries of the 27. 42 U.S.C.A. § 7407. 41. 42 U.S.C.A. § 7543(b). Traditional Navigable Waters and

June 2004 21 6-04GBJ.qxp 5/11/2004 5:05 PM Page 22

to Their Adjacent Wetlands, 34 An Evaluation of the National Envtl. L. Rep. News & Analysis, Investment in Municipal 10187 (2004). Wastewater Treatment, 10-13 58. United States v. Rapanos, 339 F.3d (2000). 447 (6th Cir. 2003), cert. denied 75. Id. at 10-14. April 5, 2004; United States v. 76. RCRA amends the earlier legisla- Newdunn, 344 F.3d 407 (4th Cir. tion (the Solid Waste Disposal Act 2003), cert. denied April 5, 2004; of 1965), but since the amendments United States v. Deaton, 332 F.3d were so comprehensive, the act is 698 (4th Cir. 2003), cert. denied commonly referred to as RCRA. April 5, 2004). 77. Environmental Protection Agency, 59. United States v. Krilich, 303 F.3d RCRA Orientation Manual, I-1, 784 (7th Cir. 2002), cert. denied 123 January 2003. S. Ct. 1782 (2003); Headwaters, Inc. 78. Id. v. Talent Irrigation District, 243 79. RCRA amended the Solid Waste F.3d 526 (9th Cir. 2001). Disposal Act of 1965, and has itself 60. Rice v. Harken Exploration Co., been amended by the following: 250 F.3d 264 (5th Cir. 2001); In re: the Hazardous and Solid Waste Needham, 354 F.3d 340 (5th Cir. Amendments of 1984, Pub. L. No. 2003). 98-616. 98 Stat. 3221; the Federal 61. 33 U.S.C.A. § 1311(e). Facilities Compliance Act of 1992, 62. 33 U.S.C.A. § 1313. Pub. L. No. 102-386, 106 Stat. 1505; 63. 33 U.S.C.A. § 1313(c)(2)(A). and the Land Disposal Program 64. 33 U.S.C.A. § 1313(d). Flexibility Act of 1996, Pub. L. No. 65. 33 U.S.C.A. § 1344(a). 104-119; 110 Stat. 830. 66. 33 U.S.C.A. § 1344(f). 80. Environmental Protection Agency, 67. “The term ‘wetlands’ means those RCRA Orientation Manual, I-2, areas that are inundated or saturat- January 2003. ed by surface or ground water at a 81. Id. frequency and duration sufficient 82. EPA, National Biennial RCRA to support, and that under normal Hazardous Waste Report: Based on circumstances do support, a preva- 2001 Data, 1-1, (see lence of vegetation typically adapt- www.epa.gov/epaoswer/hazwast ed for life in saturated soil condi- e/data/brso1/national.pdf). tions.” 33 C.F.R. § 328.3(b). 83. Id. at III-121. 68. U.S. Army Corps of Engineers, 84. The canal was named after William Corps Wetlands Delineation Love who in 1896 began digging Manual, 30 (1987). the canal to connect Lake Ontario 69. The Corps also issues Nationwide and Lake Erie (bypassing Niagara Permits or Regional Permits for Falls). The canal was to function as “minor” wetlands impacts such as a water power conduit. Love never road crossings. 33 C.F.R. § 330. The completed the canal. application process is much shorter 85. Section 213(a) of Pub. L. 99-499 for these activities. (Oct. 17, 1986). 70. Memorandum of Agreement 86. Some removal actions last much Between the Environmental longer than a year and can cost far Protection Agency and the more than $2 million depending on Department of the Army the particular cleanup. Concerning the Determination of 87. EPA, Superfund Accomplishment Mitigation Under the Clean Water Figures, Summary Fiscal Year (FY) Act Section 404(b)(1) Guidelines 2003, (Dec. 31, 2002) (1990). (http://www.epa.gov/super- 71. 40 C.F.R. § 230 (1994). fund/action/process/numbers.ht 72. Sapp, William W., The Supply-Side m); see also, General Accounting and Demand-Side of Wetlands Office Report: "Superfund Mitigation Banking, 74 Or. L. Rev. Program: Current Status and 951, 986 (1996); Sapp, William W., Future Fiscal Challenges," July 31, Mitigation Banking: Panacea or 2003 http://www.gao.gov/- Poison for Wetlands Mitigation, 1 text/do3850.txt). Envtl. Law. 99, 113 (1994). 73. Id. at 967; id. at 108. 74. U.S. Environmental Protection Agency, Progress in Water Quality, www.gabar.org Hardest Working Site on the Web. Working Hardest

22 Georgia Bar Journal 6-04GBJ.qxp 5/11/2004 5:05 PM Page 23

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Speaking Whale: The Impact of Georgia’s New Nonattainment Designations on the Georgia Business Community

By Randy E. Brogdon hile it is often said that “life imitates art,” it is much less fre- and Debra S. Cline quently observed that the Clean Air Act (CAA) imitates fish. In Wfact, this article may be a first in that regard. Novelty notwithstanding, there is a scene in Pixar’s recent animated movie Finding Nemo that bears

the observation out. In the movie, Dory and Marlin (two star-crossed fish adventurers), encounter a whale and Marlin wants to ask it about his missing son, Nemo. Dory, Marlin’s addled blue fish companion, is confident that she “speaks whale” and proceeds to whistle, groan, click and squeak at the whale. The whale of course doesn’t understand much, if any, of what Dory is saying and goes about its business (mostly eat- ing krill), until it swallows Dory and Marlin whole. Photo by Kevin B. Smith Photo by Kevin 6-04GBJ.qxp 5/11/2004 5:06 PM Page 25

Strangely enough, the discourse matter (PM) 2.5 standard. Even after pursuant to the CAA. Section 109 between regulators charged with considerable public outreach by the of the CAA authorizes EPA to implementing CAA programs and U.S. Environmental Protection establish new National Ambient the regulated community is often Agency (EPA) and, especially, EPD, Air Quality Standards (NAAQS) similar to this misguided fish-whale there continues to be uncertainty as for certain pollutants and to revise discussion. The CAA is filled with to the impact of nonattainment des- those standards periodically.1 To legal and technical jargon—words ignations on Georgia businesses and date, EPA has established stan- and concepts like nonattainment areas, the future growth of Georgia’s cities. dards for ozone (which includes offset ratios, emissions netting—that Even when the jargon becomes nitrogen oxides (NOx) and volatile are often foreign (or at least unfamil- familiar, there is an additional layer organic compounds (VOCs)), car- iar) to many business owners and of translation that remains, namely, bon monoxide (CO), and PM, operators. When it comes to under- how does an area’s attainment status among others.2 standing the practical impact of air for a particular pollutant affect the Upon promulgation of a new or quality related changes on business siting, operating, and modification revised NAAQS, CAA § 107 decisions, the message often comes decisions for companies operating in requires EPA to determine which out as, well... whale-speak. those areas? areas of the country do not meet (or Recently, for example, the Georgia “attain”) those standards.3 Toward Environmental Protection Division DESIGNATION OF that end, states are required under (EPD) recommended that more than NONATTAINMENT Section 107(d) to submit to EPA a 20 counties in Georgia be designated recommended list of areas for des- as “nonattainment” for the new fed- AREAS ignation as attainment, nonattain- 4 eral 8-hour ozone standard, and a The genesis of the nonattainment or unclassifiable. The Act number of major cites face nonattainment issue lies in federal ambient specifies that nonattainment areas ment status for the new particulate air quality standards established shall include “any area that does not meet (or that contributes to ambient air quality in a nearby area that does not meet) the national primary or secondary ambient air quality standard for the pollutant.” The CAA further specifies a time- table for action on designations. Specifically, states must submit recommendations within one year after promulgation of a new or revised standard.5 After receiving a state’s recommended list of nonattainment areas, EPA may approve the list or modify the designations.6 Several years ago, EPA determined that the current standard for ozone (the “1-hour ozone standard”) was not adequately protective of human health and the environment. As a result, EPA established a new criteria for ozone – the “8-hour ozone standard.” About the same time, EPA promulgated a new standard for fine particulate

matter, or PM2.5 (currently there is only a standard for larger particu-

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late matter, or PM10.) It is anticipat- 8-hour ozone standard and EPA’s EPA for designating areas in the ed that considerably more cities, interpretation of the CAA. In state as nonattainment under the 8- counties, and businesses will be March 2002, the D.C. Circuit Court hour ozone standard.12 On Dec. 3, affected by EPA’s new NAAQS for rejected all remaining challenges to 2003, EPA responded to Georgia’s ozone under the 8-hour standard the 8-hour ozone standard allow- 8-hour ozone nonattainment rec-

and for PM2.5. ing EPA to begin implementation ommendations which included There are currently 13 counties of the revised NAAQS.8 several modifications to Georgia’s that are part of the 1-hour ozone Therefore, after a lengthy legal recommended designations and nonattainment area in metro battle, the path was cleared for EPA boundaries.13 First, EPA stated that Atlanta. The number of counties to implement the 8-hour ozone all counties that are part of an Early designated under the 8-hour stan- standard. The process for designat- Action Compact (EAC) that con- dard is nearly double that number ing areas as attainment or nonattain a violating ozone monitor of counties. The designations for tainment of the 8-hour ozone stan- should be included as part of the nonattainment under the new dard is through a federal rule-mak- nonattainment area. EPA stated,

PM2.5 standard are likely to center ing with final designations pub- however, that in its proposed rule not only around Atlanta but also lished in the Federal Register. As a to implement the 8-hour standard, Macon, Athens, Rome, Columbus result, EPA established a deadline the agency plans to defer the effec- and, perhaps, Augusta. of July 15, 2003, for states to submit tive date for these areas for as long their recommendations for areas as the areas continue to meet the NEW STANDARDS within their states that they believe milestones required for EAC areas. FOR OZONE AND should be designated as nonattain- As a result of its decision to include ment areas under the 8-hour ozone the EAC areas in the nonattain- PARTICULATE standard.9 EPA responded to these ment designated area, EPA modi- MATTER recommendations on Dec. 4, 2003, fied EPD’s recommendation to agreeing with some designations include Catoosa County in the In 1997, EPA determined that the and modifying others pursuant to Chattanooga area. 1-hour ozone standard was not CAA § 107. EPA issued final nonat- On April 30, 2004, EPA announced adequate in protecting human tainment area designations on that it is designating the following health and the environment from April 30, 2004.10 counties in Georgia as nonattainment the effects of ozone.7 At that time, States with areas that are desig- areas under the 8-hour ozone stan- EPA determined that a more strin- nated as nonattainment must sub- dard: Barrow, Bartow, Bibb, Carroll, gent standard based on an 8-hour mit a State Implementation Plan Catoosa, Cherokee, Clayton, Cobb, period would be more beneficial to (SIP) by 2007 that outlines how Coweta, DeKalb, Douglas, Fayette, air quality. This standard is 0.08 they will meet the 8-hour ozone Forsyth, Fulton, Gwinnett, Hall, parts per million averaged over an standard. The areas’ deadlines for Henry, Monroe (only a portion of the 8-hour period, rather than the for- meeting the 8-hour standard will county), Murray (only that portion of mer standard of 0.12 parts per mil- range from 2007 to 2021 depending Murray that is in the Class I area), lion averaged over a one-hour peri- on the severity of the ozone prob- Newton, Paulding, Rockdale, od. The new 8-hour standard lem. To aid areas in transitioning Spalding and Walton.14 allows no more than three from attaining and maintaining the The NAAQS for PM was estab- exceedances at any monitor in the one-hour ozone standard to imple- lished in 1971 and first revised in 1987 area in a year, or there is a “viola- menting the 8-hour ozone stan- when EPA changed the standard to tion” of the standard. dard, EPA proposed an implemen- regulate inhalable particles, or PM10, In the case of American Trucking tation rule in June 2003 that out- which are smaller than or equal to 10 v. EPA, the 8-hour ozone standard lined the requirements nonattain- micrometers in diameter (approxi- was challenged by a number of ment areas must meet and proce- mately one-quarter of the size of a sin- businesses, the U.S. Chamber of dures for transitioning to the 8- gle grain of table salt). In 1997, EPA Commerce, and industry groups, hour standard.11 further revised the PM standards by but the Supreme Court eventually On July 15, 2003, Georgia sub- separating standards for fine particles upheld the constitutionality of the 15 mitted its recommendations to (PM2.5) from PM10.

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As part of the challenge to the 8- tions to the states’ PM2.5 nonattain- and Albany are considered border- hour ozone standard in American ment area designation recommen- line.21 The areas that are ultimately

Trucking, the petitioners also chal- dations, EPA will allow 120 days subject to the PM2.5 NAAQS will lenged EPA over a 1997 revision of for states and tribes to comment on face new nonattainment require- the PM standard.16 As described, any modifications that EPA makes ments once Georgia revises its SIP the Supreme Court in 2001 over- to the recommended designations. to include the statutory provisions turned the court of appeals deci- EPA intends to publish final in CAA § 189.22

sion in American Trucking and PM2.5 nonattainment area designa- upheld the EPA’s authority to set tions by Dec. 15, 2004. In addition, WHAT DOES NAAQS.17 As with the ozone stan- under a consent agreement with NONATTAINMENT dard, in March 2002, the Court of nine environmental groups, EPA MEAN? Appeals for the DC Circuit rejected must designate nonattainment areas all remaining challenges to the 1997 and issue proposed regulations Assuming an area is designated PM standard.18 regarding the PM standards by as nonattainment, what’s next? Like the new 8-hour ozone stan- March 31, 2005, and a final rule by Once nonattainment area designa- dard, the first step in the process of Dec. 20, 2005.20 In compliance with tions are established, the CAA

designating PM2.5 nonattainment the consent agreement, EPA plans requires states to submit a SIP to areas was EPA’s request that states on issuing the final PM2.5 imple- EPA which includes a detailed and tribes provide a list of recom- mentation rule by the end of 2004. roadmap for how the state will mended nonattainment area desig- Based on data gathered since achieve the NAAQS.23 SIPs are nations to EPA by Feb. 15, 2004.19 1999, several cities in Georgia may then subject to review by EPA Following those submissions, EPA be considered nonattainment for which must determine whether the

intends to respond to these recom- PM2.5. These include metro proposed SIP includes all statutori- mendations in July 2004. Following Atlanta, Athens, Rome, Columbus ly required elements to bring the EPA’s announcement of modifica- and Augusta. Macon, Savannah area into attainment of the

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NAAQS.24 In short, if an area does new sources or major “modifica- long-term plans and short-term not meet the required standards, a tions” at those sources apply for transportation improvement state is required to submit a plan to and receive NSR construction plans to demonstrate that EPA outlining steps to reach these permits prior to construction of planned and federally-funded standards. the new major source or modifica- road projects will not worsen air To demonstrate what a nonat- tion. The NSR program requires quality or interfere with the tainment area means as far as the the permit to include require- goals of the SIP.28 statutory requirements associated ments for the installation of often For emitting sources these new with the designation, Atlanta’s cur- expensive pollution control tech- requirements mean that lower rent nonattainment status for ozone nology defined as the “lowest emission standards and more strin- provides a good example of the achievable emission rate” gent permitting requirements will types of SIP requirements that may (LAER). LAER is defined as the be imposed. As part of these strin- apply in nonattainment areas. most stringent emission limita- gent permitting requirements, new Because the metro Atlanta area is tion contained in any SIP or that is sources or existing sources wishing already considered a nonattainment achievable in practice by the same to make modifications will need to area for ozone under the 1-hour or similar source category, obtain offsets as described above. standard, Georgia was required to whichever is more stringent. The Often times these offsets are diffi- include various statutory require- NSR program also requires that cult to obtain in the market place ments in its SIP to bring the area NSR construction permits include and cannot be generated internally. into attainment. These include: provisions for the emissions of the This onerous requirement may n Enhanced vehicle inspection and nonattainment pollutant from the make it difficult for new businesses maintenance program to reduce new or modified source to be off- to locate into nonattainment areas NOx and hydrocarbon emissions. set by emission reductions else- or for existing businesses to n An inventory of actual emissions where at a specific ratio. This expand. In addition, it will become from all sources. requirement is to ensure progress more difficult for local and state n Implementation of Reasonably towards attainment of the government to accomplish road Available Controlled Technologies NAAQS. These offsets must be in projects because the projects will (RACT) for existing major sources. effect and enforceable by the time have to conform to and be a part of RACT is defined as “devices, sys- the new source or modification long and short-range EPA- tems, process modifications, or commences operation.27 For approved transportation plans. other apparatus or techniques that “serious” nonattainment areas, Finally, citizens living in the area are reasonably available taking the offset ratio required is 1.2 to 1. will also be affected on an individ- into account (1) the necessity of Therefore, for every ton of new ual basis as automobiles will imposing such controls in order to emissions, sources must obtain become subject to enhanced vehicle attain and maintain [the NAAQS]; (either internally or from other inspections and maintenance. (2) the social, environmental, and sources) emissions reductions of economic impact of such controls, 1.2 tons. A MATTER OF and (3) alternative means of pro- n Demonstration of progression PERCEPTION viding for attainment and mainte- toward control of NOx. nance.” 25 In order to implement n Regulation of vehicle refueling Despite the permitting and RACT, EPA has developed guide- (Stage Two). transportation conformity concerns lines for various categories of n Enhanced ambient air quality described above, the perception of major sources.26 These guidelines monitoring. the negative impacts of nonattain- are in turn implemented by states n Implementation of a clean fuel ment designations are often out of in their SIPs. vehicle program. touch with the actual effects. At a recent meeting at the Metro Atlanta n The imposition of New Source n Implementation of transporta- Review (NSR) permitting require- tion control measures, or “trans- Chamber of Commerce, EPA ments for new and “modified” portation conformity.” This Administrator Mike Leavitt held stationary sources. The NSR per- means the state must submit for up a map of the United States. The mit program requires that major the nonattainment area both map highlighted in red the areas in

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the U.S. that were designated as Yet misinformed perceptions ager from Augusta. “When the nonattainment for ozone. Leavitt regarding nonattainment impacts new designation recommendations observed that he was familiar with continue to worry Georgia busi- were announced, there was a real such maps from his work on air nesses. For industrial operations, concern that if corporate headquar- quality issues as governor of Utah the ability to expand, change and ters believed that permitting is and described the red markings as adapt is rightly seen as the key to going to be more difficult due to a “warning beacons” for business long-term financial viability. When new nonattainment status, that and community development. that ability to change is impaired, a those investment dollars will be While Leavitt was correct in his company’s ability to survive and given to other plants, and the observation that nonattainment sta- thrive is similarly impaired. In Georgia plants would be passed tus may serve as a warning bea- many cases, companies are faced over for future expansion plans.”29 con—businesses certainly should with an “expand or shut-down” However, the truth is that nonat- be aware of the unique issues asso- scenario, that is, the ability to tainment is hardly a regulatory gir- ciated with nonattainment areas—it change operations to fit market dle to growth. And one of the best is not a stop sign for development demand is necessary to continue illustrations of this fact is Atlanta. and growth. To borrow from our long-term viability. Faced with this Since it was initially designated aquatic theme, nonattainment is not scenario, plant operators are con- nonattainment in 1978, Atlanta has like the Great White Shark in Jaws, cerned that company executives experienced tremendous growth. waiting to gobble up unsuspecting may conclude that their plant is Despite its nonattainment status, Georgia businesses treading the now a poor candidate for future between 1980 and 2000, population economic waters of the state. Under expansion. in the Atlanta Metropolitan EPA’s proposed class, option 2, “Operating units within major Statistical Area increased by 1.9 mil- based on 2001-03 air quality data, corporations are always competing lion—an 84 percent growth rate.30 Atlanta would be classified as for investment dollars,” comment- But the perception of the air qual- “marginal” for the 8-hour standard. ed one environmental plant man- ity situation in Atlanta is skewed by

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the regulatory jargon. Because the “It’s counterintuitive to think that Atlanta’s Atlanta metropolitan area failed to attain the 1-hour ozone NAAQS by air quality is improving at the same time EPA the statutory deadline of 1999, the Atlanta area was recently “bumped is down-grading its status, but that’s pre- up” from a “serious” nonattainment area to a “severe” nonattainment cisely what’s happening. Even after decades area for ozone.31 As a result of this change in nonattainment status, of tremendous growth, Atlanta’s air quality Atlanta faces even more stringent requirements. is steadily improving. Our programs are What is ironic about these fairly working.” draconian measures is that the air quality in Atlanta is getting better, — Kevin Green, Metro Atlanta Chamber of Commerce not worse. When it comes to communication issues, Kevin Green of of representatives from 15 industri- need to clearly communicate their the Metro Atlanta Chamber of al sources in the Augusta area was concerns to regulators. Simply lis- Commerce commented that this created to evaluate local options tening to EPA and EPD is not fact is difficult to convey. and to educate local government on enough. “Educating businesses “There’s a real disconnect in the the effects of nonattainment. and local communities regarding language of nonattainment and For areas that comply with the 1- air quality rules and regulations is what’s going on in Atlanta,” he said. hour peak ozone standards of 0.12 a vital part of what we do at “It’s counterintuitive to think that but not the new 8-hour ozone stan- Georgia EPD.” Commented Ron Atlanta’s air quality is improving at dard of 0.8, there is a deferral Methier, air director for EPD. “But the same time EPA is down-grading options known as an Early Action an important part of any outreach its status, but that’s precisely what’s Compact (EAC). The EAC is effort is to listen to concerns from happening. Even after decades of designed to give local areas flexibil- businesses and local communities. tremendous growth, Atlanta’s air ity to design their own approaches Businesses and local governments quality is steadily improving. Our to comply with the 8-hour ozone do need to consider how they will programs are working.” standard by Dec. 31, 2007. The goal factor nonattainment designations of the EAC is to improve air quality into their planning decisions.” COMMUNICATION faster and avoid the rigid compli- But Methier also stressed that AND A PROACTIVE ance conditions normally imposed such planning should not be limit- on nonattainment areas. ed to cities/counties that have been RESPONSE ARE In the case of Augusta and formally designated as nonattain- CRITICAL Richmond County, the EAC ment. “Air quality is largely a approach—coupled with good regional issue. Just because an area Correcting misperceptions and monitoring data over the past few is identified as attainment, it does- taking on nonattainment issues years—was a success. After n’t mean that it is immune from head-on is key to managing nonat- reviewing the resulting monitoring nonattainment regulations. In tainment status. One good example data and receiving agreement from Georgia, it may be necessary to of such a proactive response was the EAC industry team to continue include some attainment areas as the city of Augusta and Richmond its efforts, EPD revised their recom- part of the SIP plan to address County. When industrial sources in mendation for the area to attain- nonattainment issues in neighbor- Augusta and Aiken learned that ment. EPA responded and ing areas.” Richmond County was facing removed the area from the ozone Taking on those issues proac- nonattainment status, they quickly nonattainment list. tively in the present may pay big organized a committee to try to The Augusta example illustrates dividends in the future. Methier address the problem head-on. In that outreach is a two-way street— stated that many of these areas are July of 2003, a committee consisting industries and local governments “pretty border-line” and could

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achieve attainment within a few move to Atlanta, Brogdon practiced 13. Letter from J.I. Palmer, Jr., years if progress is demonstrated. with the Phoenix law firm of Regional Administrator, EPA, to Gallagher & Kennedy and served as Carol A. Couch, Ph.D., Director, Georgia Environmental Protection CONCLUSION an adjunct professor at Arizona Division (Dec. 3, 2003). State University. His experience 14. 69 Fed. Reg. 23951 (April 30, 2004) So what is the message behind the includes representation of national 15. 62 Federal Register 38652 (July 18, whale-speak? First, being designat- and international petroleum refin- 1997). ed as nonattainment is not a death- ing, semi-conductor, mining, electric 16. American Trucking Assoc. v. EPA, 175 F.3d 1027 (D.C. Cir. 1999) knell for the expansion of businesses utility and landfill companies on a 17. Whitman v. American Trucking and communities in Georgia. As variety of air quality-related matters, Assoc., 531 U.S. 457 (Feb. 27, 2001) Sam Williams of the Metro Chamber including Title V, New Source 18. American Trucking Assoc. v. EPA, recently observed, air quality issues Review and regional haze. 283 F.3d 335 (D.C. Cir. March 26, 2002). are largely the products of strong 19. Memorandum from Jeffrey R. Debra S. Cline is an economic growth and a public per- Holmstead, Assistant Administrator, ception of a good quality of life, i.e., associate in the Atlanta EPA to Regional Administration, areas have air quality issues because office of Troutman Regions I-X (April 1, 2003) Sanders LLP, where she 20. American Lung Assoc. v. people want to live in and work in is a member of the Whitman, No. 022239 (D.D.C. Nov. those areas. Environment and 13, 2002). Nonattainment status does, how- 21. “Curbs on Particle Smog Planned; Natural Resources Practice Group. ever, mean that industrial sources in Cities Face Tighter Federal Her practice specializes in air quali- Regulations,” The Atlanta Journal- these areas must consider new SIP ty compliance, permitting (includ- Constitution (Oct. 30, 2003). requirements in their planning and ing New Source Review and Title 22. 42 U.S.C. § 7513a expansion plans. Yet these addition- V) enforcement, and due diligence 23. 42 U.S.C. § 7410(a) 24. 42 U.S.C. § 7410(k) al considerations are manageable investigations. Specifically, Cline’s 25. 42 U.S.C. § 7502 through a proactive approach by the experience includes representation 26. 42 U.S.C. § 7511(b) regulated community and local gov- of electric utility, airline, chemical, 27. 42 U.S.C. § 7503 ernments. Perhaps the greatest hur- pulp and paper, and landfill com- 28. 42 U.S.C. § 7502(c) and 7511a(c) 29. A 1997 study by Research Atlanta, dle in addressing the nonattainment panies. Cline received her undergraduate degree in 1993 from Inc., summarized the issue for the issue is overcoming misinformed Atlanta area as follows: There are Dartmouth College and her law perceptions about nonattainment any number of cities in the south- degree in 1998 from Tulane designation. As these new designa- eastern United Sates that do not University School of Law. have Atlanta’s air quality prob- tions are implemented in Georgia, it lems. Industry seeking to relocate is critical that city and county gov- Endnotes would find it less expensive to locate in those cities than to locate ernments, industrial sources, and 1. 42 U.S.C. § 7409 in the Atlanta metropolitan area, environmental agencies work coop- 2. 42 U.S.C. § 7407(d)(4) an area burdened by sanctions for 3. 42 U.S.C. § 7407 eratively to educate the public—and not meeting air quality standards. 4. 42 U.S.C. § 7407(d)(1)(A) “The Costs of Nonattainment: one another—about the real world 5. 42 U.S.C. § 7407(d)(1)(A) Atlanta’s Ozone Imbroglio.” impacts of nonattainment. 6. 42 U.S.C. § 7407(d)(1)(B) Research Atlanta, Inc. (1997). 7. 62 Fed. Reg. 38856 (July 18, 1997) 30. U.S. Census Bureau. State and 8. American Trucking Assoc. v. EPA, Randy E. Brogdon is a Metropolitan Area Data Book, 283 F.3d 355 (D.C. Cir. March 26, partner with the Atlanta 1997-98, A statistical Abstract 2002). Supplement, Table B-1: Metro office of Troutman 9. Memorandum from Jeffrey R. Areas — Area and Populations; Sanders LLP, where his Holmstead, Assistant U.S. Census Bureau; Washington, practice specializes in Administrator to Regional DC, April 1998; Ranking Tables for Administrators, Regions I-X (Nov. air quality compliance, Metropolitan Areas: 1990 and 2000, 14, 2002) (“Holmstead Memo”) permitting, and enforcement action Table 4 Metropolitan Areas 10. 69 Fed. Reg. 23951 (April 30, 2004) response. Brogdon is a 1994 gradu- /Ranked by Numeric Population 11. 68 Fed Reg. 32802 (June 2, 2003) Change: 1990-2000; Census 2000 ate of the University of Oklahoma 12. Letter from Harold F. Reheis, PHC-0T-3; U.S. Census Bureau: College of Law and is a member of Director, Georgia Dept. of Natural Washington D.C, April 2, 2001. the Georgia and Arizona State Bar Resources, Environmental 31. 68 Federal Register 55469 (Sept. 26, Protection Division, to Mr. James I. Associations, and related environ- 2003). mental law sections. Prior to his Palmer, Jr., Regional Administrator, U.S. EPA (July 15, 2003). June 2004 31 6-04GBJ.qxp 5/11/2004 5:06 PM Page 32

Georgia’s Hazardous Site Response Act: Growing Pains for Georgia’s Baby Superfund

he Comprehensive Environmental Response, Compensation and By Robert D. Mowrey and 1 Shelly Jacobs Ellerhorst Liability Act (formally known as CERCLA) and its state counterparts T place enormous power in the hands of both the government and the courts to require “polluters” to pay for the vast

costs of cleaning up the legacy of this nation’s

industrial development. These statutes define “pol-

luter” quite broadly, often sweeping a huge cross

section of parties into a strict, joint and several, and

retroactive liability net.2 An aggressive application

of these statutes has resulted in the targeting, in

some circumstances, of corporate officers and direc-

tors, parent and other affiliated corporations, and

lenders. Plus, the potentially harsh application of

these statutes has substantial political support. As

part of the 2004 elections, the Sierra Club is running

prominent television advertisements in battle-

ground states against the Bush Administration car-

rying the tag line: “Make the Polluter Pay.”3 An article of faith among advocates of federal and state superfund liability is that the statutes’ coercive aspects should be upheld as a legitimate exercise of the police power; that all doubts should be resolved in favor of broad liability because the statutes are “remedial” in nature; and that governmental cleanup mandates, no matter how questionable, should be immune to challenge. These beliefs are increasingly under question. The federal Court of Appeals for the D.C. Circuit recently authorized a challenge to the constitutionality of certain of CERCLA’s most coercive features.4 The U.S. Photo courtesy of the Environmental Protection Agency

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Supreme Court has granted certio- Environmental Protection Division most of which will be borne by the rari to review the widespread use (EPD) reports that over 90 percent private sector.11 EPD disagrees, but of CERCLA by private parties to of Compliance Status Reports—the acknowledges that a typical site bludgeon others into paying for first step in investigating a HSRA may cost $2.45 million to clean up cleanup costs.5 And, in 2002, site—receive a “Notice of and that the overall program costs Congress passed legislation to Deficiency.” Environmental and may hit $1.2 billion.12 address at least a few of the most community groups point to this The regulated community claims onerous aspects of CERCLA and to statistic as proof that the regulated that, whatever the real price tag, it otherwise protect certain small community intentionally thwarts is unnecessarily high because of the businesses commonly caught up in HSRA’s mandates in an effort to flaws in the HSRA Rules.13 CERCLA’s web.6 undermine the program and make Examples: Against this backdrop, Georgia’s enforcement unlikely given EPD’s n EPD has required expensive principal program for identifying limited resources. The regulated investigations even where and cleaning up historic contami- community, on the other hand, cleanup is not required. At one nation has faced considerable con- sees this statistic as a symptom of Atlanta-area site, EPD accepted troversy of its own. The Hazardous serious problems inherent in the the property owner’s calculation Site Response Act (HSRA) was HSRA program: unrealistic rules, regarding groundwater cleanup enacted in 1992 to “protect human inflexible requirements, and a fail- levels that showed that once soil health and the environment” by ure to correlate requirements to removal was complete, no active requiring “responsible parties” to tangible environmental benefits. groundwater cleanup would be investigate and clean up hazardous necessary. Yet, because HSRA’s substances in the environment.7 HOW COSTLY Rules require contaminants to be Usually, the hazardous substances IS HSRA? “delineated” to “background,” are a result of long-past practices EPD required the owner to that were the standard of the day. No certain method to project install numerous additional Often, the “responsible party” in HSRA’s costs exists and precise fig- groundwater monitoring wells, fact had little or no involvement in ures are not known. Although most including expensive wells the creation of the hazardous site. HSRA costs will be incurred by the drilled into bedrock, to meet the Sometimes, the “hazardous condi- private sector (at least 65 percent of requirement that the contami- tion” has little realistic potential to all identified sites are expected to nant plume be surrounded by 8 actually threaten human health or be funded by private parties), wells showing no detection. No the environment. And frequently, costs projected by EPD shed some apparent environmental protec- if there is a potential threat, it could light on the question. As of a 2001 tion was derived from this prac- be relatively easily managed in state audit of the program, EPD tice, but the additional work cost ways not allowed under the HSRA expected to fund the cleanup of the property owner nearly regulatory structure. approximately 9 percent of known $100,000. In fact, the HSRA regulatory sites where no “responsible party” n At a number of sites placed on scheme is viewed by some as among could be found. EPD also expected the HSRA list because of their the most rigid and expensive state to provide partial reimbursements potential for harm through expo- superfund programs in the nation, to local government to assist with sure to surface soils, the rules leading, in a number of instances, to their obligations at sites, which have required expensive substantial pain—the expenditure of comprised 23 percent of known groundwater investigation and 9 time, money and energy—for little sites. For this fraction of the HSRA cleanup even though the original environmental gain. universe, EPD projected costs evaluations of the sites showed 10 Have the controversies that swirl exceeding $240 million, and that groundwater exposure itself around HSRA impeded the effec- many believe that figure is a sub- did not pose sufficient risk to tiveness of the program for those stantial underestimate. Using an justify listing the site. sites that unquestionably pose a admittedly unscientific survey, an n At non-industrial sites through- risk to human health or the envi- industry group has stated that out the state, the HSRA soil ronment? Perhaps. The Georgia HSRA costs could hit $5 billion, cleanup standards are applied to

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soils at whatever depth they are unlikely ever to occur. For example, deposited in other ground at an found—even if they are beneath the statute sets cleanup standards for engineered landfill, where it would pavement or structures—despite soils at levels that are scientifically often be far less expensive to engi- the fact that these cleanup stan- based on assumptions involving neer exposure barriers in place. dards are based on assumptions daily exposure to a hypothetical resi- The responses to these critiques that people will come into phys- dent over a period of up to 30 years. fall in two categories. First, the argu- ical contact with those soils. These standards apply to soil, even at ment goes, since no one can predict Thus, millions of dollars have great depths, having little or no all future land use scenarios at a site, been spent digging up soils at potential to result in any human particularly into the distant future, great depth or soils beneath con- exposure, much less daily exposure we cannot be sure what future crete barriers that have no real for 30 years. Likewise, groundwater exposures might occur at a particu- potential to cause harm. cleanup standards are generally cal- lar site. Thus it is “safer” to assume These are a few of the examples culated from an inflexible assump- the type of daily exposures noted of how HSRA’s Rules are applied, tion that groundwater at a property above even if they are not now real- and it is the philosophy that under- will be used, daily, as drinking water. istically likely. Second, there are lies these applications that has In many of these cases, residents will external costs to remedies that leave caused controversy. never drink the groundwater. contamination in place, including The second critique is largely a the cost of long-term monitoring THE DEBATE function of the first: that in most and tracking by the government, instances HSRA requires nearly and perceived costs to a community Members of the regulated com- complete removal of contamina- that must live with the assumed munity initially touched off a tion—sometimes at extraordinary stigma associated with such a site. debate on the appropriateness of expense—without consideration of An additional moralistic argument the HSRA Rules in 2001, advancing whether effective technologies or is advanced, by some, that it is justi- a white paper critiquing HSRA engineered barriers could be uti- fiable to make the “polluter” pay, when the statute’s funding mecha- lized to safely and more cost-effec- notwithstanding that HSRA’s no- nism was subject to legislative tively manage the material in its fault net captures many parties hav- renewal. That white paper recom- place. Contamination is often dug ing little or no culpability for the mended substantial reforms to out of the ground only to be re- conditions at these sites. HSRA. EPD responded fiercely by claiming that such reforms were unnecessary. Subsequently, a series of discussions have taken place between the regulated community, EPD, and environmental and community groups to attempt to find common ground on potential HSRA reforms. Boiled down, the debate centers on the regulated community’s claim that HSRA often results in unnecessary expenditures to control merely hypothetical risks and that the program makes many practical solutions unavailable. This critique centers largely on two points. First, the HSRA Rules assume (and therefore require actions to protect against) hypothetical exposures by people to

hazardous substances that are Agency Photo courtesy of the Environmental Protection

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THE HSRA Source Material as “a reservoir for migration of regulated substances.”15 DIALOGUE AND The original HSRA Rules How EPD applies this rule will referred to “source material” but 2003 HSRA RULE determine the significance of the did not define it. The importance change. For example, the rule itself AMENDMENTS of a definition centers on the fact does not establish the degree of that cleanup standards apply to demonstration that a party might From the regulated community’s source materials. The 2003 changes be required to make to prove that critique of HSRA and EPD’s reac- added the following definition of something will not be considered a tion has been born a process to “source material” to the rules: source material. EPD’s approach engage in a regular dialogue “any material[s] . . . that act or may will have a major practical effect on among HSRA’s stakeholders—con- likely act as a reservoir for migra- whether this rule change materially tinuing as of this writing—to sys- tion of regulated substances . . . or helps the regulated community. tematically discuss whether rule acts as a source for direct expo- changes can be agreed upon to sure.”14 The prior rules required More Reasonable make HSRA more cost effective. that all source material had to be Non-residential That dialogue has resulted in “removed or decontaminated,” Standards for Soil some initial progress in the form of therefore effectively precluding rule changes enacted in 2003. While the possibility of in situ remedia- The HSRA Rules establish sepa- some view these changes as too tion (e.g., adding a material such rate soil cleanup standards for resi- modest, they are a welcome first as cement to contamination to ren- dential and non-residential sites.16 step and set the stage for potential der it immobile and harmless in Within each category, a party may additional reforms through contin- the ground). The new definition choose to apply default cleanup ued discussion. The most signifi- allows for the possibility of using standards or to calculate partially cant rule changes are outlined in situ solidification—often far less site-specific risk-based standards. below along with a brief discussion expensive than excavation—to For non-residential properties, the of the implications of each. render material incapable of acting default standards are Type 3 standards, and the calculated standards

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Under the old rule, Type 5 standards removal or treatment of groundwater is required at the downgradient allowed waste and soil to remain in place, limit of the controls. This change makes HSRA more realistic because but required that institutional controls be it recognizes the reality that in some instances it is more sensible to con- used to prevent the contamination from trol, and not completely clean, contaminated groundwater.21 spreading and to prevent exposure to the Type 5 Soil waste or contaminated soil. Exposure Averaging are Type 4 standards. In many (but ed community centers on this Another critique raised by the not all) cases, using a Type 4 restrictive interpretation. In any regulated community is that the approach results in slightly less event, there are significant numbers HSRA soil cleanup standards are stringent cleanup standards. of closed landfills in Georgia, so the inappropriately applied on a Under the old rule, an anomaly standard is important. “bright line” basis. In other words, existed with respect to Type 4 stan- Under the old rule, Type 5 stan- if the cleanup standard for a partic- dards, making them more costly dards allowed waste and soil to ular substance in soil is 100 parts per than Type 3 standards. Type 4 soil remain in place, but required that million, the cleanup must achieve standards required the entire soil institutional controls be used to 100 parts per million or lower in all column to achieve the same prevent the contamination from soils at the site. Although this rule cleanup standards—they did not spreading and to prevent exposure seems sensible at first blush, the differentiate between subsurface to the waste or contaminated soil. reality is that the science used to and surface soil. Under the new The Type 5 standards for ground- derive the 100 parts per million rule, the Type 4 soil standards state water, however, required that all standard is based on a hypothetical that exposure-based criteria apply groundwater be cleaned up essen- person exposed on a daily basis only in the “surface soil.”17 Type 3 tially to Type 1 through 4 stan- over a number of years to 100 parts standards define “surface soil” as dards, including the areas directly per million on average. Thus, it is “soil within two feet of the land sur- beneath the waste. This rule results argued, that the average exposure at face.”18 This change may reduce the in a highly questionable use of the site should equate to 100 parts cost of cleanups at many non-resi- resources, not to mention the likeli- per million, and the use of soil expo- dential sites because the regulated hood that the standard could never sure averaging methodologies community will find the Type 4 risk be reached in many cases. should be allowed. Depending on based standards more attractive. The new Type 5 standard for the dispersion of hazardous substances at a site, the bright line Type 5 Standards groundwater gives a responsible party two additional options in lieu approach can double or triple the for Groundwater of cleaning the groundwater. If all amount of soil requiring removal. The HSRA Rules recognize situa- of the source material at the site is EPD steadfastly rejected consid- tions where a remedy will necessar- removed or treated, then the ering use of exposure averaging on ily involve leaving contamination responsible party can implement Type 1 through 4 sites. However, in place, where removal or deconta- institutional controls, engineering the agency did agree to change the mination is “not appropriate under controls and monitoring to ensure HSRA Rules to allow this methodol- 22 the present circumstances.”19 This that the groundwater: does not ogy at Type 5 sites. (As noted standard leaves EPD with wide dis- migrate beyond the limits of the above, Type 5 sites are generally cretion as to when to use this Type controls; does not “increase in con- closed landfills, where in all likeli- 5 cleanup standard, and EPD’s centration or toxicity . . . at the lim- hood the hypothetical person expe- approach essentially has been to its of the controls;” and is not riencing a daily exposure for a peri- limit its use to closed landfills. A exposed to regulated substances.20 od of years does not even exist). serious, and still unresolved, dis- If all the source material at the site Once the cleanup standard is pute between EPD and the regulat- is not removed or treated, then the achieved on an average basis at a

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Type 5 site, engineering and institu- Environmental Law at Emory 8. Performance Audit Operations tional controls must permanently University School of Law, and he Div., Ga. Dep’t of Natural Res., speaks and publishes regularly on Follow-Up Review: Sufficiency of the maintain the exposure conditions Hazardous Waste Trust Fund (2001) on the site consistent with the aver- environmental issues. He earned available at aging methodology. The benefits of his J.D., cum laude, from the http://www.audits.state.ga.us/int University of Chicago Law School, this rule change are not as dramatic ernet/pao/paorpts/pao-01- where he was a member of the 0204fur.pdf. as they would be on Type 1 through University of Chicago Law Review. 9. Id. 4 sites, because Type 5 assumes 10. Dep’t of Audits, Ga. Dep’t of He earned his B.A., summa cum leaving contamination in place. Natural Res., State of Georgia laude, from Wittenberg University Program Evaluation: Sufficiency of Nevertheless, the rule change in Springfield, Ohio. the Hazardous Waste Trust Fund should make achieving a remedia- (1999) available at tion at a Type 5 site more feasible. Shelly Jacobs http://www.broc.state.ga.us/pdfs Ellerhorst, an associate p262p262_306.pdf. 11. Ga. Indus. Envt’l Coalition, Making CONCLUSION: at Alston & Bird LLP in HSRA Cost Effective…Still Protective THE DEBATES Atlanta, is a member of (2001) (White Paper on file with the firm’s authors). CONTINUE Environmental and 12. Response Letter from Harold F. Land Use Group. She received her Reheis, Director, Ga. Envt’l Prot. The rule changes discussed above Div. to Carol Jackson, Ga. State J.D., with honors, from Emory are, in the view of many in the busi- Senator and Tom E. Shanahan, Ga. University School of Law in 2003. State Representative (Oct. 25, 2001) ness community, a small but useful While at Emory, she served as man- (on file with authors). step forward toward the goal of aging editor for the Emory 13. As required by the statute, the shaping a program that more International Law Review, and she Board of Natural Resources has appropriately calibrates scientifical- was a student attorney with the enacted a series of rules, adminis- tered by the Environmental ly recognized risks and costs. The Turner Environmental Law Clinic. Protection Division (EPD), to program still involves too many Ellerhorst received her B.A., cum implement HSRA (the “HSRA instances where substantial costs laude, from Wake Forest University. Rules”). See GA. COMP. R. & REGS. are incurred for little if any cogniz- r. 391-3-19-.01 to -.09 (2003). The Endnotes HSRA Rules include procedures able environmental protection. for notifying EPD of the discovery 1. 42 U.S.C. §§ 9601 – 9675 (2003). With that critique in mind, the par- of contamination, the process for 2. Id. at § 9607(a). listing sites on HSRA’s Hazardous ties to the HSRA dialogue agreed, 3. Sierra Club, Communities at Risk Site Inventory (HSI), requirements after the rule changes were complet- (visited March 29, 2004) available at for investigating listed sites, http://www.sierraclub.org/press- ed, to continue meeting, although cleanup standards for listed sites, room/media/. and requirements for placing without formal procedures. 4. See Gen. Elec. Co. v. EPA, No. 03- notices on deeds and deed records Stakeholders now meet roughly 5114, 2004 WL 374261 (D.C. Cir. concerning the presence of con- March 2, 2004). quarterly, and continue to debate tamination on certain sites. 5. Cooper Indus., Inc. v. Aviall the issues. Only time will tell 14. GA. COMP. R. & REGS. r. 391-3-19- Servs., Inc., 124 S. Ct. 981 (2004). .02(2)(y) (2003). whether this process will result in 6. The Small Business Liability Relief 15. See id. further reform or will instead stall, and Brownfields Revitalization 16. See id. at 391-3-19-.07. Act, Pub. L. No. 107-118, 115 Stat. and, if the process stalls, whether 17. Id. at 391-3-19-.07(9)(d)(2). 2356 (2002) (codified as amended some stakeholders will seek legisla- 18. Id. at 391-3-19-.07(8)(d)(2). in scattered sections of 42 U.S.C. §§ 19. Id. at 391-3-19-.07(10)(a). tive relief from a program they view 9601-9628). 20. Id. at 391-3-19-.07(10)(d)(4). as substantially flawed. 7. O.C.G.A. § 12-8-90 (2001). HSRA’s 21. An open issue is whether these liability provisions were, at the time additional groundwater choices of its enactment, largely comparable Robert D. Mowrey is will be available when Type 1 to CERCLA’s liability provisions at through 4 standards are used for a partner at Alston & that time. See generally, Robert D. soil cleanup. Bird LLP in Atlanta. He Mowrey, Georgia Goes Superfund: 22. GA. COMP. R. & REGS. r. 391-3- is the chair of the A Look at the New Georgia 19-.07(10)(d)(5) (2003). firm’s Environmental Hazardous Site Response Act, 44 and Land Use Group. MERCER L. REV. 1 (1992). A number of CERCLA liability provisions have Mowrey is an adjunct professor in since been amended. See supra n. 6.

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GBJ feature

Environmental Groups in Georgia —Searching for a Tipping Point By Allison Burdette and Chad Baum While researching this article, it is not a zero sum game. Instead ithin Georgia became clear to us that each of the environmental protection is a nec- groups, whether they would express essary partner in the quest for long- resides a host of it in this manner or not, are seeking term economic vitality. environmental the elusive “tipping point.” As Gladwell also states in his book W Malcom Gladwell explains in his that for an organization to reach a groups that are striving to protect national bestseller by that name, a tipping point it must have: “the and improve the air we breathe, the tipping point is reached when, for bedrock belief that change is possi- instance, a marketer is able to con- ble, that people can radically trans- water we drink, and the natural vince a critical mass of people that form their behavior or beliefs in the they absolutely need the marketer’s face of the right kind of impetus.”4 resources we enjoy. This article fea- product and the run on the product All of the groups profiled in this arti- 2 tures four of these groups—the becomes an “epidemic.” According cle share this bedrock belief as they to Gladwell, every epidemic has a work to foster in a new era of envi- Georgia Conservancy, the Upper tipping point, the “place where the ronmental awareness in Georgia. unexpected becomes expected, In the following, we provide Chattahoochee Riverkeeper, the where radical change is more than a some background for each group, Southern Environmental Law possibility.” and then discuss the mission, One of Gladwell’s favorite exam- accomplishments, and goals of the Center and the Georgia Center for ples is when New York City was groups. Finally, we discuss the able to turn the direction of its tools and techniques that each Law in the Public Interest.1 What crime rate around by paying atten- group uses to achieve its goals and follows is based on published orga- tion to the “little things” like graffi- fulfill its mission. ti, broken windows and even jay- ENVIRONMENTAL nizational materials, as well as inter- walking. Once New Yorkers inter- nalized the message that crime of GROUPS views with key members of each any kind was not acceptable, the Georgia Conservancy group—John Sibley, president of the crime rate reached its tipping point and even the most violent crime Background Conservancy; Sally Bethea, execu- statistics began to plummet.3 By our count, the Georgia tive director of the Riverkeeper; In a similar vein, the environ- Conservancy is the oldest and most mental groups are striving for their established of Georgia’s environ- Ciannat Howett, director of the own tipping point—the day when mental organizations. It is a the environmental ethic begins to statewide organization with offices Georgia/Alabama office of SELC; sweep across Georgia with such in Savannah, Moultrie, Columbus and Justine Thompson, executive force that citizens, policy makers, and Atlanta. More than anything and corporations all come to real- else, the Georgia Conservancy director of the Georgia Law Center. ize that environmental protection works to bring citizens, organiza-

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tions and experts together to craft Goals for 2004 and Beyond Atlantic Station. In the end, solutions to environmental issues During our talk, Sibley identified Homepark decided to become part that range from the neighborhood water pollution and usage issues of the evolving and dynamic to the statewide level. Teamwork is together as the number one envi- Atlantic Station community. the word that comes to mind after ronmental priority for Georgia As Malcolm Gladwell would talking to John Sibley. “We find right now. Georgia has a finite say, the Georgia Conservancy is an that the most can be done by bring- water resource, and it is time that organization of “connectors” that is ing people together to work out we all come to realize it. With the seeking the environmental tipping solutions,” he said. “And we are Georgia Water Coalition in place, point by building coalitions.10 especially good at bringing people the Conservancy is well positioned together.”5 to move forward on this vital issue. Upper Chattahoochee Georgia Conservancy Another goal of the Conservancy Riverkeeper Mission is to help Georgian’s see that “air Background The Georgia Conservancy’s mis- quality is a health issue for every 8 The Upper Chattahoochee River- sion is to “make sure Georgian’s family.” In short, Sibley would keeper has been protecting the have healthy air, clean water, like to reach a tipping point on air. Chattahoochee River Basin from unspoiled wild places and commu- Perhaps a Georgia Air Coalition is the north Georgia mountains to nity green spaces now and in the in the works? West Point Lake for almost 10 future.”6 Tools and Techniques years. It is part of the Waterkeeper Sibley credits the Conservancy’s Recent Accomplishments Alliance that includes 115 other reputation for integrity as its most One of the best examples of how Riverkeeper organizations across important tool in working to pro- the Georgia Conservancy em- the nation. Other Riverkeepers in tect Georgia’s natural resources. ployed its approach to environ- Georgia cover the Altamaha, This integrity is instrumental in the mentalism was in the formation of Canoochee, Savannah, Coosa and Conservancy’s coalition building. the Georgia Water Coalition. Over the Lower Chattahoochee Rivers. The Conservancy also favors edu- 80 different groups banded Sally Bethea has been at the helm of cation, advocacy and facilitation together to form this coalition that the Upper Chattahoochee River- over litigation. It is rare that you has as its mission the protection of keeper from its inception. With her will see the Conservancy’s name water quality and water usage in boundless energy and boundless featured in the style of a pleading. the state. The Georgia Conserv- knowledge of this stretch of the The Georgia Conservancy’s ancy, together with the River- river, Bethea might best be charac- “Blueprints for Successful Comm- keeper and the SELC, played a terized as one of Malcolm unities” is an illustration of what crucial role in organizing this Gladwell’s “mavens”—a person makes this organization so success- group that has been very effective critical to reaching a tipping point ful. The Blueprints approach brings in helping shape how Georgia pro- because of the knowledge and together community leaders, engi- tects its water resources. insight she brings to an issue.11 neers, architects and transportation The Georgia Conservancy Bethea was recognized for her engineers to help, as Sibley stated, helped build another coalition grasp of Georgia’s environmental “Communities understand choices, recently, one that was successful in issues, when she was appointed to and envision their own best possi- stopping the Northern Arc. But the Department of Natural ble communities.”9 Community, in their work has not stopped there; Resources Board by then Gov. Roy the Blueprints context, can be this effort is part of a bigger push to Barnes. change the way Atlanta thinks defined as narrowly as a neighbor- UCR’s Mission about transportation and land use. hood or as broadly as a county or The Riverkeeper’s mission is “to As Sibley stated, “Thoughtful lead- river basin—anywhere individuals advocate and secure the protection ers from around Atlanta have come have a shared vision of communi- and stewardship of the Chatta- to understand that sprawl is bad ty. The Homepark Neighborhood, hoochee its tributaries and water- for business and bad for the envi- which abuts the Atlantic Station, shed in order to restore and con- ronment.”7 participated in Blueprints to decide how it should interface with serve their ecological health for the

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people, fish and wildlife that canoed or kayaked down the eight- 2004, Riverkeeper premiered an depend on the river system.”12 mile course. Bethea feels that once interactive CD-Rom that provides a people get back on the river and virtual tour of the river. This CD- Recent Accomplishments take ownership of it, they will Rom will be distributed to schools The Riverkeeper has played a become better stewards of the as an educational tool. critical role in remedying the Chattahoochee and all environ- Atlanta sewer problems. Through mental resources across the state.14 Southern Environmental legal action, Riverkeeper was able Law Center to help the city of Atlanta realize Goals for 2004 and Beyond For 2004, Riverkeeper will largely that it needed to address the city’s Background focus on protecting stream buffer antiquated sewer system that, for “The SELC is the leading envi- zones and controlling storm water decades, had been spilling millions ronmental organization dedicated runoff from construction and indus- of gallons of untreated sewage into to protecting the natural resources trial sites. A vegetated streamside the Chattahoochee and its tributar- of the South.”16 SELC has five buffer can help prevent most of the ies during and after storm events. offices and covers six states— run-off from roads, parking lots, live- Now the Riverkeeper is a strong North and South Carolina, stock manure, and agricultural fertil- voice, seeking diverse funding Virginia, Tennessee, Georgia and izers from entering state waters. In sources to fix the $2 billion prob- Alabama. It was founded in 1986 its 2004 Session, the General lem. In addition to overseeing the by Rick Middleton. Middleton, Assembly debated Senate Bill 460, a city’s compliance with the federal who had been active in national bill that would have weakened consent decree, Riverkeeper also environmental organizations, felt stream buffer protection laws.15 advises the city’s $25 million green- that there was a need for an envi- Needless to say, the Riverkeeper way acquisition program—a sup- ronmental organization focused fought hard against this bill until the plemental environmental project exclusively on the Southeast. objectionable portions were negotiated in lieu of massive fines Recognizing that the Southeast is removed. Unfortunately, this issue is for the city’s pollution of the river. important ecologically because of sure to arise again and Riverkeeper Another notable accomplish- its many rivers, coastline, moun- and the Georgia Water Coalition will ment came through the River- tains, and forests, SELC is dedicat- have to mobilize again. keeper’s work with the Georgia ed to giving this area of the country Water Coalition last year, which Tools and Techniques the special attention it deserves. helped defeat House Bill 237,13 a Two-thirds of Riverkeeper’s time Mission water privatization plan, which is devoted to advocacy—comment- SELC’s mission, as explained by would have allowed Georgia’s ing on state and local permits and Ciannat Howett, is to “protect the water resources to be sold to the regulations, investigating com- natural places and our quality of highest bidder. This year the plaints, involving citizens in river life in the South.”17 Within this Riverkeeper and the Georgia Water advocacy, legislative work and liti- mission, SELC has five primary Coalition were able to help secure gation. One example of this advoca- areas of focus: the coast and wet- the passage of an improved House cy is the role Riverkeeper is playing lands, national and private forests, Bill 237 that calls for the develop- in the battle over Gwinnett water quality, air quality and land ment of a statewide water manage- County’s permit to release 40 mil- use planning. ment plan. This legislation has lion gallons of treated sewage into been touted as being one of the Lake Lanier. Bethea argues that this Recent Accomplishments most important pieces of legisla- is a precedent setting permit so the SELC recently helped score an tion in recent history. standards set must clearly protect important victory when it won a An accomplishment of a differ- human health and the environment. case before the Eleventh Circuit ent sort was the first Back to the The other third of Riverkeeper’s Court of Appeals18 against the EPA Chattahoochee Race and River focus is on education—activities as requiring the agency to address Festival that was held last June. diverse as in-school programs, sci- Atlanta’s ozone pollution problem. Despite a downpour on the morn- ence teacher education, water test- The court held that in reviewing ing of the race, over 200 people ing and boat trips. In February the state implementation plan for

40 Georgia Bar Journal 6-04GBJ.qxp 5/11/2004 5:07 PM Page 41

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the greater Atlanta metropolitan Georgia, Florida and Alabama the courtroom, its skilled court- area, the EPA had illegally extend- over allocation of water in the room lawyers are capable of pro- ed deadlines for the state to come Apalachicola, Chattahoochee and viding a persuasive voice for envi- into compliance with the Clean Air Flint water basin broke down last ronmental protection when pre- Act. This case is leading to tighter summer. Therefore, these issues senting their case to a judge or emission restrictions in the Atlanta are currently being litigated by hearing officer. area. these three states. SELC is part of When deciding to bring a legal SELC also recently won an the Tri-State Conservation challenge, SELC attorneys consider important case in Fulton County Coalition, an organization of first, the importance of the resource Superior Court that will help pro- about 50 conservation groups being threatened and the potential tect Georgia’s unique and fragile from the three states. As part of health threat involved. Second, the coastal marsh hammocks—small its role in the coalition, SELC is attorneys consider the precedent islands that lie nestled in coastal closely monitoring the litigation. that the case will set. And third, marshlands—that are facing terrif- The outcome of the battle over the they consider their chances of pre- ic development pressure.19 Each of water contained in this watershed vailing. Through all of this, of these cases raised public awareness is critical to all interested parties. course, they pay particular atten- and the level of protection for the SELC is fighting to ensure that tion to their clients that bring them natural resources involved. the environment gets its due the cases. They represent a wide Goals for 2004 and Beyond when put up against other water range of clients, including local interests such as industry and groups like the Altamaha SELC has ongoing projects in municipal water supply. Riverkeeper, and national environ- each of its five practice areas. Two mental groups such as the Sierra areas of focus this year are wetland Tools and Techniques Club and the National Wildlife preservation and water allocation SELC uses several types of advo- Federation. issues. cacy to fulfill its mission, working in Recent federal court decisions all three branches of government— such as the U.S. Supreme Court’s the courts, legislatures and agen- Georgia Center for Law decision in Solid Waste Agency of cies—and on a state and national in the Public Interest Northern Cook County20 have led level to protect the environment of some federal agencies responsible the South. SELC works in partner- Background for regulating wetlands to pull ship with other environmental The first of its kind in Georgia, back on the protections they offer organizations to support and com- the Georgia Center for Law in the these vulnerable ecosystems. As a plement environmental protection Public Interest was founded in result, SELC is keeping a careful efforts with legal expertise. Athens in 1992, by a small group eye on the Army Corps of Like fixing the broken windows of lawyers, judges and academics Engineers and the Environmental in New York or cleaning the graffi- that recognized the essential Protection Agency to ensure that ti off of subway trains, simply need for a powerful public inter- the corps and EPA are vigilant in showing that someone is paying est legal group to effectively chal- fulfilling their responsibilities to attention can spawn dramatic lenge illegal industry and gov- protect the wetlands in the South. changes. SELC shows someone is ernment actions that have This is no easy task considering paying attention in Congress and degraded Georgia’s environ- that wetlands law is in a state of state legislatures by testifying on ment. Originally, the Center’s flux and development pressures proposed environmental law and activities focused primarily on are reaching a fever pitch. policy, in regulatory agencies by cleaning up Georgia’s rivers. Water allocation is a dominant providing guidance on implemen- Now located in Atlanta, the issue in Georgia, particularly as tation of the law, and in the courts Georgia Law Center has expand- Atlanta and its surrounding by setting legal precedents and ed its focus to include reducing counties demand increasing stopping environmental abuses. unhealthy air pollution, protect- amounts of water for continued Although SELC would much ing endangered and threatened growth. Negotiations between rather rely on persuasion outside of species, and ensuring that disad-

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vantaged communities are not the Center helped to close Waste of nitrogen oxides, which is the disproportionately impacted by Management’s Live Oak landfill. same as taking all cars and trucks unhealthy pollution. This important and precedent set- off of metro-roads for over 200 Mission ting victory reflects the Georgia days. Law Center’s efforts to empower Justine Thompson described the Goals for 2004 and Beyond disadvantaged citizens. Georgia Law Center’s mission as The Georgia Law Center is going Like SELC, the Georgia Law providing “free legal and technical to continue to work toward ensur- Center works with partner envi- assistance to Georgia’s communi- ing that the Clean Air Act23 and the ronmental organizations to help ties to help them achieve their Clean Water Act24 are implement- achieve shared goals. The Georgia goals of reducing unhealthy air ed correctly. It also plans to contin- Law Center is currently working pollution and preventing toxic pol- ue to provide legal representation cooperatively with Sierra Club and lutants from reaching our rivers for communities at risk from inad- Riverkeeper to prevent dirt from and lakes.”21 The Georgia Law equate environmental protection. leaving construction sites and Center also fights for environmen- In working to achieve its goals, entering Georgia’s waterways. The tal equality. As the organization’s Thompson emphasized the need to Georgia Law Center has chosen to mission statement points out, the continue to act as a “part of a com- focus on this type of pollution, benefits of the vast increase in envi- munity; nothing we do is alone.” because it is the number one source ronmental regulation in the past 30 of water pollution in the state. Tools and Techniques years has not accrued to all Other Georgia Law Center The Georgia Law Center operates Americans equally. “People of actions have included successful much in the same way as SELC, in color and low-income Americans efforts to reduce harmful power that it uses the courts and targeted often suffer disproportionately plant emissions as part of the litigation to get its message across. from the effects of toxic pollution. . Georgia Clean Air Project. These As seen from its successes, the . .”22 The Georgia Law Center actions have already resulted in the Georgia Law Center is effective and strives to ensure that environmen- reduction of more than 1,200 tons active. Thompson emphasizes that tal regulation protects all of smog-causing pollutants. In litigation is expensive and time con- Georgians equally. addition, the Georgia Law Center suming, so it is used only as a last Recent Accomplishments favorably resolved a case where resort. Like the other organizations The Georgia Law Center’s the government had failed to profiled in this article, the Georgia accomplishments include settling a implement a rule that would Law Center prefers to engage poten- complex lawsuit with one of the require the reduction of 63,000 tons tial targets of a lawsuit, whether the top 10 dischargers in the state, ITT Rayonier’s paper pulp mill on the Altamaha River. As a result of the lawsuit, Rayonier is working to develop new technologies to clean up its discharge into the river that will potentially offer a new and effective approach to cleaning up paper mill discharges nationwide. In addition, as a result of lawsuits taken on behalf of communities statewide, cities have built new wastewater treatment plants and upgraded outdated plants that had been violating federal standards. In a lawsuit in which the Georgia Law Center represented community residents in south DeKalb County,

June 2004 43 6-04GBJ.qxp 5/11/2004 5:08 PM Page 44

government or polluters, in con- she has been teaching since 1999. 11. Id. structive discussions about how to In 2004, Allison was awarded the 12. Upper Chattahoochee Riverkeeper Emory Williams Award for (visited Feb. 16, 2004) reduce pollution. In the past, litiga- . tion has resulted in productive coop- Undergraduate Teaching. Allison is 13. House Bill 237 (2003-2004). erative work to improve technology a member of the Emory Piedmont 14. Interview with Sally Bethea, Project, an affiliation of Emory to reduce pollution. Executive Director of Upper professors and students working Chattahoochee Riverkeeper in The Georgia Law Center attor- to incorporate sustainability Atlanta, GA. (Feb. 16, 2004). neys are “grassroots attorneys” 15. Senate Bill 460 (SB460). HB 237 themes into the Emory curriculum. providing tools for public advoca- was left in a conference committee She graduated with a B.A. from following the 2003 legislative ses- cy. The center works to empower the University of Tennessee in sion. The House and Senate citizens through instruction. These 1986 and with a J.D. from approved a conference committee instructions include providing Harvard Law School in 1989. report that does NOT include explanations about hard to deci- water permit trading and focuses exclusively on the development of pher environmental laws. They Chad Baum is a senior a comprehensive water manage- have developed programs specifi- at Emory University's ment plan for Georgia. cally targeted at public education Goizueta Business 16. Southern Environmental Law Center about Clean Air Act25 and Clean School. He has a con- (visited Feb. 4, 2004) . 26 centration in both Water Act permits. 17. Interview with Ciannat Howett, information technolo- Executive Director of Southern CONCLUSION gy and consulting. He currently Environmental Law Center serves on the BBA Council as chief Alabama/Georgia Office in One theme that repeated itself technology officer for the 2004-05 Atlanta, GA. (Feb. 4, 2004). throughout the interviews and in our academic year. Baum plans to 18. Southern Organizing Committee research was that all of these envi- attend law school after graduat- for Economic and Social Justice v. ronmental groups are striving to United States Environmental ing in May of 2005. Protection Agency, 333 F.3d 1288 work together. Despite subtle varia- (11th Cir. 2003). tions in their mission statements, Endnotes 19. Center for a Sustainable Coast v. they are all striving for that elusive 1. Our choice of these groups is not Coastal Marshlands Protection environmental tipping point. By meant to diminish the role that Committee, Civil Action No. other Georgia environmental 2002CV52219 (Super. Ct. Fulton working together, these organiza- groups play in protecting the envi- County Oct. 24, 2002). tions and all the other organizations ronment. There are many other 20. Solid Waste Agency of Northern like them in Georgia are much more groups that also make vital contri- Cook County v. U.S. Army Corps of Engineers, 531 U.S. 159, 121 likely to achieve true environmental butions to protecting our Georgia environment and all of them are S.Ct. 675 (2001). protection. As Gladwell states in his critical to the ultimate welfare of 21. Interview with Justine Thompson, book, “In the end, tipping points are our environment. Executive Director of Georgia a reaffirmation of the potential for 2. MALCOLM GLADWELL, THE Center for Law in the Public TIPPING POINT 56-58 (Back Bay Interest in Atlanta, Ga. (Feb. 6, change and the power of intelligent Books 2002). 2004). action. Look at the world around 3. Id. 22. Id. you. It may seem like an immovable, 4. Id. 23. Clean Air Act, 42 U.S.C.A. 7401- implacable place. It is not. With the 5. Interview with John Sibley, 7671 (2003). President of Georgia Conservancy 24. Clean Water Act, 33 U.S.C.A. slightest push—in just the right State Office in Atlanta, GA. (Feb. §1251-1387 (2003). place—it can be tipped.”27 And by 17, 2004). 25. Clean Air Act, 42 U.S.C.A. 7401- having more eyes looking for “just 6. Georgia Conservancy (visited April 7671 (2003). 26. Clean Water Act, 33 U.S.C.A. the right place,” we are more likely 9, 2004) . §1251-1387 (2003). to find it. 7. Interview with John Sibley, 27. MALCOLM GLADWELL, THE President of Georgia Conservancy TIPPING POINT 56-58 (Back Bay Allison Burdette is an State Office in Atlanta, GA. (Feb. Books 2002) at p. 259. assistant professor in 17, 2004). 8. Id. the Practice of 9. Id. Business Law at Emory 10. MALCOLM GLADWELL, THE University’s Goizueta TIPPING POINT 56-58 (Back Bay Business School where Books 2002).

44 Georgia Bar Journal 6-04GBJ.qxp 5/11/2004 5:08 PM Page 45

State Bar of Georgia Chief Justice’s Commission Committee on Professionalism on Professionalism

SIGN UP NOW FOR THE 2004 LAW SCHOOL ORIENTATIONS ON PROFESSIONALISM Two (2.0) hours of CLE credit, including 1.0 hour of Ethics and 1.0 hour of Professionalism

To introduce the concept of professionalism to first-year students, the Law School Orientations have become a permanent part of the orientation process for entering law students at each of the state’s law schools. The Committee is now seeking lawyers and judges to volunteer from across the state to return to your alma maters or to any of the schools to help give back part of what the profession has given you by dedicating a half day of your time this August. You will be paired with a co-leader and will lead students in a discussion of hypothetical professionalism and ethics issues. Minimal preparation is necessary for the leaders. Review the provided hypos, which include annotations and suggested questions, and arrive at the school 15 minutes prior to the program. Pair up with a friend or classmate to co-lead a group (Please note, if you are both recent graduates we will pair you with a more experienced co-leader)

Please consider participation in this project and encourage your colleagues to volunteer. Please respond by completing the form below or calling the Chief Justice's Commission on Professionalism at (404) 225-5040; fax: (404) 225-5041. Thank you.

ATTORNEY VOLUNTEER FORM 2004 LAW SCHOOL ORIENTATIONS ON PROFESSIONALISM Full Name (for name badge) (Mr./Ms.)______Nickname:______Address:______Telephone:______Fax:______Email Address:______Area(s) of Practice:______Year Admitted to the Georgia Bar:______Bar#:______Reason for Volunteering:______(Please circle your choice) LAW SCHOOL DATE TIME RECEPTION/LUNCH SPEAKER Emory* August 20, 2004 (Fri.) 10:00 a.m. - 12:30 p.m. 12:30-1:30 p.m. TBA Georgia State August 17, 2004 (Tues.) 3:00-5:00 p.m. 5:00 - 6:00 p.m. TBA John Marshall* August 21 (Sat. - Tentative) TBA TBA Mercer August 13, 2004 (Fri.) 2:00 - 4:00 p.m. 4:00 - 5:00 p.m. TBA UGA August 13, 2004 (Fri.) 2:00 - 4:00 p.m. (Tent.) 4:00 -5:00 p.m. TBA

Please return to: State Bar Committee on Professionalism; Attn: Mary McAfee • Suite 620 • 104 Marietta Street, N.W. • Atlanta, Georgia 30303 • ph: (404) 225-5040 • fax (404) 225-5041 • email: [email protected]. Thank You!

*All positions filled - Thank you. 6-04GBJ.qxp 5/11/2004 5:08 PM Page 46

GBJ feature

2004 Georgia General Assembly Water Legislation Update By Julie V. Mayfield

he 2004 Georgia General

Assembly was not sup- T posed to provide nearly the fireworks that occurred in the 2003

legislative session over water legisla-

tion. Last year the battle centered on

House Bill 237, which was the legisla-

tive embodiment of the work done by

the Joint House-Senate Water Plan

Study Committee (Joint Study

Committee) appointed in 2001. The

controversy in that bill was not

whether the state should begin a

statewide planning process for com-

prehensive water management;

everyone agreed that it should. Instead, the disagreements were over a provision in the bill that would have allowed holders of water withdrawal permits to sell those permits. Environmentalists believed this would privatize a common, public resource and fundamentally undermine Georgia’s current water law frame- work, while proponents of permit trading believed it was necessary for the more efficient allocation of water in drought-stricken areas of the state. Photo by Kevin B. Smith Photo by Kevin

46 Georgia Bar Journal 6-04GBJ.qxp 5/11/2004 5:08 PM Page 47

Environmentalists won that battle would include policies to guide the voted against the conference com- last year in the waning minutes of creation of river basin management mittee report. the 2003 session when the House plans and local water plans as well as The conference committee met voted down the final conference any regional water planning efforts. again in early March to hear a new committee report on HB 237. The Finally, the policy statement in the proposal from Hanner that placed conservation community later bill read, “Georgia manages water the Legislature, instead of the DNR claimed another victory when the resources in a sustainable manner to board, in the position of approving sponsor of HB 237, Rep. Bob Hanner, support the state’s economy, to pro- the plan. The Senate conferees would D-Parrott, announced last fall that he tect public health and natural sys- not agree to this and the disagree- would remove the permit trading tems, and to enhance the quality of ment was not resolved until March language in the bill and instead pro- life for all citizens.” 31, the third to last day of the session. pose a bill that would only call for The Water Council, created by The compromise agreed to by the the creation of a statewide water the bill, would be chaired by the conferees leaves everything as it was management plan. Given that prom- EPD director and would consist of in the first conference committee ise, many observers of this issue the following additional positions: report except for the final approval hoped that the 2004 legislative ses- DNR commissioner, executive process, which will work as follows: sion would be a walk in the park director of the State Soil and Water 1) the Water Council will submit the compared to last year. While the con- Conservation Commission, com- plan to the 2008 General Assembly; 2) troversy this session did not focus so missioner of community affairs, the General Assembly will indicate much on HB 237, two other water commissioner of human resources, its approval of the plan by passing a bills provided fertile ground in commissioner of agriculture, direc- joint resolution; 3) if the General which the conflicts over this valuable tor of the Georgia Forestry Assembly disagrees with the plan as resource continued to grow. Commission, and executive director submitted, the council can revise and of the Georgia Environmental resubmit the plan to the legislature HB 237 Facilities Authority. In addition, the anytime before the 20th day of the speaker of the house and the presi- session; 4) if the General Assembly As promised, Hanner brought HB dent pro tem of the Senate each does not approve the Water 237 to the 2004 session as a pure could appoint a non-legislator to the Council’s plan or create and pass its planning bill. Procedurally, at the council. Finally, the chairmen of the own plan by the end of the session, close of last session, the bill was in a House and Senate Natural the last plan submitted by the council conference committee, and it was to Resources Committees and an addi- will go into effect after the session is that committee that Hanner present- tional member from each of those over. ed his revised bill.1 The bill mandat- committees would be non-voting The House and Senate over- ed the creation of a statewide water members of the council. whelmingly passed the revised con- management plan by the Georgia This proposal was quickly ference committee report later that Environmental Protection Division agreed to by the conferees, and it day. The compromise ensures that (EPD) by 2007. The plan, which was widely supported by all con- the Legislature will have an oppor- would have to be updated every stituencies. The conference com- tunity to review and approve the three years, could be changed by and mittee report easily passed the plan, but it also ensures that Georgia would have to be approved by the Senate in early February but then will have a statewide water manage- Water Council and finally approved hit a bump in the House. Several ment plan in place by the close of the by the Department of Natural House members objected to the 2008 legislative session. There is Resources (DNR) Board. The legisla- report because it did not allow the every expectation that the governor tion required EPD to solicit “exten- legislature to vote on the plan, and will sign the legislation, bringing to sive” stakeholder involvement from they believed, gave the governor a close over three years of hard work other agencies, the business commu- too much power in creating and by hundreds of legislators, civic and nity, local governments, Regional approving the plan.2 Legislative business leaders, environmentalists Development Centers and non-prof- approval was an element of last and citizens. EPD is expected to it advocacy organizations in devel- year’s HB 237, and due to its begin developing the scope of the oping the plan. In addition, the legis- absence, the House unanimously plan this summer. lation stated that the statewide plan

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House Bill 1615 also prohibited inter-basin transfers ulation of inter- and intra-basin that cross more than two counties, transfers in place until the statewide While most of the controversial and intra-basin transfers that cross water plan was completed.6 portions of the original HB 237 were more than four counties. This This bill was amended in several dropped this year and did not arise allowed for a certain amount of significant ways as it moved in other legislation, one difficult regional planning, but prevented through the House. First, Rep. issue, inter-basin and intra-basin water from being moved long dis- Debbie Buckner, D-Junction City, transfers, proved resilient. An inter- tances. The bill also contained an proposed an amendment that basin transfer occurs when water is “anti-wheeling” provision that pro- would have left the exemption for withdrawn from one river basin and hibited recipients of inter- or intra- the District in place only until the is discharged into another river basin transfers in one county from statewide water management plan basin. This practice already occurs transferring that water to another was complete. The intent of this widely in metro Atlanta, which con- county. Finally, the bill exempted amendment was to allow the plan- tains portions of five major river the 16-county Metro North Georgia ners to consider fully the issue of basins,3 and it occurs with less fre- Water Planning District from the inter- and intra-basin transfers on a quency in other parts of the state as two-county limitation on inter- statewide basis in the planning well. While they can facilitate basin transfers, meaning water process and make new recommen- regional planning for water use, could be moved freely from any dations in the plan on appropriate inter-basin transfers can result in county and any one of the five river limitations or exemptions. Rep. Chip unnaturally low flow conditions in basins in the district to any other Rogers, R-Woodstock, proposed the basin of origin, the introduction county and river basin in the dis- another amendment that would of non-native plant and animal trict. have prohibited any new inter-basin species in the receiving basin, and This exemption for the district, transfers from the Etowah River water quality problems in both which was later expanded to also basin after July 1, 2004. This amend- basins. An intra-basin transfer is the exempt several counties in the ment cut to the heart of and possibly movement of water within the same Savannah area, proved to be the pri- even invalidated the district’s plans, river basin. Because Georgia has mary point of controversy. as those plans contemplate a signifi- several long river basins that stretch Environmentalists and others5 cant increase in inter-basin transfers north to south over much of the believed that creating limitations from the Etowah basin to other parts state, intra-basin transfers can pres- and exemptions for inter- and intra- of the district. ent some of the same problems as basin transfers was premature, Both of these amendments passed inter-basin transfers, depending on given the hope that HB 237 would the House, but were quickly stripped the locations of the withdrawal and pass and a statewide water manage- from the bill by the Senate Natural discharge. ment planning process would soon Resources and Environment Under current Georgia law, there be underway. These groups Committee. The substitute bill that is no special regulation of inter- or believed that that the planning emerged from that committee bene- intra-basin transfers and no oppor- process was the proper place to fited the district even more by saying tunity for EPD to look at the specif- address transfer issues and that the that any new inter-basin transfer ic issues presented by each applica- Legislature should not tie the plan- applications made before July 1, tion. House Bill 1615, introduced by ners’ hands by creating rules that 2004, and any applications for Rep. Tom McCall, D-Elberton, pro- would limit transfers in most of the renewals, modifications, or exten- posed to change that in several state but exempt other areas entire- sions of existing inter-basin transfers, ways. First, as originally intro- ly. Environmentalists were also con- would be judged against the current duced, the bill contained a list of 22 cerned that the district’s exemption criteria instead of against the newly criteria that EPD would use to would only ensure that the district proposed and more protective 22 cri- determine whether to issue a per- would keep more water for Atlanta teria. This amendment ensured that mit for future inter- or intra-basin in the future and leave less water for the district’s current inter-basin transfers. These criteria were lifted downstream users. Proponents of transfers would never be reviewed from the final report of the Joint the bill argued that the Legislature against the new criteria. It also likely Study Committee4 and are general- needed to act now to put some reg- ensured that the new inter-basin ly accepted as good criteria. The bill

48 Georgia Bar Journal 6-04GBJ.qxp 5/11/2004 5:08 PM Page 49

transfers contemplated in the dis- quickly became clear that the debate water streams. In its original form, trict’s water supply plan would not would be long and contentious, so the bill would have allowed proper- be subject to the new criteria, the bill was tabled after approxi- ty owners simply to pay EPD $30, because the district would presum- mately 15 minutes of discussion. $40 or $50 a linear foot, depending ably submit the applications prior to The bill remained tabled the rest of on the size of the drainage area, to July 1, 2004. that night and through the last day eliminate the buffer. Following an Another committee amendment of session, meaning the bill died at overwhelming and immediate pub- to HB 1615 was by Sen. Eric Johnson, midnight on the last day. The lic outcry, Cagle quickly amended R-Savannah, who added the provi- demise of this bill means that EPD the bill to provide for a general vari- sions of one of his bills, Senate Bill will continue to evaluate applica- ance for the piping and paving of 524, that was stalled in the House. tions for inter- and intra-basin trans- streams that flow 25 gallons per This amendment eliminated the fers as they do now and that the minute or less on an annual average. “stay rule” that currently applies planners can begin planning with- Under the general variance provi- when environmental permits are out any limitations on their ability to sion, property owners would not appealed by either the permittee or examine existing and proposed have to apply for and receive an aggrieved citizens. Under the inter- and intra-basin transfers. individual variance as is currently amendment, the permitted activity required. Instead, they would sim- would be allowed to proceed as the Senate Bill 460 ply have to give notice to either EPD appeal progressed through the or their local government of the loca- Senate Bill 460 was the most con- administrative appeal process. tion and length of the piping, the troversial water bill this session. This bill, which was the subject of measures used to minimize the Sponsored by Sen. Casey Cagle, R- intense lobbying on both sides, came impact of the piping, and the Gainesville, this bill sought to elimi- to the Senate floor on the second to method used to measure the volume nate the current 25-foot stream last day of the session at 9 p.m. It of water discharged by the stream. buffer requirement for small head-

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June 2004 49 6-04GBJ.qxp 5/11/2004 5:08 PM Page 50

The bill also required DNR to and opposed by environmentalists7, mental education and advocacy review and revise the criteria used to the bill went to the House Rules organization. She is a graduate of grant individual stream buffer vari- Committee. There was again fervent Davidson College (B.A., cum ances and include three new criteria lobbying from both sides, which laude, 1989) and Emory Law School (J.D., with distinction, listed in the bill. served to keep the bill in the Rules 1996). The sponsors of this bill character- Committee until 5:30 p.m. on the ized it as a property rights bill that last day of the session. Even then, Endnotes would allow property owners to use however, Rules Committee 1. The conferees were Reps. Hanner, their land without intrusive and Chairman Calvin Smyre, D- Tom McCall, and Richard Royal unnecessary government regulation. Columbus, allowed it to pass out of and Senators Hugh Gillis, Eric They also argued that this bill simply committee on one condition: the bill Johnson, and Casey Cagle. 2. The governor appoints the mem- makes the law for warm water would not come to the floor of the bers of the DNR Board and many streams consistent with the law for House unless the two sides reached members of the Water Council. trout streams, which currently agreement on the bill’s language. 3. The rivers that flow through or originate in the District are the allows the piping of trout streams The two sides then began five Chattahoochee, Flint, Etowah, that have an average annual flow of hours of intense negotiation, culmi- Ocmulgee, and Oconee. 25 gallons per minute or less. nating in substitute language that 4. The report can be found at Asserting also that the current buffer removed all references to piping http://www.cviog.uga.edu/water. 5. For instance, the Georgia Water variance criteria are too strict and small streams and left only the Pollution and Control Association. that the process to receive a variance requirement that EPD revise the 6. Environmentalists countered that is broken, developers and others buffer variance criteria and include another bill, House Bill 1345, was a involved in the real estate industry three new, specific criteria.8 At more appropriate bill to regulate inter- and intra-basin transfers strongly support the bill. approximately 11:50 p.m., the House until the statewide plan was com- Environmentalists, on the other passed this version of the bill with pleted. This bill only contained the hand, dubbed the bill “The no discussion. At 11:58 p.m., with 22 protective criteria and did not contain any limitations or exemp- Headwaters Destruction Act” and two minutes to spare, the Senate tions. This bill did not pass out of “The Mud Bill.” Their concern was passed the substitute bill as well. committee. that piping these small, headwater In summary, this session resulted 7. Southwire Company joined the streams would increase downstream in the passage of one of the most environmentalists in their battle against SB 460, agreeing that flooding and erosion of stream important pieces of water legisla- buffers along streams were critical banks, would decrease water quali- tion in recent history: HB 237, which to maintaining water quality. ty, and would destroy important requires the creation of a statewide 8. The new criteria that EPD must aquatic and wildlife habitat. Noting water management plan. HB 1615 use when considering a buffer variance application are: 1) when that most of the trout streams that and SB 460 provided good theater, the landowner has received a might currently be available for pip- but neither will have an effect on Clean Water Act Section 404 (33 ing under the current law are in Georgia’s water resources. With U.S.C. § 1344) permit from the U.S. Army Corps of Engineers and national forests and will never be water planning now in motion, the approval of a mitigation plan; 2) piped, environmentalists said that water agenda for the 2005 session is when the landowner can show that the environmental consequences of not yet clear, but it will likely con- the project will improve down- piping these small warm water tinue in the contentious fashion of stream water quality; and 3) if the project is on or upstream of a streams could be significant. the last two sessions as environmen- stream listed on the Clean Water SB 460 passed the Senate after 90 talists, industry, agriculture and Act’s Section 303(d) (33 U.S.C. § minutes of debate and with two municipalities struggle over this 1313(d)) list of impaired streams amendments, both offered by valuable and finite resource. and the landowner can show the project will either improve or have Cagle, which improved the bill from no adverse impact on the water the environmentalists’ perspective. Julie V. Mayfield is the quality of the stream. The House Natural Resources and vice president and Environment Committee tweaked general counsel for the the bill slightly, and then, still Georgia Conservancy, strongly supported by developers a statewide environ-

50 Georgia Bar Journal 6-04GBJ.qxp 5/11/2004 5:08 PM Page 51

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GBJ feature

Water, Growth Management Are Georgia’s Most Serious Issues A Conversation with EPA Region 4 Administrator Jimmy Palmer By Jeffrey S. Dehner

1977, he practiced law for three immy Palmer was years and then became a special assistant attorney general in appointed regional admin- Mississippi. On the attorney gener- istrator for Region 4 of the al’s staff, Palmer specialized in a J variety of environmental, energy U. S. Environmental Protection and natural resource practice areas, Agency in January 2002 and is including air and water pollution control; marine resources; oil and responsible for a staff of over 1,200 gas development; surface mining; hazardous wastes; nuclear wastes; in programs throughout Georgia, maritime boundaries; and numer- Kentucky, Tennessee, North ous others, including the licensure and regulation of professional Carolina, South Carolina, James I. “Jimmy” Palmer engineers and land surveyors. Palmer became an administra- Alabama, Mississippi and Florida. 1970 with a B.S. degree in civil tive assistant and staff counsel to Prior to his appointment, he prac- engineering, Palmer first worked Gov. Bill Allain in 1984, and later as assistant engineer with the served as executive director of the ticed law as a member of Butler, Mississippi Public Service governor’s Office of General Commission and then as director Services until September 1987, Snow, O’Mara, Stevens, and of resource planning with the when he was appointed executive Cannada, PLLC, in Jackson, Miss., Mississippi Board of Water director of the Mississippi Commissioners, now the Office of Department of Natural Resources, where he practiced environmental, Land and Water Resources in the now the Mississippi Department of Mississippi Department of Environmental Quality (MDEQ). natural resources and energy law. Environmental Quality. He then served continuously as the Upon graduating from Upon graduating with honors MDEQ executive director through Mississippi State University in from the Ole Miss Law School in the administrations of Gov. Ray

52 Georgia Bar Journal 6-04GBJ.qxp 5/11/2004 5:08 PM Page 53

Growth pressures in North Georgia and along the state’s coastline will bring even more stress upon water, wastewater, and solid waste infrastructure and sensitive ecosystems.

Interior Outer Continental Shelf and nonpoint sources alike. Policy Committee, where he was Growth pressures in North presented an Award of Georgia and along the state’s Appreciation in 2000 on behalf of coastline will bring even more Secretary of the Interior Bruce stress upon water, wastewater, Babbitt. Palmer has also received a and solid waste infrastructure Distinguished Service Commen- and sensitive ecosystems. dation by the Delta Council in 1999 What is your agency’s role in and was named an Outstanding addressing these issues? College of Engineering Alumnus for EPA is the federal agency that is Mississippi State University in 1991. principally responsible for the Palmer recently took time to dis- administration and enforcement of Mabus and Gov. Kirk Fordice. cuss his position and the state of federal environmental laws and MDEQ is Mississippi’s principal Georgia’s environment. Special regulations. While some federal environmental regulatory agency, thanks to Jean West and Allen statutes place responsibilities with responsibilities for the admin- Barnes of the administrator’s staff directly on the states, with default istration and enforcement of federal for their assistance. obligations on EPA (e.g. Clean environmental programs by dele- Water Act Section 303), EPA bears gation from the U.S. Environmental Q&A With Palmer the direct responsibility for making Protection Agency and the What would you consider to be federal laws work efficiently and Department of the Interior, Office the two most significant environ- effectively. Many of these laws are of Surface Mining, as well as state mental issues affecting Georgia delegable to state environmental regulatory programs over surface today and/or that are likely to agencies, and all eight states mining, surface water and ground- affect Georgia most seriously over included in EPA Region 4 now water use, and oil and gas explo- the next 10 years? hold substantial delegated authori- ration and development on state- Even though air quality issues ty to administer and enforce feder- owned lands onshore and offshore. (i.e. nonattainment designations al laws and regulations as the con- Palmer has been recognized for for both ozone and fine particles) tractual agent for EPA. his professional contribution to the are very prominent nationally While EPA certainly has a role environmental field by receiving a and in Georgia at the moment, I to play in water quantity and sup- Distinguished Service Commen- firmly believe that water and ply matters, this role is much nar- dation from the U.S. Environmental growth management issues are rower than it is in water quality Protection Agency Gulf of Mexico the two most serious issues facing matters (see Clean Water Act Program in 2000 and a Georgia, both now and in the Section 101(g)). The principal Distinguished Environmental future. Water quantity and sup- authority for water resources plan- Enforcement Service Commen- ply issues will intensify, and ning and management, in general, dation from the U.S. Department of Total Maximum Daily Loading rests with the states. EPA has Justice in 1998. Additionally, in 1998 (TMDL) implementation much more authority over drink- and 1999, Palmer served as chair- statewide will pose substantial ing water, wastewater and solid man of the U.S. Department of the challenges to both point sources waste disposal systems. EPA’s

June 2004 53 6-04GBJ.qxp 5/11/2004 5:09 PM Page 54

Looking for a principal regulatory role with From your experience, what are respect to sensitive ecosystems the most important roles lawyers new position? arises under the National play in shaping issues affecting Environmental Policy Act (NEPA) Georgia’s environment? and Clean Water Act Section 404, As I said to the members of both Looking for which covers activities impacting the Environmental Section of the wetlands. State Bar of Georgia and a qualified ABA/SEER in 2002, lawyers occupy What environmental initiative or numerous roles in the field of natu- professional? enforcement case has your agency ral resources management and implemented or concluded during environmental regulation. As elect- your tenure that you are particu- ed officials, legislative legal staff, Look no further larly proud of? and even lobbyists, they shape pub- As already mentioned above, than the State Bar lic law and policy. As counselors, EPA has a narrow role in water they provide wide-ranging advice of Georgia’s resources planning and manage- about environmental matters to the ment matters beyond water quali- Online Career regulated community, citizen ty. However, since water quality groups, and non-governmental Center considerations are a critical factor organizations. As public and pri- in the overall water resources vate advocates, they represent par- www.gabar.org equation, I have, from my very ties in both permitting and compli- first public address upon becom- ance and enforcement actions in the ing regional administrator, vigor- administrative and judicial arenas Post jobs ously stressed the imperative need where issues of law, fact and proce- for the states in Region 4 to Post resumes dure abound. Lawyers serve in reg- strengthen their water resources ulatory and natural resources agen- Search jobs authorities and operational pro- cies and occupy many capacities in grams. Search resumes the areas of environmental educa- Streamflow modeling, on a tion, public information, technology watershed basis, is critical not only development and land use plan- Powered by the Legal to equitable allocation of available ning. Of course, lawyers also serve Career Center Network flows, but also to competent TMDL as judges and magistrates through- development. Several, but not all, of out our federal, state and local judi- the eight Region 4 states have water cial systems. resources laws on the books (to one degree of sophistication or another). Jeffrey S. Dehner is Unfortunately, a couple have few the chair-elect of the statutory and regulatory tools to Environmental Law work with, which poses major chal- Section of the State lenges regarding such things as Bar of Georgia and maintenance of minimum instream practices environmen- flows, permitting and monitoring of tal law with Hartman, Simons, withdrawals, interbasin transfers, Spielman & Wood, LLP. He is a and conjunctive use of surface graduate of the Emory University water and groundwater. And, of School of Law and Miami course, groundwater management University (Ohio). is yet another water resource issue of great importance in this region, and must get more attention in the future.

54 Georgia Bar Journal 6-04GBJ.qxp 5/11/2004 5:09 PM Page 55 6-04GBJ.qxp 5/11/2004 5:09 PM Page 56

GBJ feature

2004 General Assembly: An Action-Packed Adventure By Mark Middleton

ike the third installment

of an action movie trilo- L gy, the 2004 session did not disappoint those expecting the

excitement, political intrigue, and

sheer length of the previous two

sessions, which also went into the

history books as among the most

tumultuous legislative sessions in

history. And yet, in the midst of the

legislative drama, the State Bar

obtained passage of several impor-

tant legislative agenda items origi-

nating in the State Bar’s Fiduciary

Law, Business Law, and Real

Property Law sections. With last year’s new leaders now settled into their roles within the executive and legislative branches, it appeared that the 2004 session might be more predictable than the previous two sessions. However, this was not to be as several colos- sal issues converged to test the limits of the legislative process. First, continually lagging tax revenue collections resulted in another dis- mal budget cycle, and lawmakers were required to cut additional mil- Photo by Daniel L. Maguire

56 Georgia Bar Journal 6-04GBJ.qxp 5/11/2004 5:09 PM Page 57

lions from the budget. Also, legisla- several State Bar agenda bills were minology and separate provisions tors spent hours debating and pass- passed and await the governor’s regarding guardianship of the ‘per- ing a resolution seeking a constitu- signature. The General Assembly son’ and of ‘property.’ The bill also tional amendment banning gay passed bills modernizing and incorporates many recent legislative marriage. The politically charged improving the guardianship code, changes and judiciary decisions as HOPE scholarship required atten- the corporate non-profit code, the well. The State Bar is grateful for all tion as lawmakers debated and corporate code relating to the use of who served on the Guardianship eventually passed a bill designed electronic transmissions, and the Code Revision Committee, including to address projections showing that code relating to cancellation of Chairman Bill Linkous and Reporter lottery revenues are not going to judgments. The State Bar also sup- Mary Radford. Sen. Seth Harp, R- meet continued program growth. ported HB 1311, the successful Columbus, handled the bill on the Tort reform initiatives, which pro- effort of our legislative allies, the Senate floor, and Rules Chairman duced huge crowds of lawyers, doc- Georgia Realtors Association, to Don Balfour, R-Snellville, assured tors, insurance executives and oth- prohibit non-lawyers from con- that the bill was placed on the calen- ers to the lobby outside the chamber, ducting real estate closings. dar during the final legislative day. demanded numerous procedural Agenda Bills that The bill becomes effective July 1, maneuvers and several lengthy floor Passed 2005, in order to give practitioners debates. However, in the end, the and judges a full year to comprehend conference committee could not The following State Bar agenda the changes that have been made. agree upon a compromise bill. And, bills passed both chambers of the Nonprofit Corporation Code of course, nothing compared to the Legislature, and were sent to the Revision Senate Bill 555, the aftershocks produced by the federal governor for final approval: Business Law Section’s proposal to court’s decision in Larios v. Cox on Guardianship Code Modern- amend the nonprofit section of the Feb. 10, which eventually resulted in ization HB 229, authored by House corporate code was necessary to con- new House and Senate legislative Judiciary Chair Mary Margaret form the nonprofit code to changes maps, and effectively ended the Oliver, D- Decatur, and Rep. Wendell made in the corporate code since careers of several members of the Willard, R- Dunwoody), produced a 1991. Section Member Randy House and Senate. massive overhaul of Title 29 of the Johnson provided key committee Despite competing with these code relating to guardianship prac- testimony in the House and Senate huge issues for legislative time and tice. The bill reorganized Title 29 by on this important measure. The bill, focus, the State Bar once again providing distinct chapters for provi- authored by Sen. Randy Hall, R- effectively advanced the Board of sions relating to minors, and adults. Augusta, and Sen. Michael Meyer Governors’ legislative proposals, as The chapters also introduces new ter- Von Bremen, D-Albany, and han- SOUTH GEORGIA ADR SERVICE, LLC

MEDIATION and ARBITRATION of JERRY A. BUCHANAN – Columbus personal injury, wrongful death, commercial, real JOHN A. DRAUGHON – Macon estate and other complex litigation cases. JAMES L. ELLIOTT – Valdosta Visit our Web site (www.southgeorgiaADR.com) BENJAMIN M. GARLAND – Macon for fee schedules and biographies of our panel, ROBERT R. GUNN, II – Macon comprised of experienced Middle and South JANE M. JORDAN – Macon Georgia trial lawyers. JEROME L. KAPLAN – Macon ROBERT R. GUNN, II, MANAGING PARTNER STANLEY KARSMAN – Savannah Rachel D. McDaniel, Scheduling Coordinator BERT KING – Gray 240 THIRD STREET, MACON, GEORGIA 31201 MICHAEL S. MEYER VON BREMEN – Albany (800) 863-9873 or (478) 746-4524 PHILIP R. TAYLOR – St. Simons Island FAX (478) 743-4204 F. BRADFORD WILSON, JR. – Macon www.southgeorgiaADR.com

June 2004 57 6-04GBJ.qxp 5/13/2004 10:02 AM Page 58

dled in the House by Judiciary Chair Rene Kemp, D-Hinesville, provided Snellville, all worked to ensure that Mary Margaret Oliver and Rep. the skill and leadership necessary to the State Bar’s bills were fairly Larry Walker, D-Houston helps pro- pass the bill in the Senate. debated and passed. vide certainty and clarity to nonprof- Bar Section Program As usual, we also owe special it practitioners advising their clients. debts of gratitude to old friends Corporate Code Revision In order The Bar continues to rely on its Bar like the chairs of the House and to keep Georgia on par with other Section Legislative Tracking Senate Judiciary Committees, Rep. progressive corporate codes, the Program, in which Bar section mem- Tom Bordeaux, D-Savannah, Rep. Business Law Section also once again bers monitor bills of importance to Mary Margaret Oliver and Sen. proposed several enhancements to the Bar during the legislative session. Charlie Tanksley, and Special the for-profit code. In particular, SB Bar members tracked bills through Judiciary Committee Chairs, Sen. 532 by Sen. Chuck Clay, R-Marietta, the Georgia General Assembly Web Rene Kemp, D-Hinesville, and Rep. and Sen. David Adelman, D-Decatur, site, and numerous bills were sent Curtis Jenkins, D-Forsyth. allowed for electronic transfers to be out to the sections for review and In 2004 the State Bar once again used by corporations for many rou- comment. Our thanks goes out to all passed many important bills affect- tine corporate functions. The bill also Bar members who provided timely ing the practice of law. With a con- contained several cost saving provi- responses to the legislative represen- tinued commitment to our biparti- sions relating to notice and mailing tatives regarding issues affecting the san approach and with the ongoing methods. This continual effort by the practice of law. “The participation of support of the many participating Business Law Section to modernize the various sections is vital to the lawyers, the State Bar looks to build the corporate code provides addi- success of the State Bar legislative upon this success in the future. tional incentives to companies to program,” said Tom Boller. “Their The State Bar legislative representa- incorporate under Georgia law. Tom expertise gives us tremendous credi- tives are Tom Boller, Rusty Sewell, McNeill provided tremendous lead- bility as we present the State Bar’s Wanda Segars and Mark Middleton. ership for the Business Law Section views to the Legislature.” Contact them at (404) 872-2373 for in all matters before the legislators. Conclusion further legislative information, or visit Thanks to some procedural maneu- the State Bar’s Web site at vering aided by Chairperson Oliver Thanks to the efforts of many www.gabar.org. and Sen. Hall, the corporations bill within the State Bar and with the was added to the nonprofit bill in support of friends from both sides of In a special session compromise bill time for final passage of both. the aisle in the Legislature, this has agreed to by the governor, chief justice Cancellation of Judgment Liens been another successful legislative and legislative leaders, the Legislature agreed to fund the newly created session for the State Bar. The State This initiative by the Real Property Georgia Indigent Defense Standards Section, and authored by Rep. Barry Bar is grateful to Gov. Sonny Perdue Council. The bill, which increases civil Fleming, R-Augusta, will assist buy- for his support of State Bar initia- filing fees and fines, was a legislative ers and sellers in avoiding unneces- tives. The State Bar thanks Speaker priority of the State Bar of Georgia. sary expenses and delays in certain Terry Coleman, Speaker Pro Tem Last year the Legislature created the real estate closings. Under current Dubose Porter, Rules Chairman new indigent defense system, with local law, holders of satisfied tax liens and Calvin Smyre, D-Columbus, and the public defender systems to become effective in the 49 Judicial Circuits satisfied judgment liens are required House Republican leaders Glenn beginning Jan. 1, 2005. The bill is to file a satisfaction of record with Richardson, R-Sharpsburg, and expected to raise the $22 million dol- the clerk. This measure provides a Jerry Keen, R- St. Simons, for their lars needed in 2005, and the sums deadline of 30 days for the cancella- support as well. needed in the years to follow. In the Senate, President Pro Tem tion of a judgment lien and in the This bill passed in an extraordinary ses- absence of a regular cancellation Eric Johnson, R-Savannah; Lt. sion of the General Assembly after the allows the closing attorney to satisfy Governor Mark Taylor; Majority legislative report was submitted for the lien with a sworn affidavit that Leader Bill Stephens, R-Canton; publication. A complete account of this important matter will be forthcoming in the lien has been previously satis- Minority Leader Michael Meyer a future issue. fied. Sen. Mary Squires, D-Norcross, Von Bremen, D-Albany; and Rules and Special Judiciary Chairman Chairman Don Balfour, R-

58 Georgia Bar Journal 6-04GBJ.qxp 5/11/2004 5:09 PM Page 59

“And Justice for All” 2004 State Bar Campaign for the Georgia Legal Services Program, Inc. (GLSP) DidYo u know that… …the Georgia Legal Services Program helps kids in crisis.

Your campaign gift helps low-income families and children find hope for a better life. GLSP provides critical legal assistance to low-income Georgians in 154 counties outside the metro Atlanta area. The State Bar of Georgia and GLSP are partners in this campaign to achieve “Justice for All.” Give because you care! Contribute on your State Bar Dues Notice, or use this coupon to mail your gift today!

YES, I would like to support the State Bar of Georgia Campaign for the Georgia Legal Services Program. I understand my tax–deductible gift will provide legal assistance to low-income Georgians. Please include me in the following giving circle: ■ Benefactor’s Circle $2,500 or more ■ Sustainer's Circle $ 250 - $ 499 ■ President’s Circle $1,500 - $2,499 ■ Donor’s Circle $ 125 - $ 249 ■ Executive’s Circle $ 750 - $1,499 ■ or, I’d like to be billed on (date): ■ Leadership Circle $ 500 - $ 749 for a pledge of $ Pledge payments are due by December 31. Pledges of $500 or more may be paid in installments with the final installment fulfilling the pledge to be paid by December 31. Gifts of $125 or more will be included in the Honor Role of Contributors in the Georgia Bar Journal. Donor Information: NAME: BUSINESS ADDRESS: Thank you for your CITY/STATE/ZIP: generosity! Please check one: ■ Personal Gift ■ Firm Gift GLSP is a non-profit law firm recognized as a 501(c) (3) by the IRS.

Please mail your check to: State Bar of Georgia Campaign for Georgia Legal Services • PO Box 999 • Atlanta, GA 30301 6-04GBJ.qxp 5/11/2004 5:09 PM Page 60

GBJ feature

Keeping Prior Commitments to Money and Special Interests Out of Judicial Races: A Citizens’ Committee For Ethical Judicial Campaigns By R. William Ide

“The Judges, therefore, should always be (people) of learning and experience in the laws, of exemplary morals, great patience, calmness and attention; their minds should not be distracted with jarring interests; they should not be dependent upon any (person), or body of (people).” – Thomas Jefferson, Letter to George Wythe (June 1776)

Other examples—including tions, the fund-raising process ot withstanding more subtle charges of favoritism, introduces the possibility that spe- as well as character attacks on par- cial interest groups—fearful that Thomas Jefferson’s ticular candidates—abound. With their victories in the legislature contrary hope, the the increasing involvement of might be negated in court—may N Madison Avenue advertising exec- attempt to obtain commitments impact of “jarring interests” on utives and inside-the-beltway con- from candidates in exchange for judicial elections in this country sultants in judicial elections, things their contributions. may only get worse. One by-prod- Of course, once that culture is set, has been significant. Some of the uct of all this, of course, is a mes- justice is for sale. This blurs the sage to the public that judges, and lines between the legislative, execu- most striking examples of this are the judicial election process, are tive and judicial branches of gov- television commercials suggesting unsavory and biased. ernment, flies in the face of separa- I became particularly concerned tion of powers, and destroys the that judges’ rulings are affected by with these issues while serving as concept of impartial justice. Simply president of the American Bar put, back door lobbying has no contribution records. One such ad, Association in 1993-94, and learned place for front door advocacy in the aired in another state, featured more about the problem (and possi- justice system. ble solutions) when I attended a Until the summer of 2002, state miniature robed figures tucked conference on judicial elections courts (or their designated agen- sponsored by the National Center cies) generally promulgated and inside a contributor’s jacket—with for State Courts two years ago. The enforced rules and standards for the punch line that a particular spe- problem is rooted in the indis- judicial elections. In June 2002, putable fact that conducting a cam- however, the landscape changed cial interest group had the judges paign for elected office requires dramatically with the U.S. funds. In the case of judicial elec- Supreme Court’s holding in “in its pocket.”

60 Georgia Bar Journal 6-04GBJ.qxp 5/11/2004 5:09 PM Page 61

Republican Party v. White1 that the although the particular “announce likely to create an unjustified state of Minnesota’s “announce clause” at issue in White had been expectation about results the candi- clause,” which prohibited a candi- law in only nine states, the date can achieve” was unconstitu- date for judicial office from Supreme Court’s decision would tionally overbroad.6 The Weaver announcing his or her views on impact all but one of the 39 states court also struck down the Georgia “disputed legal and political with judicial elections—because all Canon prohibiting judicial candi- issues,” violated the First of them had canons limiting what dates from personally soliciting Amendment.2 A 2002 article by candidates could say during judi- campaign contributions.7 Roy A. Schotland, a professor of cial elections.4 White and Weaver profoundly law at Georgetown University and In Georgia, the prediction impacted state regulation of judi- a leading commentator on judicial became reality just a few months cial elections. This is evidenced by elections, summed up the conse- after White was decided. In Weaver (among other things) the Supreme quences of the White decision: “The v. Bonner5, the Eleventh Circuit Court of Georgia’s recent decision decision will make a change in held that the Canon of the Georgia to adopt recommendations from judicial election campaigns that Code of Judicial Conduct prohibit- the Judicial Qualifications will downgrade the pool of candi- ing public communication “which Commission relaxing the rules dates for the bench, reduce the the candidate knows or reasonably governing judicial elections (and in willingness of good judges to seek should know is false, fraudulent, particular allowing candidates to reelection, add to the cynical view misleading, deceptive, or which state their views on controversial that judges are merely ‘another contains a material misrepresenta- issues that could come before the group of politicians,’ and thus tion of fact or law or omits a fact court and to personally solicit cam- directly hurt state courts and indi- necessary to make the communica- paign contributions). White and rectly hurt all our courts.”3 tion considered as a whole not Weaver did not, however, impair Schotland also predicted that, materially misleading or which is private individuals’ ability to exer-

June 2004 61 6-04GBJ.qxp 5/11/2004 5:09 PM Page 62

cise their own First Amendment regarding the ethical standards gov- er action it deems appropriate (e.g., rights to speak out and educate the erning their campaigns; (3) provid- issue a public statement) or will public about judicial elections. A ing a forum for the resolution of advise the parties, in writing, of its group of about 50 Georgia citizens complaints and issues regarding decision that no action or comment has formed to do just that. fund raising, campaign conduct, is appropriate. The Georgia Judicial Election campaign literature, and advertis- The committee will also join with Oversight Committee is an unoffi- ing; and (4) offering information other citizens’ groups and volun- cial, nonpartisan committee, and comment to the press and pub- tary bar associations in working to including lawyers, retired judges, lic about judicial campaign conduct. help educate the electorate. In that educators, business executives and The committee’s first order of connection, the committee will pro- other professionals from across business will be to send each candi- vide information to the press and Georgia. I am pleased to serve as date for statewide judicial office a public about distinctions between the committee’s chair. Other mem- notice explaining the purpose and judicial and other elections and bers include Senior Judge Dorothy function of the committee. The about judicial campaign conduct by Toth Beasley; Dr. Walter D. committee will ask each candidate candidates and advocacy groups. Broadnax, president of Clark to sign a pledge that he or she will The committee hopes and Atlanta University; Felker W. abide by specific standards, includ- believes that adherence to its pro- Ward Jr., president of Pinnacle ing that the candidate will not issue posed standards will increase the Investment Advisors and Atlanta or approve false or misleading public’s confidence in the judiciary, Rotary; Ruth A. Knox, president of advertisements about the candi- and encourages all candidates for Wesleyan College; David Balser, a date or an opponent; that the can- judicial office in Georgia to follow partner with McKenna, Long & didate will not announce positions the guidelines. For the 2004 elec- Aldridge in Atlanta; Evans J. on issues likely to come before the tions, however, the committee’s Plowden Jr., former State Bar pres- court; and that the candidate will oversight will be limited to ident and a partner with Watson, not personally solicit (or personally statewide races, that is, for posi- Spence, Lowe and Chambless in accept) campaign contributions. If tions on the court of appeals or the Albany; Frank J. Belatti, chairman a candidate refuses to sign the Supreme Court. Any readers who and CEO of AFC Enterprises; and pledge, that decision will be report- have questions or would like to Senior Judge Marion T. Pope Jr. ed to the public in a manner the become involved may contact the The group is diverse in every committee deems appropriate. committee by e-mail to respect but one: its members share The committee will also monitor [email protected]. a concern that candidates for judi- campaigns and provide a forum for cial office run on integrity and settling disputes or complaints Bill Ide, a partner at impartiality, not precommitments regarding fund raising, campaign McKenna Long & to special interests. conduct, and campaign advertising Aldridge, focuses his The driving principle for the and literature. Complaints filed practice on special investigations, corpo- committee is that candidate conduct with the committee initially will be rate governance and that does not meet or aspire to the considered by an ad hoc special crisis management. He is a mem- highest ethical standard under- committee. ber of the ABA Task Force on mines public trust and confidence in After considering the complaint Corporate Responsibility. the judiciary and damages the and any response (and, in the dis- appearance and goal of a fair, cretion of the ad hoc committee, Endnotes impartial, open-minded and inde- with the participation of the com- 1. 536 U.S. 765 (2002). pendent judiciary. The committee’s plainant and the candidate about 2. See id. at 788. specific goals include (1) asking can- whose campaign the complaint has 3. Roy A. Schotland, Should Judges Be More Like Politicians?, 39 COURT didates to pledge that they will been filed), the ad hoc committee REV. 8, 8 (Spring 2002). abide by certain ethical standards in will make a recommendation as to 4. See id. conducting their campaigns; (2) whether any private or public 5. 309 F.3d 1312 (11th Cir. 2002). 6. See id. at 1315, 1320-21. providing information to, and invit- response is appropriate. The com- 7. See id. ing dialogue with, candidates mittee will then either take whatev-

62 Georgia Bar Journal 6-04GBJ.qxp 5/11/2004 5:09 PM Page 63

GBJ feature

Spring 2004 Board of Governors Meeting Summary By C. Tyler Jones

tate Bar President

William D. Barwick S presided over the 195th meeting of the Board of Governors,

which took place March 27 at the

King and Prince Beach Resort, St.

Simons Island, Ga. Following is an

abbreviated overview of the meeting. Casemaker Following a presentation by Jay Cook and representatives of Jones Photos by C. Tyler Representatives from the Ohio State Bar Association discuss the benefits Casemaker, Joe Shea, Keith of adding Casemaker, an online research service, as a member benefit. Ashmus, Heather Sowald and Denny Ramey, the Board took the Bar has received $2.1 million in fund the completion of the third following actions concerning the grants for the educational facili- floor conference center as follows: online research service designed to ties of this renovation of which $1,100,000 Cy Pres Grant be the primary law library for most $1 million will be withdrawn if $1,000,000 Foundation Grant Georgia attorneys: full funding is not obtained in $1,200,000 Draw on Existing Loan n Approved providing Casemaker 2004. The building’s $9 million $ 800,000 Transfer as a member benefit; and cost has already been paid in full $4,100,000 Total n Approved a $9 dues increase to and the new parking deck is fund Casemaker. funded and scheduled to open Following a discussion on the on July 15. 2004-05 Bar dues, the Board took Finance Committee the following actions: Following that, the Board James B. Durham provided an n Approved a $9 dues increase for approved transferring $800,000 update on the third floor renova- the 2004-05 Bar year, based on from unrestricted operating tion, which is expected to cost dues indexing at 4.5 percent, reserves to the Bar Center budget to approximately $4.1 million. The which, along with the $9

June 2004 63 6-04GBJ.qxp 5/11/2004 5:10 PM Page 64

increase for Casemaker, sets the a positive (opt in) check-off for YLD Report 2004-05 dues level at $208 for Georgia Legal Services with a active members; suggested contribution amount Andrew Jones reported on the various activities of the YLD, includ- n Approved section dues ranging of $150. from $5 to $40; ing the Great Day of Service on May Immigration Law 5, 2004, the Spring YLD meeting n Approved assessments for the Bar Facility and Clients’ Security Section April 16-19, 2004, next Midyear Meeting’s suit drive, and the cre- Fund for new members; and The Board also approved the creation of a Truancy Intervention n Approved a $20 negative (opt ation of an Immigration Law Program in Cobb County. out) check-off for legislation, and Section. Legislation Tom Boller provided an update on tort reform issues, indigent defense funding, and other pending legislation in the Georgia General Assembly. Thereafter, the Board recognized Boller for his efforts on behalf of the Bar. 2004 Annual Meeting Barwick provided an update on the 2004 Annual Meeting, June 17- 20, 2004, at the Portofino Bay Hotel in Orlando, Fla. 2004 Judicial Poll – (Left to right) Bar Treasurer Jay Vincent Cook, Board Member Huey W. Appellate Courts Spearman and his wife Brenda, Board Member Thomas G. Sampson and Additionally, Barwick announced his wife Jacquelyn, and Board Member A. Thomas Stubbs attend that the Bar will conduct a judicial Saturday’s BOG reception and dinner. poll for contested appellate races.

(Above) Margaret Chasteen, Board Member David S. Lipscomb, Past President Robert W. Chasteen Jr., and Thomas R. Burnside Jr. and his wife Dianne attend Friday’s reception honoring past Bar presidents. (Left) Board Member Larry M. Melnick discusses the benefits of making Casemaker a member benefit.

64 Georgia Bar Journal 6-04GBJ.qxp 5/11/2004 5:10 PM Page 65

BOARD OF GOVERNORS APPROVES A NEW MAJOR MEMBER BENEFIT

At the spring 2004 meeting, the n Georgia’s Federal District Board of Governors approved Court Cases (1960 to current) adding Casemaker, an online n Georgia’s Federal District research service, as a member Courts’ Local Rules benefit. The service is designed to be the primary law library for most Georgia attorneys and Georgia’s State Library should be available by the end of n Supreme Court of Georgia 2004. Attorneys in other states, Cases (1939 to current) where the service is offered as a member benefit, have found the n Supreme Court of Georgia system’s search engine to be user Rules friendly, powerful and a simple n Court of Appeals of Georgia transition from existing legal Cases (1939 to current) research services. n Court of Appeals of Georgia Tom Boller gives a legislative Federal Existing Library Rules update. n U.S. Supreme Court Cases n Georgia Constitution (1935 to current plus selected Georgia Legal Services n Georgia Code Program important cases from 1790 to 1935) n Georgia Attorney General Opinions Phyllis Holmen provided a n Practice Rules for the U.S. report on the activities of Georgia Supreme Court n Uniform Superior Court Rules Legal Services and announced that, n U.S. Courts of Appeal Cases n Pattern Jury Charges thanks to the generosity of Georgia (2nd and 6th Circuits from (if permitted) lawyers, GLS raised $350,000 dur- 1989 to current, 1st Circuit n Law Reviews (Emory, Georgia, ing the 2003-04 campaign drive. from 1992 to current, all cir- Georgia State, Mercer) (if permitted) cuits from 1995 to current) New Business n Georgia Bar Journal articles n Federal Rules of Appellate As the meeting drew to a close, Procedure n ICLE seminar articles (if permitted) Barwick recognized the following n Circuit Appellate Rules corporate sponsors: LexisNexis, n Georgia Code of Judicial n District Court Rules Conduct The Georgia Fund, Georgia n U.S. Constitution Lawyers Insurance Company, ABA n Georgia Federal Bankruptcy Members Retirement Program, n U.S. Code Local Court Rules Keeley & Associates, Thomson n Federal Rules of Civil Procedure West, Brown Reporting, Esquire Other States’ Libraries n Federal Rules of Criminal Deposition Services, Insurance Procedure n All states’ Supreme Court Specialists Inc., Real Property Cases (2003 to current) n Federal Rules of Evidence Section, Legalink, Minnesota n State Library of the following Lawyers Mutual and SecureImpact. n Federal Rules of Bankruptcy Bars: Connecticut, Michigan, Oregon, Idaho, Nebraska, After opening the floor and n U.S. Code of Federal Regulations Rhode Island, Indiana, New addressing some Board member’s Hampshire, South Carolina, questions and concerns, Barwick Georgia’s Federal Maine, North Carolina, adjourned the meeting at 12 p.m. Library Texas, Massachusetts, Ohio and Vermont. n 11th Circuit Court of Appeals C. Tyler Jones is the director of Cases (inception in 1981 to communications for the State Bar current) of Georgia.

June 2004 65 6-04GBJ.qxp 5/11/2004 5:10 PM Page 66

GBJ feature

The DeKalb County Courthouse at Decatur The Grand Old Courthouses of Georgia By Wilber W. Caldwell

ecatur has not lived

all of its life in the Dshadow of Atlanta. In 1829, Adiel Sherwood’s Gazetteer

of Georgia relates that Decatur had

about 40 houses and stores. About

10 years later, in a subsequent edi-

tion, he states that the town was

much improved. The Georgia

Railroad arrived here in 1845 just

four years before the publication of

George White’s Statistics of Georgia, Photo by Wilber W. Caldwell in which White describes Decatur Built in 1898-1900, James W. Golucke, architect.

as a pleasant little village of about linked to Atlanta, for in early By 1880, Decatur’s population was decades of the 19th century Atlanta only 900. The railroad’s power to 600 with two schools, two church- was a nameless, virtually uninhab- turn obscure places into cities ited tract of rolling woods and proved impotent here. This must es, two hotels and “several stores.” farmland. This all changed in a his- have been especially disappointing Indeed, Decatur was a model torical blink, and by 1860, for Decatur, for neighboring town of the upper Piedmont, a Sherwood’s description of Decatur Atlanta at the railhead of the newly modest and comfortable communi- would include the tell-tail phrase, completed Western and Atlantic ty on the edge of the frontier. “since the rapid growth of Atlanta, Railroad was the New South myth Nowhere in any of this is Decatur the town has ceased to improve.” come to life. Despite its proximity

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to Atlanta, DeKalb County Meriwether County Courthouse at builder’s guides of the early years remained primarily a rural place. Greenville. By this time, county of the nineteenth century. As late as 1900, the county was officials were flocking to Decatur Sadly the original building eleventh among Georgia’s 137 to view Golucke’s work, and news- burned in 1916 and was rebuilt counties in cotton production. This paper reports in Eatonton and in along similar lines, but without state of affairs would, of course, Newnan confirm that Golucke’s Golucke’s great lantern. The addi- slowly change as Atlanta grew and commissions for courthouses in tion of wings in the 1930’s erased as links with Decatur were estab- those towns were awarded on the two of the grand entranceways, lished. strength of the architect’s work in but the divided mind of the The first DeKalb County DeKalb County. James Golucke American South at the turn of the Courthouse was a log structure would expand on his ideas in century still radiates from the built around 1824. It was replaced Putnam and Coweta Counties, square in Decatur. in 1829 by a brick building that adding more Beaux-Arts ornament The absence of other granite or burned in 1842. In 1847, a quaint and more expressive details. In all, marble courthouses in Georgia brick courthouse was fashioned he would design seven court before 1910 is puzzlement. Many vaguely in the Greek mold. This buildings in Georgia modeled after early courthouses had been wood- building was demolished in 1898 to the general form found in Decatur. en, but after 1884 there were only make way for James Wingfield In addition, Columbia’s Frank five wooden courthouses built in Golucke’s massive 1900 DeKalb Milburn, Eastman’s Ed C. Hosford, the state. Even counties that boast- County Courthouse, perhaps the Macon’s Alexander Blair III, ed huge quarries, like Elbert and most influential public building of Columbus’ T. F. Lockwood, Pickens, built brick courthouses. its era in Georgia. Augusta’s Lewis Goodrich and Early in the twentieth century, a Except for Atlanta architect, Atlanta’s Morgan and Dillon few concrete court buildings Andrew J. Bryan’s less influential would all create court buildings in would rise, but with these few rather Neo-Georgian 1895 Stewart Georgia following Golucke’s gen- exceptions, along with the lime- County Courthouse at Lumpkin eral “Decatur” plan. stone walls of the 1907 Appling and Bryan’s 1896 remodeling of the Part of the success of the design County Courthouse at Baxley, all old Muscogee County Courthouse turned on four more or less equal of Georgia’s courthouses con- at Columbus, Golucke’s creation in portico entrances, one at each of structed between 1883 and 1910 Decatur was the first courthouse in the four points of the compass. were brick. the state to voice the passion of the Elsewhere in America, the new American Neoclassical Revival. Classicism reflected a grasping Excerpted by Wilber W. Caldwell, The new Classicism had swept the commercialism and the aggressive author of The Courthouse and the county after the success of the nation’s growing industrial might. Depot, The Architecture of Hope in an Age of Despair, A Narrative “Florentine Renaissance” architec- To temper these uniquely un- Guide to Railroad Expansion and ture of Chicago’s “White City” at Southern images, Golucke was its Impact on Public Architecture the 1893 Columbian Exposition. careful to retain, at the center of in Georgia, 1833-1910, (Macon: A careful combination of mod- each elevation, a bold Greek tem- Mercer University Press, 2001). ern American Neoclassical trends ple form, a grand portico topped Hardback, 624 pages, 300 photos, and the familiar Classicism of the with a Classical pediment support- 33 maps, 3 Appendices, complete Old South, Golucke’s granite cen- ed by imposing columns. Golucke Index. This book is available for terpiece in DeKalb was Georgia’s thus balanced powerful duel sym- $50 from book sellers or for $40 most imitated public building in bols that spoke to a deeply trou- from the Mercer University Press the first decade of the new century. bled region teetering on the razor’s at www.mupress.org or call the Less than a year after its comple- edge between the Old South and Mercer Press at (800) 342-0841 tion, Golucke designed a brick the New. Here, despite its granite inside Georgia or (800) 637-2378. court building in Hart County monumentality, was a fundamen- based on a nearly identical plan, tally Georgian Classical form, not and only a year later he followed much different from courthouse that structure with his 1903 designs that appeared in simple

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Miles Alexander of Kilpatrick Stockton was KUDOS named one of Georgia’s Top Ten Super Lawyers in Juvenile Court Judge Steven C. Teske of Jonesboro a list published in the March issue of Atlanta recently addressed the Third International Magazine. Twelve other KS attorneys joined Miles

Bar Multisystemic Therapy Conference in Charleston, in the Top 50 Super Lawyers, and nine KS attorneys S.C. Teske, who heads the Clayton County Fast were named to the Top 50 Female Georgia Super Start initiative to reduce youth days spent in deten- Lawyers list. The Georgia Super Lawyers supple-

& tion and out-of-home placements, highlighted the ment is a comprehensive listing of outstanding program’s successes before an audience of more lawyers in more than 50 areas of practice. All the than 300 attendees. Multisystemic therapy is a com- lawyers were chosen by their peers through sur- munity-based high-intensity treatment model that veys and research done by Law & Politics media. focuses on helping court-involved youth by strengthening their families and increasing their ties to positive elements in their environment.

Thomas, Kayden, Horstemeyer & Risley Bench announced that partner Todd Deveau has been selected as a Georgia Super Lawyer for 2004 by Atlanta Magazine. Selections for this annual listing are based on a survey by peers and extensive (Left to right) Al Adams of Holland & Knight, a GJP board member; Jeff Lewis, Holland & Knight's executive partner background research. for Atlanta; Angie Marshall; Jack Dalton, a partner with Troutman Sanders and GJP board chair; and Doug Ammar, executive director of the Georgia Justice Project. The National Republican Congressional Committee announced that Richard W. Wolfe has been appoint- Angie Marshall, widow of Justice Thomas O. ed to serve on the committee’s Business Advisory Marshall, donated $5,000 to the Georgia Justice Council. Wolfe will serve as honorary chairman from Project because her late husband had been a Georgia. Honorary state chairmen are recognized for strong supporter of the project’s work. Attorneys their business and professional success, the leadership at Justice Marshall’s law firm, Holland & Knight, they are already providing in their communities, and matched the donation on a challenge from the for their willingness to provide leadership as part of project’s board, bringing the total gift to $10,000. the BAC process. Wolfe has 30 years experience as a Georgia Justice Project then named an office at its health care professional and owner of Subacute Edgewood Avenue headquarters in honor of the Services, Inc. He is a former director of the Georgia late chief justice, and the plaque and office were Health Care Association and a member of the unveiled by Executive Director Doug Ammar American Bar Association. and Marshall in a ceremony attended by about 30 Atlanta attorneys, staff and supporters of GJP. The American Cancer Society announced that Kilpatrick Stockton LLP has raised over $325,000 to The Pro Bono Committee of the American Bar establish the David M. Zacks Patient Resource Association Section of Business Law presented Navigation Center. Zacks, a partner with Kilpatrick the National Public Service Award to Sutherland Stockton’s litigation practice group, was honored at a Asbill & Brennan LLP at the section’s spring recent board of directors meeting of the American meeting luncheon in Seattle. The award is pre- Cancer Society’s South Atlantic division for his life- sented annually to individuals, firms or corporate long commitment in the fight against cancer. The legal departments that have demonstrated a com- Center will serve cancer patients in Georgia; South mitment to providing free legal services to the Carolina; North Carolina; West Virginia; Virginia; poor in a business context. Sutherland Asbill & Washington D.C.; Maryland and Delaware. Zacks Brennan LLP has a policy of a minimum goal of an has been an American Cancer Society volunteer since average of 50 hours per attorney per year to be 1968; he has served in numerous leadership roles, spent on pro bono work. including his most recent position as chair of the national board of the American Cancer Society. Kilpatrick Stockton LLP announced their new Security Deposit Project in conjunction with Griffin Bell was recently honored with the Atlanta BellSouth, Atlanta Legal Aid and the Atlanta Bar Association’s highest accolade, the Leadership Volunteer Lawyers Foundation. In this program, Award. He was recognized in a letter from Jimmy lawyers will represent low-income tenants seeking Carter and a videotaped tribute from George H. W. the return of deposits unlawfully withheld by land- Bush. Bell is a former federal appeals court judge; at lords. Any amount awarded in the form of attor- 84, he still maintains his office at King & Spalding.

68 Georgia Bar Journal 6-04GBJ.qxp 5/11/2004 5:10 PM Page 69 Bench ney’s fees in these cases will be donated back to pro bono legal services for animals and their Atlanta Legal Aid and the AVLF. In 2003, Kilpatrick guardians, creating a manual entitled “How to Stockton provided over 24,000 hours of pro bono Prosecute Animal Cruelty From Start to Finish” representation to low income individuals and non- and presenting its content to animal control officers profit organizations at a value of $5.7 million. across Georgia. GLPA works tirelessly to promote increased awareness of the humane treatment of Shelby R. Grubbs was recognized by his firm, animals. Their goal is to reach greater numbers of Miller & Martin PLLC, for his work as general law enforcement officials, veterinarians, court offi-

editor of International Civil Procedure, a text recent- cers and attorneys to help catch and prosecute as & ly published by Kluwer Law. The book, which many animal abuse offenders as possible. compares civil procedure across 32 countries and

the European Union, will familiarize lawyers with Powell, Goldstein, Frazer & Murphy LLP Bar principal procedural concepts governing proceed- announced that seven of the firm’s practices and six ings in covered jurisdictions. attorneys are ranked in the Georgia listing in the 2004-05 Chambers USA Guide to America’s Leading Business Lawyers. The six attorneys recognized include John T. Marshall, who was honored twice; he shared a second place ranking in general commercial litigation and third place in antitrust litigation. E. Penn Nicholson shared third place in Barnes Taylor Karesh banking and finance. Jay J. Levin shared third place The Atlanta Father’s Day Council will honor in the real estate listing; John R. Parks shared third three prominent Atlanta attorneys for their exem- place with Levin in the real estate listing. Rick Miller plary commitment to family, citizenship, charity shared fourth place in the corporate/M&A listing. and responsibility. Hon. Roy E. Barnes of The Frank A. Crisafi shared fourth place ranking in tax. Barnes Law Group, LLC, and former governor of Georgia; Bernard Taylor, a partner with Alston & ON THE MOVE Bird LLP; and Sanford R. Karesh of Seacrest, Karesh, Tate & Bicknese, LLP, will each be hon- In Albany ored as “Father Of The Year.” An awards dinner David W. Orlowski has joined the presentation is planned for June 17, at the Fox firm of Langley & Lee, LLC. His Theatre in Atlanta, coinciding with the Fathers’ practice includes corporate and real Day holiday. Proceeds from this event will benefit estate transactions and municipal the American Diabetes Association’s education, and health care law. Orlowski advocacy and research programs. obtained his bachelor’s degree from Wake Forest University and his law degree from Amy A. Perry of Pleat & Perry, P.A., the University of Georgia. The office is located at in Destin, Fla., recently completed 323 Pine Ave., Suite 300, Albany, GA 31701; (229) requirements for certification as a 431-3036; Fax (229) 431-2249. Supreme Court Certified Mediator for Florida. She will serve as a medi- In Atlanta ator in a variety of county and circuit court litigation matters throughout the Panhandle Cohen, Cooper & Estep named Steve Mudder a counties. partner and changed the name of the firm to Cohen, Cooper, Estep & Mudder. Mudder spe- The American Society for the Prevention of cializes in corporate law, sports and entertainment Cruelty to Animals (ASPCA) recently announced law and estate planning; he joined the firm in the winner of the 2003 ASPCA/Chase Pet 2002. The office is located at 3350 Riverwood Protectors Award. The contest was designed with Parkway, Suite 2220, Atlanta, GA 30339; (404) 814- the goal of learning more about progressive and 0000; Fax (404) 816-8900. innovative techniques that animal welfare organizations are using to protect our nation’s pets Troutman Sanders LLP announced that Marlon against animal cruelty and neglect. Over 120 entries F. Starr, David W. Ghegan and Patrick W. were submitted, and the $10,000 grand prize went Macken joined the firm’s corporate and securities to Georgia Legal Professionals for Animals, a vol- practice group. All three attorneys came from unteer group based in Atlanta and comprised of Smith, Gambrell & Russell, LLP. Starr, who joined legal professionals who utilize a number of meth- the firm as a partner, brings 15 years of securities ods to fight animal cruelty in Georgia. By offering law experience; his practice includes representing

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issuers and investment banking firms in securities Kayden, Horstemeyer & Risley. He is also an and corporate finance transactions. Ghegan has adjunct professor of intellectual property law at significant experience with securities, mergers and Georgia State University College of Law, and he acquisitions as well as general corporate and serves on the advisory board for the Bureau of

Bar banking law. Macken is an associate practicing National Affairs’ Electronic Commerce and Law securities regulation, general corporate and bank- Report. Kuester is also the creator of Kuester Law, a ing law. Troutman Sanders’ Atlanta office is locat- technology law resource. The Georgia Technology

& ed at 600 Peachtree St. NE, Suite 5200, Atlanta, GA Authority is located at 100 Peachtree St., Suite 2300, 30308-2216; (404) 885-3000; Fax (404) 885-3900. Atlanta, GA 30303-3404; (404) 463-2300.

Reta J. Peery has been named vice Mitchell A. Katz was appointed to president-legal and deputy general the Georgia chapter of the American counsel at The Weather Channel, Inc. Chemical Society as a member at She previously held the same posi- large. Katz is a shareholder at Needle tions with Turner Entertainment & Rosenberg; he manages the firm’s Group, Inc. Before joining Turner, chemical patent practice. In his two- Bench Peery was an associate with Alston & Bird in year position with ACS, he will serve as the direct Atlanta, and she was a law clerk for the Hon. Duross liaison between the ACS board and its 1,000-plus Fitzpatrick. Peery is also a member of the American Georgia members. ACS is a self-governing mem- Academy of Television Arts and Sciences. Her office bership organization that provides a broad range is located at 300 Interstate North Parkway, Atlanta, of opportunities for peers in all fields of chemistry. GA 30339; (770) 226-2535; Fax (770) 226-2632. Katz has worked in the chemical industry for both E.I. DuPont De Nemours & Co. Inc. and The Dow Merchant & Gould announced that Christopher Chemical Company. Needle & Rosenberg’s Leonard, managing partner of the firm’s Atlanta Atlanta office is located at 999 Peachtree St., Suite office, accepted an expanded leadership role in the 1000, Atlanta, GA 30309-3915; (678) 420-9300; Fax area of software, telecommunications, electronics (678) 420-9301. and computer law. He will lead the national initiative to grow the practice into new industries as the Lisa Harlander Lemke was recently scope of intellectual property law expands. named recruiting director of the Leonard Hope will assume the managing partner Atlanta office of Counsel On Call. responsibilities. Leonard’s practice focuses on mat- She brings over four years of labor ters relating to software, e-commerce, telecommu- and employment legal experience to nications and traditional electrical and mechanical the company. Lemke previously prac- technologies. He has extensive litigation experience ticed with Troutman Sanders LLP, as well as the in all areas of intellectual property law, including firm of Jackson, Lewis, Schnitzler & Krupman. patent, trademark, unfair competition and copy- Counsel On Call’s Atlanta office is located at 1230 right. Hope’s practice focuses on electrical, comput- Peachtree St. NE, Promenade II, Suite 1800, Atlanta, er, and software technologies. His work includes GA 30309; (404) 942-3525; Fax (404) 942-3780. counseling clients on patent, copyrights, and trademark matters, litigation, licensing, and due dili- Bodker, Ramsey & Andrews announced the addi- gence. Merchant & Gould’s Atlanta office is located tion of existing shareholders Harry Winograd and at 133 Peachtree St. NE, Suite 4900, Atlanta, GA Robert Wildstein to the firm name to become 30303; (404) 954-5100; Fax (404) 954-5099. Bodker, Ramsey, Andrews, Winograd & Wildstein, P.C. In addition to the name change, The CDC Foundation named Laura J. Lester associ- the firm launched a new logo to embody its focus ate vice president for programs. She will serve as the on quality, client service and balance promoted chief operating officer for the program department. within the firm. The office is located at 1800 Lester’s responsibilities will include developing poli- Peachtree St., Suite 615, Atlanta, GA 30309-2507; cies and procedures for the smooth implementation (404) 351-1615; Fax (404) 352-1285. of programs funded by donors, as well as guiding the internal operations of the program department. The Richard A. Gordon, P.C., announced that Cammi Foundation is located at 50 Hurt Plaza, Suite 765, R. Jones has become a partner in the firm, which Atlanta, GA 30303; (404) 653-0790; Fax (404) 653-0330. will continue its general and trial practice and representation of corporate and other business entities Gov. Sonny Perdue recently appointed Jeff as Gordon & Jones, LLP. The office is located at Kuester to the Georgia Technology Authority. 400 Interstate North Parkway, Suite 890, Atlanta, Kuester is a founding partner in the firm of Thomas, GA 30339; (770) 952-2900; Fax (770) 952-2901.

70 Georgia Bar Journal 6-04GBJ.qxp 5/11/2004 5:10 PM Page 71 Bench bilities and avoiding liability. Enholm was previously a partner at Troutman Sanders, and he has served as general counsel to two Atlanta companies, Crown Crafts, Inc. and Melita International Corporation. The office is located at 30 Wall St., New York, NY 10005; (212) 785-4100; Fax (212) 785-4040. Golden Hollis Zacks Hunton & Williams LLP announced the election of 12 new partners, including Peter G. Golden, In Greenville, S.C.

Charles F. Hollis III and Leslie B. Zacks in the & Jackson Lewis LLP relocated its Greenville, S.C., Atlanta office. Golden is a member of the labor & office. The new office is located at One Liberty employment law team; his practice focuses on labor Square, 55 Beattie Place, Suite 800, Greenville, SC

and employment related matters, including coun- Bar 29601; (864) 232-7000; Fax (864) 235-1381. seling clients in all aspects of the employment rela- tionship as well as the litigation of claims under var- In Chattanooga, Tenn. ious federal statutes and state laws. Hollis is a member of the global capital markets and mergers and Schumacher Witt Gaither & Whitaker, P.C., has acquisitions team. His practice focuses on a wide consolidated its downtown Chattanooga offices. The range of issues facing technology users and devel- firm maintains a second office at the CBL Center, opers, and his capital markets practice focuses on 2030 Hamilton Place Blvd., Suite 210, Chattanooga, public and private securities offerings, mergers and TN, and their headquarters are located at 1100 acquisitions and corporate governance. Zacks is a SunTrust Building, 736 Market St., Chattanooga, TN member of the litigation, intellectual property and 37402; (423) 265-8881; Fax (423) 266-4138. antitrust team; his practice focuses on intellectual property litigation with an emphasis on patent and Diversity CLE luncheon trade secrets litigation. Hunton & Williams’ Atlanta The State Bar’s Diversity Program office is located at Bank of America Plaza, Suite recently hosted a CLE conference and 4100, 600 Peachtree St. NE, Atlanta, GA 30308-2216; luncheon in Atlanta. At the conference, a (404) 888-4000; Fax (404) 888-4190. discussion between the attendees and In Columbus panelists examined the issue of diversity from the classroom to the boardroom. The Hatcher, Stubbs, Land, Hollis & Rothschild, LLP, panelists were Hon. Marvin S. Arrington announced that Dustin T. Brown has become an Sr., Charlie Lester, Jim Hatcher, Jennifer associate of the firm. The office is located at 233 Schumacher, Gordon Alphonso and Joia 12th St., Suite 500 Corporate Center, Columbus, Johnson. At the luncheon, keynote speak- GA 31901; (706) 324-0201; Fax (706) 322-7747. er Peter Bye, former corporate diversity director of AT&T, addressed those in In Marietta attendance on how diversity and inclusion are essential contributors to continued Maziar Mazloom has left the Cobb County business success. In addition, Arrington District Attorney’s Office and opened his own and Lester were recognized for their firm, Maziar Mazloom, L.L.C., specializing in efforts as co-founders of the Georgia criminal defense, immigration and personal Diversity Program. injury. The office is located at 244 Roswell St., Suite 100, Marietta, GA 30060; (770) 590-9837; Fax (770) 590-9839. In New York, N.Y. Ford & Harrison recently opened a new office in New York City to meet growing client demand for the firm’s services there. The office is located at 100 Park Ave., Suite 2500, New York, NY 10017; (212) 453-5900; Fax (212) 453-5959.

Fensterstock & Partners announced that Robert A. Panelists from the State Bar’s Diversity Enholm has become of counsel to the firm. He will Program Luncheon. provide independent representation to officers and directors of corporations in meeting their responsi-

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Accepting Referral Fees From Other Lawyers? By Paula Frederick

“ home page from which you go straight to the General Counsel his is great!” your buddy Judi yells Ethics and Discipline Rules. “It’s right here in Rule 1.5—‘Fees’” you from her office across the hall. “I say2. “Part (e) does allow you to take a por- sent Mindy Stanton some busi- tion of the fee from Mindy, but you have to T jump through some hoops first. Looks like ness—you know, when my neighbor Pam you have to have a written agreement with was in that car accident. Mindy just called to the client stating that you are jointly liable for the representation.” say she’s taking the case. She says she’ll thank Judi’s excitement wanes. “Oh no! That means that if Mindy screws up I’m as liable me for the referral by giving me 10 percent of as she is. I wonder if she has malpractice whatever she makes off Pam’s case!” insurance?” “That’s just the first question you need to Office of the “She even said she’d pay for future refer- ask her,” you advise. “I’ll bet she hasn’t rals,” Judi adds. “If I can send her a couple of even talked to Pam cases a month, I’ll be able to afford that about this, and under Mercedes Benz CL500 by the end of the Rule 1.5(e) the year.” client can veto the “Hold on! I don’t think it’s that simple,” whole thing if she you caution. “I know Georgia’s rule against objects to the par- fee splitting has changed1, but I still think there are some pretty significant drawbacks to sharing fees with a lawyer who isn’t in your firm.” Judi waits while you log onto www.gabar.org. There’s an “Ethics & Discipline” icon on the

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ticipation of the lawyers involved.” Clarke Central High “You’re right,” Judi moans. “And I don’t even know what amount she’s charging, so I can’t School Wins ‘04 State Title tell whether the total fee is reason- The Clarke Central Mock Trial team from able. Guess I need to have a long Athens is the 2004 Georgia State Champion. talk with Mindy.” The two finalists in the state competition were The potential pitfalls of Clarke Central and Jonesboro High School. The accepting referral fees from four semi-finalists were Clarke Central, other lawyers may outweigh the Jonesboro, Grady and Lee County High Schools. benefits. If she is prudent, Judi will certainly conduct a due dili- Special thanks to those who donated gence inquiry when referring to the mock trial program during the business to a lawyer she doesn’t know well. 2004 season, including: Call the Ethics Hotline at (404) Georgia Bar Foundation 527-8720 with all of your ethics Council of State Court Judges questions. Young Lawyers Division Georgia Civil Justice Foundation Paula Frederick is the deputy gen- Criminal Law Section eral counsel of the State Bar of General Practice and Trial Law Section Georgia. Bankruptcy Law Section Endnotes 1. Georgia’s old disciplinary stan- A full list of donors will be published in our dards prohibited lawyers in different firms from sharing fees unless 2004 Annual Report, Fall, 2004. the fee split was in proportion to the work performed and responsibility assumed by each lawyer. JOIN THE MOCK TRIAL COMMITTEE Rules and Regulations for the Organization and Government of Visit our Web site, www.gabar.org/mocktrial.asp, the State Bar of Georgia, Standard or contact the mock trial office for a registration form (404) 20, Bar Rule 4-102 (subsequently 527-8779 or [email protected]. amended). 2. Rule 1.5(e) went into effect January 1, 2001 when Georgia adopted rules based upon the American Bar Association Model Rules of Professional Conduct. The rule provides: (e) A division of a fee between lawyers who are not in the same firm may be made only if: (1) the division is in proportion to the services performed by each lawyer or, by written agreement with the client, each lawyer assumes joint responsibility for the representation; (2) the client is advised of the share that each lawyer is to receive and does not object to the participation of all the lawyers involved; and Make an impact in your community! (3) the total fee is reasonable.

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Discipline Notices (Feb. 12, 2004 through April 9, 2004) By Connie P. Henry

DISBARMENTS/VOLUNTARY invoiced the client for $600 for his time in SURRENDER responding to the grievance and in filing the

Discipline attorneys’ lien. Joyce Marie Griggs In a third case a client terminated Adkins Savannah, Ga. and Adkins refused to refund any of the Joyce Marie Griggs (State Bar No. 312109) $1,000 he had been paid. The client filed a has been disbarred from the practice of law in grievance and then Adkins sent the client a Georgia by Supreme Court order dated Feb. bill for $555 although he had not performed 16, 2004. Griggs was barred from practicing any additional services. Adkins also filed an in the U.S. District Court for the Southern attorneys’ lien for $2,500 against the client for District of Georgia on May 9, 2001. Griggs

Lawyer unpaid fees and a lawsuit seeking damages made false representations to the federal dis- in excess of $2,500. Adkins later invoiced the trict court about her actions as counsel, about client for $655 for his time in responding to her filing on behalf of her clients in various the grievance and for drafting and filing the cases, abandoned her clients, and made lawsuit. The client paid another attorney unwarranted or vexatious claims or defenses. $1,500 to get the lien removed. In aggravation of discipline, the Court Bobby Glenn Adkins noted Adkins’ pattern of misconduct, the Marietta, Ga. multiple offenses involved, his deceit, and Bobby Glenn Adkins (State Bar No. refusal to acknowledge the wrongful nature 005321) has been disbarred from the practice of the conduct. of law in Georgia by Supreme Court order dated March 1, 2004. In one case Adkins sent SUSPENSIONS his clients threatening letters after they dis- Harold Michael Harvey puted the amount of his attorney fees, stating Atlanta, Ga. he would sue them and seek to foreclose on Harold Michael Harvey (State Bar No. their home. After the couple’s son filed a 335425) has been suspended from the practice grievance with the Bar, Adkins continued to of law in Georgia for two additional years by send threatening letters and filed a lawsuit Supreme Court order dated Feb. 16, 2004. against the son for defamation. Adkins sent Harvey was suspended on Feb. 21, 2002, for a another invoice to the clients for $370 for his period of two years. While under suspension, time in responding to the grievance and in Harvey continued to practice law. The Court drafting the lawsuit against the son. found Harvey to be in contempt of Court and In another case a client fired Adkins, and suspended him for an additional two years, Adkins filed a lien against the client for for a total of four consecutive years. $1,500 for unpaid legal services. An earlier statement showed a balance due of only John H. Armwood $532.50 and Adkins did not perform any Marietta, Ga. work for the client after that invoice. The John H. Armwood (State Bar No. 022545) client paid Adkins $712.50 to cancel the lien. has been suspended from the practice of law After the client filed a grievance, Adkins in Georgia for one year by Supreme Court

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order dated Feb. 16, 2004. Armwood was hired to represent one company against another company. He was paid $750 but never filed a lawsuit on behalf of his Futu client. Armwood subsequently the re accepted employment in a law t Di firm after which he had no control Se re over the legal matters on which he p ct worked. He never advised the el ion client and failed to insure that H someone was handling the case. In aggravation of discipline, the Court found that Armwood has prior disciplinary action, has shown a pattern of misconduct and has committed multiple offenses.

Christine M. Stadler of Savannah, Ga. Christine M. Stadler (State Bar the te No. 673978) has been suspended si from the practice of law in Georgia Jo for three months by Supreme urn eb Court order dated Feb. 16, 2004. al W Stadler filed pleadings on a client’s and the behalf claiming the client had insufficient assets to post a super- sedeas bond. Stadler was aware that at the time her client was claiming indigence in that case, he was making efforts to purchase residential property priced between $1.6 and $2.5 million. Call the State Bar Communications INTERIM SUSPENSIONS Under State Bar Disciplinary Department at 404.527.8736 Rule 4-204.3(d), a lawyer who receives a Notice of Investigation and fails to file an adequate or e-mail [email protected] response with the Investigative Panel may be suspended from the practice of law until an adequate to share your feedback response is filed. Since Feb. 12, 2004, five lawyers have been sus- about the Bar’s publications pended for violating this rule and about the Bar’s publications four have been reinstated. Connie P. Henry is the clerk of the and Web site. State Disciplinary Board.

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New LPM Library Resources By Natalie R. Thornwell

sions about whether to create or join an he Law Practice Management extranet.) n Lawyer’s Guide to Fact Finding on the Program’s Resource Library is one nd Management Internet, The 2 Edition (Written to help of the most popular member serv- you save time and money, and avoid frus- T tration when researching on the Internet.) ices. The checkout library consists of over 700 n Lawyer’s Guide to Marketing Your Practice, nd items in various mediums that can be The (with CD), 2 Edition (A MUST for practicing attorneys and busy law firm checked out to law students, lawyers and managers who are interested in revitalizing the timeless marketing concept of “learning their staff. The checkout policy is two items at what clients want and delivering it.”) a time and the checkout period is two weeks. n Lawyer’s Guide to Palm Powered Handhelds, The (Everybody is using them; should you If mailed, patrons are invoiced for the cost of get one?) n Lawyer’s Guide to Retirement and Lifetime shipping. Otherwise, materials are available Planning (Estate and lifetime planning Law Practice at the Bar Center during normal operating strategies and testamentary planning for clients.) hours for checkout. n Letters for Litigators (Essential communica- Some of the latest acquisitions in the tions for opposing counsel, witnesses, library are: clients and others.) n Employment Law Answer Book, 5th Edition n Mediation, A Path Back for the Lost Lawyer (An updated comprehensive question and (Learn why the art and technique of medi- answer guide to the latest developments in ation and alternate dispute resolution employment law and related legislation skills are becoming more and more impor- and judicial issues to help professionals tant to the modern attorney.) nd identify and resolve their employment n Model Witness Examinations, 2 Edition problems.) (How to offer testimony on direct exami- n Employment Law Answer Book, 2004 nation, how to cross-examine and impeach Cumulative Summary (As relates to the 5th various types of witnesses, and how to use Edition above.) discovery in the examination of witnesses.) n Lawyer’s Guide to Extranets – Breaking Down n Paralegals, Profitability, and the Future of Walls, Building Client Connections (This is Your Law Practice (Using qualified parale- not a technical “how-to” manual; rather, a gals helps lawyers to provide better service focus on issues that face law firms and and delivery, and to increase profits.) nd their clients in making well-informed deci- n Results-Oriented Financial Management, 2 Edition (Learn how to use advances in tech-

76 Georgia Bar Journal 6-04GBJ.qxp 5/13/2004 10:06 AM Page 77

nology to better utilize your resources and improve profitability.) n Winning Argument, The (Learn about the fundamental tools of advocacy, mediation and the use of goal-directed argument in the courtroom.) n Women Rainmakers’ Best Marketing Tips, 2nd Edition (The very best ideas for rainmaking – for men or women.) To check out materials, go to the Law Practice Management Program’s webpage at www.gabar.org/lpm.asp or contact the program’s administrative assistant, Pam Myers at (404) 527- 8772 or [email protected].

Natalie R. Thornwell is the director of the Law Practice Management Program of the State Bar of Georgia. Consumer Pamphlet Series

How to be a Legal Lawyers and Juror’s Good Witness Careers Legal Fees Manual The State Bar of Georgia’s Consumer Pamphlet Series is available at cost to Bar members, non- Patents, Selecting a Auto Buying Trademarks & Nursing Home Bar members and organizations. Pamphlets are Accidents a Home Copyrights individually priced at 25 and 75 cents each plus shipping. Questions? Call (404) 527-8761. BankruptcyState Bar How to Choose of Georgia A Lawyer The following pamphlets are available: Legal Rights of State Bar Selecting a State Bar Nursing Home ofDivorce Georgia Personal of Georgia Auto Accidents  Bankruptcy  Buying a Home  Residents Care Home Wills 77 Divorce  How to Be a Good Witness  How to Choose a Lawyer  Juror's Manual  Lawyers and Legal Fees  Legal Careers  Legal Rights of Nursing Home Residents  Patents, Trademarks and State Bar State Bar State Bar State Bar of Georgia of Georgia of Georgia of Georgia Copyrights  Selecting a Nursing Home  Selecting Consumer Consumer Consumer Consumer Pamphlet Pamphlet Pamphlet Pamphlet Series Series Series Series 77 77 a Personal Care Home  Wills

Visit www.gabar.org/cps.htm for an order form and more information or e-mmail [email protected].

June 2004 77 6-04GBJ.qxp 5/11/2004 5:12 PM Page 78 Office Tifton Satellite Office Stays Involved in the Community By Bonne Cella

Rotary International Program in the United States and Chile were noted and new ideas were exchanged. The State Bar of Georgia’s satellite office arranged for Rotary Club visitors from Chile Career Day to meet with their counterparts. The Rotary Sherry Gatewood, an employee of the State International program is designed to foster Bar of Georgia satellite office in Tifton, assist- friendships and professional development. ed with Career Day at Berrien County High Tifton Judicial Circuit attorneys Bob South Georgia School by setting up a booth with law-related Richbourg, Fred W. Rigdon and Lisa Gibbs career pamphlets and materials. Attorney explained their area of law practice with William Waugh Turner III, of Nashville, Ga., attorney Christian Prado and teacher Paola was on hand to answer questions from the Jara. Many similarities in the practice of law students.

District Attorney Paul Bowden of the Tifton Judicial Circuit discusses the issue of child abuse at the Tifton courthouse.

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Child Abuse Awareness Month District Attorney Paul Bowden of the Tifton Judicial Circuit addressed Sherry Gatewood, citizens who gathered at the court- administrative assistant house for Child Abuse Prevention at the State Bar of Awareness Month. Pinwheels dotted Georgia Satellite Office, the lawn of the courthouse repre- provides information for senting the number of reported cases a Career Day attendee. of abuse and neglect for the year. South Georgia BOG Meeting Board of Governors members from the South Georgia area were asked to meet at the satellite office. Rob Reinhardt, president-elect of the State Bar of Georgia, told those in attendance that he wanted their ideas. “What I want to focus on is improving the State Bar’s function as a trade organization,” he said. “I am looking for ways that we can better utilize our formidable resources to provide better support for the practicing lawyer in the (Left to right) Leon Benefield, rotary district governor; Paola Jara, teacher trenches. Lawyers with better prac- from Chile; Fred W. Rigdon, attorney; Christian Prado, attorney from tice support deliver better legal Chile; and Lisa Gibbs, attorney. services to the consuming public.” State Bar Speakers Bureau The State Bar of Georgia’s Speakers Bureau recently arranged for speakers in Cairo, Cobb County, La Grange, Douglasville and Columbus. If interested in speaking to civic clubs or school groups on behalf of the State Bar of Georgia, call the Satellite Office at (800) 330-0446 or e-mail [email protected] or [email protected]. A speaker’s pack- et containing speeches on several different subjects will be sent to you.

Bonne Cella is the administrator of the State Bar’s South Georgia office. Board of Governors members from the South Georgia area gather at the Bar’s satellite office.

June 2004 79 6-04GBJ.qxp 5/11/2004 5:13 PM Page 80

Pro Bono Honor Roll

he Pro Bono Project of the State Bar of TGeorgia salutes the following attorneys, who demonstrated their commitment to equal access to justice by volunteering their time to represent the indigent in civil pro bono programs during 2003.

Georgia Legal Atlanta Cartersville Morton Harris Cumming Services Program David M. Bessho Kelley A. Dial Kenneth Henson Kathy Hedden Karen D. Fultz Russell Hinds Thomas P. Knox Abbeville Robert S. Huestis Cedartown Ronald S. Iddins Christopher S. Thurman David G. Morgan Jefferson C. McConnaughey James S. Astin Paul Kilpatrick Vicky L. Norrid Michael D. McRae Elizabeth S. Morgan Dallas Albany Robert T. Monroe Nancy Miller Jana L. Evans (Sponsored by Augusta Bemon McBride The Dougherty Circuit Benjamin Allen Chattanooga, TN Elizabeth McBride Dalton Bar Association) David B. Bell Albert L. Watson, III William Nash (Sponsored by Valerie Brown Williams Jean M. Colohan Charles G. Wright, Jr. John H. Nix, III The Conasauga Bar Cawthon Custer William J. Cooney John P. Partin Association) Gail Drake Stanley C. House Clarkesville Pedro Quezada J. Raymond Bates, Jr. B. Samuel Engram, Jr. William J. Marcum Douglas L. Henry Lee R. Redmond, Jr. Fred Steven Bolding William Erwin Catherine V. Ryan Alan F. Rothschild, Jr. Dianne Cook James Finkelstein Terrance Sommers Clayton Alan F. Rothschild, Sr. Robert A. Cowan Gregory Fullerton Charles C. Stebbins, III Janet A. Sossomon William Rumer Tommy D. Goddard Johnnie Graham Ronald W. Self J. Allen Hammontree William Gregory, II Bainbridge Cohutta Joseph A. Sillitto Michael Hurtt Kevin Hall Josh Bell Cynthia Noles Johnson W. James Sizemore, Jr. Robert D. Jenkins Rodney M. Keys W. Paul Fryer Todd Mitchell Johnson Virgil Ted Theus Joel P. Thames Rudolph Patterson Bruce Kirbo William L. Tucker Matthew A. Thames Randolph Phillips Colquitt J. Barrington Vaught J. Tracy Ward Herbie Solomon Blackshear Danny Griffin Robert L. Wadkins James E. Wilbanks Willie Weaver Teresa G. Bowen Dorothy Williams Columbus Mark Youmans Dawson Alpharetta Blairsville (Sponsored by Richard Zimmerman W. T. Gamble Daniel Mitnick Diana Reif The Columbus Bar Association) Robbie Colwell Weaver Ed L. Albright Conyers Decatur Americus William Arey (Sponsored by Frederick R. J. Jackson William NeSmith Brunswick Jacob Beil The Rockdale County Stephanie R. Lindsey Doree Avera Robert C. Brand, Jr. Bar Association) Ashburn Grant Buckley Richard A. Childs Nancy N. Bills Donaldsonville Stephen L. Ivie Denise S. Esserman James C. Clark, Jr. William M. Shingler Carlton D. Gibson Leslie L. Cohn Cordele Athens Eugene Highsmith Pete Daughtery Clifford Harpe Douglasville Thomas A. Camp Richard H. Simpson, Jr. Darrell Dowdell Christopher A. Bennett Brian Carney Richard H. Taylor Michael Eddings Covington Andrea R. Moldovan Tony D. Coy William Edwards John B. Degonia, Jr. Stan Durden Carrollton Gregory S. Ellington Kimberly D. Degonia Dublin Sherry L. Jackson James J. Hopkins Judson Grantham Shannon D. Sneed Rocky Adams William R. Sotter Allen M. Trapp, Jr. William B. Hardegree John L. Strauss Eric Jones 6-04GBJ.qxp 5/11/2004 5:13 PM Page 81

Ellenwood McDonough Christopher L. Rouse Attorneys Who Helen Adrian Betty J. Williams-Kirby Gerald P. Privin Mark Schaefer Volunteered thru the John W. Alden Michael G. Schiavone Pro Bono Project in 2003 Paul Alexander Fayetteville McRae Robert Simonton Scott L. Allen Michael J. Hofritcher Lee Cannon Kristin Tolvstad Alpharetta Chintan Amin Sharon I. Pierce Leonard Trosten Joan M. Gudermuth Alison K. Arce Miller Gwendoly Fortson Waring Mike Athans Fitzgerald Danny Sheppard Wallace Williams Atlanta James Atwood Robert Chasteen Stephen R. Yekel Michael P. Carvalho Jennifer Auer Monroe Kevin Francis Duda Adwao Awotowi Gainesville Melissa A. Bruzzano St. Marys Robert Glickman Maria Baratta Palmer H. Ansley, Jr. Larry R. Pruden John S. Myers Jamila Harrison Robert Barnaby Susan D. Brown Mark E. Henderson Cheryl Barnes Thomas D. Calkins Montezuma Stockbridge Kerry Hochgesang Nancy Baughan Raymond L. Crowell G. Leonard Liggin Joseph Mark Brittain Suil Kang Laura Baumgartner Charles N. Kelley Michelle R. Clark Tara P. Kinney R. Daniel Beale Troy R. Millikan Monticello Samuel C. Henry Michael Lesutis Julianne Belaga Tim Lam John Lewis Brent Bellows Gray Sugar Hill Larry Meyer Wenona C. Belton Jeana Johnson Moultrie John V. Hogan Leslee L. Mitchell Jeff Berg Robert D. Howell Stacey Mollohan Dara Berger Griffin Dorothy McCranie Sylvania Joshua M. Moore Aiko Bethea Dean R. Fuchs Joseph Weathers Evelyn S. Hubbard Lynnette Rhodes Gregory Scott Bianchi Sara Shalf Joseph O. Blanco Hawkinsville Newnan Tallahassee, Florida Andrew G. Smith Russ Bonds David L. Venable J. Littleton Glover, Jr. Randolph Giddings Jennifer Snyder Daniele E. Bourgeois Michael A. Gorove Leonard Williams Christopher J. Bowers Homerville Jimmy D. Harmon Thomaston Michael Wolak, III Anne Boyd Clayton Tomlinson Alan W. Connell Robert Bozeman Pooler Donald Snow Barnesville Mario D. Breedlove Jasper Charles C. Grile William A. Thomas William Brewster Rita A. Sislen Thomasville Winston Briggs Quitman Chris Evan Ambrose Brunswick Louanne Bronstein Jefferson Gerald Spencer Joseph J. Segui Paul A. Brooker Donna S. Sikes Thomson Sara Walden Brown Juli Wisotsky Ringgold Jane S. Dansie Chattanooga, TN Landon Buffington Michael E. Brush Jimmy D. Plunkett Eric L. Buchanan Carin Burgess Jesup McCracken Poston Terry L. Burston W. Jefferson Hires Lawrence A. Stagg Tifton Columbus Randy Cadenhead Henry Bostick Michael A. Eddings Stephen L. Camp LaFayette Rome Render Heard Tina Carew Charles Clements, III (Sponsored by The Melinda Phillips Dalton Michael T. Carithers Rome Bar Association) Thomas H. Pittman Lori Spencer Raymond Carpenter LaGrange J. Scott Calan Betty Walker-Lanier Sharon Case David Fowler Timothy J. Crouch Decatur Jeffrey Cashdan W. Luther Jones Floyd H. Farless Toccoa Shannon C. Johnson Roger Chalmers Richardo Samper Jonathan E. Laster Willie J. Woodruff, Jr. Henry Chalmers Frank Thornton McKay & Fuller Greenville, SC Summer Chandler John Niedrach Trenton Tara E. Trantham Susan Chiapetta Lakeland W. Gene Richardson John F. Emmet Julie Childs John J. Strickland, Jr. Susan D. Taylor Lawrenceville John L. Choate Stephen P. Woodard Valdosta Sandra Clarke Lindsey Churchill Lexington Nancy L. Anderson Tami M. Conner Lorelei D. Cisne Susanne F. Burton Rossville H. Burton Baker Emory L. Clark Robert J. Harriss Latesha Y. Bradley Lithonia Matt Clark Louisville Thomas Lindsay Valerie Bryant Chika Ojiaku Jason H. Coffman H. Brannen Bargeron Presley & Howell, P.C. Brittany Coons-Long Jennifer Cohen Roger J. Dodd Marietta Benita Collier Macon Sandersville B. Miles Hannan James Ausenbaugh Joyce Colmar (Sponsored by Thomas J. O’Donnell John D. Holt R. Stevan Coursey The Macon Bar Robert M. Wynne Patricia Karras Norcross Matthew T. Covell Association) Vernita Lee Roberta L. Hacker Donna Crawford Nancy Atkinson Savannah Floyd Moon Matt Crawford James Avant (Sponsored by Detria Powell Pooler Cynthia Crawford Pamela Boylan-Hill The Savannah Bar James G. Tunison Debra R. Geiger Robert Cullen Josephine Bryant-Jones Association) Thomas A. Cullinan Kathleen Hall Kathleen Aderhold Warner Robins Savannah Rebecca Culpepper John R. Hawk Solomon A. Amusan Greg Bell Kirsten McDonough Jeffrey Cunningham Roxanne Hinson Thomas R. Bateski Danielle Hynes Joseph J. Steffen, Jr. Jack Dalton A. G. Knowles Charles W. Bell Gail Robinson Alison P. Danaceau Charles A. Lanford, Jr. Birney O’Brian Bull Gerald Stubbs Woodstock Mawuli Davis Ann Parman Dolly Chisholm Lynn Yount-Hamilton Archie Speights Cinnamon Davis James Patterson Brian L. Daly Stephanie Decker Robert A. B. Reichert Robert Erb Washington Atlanta Volunteer Patrick Deering Stephanie Thornton Joseph M. Gannam M. V. Booker Lawyers Foundation Colin R. P. Delaney Joy Webster Julianne Glisson Michael O. Horgan Joseph Delgado Larry Williams Amy Henderson Alpharetta Jennifer B. Dempsey Erica Woodford William T. Hudson Waycross Elyse Aussenberg Frank Derrickson Charles V. Loncon William R. Little, III Audrey Ball Audra A. Dial Madison Donald B. Lowe, III Huey W. Spearman Sally Cannon Catherine Diamond-Stone H. James Winkler Jonathan Maire Tara McNaull Janis Dickman Burton F. Metzger Winterville Kathryn Reeder Alex J. Dolhancyk Martinez Richard Metz Tracy Murray Amy Waggoner Art Domby Stephen H. Hagler Patricia M. Murphy Robert F. Dow Susan M. Reimer Carl S. Pedigo, Jr. Woodstock Atlanta Alex Drummond B. Keith Wood Jennifer Adair Albert G. Dugan 6-04GBJ.qxp 5/11/2004 5:13 PM Page 82

Benjamin F. Easterlin Erinn Kelly James A. Proffitt Julie Wood Steve M. Frey Sterling P. Eaves Michael Kerns Jill Radwine John F. Woodham Richard Genirberg Deborah Ebel Judy Kim Michelle B. Rapoport M. Drew Wooldridge Ethenia King Grant Beth Edmondson Shannon Kimball Christopher Reilly Teresa Roseborough Leslie Gresham Jason Edwards William Kitchens Melinda Renshaw James H. Yancey Loletha D. Hale Rachel Elovitz Michael Kline John Rezac Anne E. Yates Yvonne Hawks Kevin Elwell Dena R. Klopfenstein Robert L. Rhodes Joann Yoon Scott Holt Frankie Denise Evans Andrea Knight Bill Rich Peter York Rolf Jones Sterling P. Eaves Paul Knowlton William M. Rich Kenneth L. Zirkman Randall Keen Deborah Ebel Katherine M. Koops John Richards Susan M. Kirby Beth Edmondson Tobias S. Kraetzschmar Melody Richardson Decatur Sam O. Laguda Jason Edwards C. Edward Kuntz Nicole Richardson Phyllis Watkins Arlene LeBrew-Sanders Rachel Elovitz Jeanney M. Kutner Scott Riddle Chris Leopold Kevin Elwell Frank Landgraff Beth E. Rogers East Point Robert L. Mack, Jr. Frankie Denise Evans Ian Landgreen Pam Roper Sonya Bailey Leslie Miller-Terry Stephanie Everett Michael Leff Robert D. Rose Katherine Durden Joes Montgomery Joe Farrell Joseph M. Lewinski Scott Sausser Vincent C. Otuonye Laura Fenn Stephen E. Lewis Tom Schramkowski Jonesboro Jerry L. Patrick Jonathon A. Fligg Edward H. Lindsey, Jr. Chris Schwab Carl A. Hall Nancy Lee Presson Robert L. Florence JoAnn K. Little Joseph L. Scibilia Gloria Reed Harold Franklin Andrew Litvak Debbie Segal Marietta Darrell B. Reynolds Jules Frauenhafer Jay E. Loeb Richard L. Shackelford David V. Johnson Coral Robinson Paula J. Frederick Al Loebe Laleh Sharifi Stephen Worrall Shana M. Rooks Eric J. Frisch James Long Joe Sharp Averty T. Salter, Jr. James E. Frye Dax E. Lopez Brian Sheedy Norcross Daphne Walker Virginia Fuller Tamsen Love Heather A. Shirley Richard Campbell David Joseph Walker Karen B. Fultz Deborah Lubin Jeff Simmons Jan Watts Stephen Fusco Kerry Lunz Mindy Simon Palmetto Stephen White Richard Gaalema Anita Lynn Leah M. Singleton Bettina S. Brown Betty Williams-Kirby Charles D. Gabriel Jennifer M. Mack Julie Sinor Andrew Williams Deliannett Gaines Amanda B. MacKinnon Heather Slovensky Roswell C. Keith Wood Adams Gajadharsingh Rashida MacMurray Gregory Smith Patricia Sue Glover Fred Zimmerman Tina Galbraith Amy Lee Madigan Rachel Snider Eileen Thomas M. Arthur Gambill James B. Manley Mark Snyderman McDonough Cheryl Gastaldo Summer Martin Alison Roberts Stone Mountain Faye W. Hayes Raquel Gayle Jonathan Mason Cindy L. Spindler Robert W. Hughes, Jr. Karen Geiger Kevin A. Maxim John C. Spinrad Stockbridge Carol Geiger Amy McCarthy David Stach Tucker Allen W. Bodiford Dena Grace George Brendan McCarthy Byron Starcher J. Henry Norman Joseph Chad Brannen Leanne Gilbert Brady McFalls Ashley Steiner Bliss A. Peterson Pandora Hunt Evan Gilreath Winford R. McGowan Bruce Steinfeld Tahira Piraino Scott Key Jim Gober Soledad McGrath Sarah Stephens Rickey Morris Brenda Godfrey James R. McGuone David N. Stern CLAYTON COUNTY PRO William Turner Steven I. Goldman Anna McLamb Leslie Stewart BONO PROJECT William W. West Soledad Graff Ryan K. McLemore Mitchell G. Stockwell Larry Gramlich Brendon McLeod Jeri N. Sute Atlanta COBB JUSTICE FOUNDATION Cheryl L. Grant Jerry McNalley Frances F. Tanner Allan E. Alberga Karlise Y. Grier Laurin M. McSwain Mary W. Tapper Tonya Boga Atlanta Nancy Levy Grossman Christopher L. Meazell Jeffrey Michael Taylor Gary Flack John Collar Thomas Hall John M. Merritt David Tetrick Lisa D. Wright David Crawford Dinisa Hardley Ashley Miller Anita Thomas Ann Noel Dettmering Stephen Harlan Kim Minix James R. Thompson College Park George Ference Brian Harms Leslee Mitchell Charles B. Thompson Valrie Y. Abrahams Jeffery Haskin Catherine Harrison Ali Mitchell Kara Thompson Arthur Marateck Michael Hart Jeremy Moesar Vail Thorne East Point Michael McLaughlin Peter Hasbrouck Kathleen Mones Amy Todd Gracy Barksdale Jody Miller Amy M. Hass Tiffani Moody Christian Torgrimson Willie G. Davis Michael Phillips Steven Hauser Latonya Moore James Trigg Karen Robinson Brian Pierce Amy L. Haywood Rob Muething Lesley Truitt Scott Walters, Jr. David Pollan Ralph Hiers Scott Nathan Cheryl Tuback Carol Powell Trishanda L. Hinton Sherry V. Neal Lucretia Turner Fayetteville Lynn Stevens Rebecca Hoelting Robert Neufeld Mark S. VanderBroek Muriel B. Montia Melinda Taylor Michael Holbein Joel Neuman Peter M. Varney Frances Smith Karen Williams Philip E. Holladay Robert Newcomer Rex R. Veal William Holley Shane Nichols Kristin Nelson Verrill Forest Park Dallas Marne A. Holloway Matt Nichols Frank Virgin Emily George Valbuena Martin Jo Ann Holmes William Mijem, Jr. Charles Vorndran Tina Stanford Phillip E. Hoover Jeffrey J. Nix Tom Walker Bobby Simmons Decatur Kay D. Hopkins Mary Ann B. Oakley James Washburn Kathleen Flynn Susan Howick Patrick O’Connor David Webster Jonesboro Michael T. Hosmer Rebecca S. Olson Alice Weinstein Emmett J. Arnold, IV Douglasville Isabelle Hurtubise Todd Orston Rob Wellon Daniel F. Ashley Donald Donovan Sarah Isabel Cynthia Parks Loren West James Bradley John F. Isbell Stefan Passantino Jennifer Westerhaus Barbara Briley Kennesaw Victoria P. Jalo Russell Patterson Jimmy White George Brown Grant Brooker Alan R. Jenkins Peter J. Pawlak, Jr. Brian White Eric Jerome Carter Julye Johns Jacqueline L. Payne Rebecca L. Williams Johnny F. Castaneda Marietta Elizabeth Johnson Charles M. Pellissier Karen Brown Williams Constance Manigo Daise Robert Abbott David Johnson Craig K. Pendergrast Charmaine Williams James J. Dalton James Ausenbaugh James Johnson Elizabeth A. Philp Price S. Williams, Jr. Ed Downs Nicholas Bakatsas Leigh Jones Kim T. Phipps John C. Williams, Jr. Charles (Chuck) Driebe John Barrett Andrea Jones Ken Pollock Elizabeth Williamson Bobby Farmer Debra Barnes Lewis B. Jones Deborah Pond David Wilson Monroe Ferguson Frank Bradford Michelle E. Kandcer Rachel Port Debra Ann Wilson Pam Ferguson Michael Brewster Elena Kaplan R. Eric Powers Mindy Wolf Suellen Fleming Lawrence Burke 6-04GBJ.qxp 5/11/2004 5:13 PM Page 83

Althea Caces Avondale Estates John Eaton Suwanee Heather Munday David Canale Joe A. Weeks Reka Eaton Scott K. Spooner Dan Murphy David Casey Marcia Ernst Neal Newman Tom Cauthorn Chamblee Alysa Freeman Tucker Barry Noeltner Kenneth Clark Samuel Norman Werbin Evan Glover Steven R. Ashby Eric Olson Kelli Cross Lawrence Gordon Tahira Piraino Patrise Perkins-Hooker Joan Davis Decatur Cheryl Grant Laurie Farese Phelan Ian Falcone Herman Baker Bryan Hausner TRUANCY INTERVENTION Jeff Pope Lynn Fant Mark G. Burnette Chad Henderson PROJECT Jill Radwin James Friedewald John P. Cross, II Michael Hobbs (Sponsored by the Atlanta Bar Michael Raeber Ray Gary Susan B. Ellis Ben Johnson, IV Association) Melissa Redmon David Ghattas Kathleen Flynn Scott Johnson Wendy Reingold Douglas Hill Michael A. Gabel Henry “Hank” Kimmel Atlanta Hayley Riddle James Hogan Stephen Gibbs Dan Klein Teresa Adams Michele Ritz R. Stacy Hylton Ross M. Goddard, Jr. Jonathan Mason Scott Anderson Mary Roundtree Darryl Kidd Lawrence Ross Gordon Michael Mehrman Derek Bauer Timothy Santelli M. Scott Kimbrough Richard Green, II Steven Mudder Chip Benton Daniel Schert Lawrence Korn Alan C. Harvey John “Jay” Patton Mary Benton Leah Singleton John Lyle Donald A. Hillsman Peter Pawlak Nowell Berreth Kevin Snyder Roderick Martin Timothy W. Hoffman Courtney Perry Zach Bishop Cindy Spindler Michael McChesney Warren W. Hoffman Dale Richardson Nathaniel Blackmon, III Beth Anne Stanford Constance McManus William T. Hudson, Jr. William Carter Santos James Blitch Tanya Stewart Jack Menendez David L. G. King, Jr. S. Wade Sheek Andrea Bowman Erin Stone J. Kevin Moore Gregory J. Lohmeier Melinda Simon Stephen Bracy Richard Storrs Richard Moore Frederick C. McLam Sol Spielberg Thomas Branch Meg Taylor Dennis O’Brien Ted Price Thomas Vanderbloemen James Brantley Gerald Thomas Nicholas Panayotopoulos Bette Elaine Rosenzveig Jill Wasserman Mary Bready Kenneth Thompson, Jr. G. Cleveland Payne Donald Wesley Schaefer Steven Weizenecker Richard Brody Sharon Thornton Debbie Pelerose J. Ed Segraves William Welch Andrea Brownridge John Tyler Jonathan Petcu Elliott A. Shoenthal Clay Westbrook Tammy Bouchelle Matthew Urbanawiz Christopher Phillips Harvey Whiteman Mark Williamson Gigi Bugg Kim Verska Dorine Pries Mary Walton Whiteman John Wilson Jennifer Butler Bryan Vroon Josie Redwine Joseph Eugene Williams Jeff Young Christiana Callahan Edwardo Waite Chad Reed William Witcher, Jr. Christine Cason Ryan Walsh Christopher Reeves Decatur Hilliard Castilla Antavius Weems Marion Sams Doraville Yvonne Hawks Naeemah Clark Beryl Weiner John Skelton Hugh Richardson Powell, Jr. John Crenshaw Adam Wheeler Mary Stearns GWINNETT COUNTY PRO Emily Culpepper Charles Whitney Aaron Strimban Lilburn BONO PROJECT Mawuli Davis Vicki Wiley Robert Tidwell David L. Holbrook Michell Davis Nikki Adcock Williams Raymond Tumlin Atlanta Richard Deane Rebecca Williams Victor Valmus Lithonia Ivory Brown Derin Dickerson Theresa Yelton W. Frank Ward E. Noreen Banks-Ware Clark and Washington Lex Erwin Amy Weber Lisa Patrick Franklin D. Hughes, Jr. Tara Simmons Evans Clarkston James Whitfield Anthony W. Zezima Glen Fagan Shirley White Edwards Diane Woods Norcross Jerolyn Ferrari Sharmila Nambiar Buford Ronald Fontenot Decatur Norcross Nelle M. Funderburk Seth Ford Xernia Fortson Brent Stamps Snellville Martin Friedgood Max Hirsh William Clinton Rhodes Duluth Ray Fuerst Charles Taylor Smyrna Rodney S. Harris Stephen Fusco David Brennan Stone Mountain Michelle Vereen Tina Galbraith Ellenwood Marie Ann Harkins Mark R. Gaffney Joseph Gleason Tamika Hrobowski Sandra Lilly N. Wallace Kelleman Lawrenceville Carlos Gonzalez Sharon Young David T. Bianco Cherri Gregg DEKALB VOLUNTEER Tucker Tom Cain Terrinee Gundy Jonesboro LAWYERS FOUNDATION William H. Arroyo Jerry A. Daniels Dana Marty Haas Thomas Williams (Sponsored by The DeKalb James Russell Gray Larry L. Duttweiler Wit Hall Robert Mack County Bar Association) Tahira P. Piraino Sandra D. Hicks Theresa Hammond William L. Skinner Suzanne K. Laird Sheryl Harrison Marietta Atlanta John J. Tarleton David S. Lipscomb Sarah Hawk Jesse Barrow Samuel Appel Sandra W. Thornton Joseph M. McLaughlin Kathleen Heberlein Jeffrey A. Bashuk Larry J. Owens Chad Henderson Norcross Stanley M. Baum Georgia Lawyers for the Arts Steven M. Reilly Catherine Hobart Bill Fletcher Lori E. Brennan Macklyn A. Smith Oni Holley R. Peter Catlin Alpharetta Jessica Towne Angela Payne James Stone Mountain Melvin Drukman Michael Cross Marcy Tucker Michelle Kandcer Horatio Edmondson George R. Ference Nelson H. Turner Lorna Katica Clementine Rene Hawkins Gary Flack Atlanta L. Lee Washburn Marcus Keegan Jeff Flynn Sarah Apsel David M. Wittenberg Colin Kelly Gary Freed Phinia Aten Erinn Kelly Benning M. Grice Shannon Balloon Norcross Jeanney Kitner Scott A. Halpern Jeff Banish Glenn E. Cooper Judy Lam Charles F. Hicks Stuart Banner David W. Graybeal, Jr. Michael Lee Zoe M. Hicks Charles Beaudrot Tyrone M. Hodnett Skip Lockard Paige N. Jennings Joseph Bennet-Paris Leslie Luck William C. McFee, Jr. Andrew Coffman Snellville Jennifer Mack Charles M. Medlin Darryl Cohen Charles P. Giallanza Gib Malm Lynnette Rhodes Michael Dailey Clint Rhodes Alissa Malone Stephen J. Sasine John Dalton David Marmins Randie Siegel Roxanna Dehnad Stone Mountain Trey McGowan Lynne Markerson Stevens Stephen Dorvee N. Wallace Kelleman Soledad McGrath Wendell K. Willard David Doverspike Theresa B. Klein Jay Mills Anthony Zezima Steven Dubner Marissa Milton Wilcox Dunn, III Leslee Mitchell 6-04GBJ.qxp 5/11/2004 5:13 PM Page 84 News

Sections Close Out Bar Section Year in Style By Johanna B. Merrill

ing dues payment for the 2004-05 Bar year. s the 2003-04 Bar year winds For an overview of the Bar’s sections, visit www.gabar.org. (However, please remember down, sections gear up. The that you are able to join any section through- spring was filled with CLE out the Bar year by submitting a join form A [found online] and check made payable to functions, social events, lunch meetings and the State Bar of Georgia and sending it to the elections. Several of the sections produced Membership Department.) The Entertainment & Sports Law newsletters and they all worked hard to Section’s calendar was full throughout the spring months. On March 18 they co-hosted a retain and grow their memberships heading successful gallery crawl in the Castleberry into a new Bar year. Hill Arts District along with Georgia Lawyers for the Arts, and the entertainment The section department as a whole grew law associations from Emory, Georgia State when the Board of Governors approved the and John Marshall law schools. Five galleries th Bar’s 36 section at their spring meeting in participated: Marcia Wood, Skot Foreman, St. Simons Island. According to the section’s Ty Stokes, Wolf Fisher and 310 Haus, along bylaws, the Immigration Law Section will with the restaurant Slice. Attendees enjoyed “provide education, advise and disseminate incredible art, including the Dali retrospec- information regarding current conditions tive at Skot Foreman, before heading to Slice relating to the practice before various gov- for complimentary cocktails and appetizers. ernment agencies including Department of On April 7, section members gathered at Homeland Security, U.S. and state depart- the Clubhouse at Lenox Square for a lunch ments of labor, etc., to its members in the area lecture led by Michael J. Egan III of King & of U.S. immigration law.” Socheat Chea of Spalding LLP on representing professional Atlanta will act as chair for the upcoming Bar sports teams. Egan represents the Atlanta year. Falcons, as well as the Atlanta Spirit LLC, the Bar members will be able to join the entity that purchased the Hawks and the Immigration Law Section section, as well as Thrashers. Section members met again on all 35 of the existing sections, when submit- May 7 at Maggiano’s Little Italy Restaurant

84 Georgia Bar Journal 6-04GBJ.qxp 5/11/2004 5:13 PM Page 85

It’s finally June, which means that the Bar’s Practice & Trial Section’s annual Tradition of Excellence awards 41st Annual Meeting is upon us! If you’re breakfast. The Criminal Law, Tort & Insurance Law and School & attending please don’t forget to check out College Law sections are also hosting breakfast meetings on June 18. the section-sponsored Opening Night Also, don’t forget to stop by the exhibit booth to receive more infor- Reception. Twenty-seven of the Bar’s sections mation on the Bar’s sections. sponsored the event, and because of their NEWS FROM generosity, the event will be one-of-a-kind. THE SECTIONS Appellate Practice in Buckhead for a lunch lecture on attorney of the Gwinnett Judicial licensing issues in television with Circuit in Lawrenceville, presided Section speaker James M. McGee of the over the event. By Christopher McFadden Turner Entertainment Legal On May 14 the Creditors’ Rights White v. State, __ Ga. __, __ S.E.2d Department. Section held their annual awards __, Case Number S03G1535, 2004 The Intellectual Property Law luncheon at Maggiano’s Little Italy Fulton County D. Rep. 861 (March Section also had an event-filled end Restaurant in Buckhead. Judge 8, 2004). to an already successful year. The John J. Goger of the Fulton Country Reversing the Court of Appeals, section’s Copyright Committee, Superior Court was the guest the Supreme Court held, “a defen- chaired by John R. Renaud, hosted speaker, and Section Co-Chair Jay dant seeking an out-of-time appeal a copyright and patent roundtable Loeb was presented with the following a jury trial need only at the Bar Center on March 24. On Morris W. Macey Lifetime show that the procedural deficien- April 1 the Trademark Committee Achievement Award for his dedi- cy was due to counsel’s failure to held a Basics of Trademark and cation to the section and the prac- perform his duties. … He need not Internet Domain Name Law tice of creditors’ rights law. point to the record and set out the Seminar for non-attorneys at the The Environmental Law Section issues he would raise on appeal.” Bar Center. On May 12 the held one of their regular brown bag Hamilton Capital Group, Inc. v. Litigation Committee presented lunches on May 20 at Kilpatrick Equifax Credit Information Services, “Use of Experts in IP Litigation,” Stockton LLP in Atlanta, which was __ Ga. App. __, __ S.E.2d __, Case with speakers Chris Arena, Ron co-sponsored by the Georgia chap- Numbers A03A1676, A03A1677, Coleman, Mark Gallagher and ter of the Air and Waste 2004 Fulton County D. Rep. 867, Kenneth Massaroni, moderated by Management Association. Speakers 2004 Ga. App. LEXIS 286 (March 2, Alison Danaceau, which was also discussed opportunities and obsta- 2004). held at the Bar Center in Atlanta. cles in urban development and The Court of Appeals decided to The Technology Law Section smart growth. “allow direct appeals from con- and the Intellectual Property Law It’s finally June, which means tempt orders even if the contemnor st Section co-sponsored a half-day that the Bar’s 41 Annual Meeting is given the opportunity to purge CLE course along with I.C.L.E. on is upon us! If you’re attending the contempt before punishment is April 13 at Troutman Sanders LLP please don’t forget to check out the imposed.” Hamilton Capital over- in Atlanta. The Technology Law section-sponsored Opening Night turns a line of authority that had Showcase awarded attendees three Reception. Twenty-seven of the required applications for interlocu- CLE hours, including one ethics Bar’s sections sponsored the event, tory appeal in such cases. hour. Suellen W. Bergman, of and because of their generosity, the Powell, Goldstein, Frazer and event will be one-of-a-kind. Four of Johanna B. Merrill is the section Murphy LLP, Todd S. McClelland the sections are hosting events dur- liaison for the State Bar of Georgia. of Alston & Bird LLP and W. ing the Annual Meeting, such as Charles Ross Sr., assistant district the always-popular General

June 2004 85 6-04GBJ.qxp 5/11/2004 5:13 PM Page 86

he Lawyers Foundation Inc. of Georgia sponsors activities to promote charitable, scientific and educational purposes for the public, law students and lawyers. Memorial contributions may be Tsent to the Lawyers Foundation of Georgia Inc., 104 Marietta St. NW, Suite 630, Atlanta, GA 30303, stating in whose memory they are made. The Foundation will notify the family of the deceased of the gift and the name of the donor. Contributions are tax deductible.

Charles L. Allen II George P. Graves Walter P. McCurdy Jr. Mt. Pleasant, S.C. Gainesville, Ga. Stone Mountain, Ga. Admitted 1978 Admitted 1978 Admitted 1960 Died December 2003 Died February 2004 Died March 2004

Harris P. Baskin Jr. John C. Gullickson Martha Perrin Marietta, Ga. Lawrenceville, Ga. Atlanta, Ga. Admitted 1974 Admitted 1988 Admitted 1975 Memoriam Died January 2004 Died April 2004 Died March 2004

Howard A. Becker S. Alan Hamburger Thomas K. Purcell

In Atlanta, Ga. Atlanta, Ga. Atlanta, Ga. Admitted 1977 Admitted 1973 Admitted 1975 Died April 2004 Died February 2004 Died February 2004

Arnold J. Bennett E. Reginald Hancock William H. Roe Dunwoody, Ga. Sea Island, Ga. Birmingham, Ala. Admitted 1990 Admitted 1950 Admitted June 1979 Died September 2003 Died January 2004 Died September 2003

Thomas A. Childs Jr. John B. Keeble III Elmer A. Simpson Jr. Augusta, Ga. Atlanta, Ga. Atlanta, Ga. Admitted 1948 Admitted 1956 Admitted 1967 Died April 2004 Died February 2004 Died March 2004

Margaret H. Fairleigh William M. Mason Jr. Thomas L. Washburn III Atlanta, Ga. Atlanta, Ga. Atlanta, Ga. Admitted 1940 Admitted 1965 Admitted 1981 Died February 2004 Died April 2004 Died December 2003

Fred A. Gilbert Gaines A. McCauley Dean Young Atlanta, Ga. Altamonte Springs, Fla. McDonough, Ga. Admitted 1960 Admitted 1978 Admitted 1994 Died March 2004 Died December 2003 Died March 2004

Memorial Gifts The Lawyers Foundation of Georgia furnishes the Georgia Bar Journal with memorials to honor deceased members of the State Bar of Georgia. A meaningful way to honor a loved one or to commemorate a special occasion is through a tribute and memorial gift to the Lawyers Foundation of Georgia. An expression of sympathy or a celebration of a family event that takes the form of a gift to Lawyers Foundation the Lawyers Foundation of Georgia provides a lasting remem- of Georgia Inc. brance. Once a gift is received, a written acknowledgement is sent to the contributor, the surviving spouse or other family 104 Marietta St. NW member, and the Georgia Bar Journal. Suite 630 Atlanta, GA 30303 Information For information regarding the placement of a memorial, please P: (404) 659-6867 contact the Lawyers Foundation of Georgia at (404) 659-6867 F: (404) 225-5041 or 104 Marietta St. NW, Suite 630, Atlanta, GA 30303.

86 Georgia Bar Journal 6-04GBJ.qxp 5/11/2004 5:13 PM Page 87

Note: To verify a course that you do not see listed, please call the CLE Department at (404) 527-8710. Also, ICLE seminars only list total CLE hours. For a breakdown, call (800) 422-0893.

15-17 June 2004 ICLE Fiduciary Law Institute St. Simons Island, Ga.

Calendar 8 12 CLE NATIONAL BUSINESS INSTITUTE Essentials of Section 1031 Exchange in Georgia Savannah, Ga. 16 6 CLE with 0.5 Ethics and 6 Trial ICLE Bridge The Gap (Video Replay) CLE 9 Atlanta, Ga. GEORGIA SOCIETY OF CERTIFIED PUBLIC ACCOUNTANTS 30-31 2004 Georgia Federal Tax Conference ICLE Marietta, Ga. Environmental Law Summer Seminar 13 CLE St. Simons Island, Ga. 3 CLE 23 ICJE Municipal Court Judges Recertification August 2004 Lake Lanier, Ga. 11 CLE with 1.5 Prof. 6 GEORGIA DEFENSE LAWYERS ASSOCIATION 24-27 2004 Annual Meeting Atlanta, Ga. ICLE 6 CLE with 6 Trial Georgia Trial Skills Clinic UGA Law School, Athens, Ga. 24 CLE 8 NATIONAL BUSINESS INSTITUTE 25-26 Keys to Success in a Real Estate Transaction in Georgia ICLE Atlanta, Ga. Southeastern Admiralty Law (SEALI) Institute 6 CLE with 0.5 Ethics Ponte Vedra Beach, Fla. 12 CLE 12-13 ICLE July 2004 Real Property Law Institute Atlanta, Ga. 14 12 CLE LORMAN BUSINESS CENTER, INC. Foreclosure & Repossession 19 Atlanta, Ga. ICLE 6 CLE with 0.5 Ethics Loan Documentation for Lawyers Atlanta, Ga. 15 6 CLE LORMAN BUSINESS CENTER, INC. Successful Handling of Wrongful Death Cases Atlanta, Ga. 6 CLE

June 2004 87 6-04GBJ.qxp 5/11/2004 5:13 PM Page 88

19-20 ICLE Advanced Health Care ICLE Atlanta, Ga. Selected Video Replays 6 CLE Atlanta, Ga. 6 CLE ICLE School and College Law Atlanta, Ga. 20 6 CLE ICLE Law of Contracts 16-18 Atlanta, Ga. 6 CLE ICLE

Calendar City and County Attorneys Institute Athens, Ga. September 2004 12 CLE 17 3-4 ICLE CLE ICLE Federal Criminal Practice Urgent Legal Matters Atlanta, Ga. Sea Island, Ga. 6 CLE 12 CLE

23 8 ICLE ICLE Construction Law for the GP Bridge The Gap Atlanta, Ga. Atlanta, Ga. 6 CLE

9 23 ICLE ICLE U.S. Supreme Court Update Trial of a Child Molestation Case Atlanta, Ga. Atlanta, Ga. 6 CLE 6 CLE

9-11 30 ICLE ICLE Solo and Small Firm Institute Title Standards 12 CLE Atlanta, Ga. 6 CLE

10 ICLE ICLE Effective Legal Negotiations and Settlement Corporate Internal Investigations Atlanta, Ga. Atlanta, Ga. 6 CLE 6 CLE 30-October 2, 2004 10 ICLE ICLE Insurance Law Institute Tort Law St. Simons Island, Ga. Atlanta, Ga. 12 CLE 6 CLE

15 ICLE Family Immigration Law Atlanta, Ga. 6 CLE

88 Georgia Bar Journal 6-04GBJ.qxp 5/11/2004 5:13 PM Page 89

First Publication of Proposed Formal Advisory Opinion No. 02-R1

Pursuant to Rule 4-403 (c) of the Rules and Opinions Nos. 86-5 and 00-3. Thus, to the Regulations of the State Bar of Georgia, the extent that a non-lawyer entity is conducting Formal Advisory Opinion Board has made a residential real estate closings not under the preliminary determination that the following supervision of a lawyer, the non-lawyer enti-

Notices proposed opinion should be issued. State Bar ty is engaged in the practice of law. If an members are invited to file comments to this attorney supervises the residential closing1, proposed opinion with the Formal Advisory then that attorney is a fiduciary with respects Opinion Board at the following address: to the closing proceeds. If the attorney par- ticipates in but does not supervise the clos- State Bar of Georgia ings, then the non-lawyer entity is engaged in 104 Marietta Street, N.W. the unauthorized practice of law. In such Suite 100 event, the attorney assisting the non-lawyer Atlanta, Georgia 30303 entity would be doing so in violation of Rule Attention: John J. Shiptenko 5.5 of the Georgia Rules of Professional An original and eighteen copies of any com- Conduct.2 ment to the proposed opinion must be filed When a lawyer is supervising a real estate with the Formal Advisory Opinion Board by closing, the lawyer is professionally responsi- July 15, 2004, in order for the comment to be ble for such closings. Any closing funds considered by the Board. Any comment to a received by the lawyer or by persons or enti- proposed opinion should make reference to ties supervised by the lawyer are held by the the request number of the proposed opinion. lawyer as a fiduciary. The lawyer’s responsi- After consideration of comments, the Formal bility with regard to such funds is addressed Advisory Opinion Board will make a final by Rule 1.15 (II) of the Georgia Rules of determination of whether the opinion should Professional Conduct which states in rele- be issued. If the Formal Advisory Opinion vant part: Board determines that an opinion should be issued, final drafts of the opinion will be pub- SAFEKEEPING PROPERTY - GENERAL lished, and the opinion will be filed with the (a) Every lawyer who practices law in Supreme Court of Georgia. Georgia, whether said lawyer practices as a sole practitioner, or as a member of a firm, Question Presented: association, or professional corporation, and May a lawyer participate in a non-lawyer who receives money or property on behalf of entity created by the lawyer for the purpose a client or in any other fiduciary capacity, of conducting residential real estate closings shall maintain or have available a trust where the closing proceeds received by the account as required by these Rules. All funds entity are deposited in a non-IOLTA interest held by a lawyer for a client and all funds bearing bank trust account rather than an held by a lawyer in any other fiduciary IOLTA account? capacity shall be deposited in and adminis- tered from such account. Summary Answer: (c) All client’s funds shall be placed in The closing of a real estate transaction con- either an interest-bearing account with the stitutes the practice of law. If an attorney interest being paid to the client or an interest- supervises the closing conducted by the non- bearing (IOLTA) account with the interest lawyer entity, then the attorney is a fiduciary being paid to the Georgia Bar Foundation as with respect to the closing proceeds and clos- hereinafter provided. ing proceeds must be deposited in an IOLTA (1) With respect to funds which are account. If the attorney does not supervise not nominal in amount, or are not the closings, then, under the facts set forth to be held for a short period of above, the lawyer is assisting a non-lawyer in time, a lawyer shall, with notice the unauthorized practice of law. to the clients, create and maintain an interest-bearing trust account Opinion: in an approved institution as The closing of a real estate transaction in defined by Rule 1.15(III)(c)(1), the state of Georgia constitutes the practice of with the interest to be paid to the law. See, In re UPL Advisory Opinion 2003-2, client. No earnings from such an 277 Ga. 472, 588 S.E. 2d 741 (Nov. 10, 2003), account shall be made available O.C.G.A. §15-19-50 and Formal Advisory to a lawyer or law firm.

June 2004 89 6-04GBJ.qxp 5/11/2004 5:13 PM Page 90

(2) With respect to funds which are nominal in 1. Adequate supervision would require the lawyer to amount or are to be held for a short period be present at the closing. See FAO . . . .etc. of time, a lawyer shall, with or without notice to the client, create and maintain an 2. Rule 5.5 states in relevant part that: interest-bearing, government insured trust account (IOLTA) in compliance with the UNAUTHORIZED PRACTICE OF LAW following provisions: A lawyer shall not:

* * * * * * * * * * * As set out in Subsection (c)(2) above, this Rule applies (b) assist a person who is not a member of the to all client funds which are nominal or are to be held for bar in the performance of activity that consti- a short period of time. As closing proceeds are not nom- tutes the unauthorized practice of law. inal in amount, but are to be held for only a short period of time, they are subject to the IOLTA provisions. The maximum penalty for a violation of this Therefore, the funds received in connection with the real Rule is disbarment. estate closing conducted by the lawyer or the non- lawyer entity in the circumstances described above must be deposited into an IOLTA compliant account. Proposed Amendment to Uniform Superior Court Rules Rule 45: Court Emergency Measures (first reading 1/29/2004)

Rule 45: Court Emergency Measures viii. Means for communicating with employees and Courts within a judicial circuit shall prepare for the public subsequent to an emergency; emergencies and disruptions in court business by ix. Means for restoring normal functions as soon adopting and periodically reviewing a consolidated as is feasible and prudent; and plan addressing the safety and security of employees x. Regular training for employees with specific and the public, continuity of operations and their emergency responsibilities and for all employees immediate response to crises. that may be affected by disruptions to operations.

a. Court Security and Facilities c. Court Emergency Order In coordination with local and/or state public safety Upon his or her own motion or after consideration of officials, courts shall develop and annually update a request by another judge or court official, the chief court security policies and procedures and a short-term judge of a court experiencing an emergency or disrup- emergency response program that anticipates safe- tion in operations may issue an order authorizing relief guarding lives and property. from time deadlines imposed by statute or court rule until the restoration of normal court operations or as b. Court Operations specified. The order shall contain (1) the identity and At a minimum, each plan for the continuity of court position of the judge, (2) the time, date and place exe- operations shall identify: cuted, (3) the jurisdiction affected, (4) the nature of the i. Essential activities and functions to be performed; emergency, (5) the period of duration, and (6) other ii. Vital records, systems and equipment, and pro- information relevant to the suspension or restoration of vide for their protection; court operations. iii. Automatic succession of leadership and dele- The duration of a court emergency order is limited to gation of authority; a maximum of thirty days. The order may be extended iv. One or more relocation sites, and provide for no more than twice by the issuing judge for additional their preparation; thirty-day periods, and any extensions shall contain v. Employees to perform essential activities and information required in the original order. functions, and provide for their training; The court emergency order may designate one or vi. Means for warning employees, the public and more facilities as temporary courthouses which shall be the media of potential threats and recommend- suitable for court business and located as near as possi- ed actions; ble to the county seat. vii. Means for identifying the location and status of employees following an emergency;

90 Georgia Bar Journal 6-04GBJ.qxp 5/11/2004 5:13 PM Page 91

Books/Office QDRO Problems? QDRO drafting for Furniture & Equipment ERISA, military, Federal and State government pensions. Fixed fee of $535 (billable to The Lawbook Exchange, Ltd. Buys, sells and your client as a disbursement) includes all appraises all major lawbook sets. Also anti- correspondence with plan and revisions. quarian, scholarly. Reprints of legal classics. Pension valuations and expert testimony for Catalogues issued in print and online. divorce and malpractice cases. All work Mastercard, Visa, AmEx. (800) 422-6686; fax done by experienced QDRO attorney. Full (732) 382-1887; www.lawbookexchange.com. background at www.qdrosolutions.net. QDRO Solutions, Inc., 2916 Professional “LegalEats, A Lawyer’s Lite Cookbook” is a Parkway, Augusta, GA (706) 650-7028.

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classified Resources 92 Greenville, SC29601. Resources Department,P.O.Box1028, resume andsalaryinformationtotheHuman and interpersonalrelations.Pleasesend business, writtenandoralcommunication, rience. Musthavedemonstratedskillsin admission andaminimumofsixyearsexpe- a superioracademicrecord,currentbar and riskmanagement.Thispositionrequires and tradecompliance,realestatetransactions negotiation, U.S.andinternational,antitrust include commercialcontractpreparationand Counsel. Corporate headquartersseeksaStaff Box 2170,PeachtreeCity,GA30269. to GeorgiaLawyersInsuranceCompany,P.O. required. Pleasesendresumes(inconfidence) some insuranceexperiencepreferredbutnot insurance services.Alawdegreeand/or marketing, riskevaluationandotherrelated advancement opportunityforapersonin lawyers. Thisgrowingcompanypresentsan Georgia andotherdistinguished several pastpresidentsoftheStateBar insures Georgialawyersandhasonitsboard Georgia LawyersInsuranceCompany Positions 242-2211; www.adrunlimited.com. Slater Street,Valdosta,GA31603-0025;(229) certified mediator-AllStateCourts.1000 & Domesticlitigation.4yearsexperienceas 40 yearsAttorneyexperienceinGeneralCivil Arbitration &EarlyDisputeResolution.Over Wayne Ellerbee,certifiedinallMediation, Dispute ResolutiontoSouthGeorgia.O. ADR Unlimited,LLC If youwouldliketoadvertiseinthe Georgia BarJournal 0 aitaS.NW, Suite 100 104 MariettaSt. State BarofGeorgia Atlanta, GA30303 Primary responsibilitieswould Sarah I.Bartleson [email protected] 404.527.8791 , NewestAlternative , pleasecontact: West ...... 9, 49, BC 49, . .9, West . .55 Fund Georgia The .57 ADR. Georgia South .27 SoftPro .15 RMT Valuation. . .61 Kaye Mitchell .35 Mutual Lawyers Minnesota . . 17 Shein G. Marcia .5 Mainstreet .IFC LexisNexis. .51 Direct Lawyers .IBC Inc.. Specialists, Insurance .29 Services. Mortgage Homestar Gilsbar, .41 Inc.. .23 Co. Insurance Lawyers Georgia .11 Insurance. Daniels-Head .17 TurnerDaniel Inc. Builders, .7 Anthony Arthur .29 Program. Retirement Members ABA .17 Service Referral Attorney AAA Advertisers Index having thempublished. credits forauthoring 104 MariettaSt.NW, Suite100 www.gabar.org/gbjsub.asp. Contact [email protected] Earn upto6CLE legal articlesand or visit the Bar’s Webor visittheBar’s site, for moreinformation Submit articlesto: Rebecca A.Hoelting Georgia BarJournal Atlanta, GA30303 Georgia BarJournal June 04 Cover and Back1.qxp 5/11/2004 3:25 PM Page 3

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4ORECEIVEAFULL1UICK1UOTEPLEASECOMPLETE DETACH ANDRETURNTHISREQUESTTO )NSURANCE3PECIALISTS )NCs0ROFESSIONAL,IABILITY$EPTs0/"OXs.ORCROSS '! s&AX ORCONTACT)3)3!,%3$)2%#4AT )3) OR EXT June 04 Cover and Back1.qxp 5/11/2004 3:26 PM Page 4

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