2013 kentucky environmental law cle seminar handbook 2013 kentucky environmental law cle seminar

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  • The Kentucky Bar Association Environment Energy & Resources

    Law Section presents

    2013

    Kentucky Environmental Law

    CLE Seminar

    This program has been approved in Kentucky for 6.50 CLE Credits including

    1.00 Ethics Credit.

  • Compiled and Edited by: The Kentucky Bar Association

    Office of Continuing Legal Education for

    Kentucky Bar Association Environment Energy & Resources Law Section

    © 2013 All Rights Reserved Published and Printed by:

    The Kentucky Bar Association, April 2013. Editor’s Note: The materials included in this 2013 Kentucky Environmental Law seminar book are intended to provide current and accurate information about the subject matter covered. The program materials were compiled for you by volunteer authors. No representation or warranty is made concerning the application of the legal or other principles discussed by the instructors to any specific fact situation, nor is any prediction made concerning how any particular judge or jury will interpret or apply such principles. The proper interpretation or application of the principles discussed is a matter for the considered judgment of the individual legal practitioner. The faculty and staff of the Kentucky Bar Association disclaim liability therefor. Attorneys using these materials or information otherwise conveyed during the program, in dealing with a specific legal matter, have a duty to research original and current sources of authority.

  • 2013 Kentucky Environmental Law CLE Seminar

    Table of Contents

    Agenda............................................................................................................................. i Speakers ........................................................................................................................ iii Hot Waters ...................................................................................................................... 1 The Superfund Recycling Equity Act (42 U.S.C. §9627) ................................................ 11 A General Look at Genetic Engineering (including GMOs, Clones and Chimeras) and Nanotechnology: When Is Nature Being "Polluted"? .............................................. 21 The Science and Law of Oil Shale and Tar Sands Development in Kentucky ............... 43 Environmental Review under the National Environmental Policy Act and Related Statutes ............................................................................................................ 85 The Problem and Regulation of Invasive Species ....................................................... 103 The Endangered Species Act in Kentucky ................................................................... 109 Environmental Protection Case Law Update ............................................................... 115 Kentucky Department for Environmental Protection Update ........................................ 127 Department for Natural Resources: Trends in Permitting and Enforcement ................. 133 Natural Resources Law Update ................................................................................... 149

  • OSM's Stream Protection Rulemaking ........................................................................ 155 Perspectives of an Environmental Hearing Officer: Tips and Pointers for Conducting an Effective Administrative Hearing .......................................................... 161 Outside Looking in: Ethical Considerations between Governmental & Private Attorneys ..................................................................................................................... 171 Navigating Murky Waters: Reconciling Competing Ethical Obligations in Environmental Law ...................................................................................................... 179 Attorney Advertising .................................................................................................... 193

  • i

    2013 Environmental Law Update CLE Seminar April 23, 2013

    Frankfort, Kentucky

    8:15-8:45 a.m. Registration & Continental Breakfast 8:45-9:00 a.m. Welcome

    Section Chair Cathy Franck Law and Policy Researcher 9:00-9:30 a.m. Hot Water: Emerging Water Law Issues (.50 CLE credit) LaJuana S. Wilcher English Lucas Priest & Owsley LLP 9:30-10:00 a.m. Recycling and Superfund in Kentucky: Liability Protection under the Superfund Recycling Equity Act (0.50 CLE credit) Christopher J. Bedell, P.E. The David J. Joseph Company 10:00-10:30 a.m. Nanotechnology & Genetic Engineering: When Is Nature Being "Polluted"? (0.50 CLE credit)

    Cathy Franck Law and Policy Researcher 10:30-10:45 a.m. Break 10:45-11:15 a.m. The Science and Law of Oil Shale and Tar Sands

    Development in Kentucky (0.50 CLE credit) Ronald R. Van Stockum, Jr. Law Offices of Ronald R. Van Stockum, Jr. 11:15 a.m.-12:15 p.m. "Exotic" Environmental Statutes: The 201 Level Course (1.00 CLE credit) Timothy J. Hagerty Frost Brown Todd LLC Professor Anthony E. Chavez Salmon P. Chase College of Law, NKU Kenneth J. Gish, Jr. Stites & Harbison PLLC

  • ii

    12:15-1:15 p.m. Lunch (on your own) 1:15-2:15 p.m. Kentucky Department for Environmental Protection Update: Statutes, Regulations & Case Law (1.00 CLE credit) Jennifer J. Cave Bingham Greenebaum Doll LLP Commissioner R. Bruce Scott, P.E. Director John S. Lyons, Division of Air Quality Director Sandy Gruzesky, P.E., Division of Water Director Anthony R. Hatton, P.G., Division of Waste Management Director Jeffrey Cummins, Division of Enforcement Deputy Commissioner Aaron Keatley, MPA Kentucky Department for Environmental Protection 2:15-3:15 p.m. Kentucky Department for Natural Resources Update: Statutes, Regulations & Case Law (1.00 CLE credit) Commissioner Steve Hohmann Department for Natural Resources W. Blaine Early III Stites & Harbison PLLC Liz Edmondson Liz Edmondson Law PLLC Moderator: Vice Chair Kenneth J. Gish, Jr. 3:15-3:30 p.m. Break 3:30-4:00 p.m. Practice before the Office of Administrative Hearings (0.50 CLE credit) Former Hearing Officer James L. Dickinson Office of Administrative Hearings Energy and Environment Cabinet 4:00-5:00 p.m. Environmental Law and Advertising Ethics (1.00 Ethics credit) John G. Horne II Dinsmore & Shohl LLP Emily C. McKinney Frost Brown Todd LLC Sarah V. Coker Kentucky Bar Association Office of Bar Counsel Moderator: Chair-Elect Philip J. Schworer

  • iii

    Cathy Weller Franck Post Office Box 507 Crestwood, KY 40014-0507 502.271.5177 cathyf2422@gmail.com Cathy Weller Franck serves as Chair of the Kentucky Bar Association's Environment, Energy & Resources Law Section. She received her J.D. from the University of Kentucky College of Law and is also a licensed realtor. Ms. Franck's real estate business over the past fifteen years has included residential, new construction, farm and investment properties involving most types of loan programs. She is currently working in a legal policy research project related to food and agriculture and the environmental interface.

    LaJuana S. Wilcher English, Lucas, Priest & Owsley, LLP

    1101 College Street Bowling Green, KY 42101

    270.781.6500 lajuanawilcher@aol.com

    LaJuana S. Wilcher is a partner with English, Lucas, Priest & Owlsey, LLP in Bowling Green, where she practices environmental law. She has worked on natural resource issues for over thirty years, with an emphasis on water issues for twenty of those years. Ms. Wilcher served as the head of the U.S. Environmental Protection Agency's Office of Water (1989-1993), Secretary of Kentucky's Environmental and Public Protection Cabinet (2003-2006), Commissioner of the Ohio River Valley Water Sanitation Commission, and in private practice, as counsel to municipal, corporate and not-for-profit clients across the country. She currently serves as a Commissioner on the U.S. Commission for UNESCO, and as a member of the U.S. Committee for the International Hydrological Programme. She also teaches environmental law and policy at Vermont Law School during the summers. Ms. Wilcher received her undergraduate degree from Western Kentucky University and her J.D. from the Salmon P. Chase College of Law at Northern Kentucky University. She is a member of the Kentucky and District of Columbia Bar Associations.

    mailto:cathyf2422@gmail.com mailto:lajuanawilcher@aol.com

  • iv

    Christopher J. Bedell, P.E. The David J. Joseph Company 300 Pike Street Cincinnati, OH 45202 513.419.6200 cjb@djj.com Christopher J. Bedell is Senior Vice President and General Counsel for The David J. Joseph Company, one of the largest and oldest metal recycling and trading companies in the United States. He oversees the legal affairs of the company and its subsidiaries. As a member of its operating committee, Mr. Bedell is involved in setting strategic direction and corporate policy, and overseeing the business operations of its fourteen trading offices in North America, Europe, and Asia and its eighty U.S. recycling facilities. He is also a registered professional engineer and manages the company's Environmental, Safety, and Health Department. Mr. Bedell prev

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