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Environmental Law

7 The Impact and Regulation of Air Toxics in KentuckyBy Ronald R. Van Stockum, Jr.

14 Pollution: In Insurance Policies, It May Not Mean What You Think It Means

By Samuel D. Hinkle IV, Adam T. Goebel and Travis A. Crump

16 Agricultural Systems and the Environment: An Overview of Policy Oversight

By Cathy Franck

22 Waters of the United States:“Federal Jurisdiction Over Activities On My Property?”

By William T. Gorton III

This issue of the Kentucky BarAssociation’s Bench & Bar was published in the month of November.

Communications & Publications CommitteeFrances Catron Cadle, Chair, LexingtonPaul Alley, FlorenceElizabeth M. Bass, LexingtonSandra A. Bolin, BereaChristopher S. Burnside, LouisvilleJames P. Dady, BellevueAlexander F. Edmondson, CovingtonJudith D. Fischer, LouisvilleCathy W. Franck, CrestwoodWilliam R. Garmer, LexingtonP. Franklin Heaberlin, PrestonsburgJudith B. Hoge, LouisvilleBernadette Z. Leveridge, JamestownChristy J. Love, LondonTheodore T. Myre, Jr., LouisvilleEileen M. O’Brien, LexingtonRichard M. Rawdon, Jr., GeorgetownSandra J. Reeves, Corbin E.P. Barlow Ropp, GlasgowR. Kelley Rosenbaum, LexingtonCandace J. Smith, CovingtonGerald R. Toner, LouisvilleSadhna True, LexingtonKatherine Kerns Vesely, LouisvilleMichele M. Whittington, Frankfort

PublisherJohn D. Meyers

EditorFrances Catron Cadle

Managing EditorShannon H. Roberts

LayoutDavid Kaplan • [email protected]

The Bench & Bar (ISSN-1521-6497) ispublished bi-monthly by the Kentucky BarAssociation, 514 West Main Street, Frankfort,KY 40601-1812. Periodicals Postage paid atFrankfort, KY and additional mailing offices.

All manuscripts for publication should besent to the Managing Editor. Permission isgranted for reproduction with credit.Publication of any article or statement is notto be deemed an endorsement of the viewsexpressed therein by the Kentucky BarAssociation.

Subscription Price: $20 per year. Memberssubscription is included in annual dues and isnot less than 50% of the lowest subscriptionprice paid by subscribers. For more informa-tion, call 502-564-3795.

POSTMASTERSend address changes to:Bench & Bar514 West Main StreetFrankfort, KY 40601-1812

C O N T E N T S

Columns

3 President’s Page By Maggie Keane

5 YLS By Rebekkah Bravo Rechter

29 Shop Talk By Michael Losavio

30 Effective Legal Writing By Diane B. Kraft

Cover photo and graphics by ©iStockphoto.com/ShannonHRoberts

Items of Interest2 Kentucky Bar Association Swearing In Reception

4 2012 Distinguished Service Award Call for Nominations

32 Judicial Conduct Commission

34 Judicial Ethics Opinion JE-122

36 Order Amending Rules of the Supreme Court

38 Kentucky Bar Foundation Grant Awarded

39 Who, What, When & Where

46 Kentucky Bar News

53 CLE

Congratulations to our newest members of the KBA!New attorneys received their oaths of office, Friday, October 21, in the courtroom for the SupremeCourt of Kentucky in the state Capitol in Frankfort. The KBA hosted a reception in honor of ournewest members, their families and friends at the Ky. Bar Center. A total of 394 new attorneys wererecommended for admittance to the practice of law following the July, 2011, bar examination.

2 Bench & Bar November 2011

Justice Wil Schroder of the 6th Supreme Court District addresses the new members from his district during the official ceremony.

Chief Justice John D. Minton, Jr., of the 2ndSupreme Court District greets new attorneys asthey prepare to enter the courtroom prior to takingtheir oaths of office.

Justice Mary Noble from the 5th Supreme CourtDistrict welcomes a new attorney.

KBA Executive Assistant Elaine Baesler greets newmember Justin Gooch as he and his wife, Amanda,enter the bar center. The Gooch family resides inLouisville.

New member JeRhonda Lynem, far right, ofLexington and her daughters, from left to right,Tiana, Imani, and Aaliyah, attended the KBAreception at the bar center after her swearing-inceremony at the Capitol.

New attorney Nathan Goins and hiswife, Melissa, of Frankfort arrive atthe bar center for the reception.

Monique Winther, at left, of Lexington,and Amelia Leonard of Louisvillecelebrate at the Ky. Bar Center follow-ing Leonard’s swearing-in ceremony.Winther, of Lexington, became amember of the KBA in 1985.

November 2011 Bench & Bar 3

PRESIDENT’S PAGE

Editor’s Note: KBA PresidentMargaret E. Keane invited Thomas M.Williams, a member of Stoll KeenonOgden PLLC, to author this issue’sPresident’s Page column. Herintroduction of Williams follows below:

A s attorneys, we are dedicated toour system of justice and

sometimes tire of criticism heardabout it. If you but look around, thereare bright spots worthy ofillumination. One is the concept ofRestorative Justice. I asked my friend,Tom Williams, to educate us about thispotential new path to justice. Beforereading his presentation, allow me toshare with you some informationabout Tom. He is a member of thefirm Stoll Keenon Ogden PLLC, anddescribes himself as a “peacemaker”and “epiphany hunter.” He searchesfor solutions “outside the norms” andaccomplishes great things. Oneexample is his successful effort tohave a plaque placed on the steps ofthe Lincoln Memorial tocommemorate the delivery of Dr.Martin Luther King, Jr.’s “I Have aDream” speech in 1963 and torecognize the event’s importance inthe larger story of one of America’smost treasured landmarks. We haveincluded the photograph of Tom withhis son, Lincoln, at the dedication ofthe plaque on the 40th anniversary ofthe speech in 2003. Tom was recentlynamed “Louisville Peacemaker of theYear” in 2011 in recognition for all ofhis efforts.—Maggie Keane

As President of the Louisville BarAssociation in 2007, I was first

introduced to the concept of“Restorative Justice” and I committedmyself to educate attorneys in Kentuckyabout it. What amazed me aboutRestorative Justice was the healing thatwas experienced by both sides—victimand offender. When successfullycompleted, Restorative Justice addressesthe root cause of the issues faced by allparticipants in the criminal justiceprocess.

Restorative Justice involves, to theextent possible, those who have a stakein a specific offense, to identify andaddress harms, needs and obligations,to heal and put things “as right aspossible.” It is a victim-centeredprocess that comes in many forms, butasks three basic questions: (1) whatharm has been done; (2) who isresponsible for repairing that harm; and(3) how can that harm be repaired?Restorative Justice, while a differentfocus, is not intended to replace theexisting system.

Restorative Justice first took root inthe Commonwealth in Fayette County.Fayette County Family Court JudgeLucinda Masterton observes, “JuvenileRestorative Justice has been atremendous resource.” In Fayette County,the Restorative Justice process is acollaboration of three separate pillars ofthe community—the court system, thesocial services system, and communityvolunteers, including churches. As JudgeMasterton notes, “Each of these pillarsbrings their own strengths to the system,and the collaboration results in betteroutcomes for children and families.”

In Fayette County, JuvenileRestorative Justice Conferencingempowers the family to address theproblems which have led to courtinvolvement. It may include familymembers, neighbors, school officials,counselors, therapists, mentors, police,clergy, and any other communitypartners who can assist the family.Unlike most cases coming to court,Restorative Justice does not dependsolely on state human servicesresources, but engages communitypartners and stakeholders to solvecomplex family problems, connectingjuveniles and families to the resourcesneeded.

The compelling success of JuvenileRestorative Justice in Fayette Countyresults from the work of highlydedicated volunteers, notably itsdirector, Linda Harvey, and others

Maggie Keane

A DIFFERENT PATH TO JUSTICE


working with her who are passionateabout this process. It is their workwhich first introduced the concept inKentucky courts. Linda Harveyobserves, “[a]s a social worker for over45 years and a mediator for 20 years, Ihave been doing Restorative Justice inKentucky for 16 years and it has beenmy vision to see Restorative Justiceimplemented in the system. This visionis now being fulfilled primarily with thework in Louisville and Lexington.”

Restorative Justice is also taking holdin Louisville. In Jefferson County,“Restorative Justice Louisville” is acollaborative effort between legalprofessionals and members of thecommunity to promote the use of

Restorative Justice practices in the localjudicial system. This is beingaccomplished through a pilot programgeared toward juvenile offenders. Theprogram uses a Family GroupConference through which victims ofoffenses meet the youthful offendersand, hopefully, reach an agreement formaking reparations. Its goal is to keepthe young person out of the courtsystem, while making him or herresponsible to everyone injured by theoffense and, most importantly, to helpthe victim feel heard and satisfied withthe outcome. The Family GroupConference, a decision-making process,is led by trained facilitators involvingface-to-face meetings for victims (or a

victim representative) and theirsupporters with the offenders, theirfamilies and supporters.

The many attorneys and communitymembers involved with education andimplementation of Restorative Justiceowe a debt of gratitude to MaggieKeane for this wonderful opportunity tointroduce the concept to Kentuckylawyers. Our collective dream is thatRestorative Justice spreads likemediation did in civil cases and that itbecomes a process embedded in ourlegal system. If you want to learn more,please contact me.

Thomas M. Williams, Esq.Stoll Keenon Ogden PLLC

2000 PNC Plaza500 West Jefferson Street

Louisville, Kentucky 40202Direct dial: 502.560.4279Direct fax: 502.627.8779

ENDNOTES1. The Little Book of Restorative

Justice, by Howard Zehr.2. The Little Book of Family Group

Conferences: New Zealand Style,by Allan MacRae & Howard Zehr.

Criminal Justice

Crime is a violation of the law and thestate.

Violations create guilt.Justice requires the state to determineblame (guilt) and impose pain(punishment).

Central Focus: offenders getting whatthey deserve.

Restorative Justice

Crime is a violation of people andrelationships.

Violations create obligations.Justice involves victims, offenders, andcommunity members in an effort to putthings right.

Central Focus: victim needs and offenderresponsibility for repairing harm.

The Kentucky Bar Association is accepting nominations for 2012 Distinguished Judge and Lawyer, Donated LegalServices and Bruce K. Davis Bar Service Awards. Nominations must be received by December 30, 2011. If you are awareof a Kentucky judge or lawyer who has provided exceptional service in these areas, please call (502) 564-3795 to request anominating form or download it from our website at www.kybar.org by choosing “Inside KBA” and clicking on “PublicRelations – Distinguished Service Awards.”

Distinguished Judge AwardDistinguished Lawyer Award

Awards may be given to any judge or lawyer who has distinguished himself or herself through a contribution ofoutstanding service to the legal profession. The selection process places special emphasis upon community, civic and/orcharitable service, which brings honor to the profession.

Donated Legal Services AwardNominees for the Donated Legal Services Award must be members in good standing with the KBA and currently

involved in pro bono work. The selection process places special emphasis on the nature of the legal services contributedand the amount of time involved in the provision of free legal services.

Bruce K. Davis Bar Service AwardMany lawyers take time from their practices to provide personal, professional and financial support to the KBA. This

award expresses the appreciation and respect for such dedicated professional service. All members of the KBA are eligiblein any given year except for current officers and members of the Board of Governors.

Kentucky Bar Association2012 Distinguished Service Awards Call for Nominations


By Rebekkah Bravo Rechter, Chair, KBA Young Lawyers Section

Why Diversity Matters

Y ou may have noticed, on your mostrecent KBA dues statement, an

optional survey concerning your racialidentity. Perhaps you wondered why theKBA was asking you to identify yourrace or ethnicity. More than a fewcolleagues have asked me why the KBAneeds this information. In other words,why does diversity matter?

The rationale for active and targeteddiversity efforts has been well-articulated and generally accepted. Thejustice system is more responsive,effective and legitimate when lawyersand judges mirror the generalpopulation. The bar association itself,like any democratic entity, benefitsfrom a rich and varied population, andthe unique perspectives that diversitybrings. More practically speaking, ourcorporate clients are increasinglyresponding to the needs of a diverseAmerican population and a globalcustomer base, and in turn demandattorneys that understand the culturesof their customers. A less frequentlycited argument for diversity is what theABA refers to as the “leadershiprationale.”

Have you ever been asked to serveon the board of a charitable entity, oryour homeowners association, or yourchurch’s fundraising initiative?Attorneys are quite frequently requestedto fulfill leadership roles in thecommunity, in local government, inchurches, and charities. In fact, lawyersare often expected to fulfill thesepositions. The reasons are obvious: aslawyers, we possess a uniqueunderstanding of governance and ahighly-skilled ability to communicateand problem-solve. (Through the workof our past chair, Nathan Billings, the

Young Lawyers Section has helpedyoung attorneys prepare for this aspectof the profession through our Lawyersas Leaders series of CLE and trainingprograms.)

Understanding this, it comes as nosurprise that lawyers most often headthe call of civic leadership. Typically,at least a third of the members ofCongress are attorneys. Our presidentis a lawyer, as are 21 of hispredecessors. Kentucky is noexception: our current governor is anattorney, as are four of our eightmembers of Congress. Nearly 20percent of our General Assemblymembers are lawyers.

More than any other profession,lawyers rise to the highest ranks ofgovernment and civic leadership. If wecan agree that our nation was foundedupon principles of equality and broadpolitical participation, then it is notoverreaching to conclude that thediversity of the country’s barassociations directly impacts therichness of our political dialogue.

What can a state bar association doto promote diversity? The compilationof statistical data, through the optionalsurvey found on your dues statement, isa major and critical step. The KLEOprogram, which offers law schoolscholarships to educationallydisadvantaged students, is anothervaluable initiative to encourage studentsfrom all races and socio-economicbackgrounds to become attorneys. Butour efforts cannot end with enrolledcollege students; the pipeline must startmuch earlier.

Recognizing this, the YLS has set itssights on developing programs thathelp diverse middle and high schoolstudents imagine a career in the legalprofession. Why Choose Law: Diversity

Matters is a program for rising highschool juniors and seniors who arefrom groups typically underrepresentedin law school, including racial andethnic minorities, persons withdisabilities, socio-economicallydisadvantaged students, persons ofvaried religious backgrounds andgeographies, and LGBT students. Heldthe day before the Annual KBAConvention, Why Choose Law:Diversity Matters participants spendthe day meeting with members of thejudiciary, touring local law firms,observing mock court proceedings, andexperiencing a mock first-year lawclass. The program is offered atabsolutely no cost to the participants,including transportation to and fromthe program site.

The YLS also hosts Choose Law inKentucky, a program developed andsponsored by the ABA Young LawyersDivision. This initiative was conceivedupon the realization that young studentsof color often have few or noopportunities to be favorably exposed tomembers of the legal profession.Through a series of visits to Kentuckyclassrooms, the YLS seeks to introducethese students to the legal professionand to attorneys who have overcome thesame obstacles they might face. It alsohopes to encourage these students tostudy and practice law in Kentucky, sothat our state bar reflects the richness ofour state’s diverse population.

The Young Lawyers Section invitesyou to participate in these programs bymaking a classroom visit, by sponsoringa student to attend the Why Choose Lawconference, or by suggesting theseprograms to school teachers andadministrators in your area. For furtherinformation, please contact me [email protected].

2012 KBA Annual Convention

Photo Courtesy of Galt House Hotel

June 6-8, 2012

Galt House Hotel

Louisville, Kentucky


by Ronald R. Van Stockum, Jr.

Coal

C oal is a marvelous product ofKentucky’s floral and geologichistory. Coal represents the

remains of the early lush forest in Ken-tucky, one composed of tree ferns andtowering Lycopsid and Sphenopsidtrees.1 Approximately 318 million yearsago, during the Pennsylvanian Series ofthe Carboniferous Geologic Period,dead trees and plant tissue in thesegreat wetland forests began to accumu-late as swampy, muddy detritus. Muchof the sun’s energy which had gone intothe production of that great mass oforganic material was trapped within thesoggy, slowly decaying plant remains.Further mud and ocean deposits buriedthese “peats” and the heat and pressureof time compressed and compactedthem into coal, the “black gold” wemine today.2 Ralph Waldo Emersondescribed coal thusly: “Every basket ispower and civilization. For coal is aportable climate. It carries the heat ofthe tropics to Labrador and the polarcircle, and it is the means of transport-ing itself whithersoever it iswanted…with its comfort brings itsindustrial power.” 3

Coal is important to Kentucky.More than 92 percent of Kentucky’selectricity is produced by coal.4

Although not all recoverable, as muchas 82 percent of Kentucky’s originalcoal deposits remain, a staggering 86billion tons.5 Coal-fired electric gener-ating facilities have long beenregulated for the emission of “criteriapollutants,” and have been a centralfocus in the recent debate over carbondioxide emissions and their role in“global warming.”6 Coal combustionalso figures prominently in the regula-tion of “hazardous air pollutants” or“air toxics,” which is the subject ofthis paper.

HistoryToxic air pollution and its regulation

have a long history. By 1100 AD, coalmined in northeastern England wasbeing shipped by sea to London. Thatmedieval city was expanding rapidlyand had exhausted its relatively accessi-ble source of wood for cooking, heat,and commercial furnaces. By 1306, pol-lution from the burning of coal resultedin one of the first attempts to controltoxic air pollution. In that year, KingEdward I banned the burning of this“sea” coal in craftsmen’s furnaces inLondon because of the uncontrolled andunhealthy effects of the smoke producedby its combustion. Regardless, by 1600coal had become the predominantsource of fuel in a deforested England.Three hundred and fifty years later in1952, London smog, resulting primarilyfrom the burning of coal, would beblamed for the deaths of 4,000 peopleover a four-day period.

In 1930, 63 people died and thou-sands were sickened from sulfur dioxidepollution in the atmosphere of theMeuse Valley River in Belgium. Here inthe United States, in 1948, 20 peopledied and over 6,000 were made sick dueto toxic air pollution in Donora, Penn.Thus it was learned that the ability ofthe atmosphere to disperse and dilutetoxic air pollutants released from fuelcombustion and industrial processescould be exceeded.

In the late 1940s, the LouisvilleSmoke Commission placed buckets onlight posts for the purpose of measuringthe accumulation of soot deposited fromthe city’s polluted air. In 1956, the cityundertook a “Special Air PollutionStudy of Louisville and JeffersonCounty.” The large-scale impact of airpollution in the city was obvious, yetthe “chronic” effect of air pollutantspresent below levels high enough tocause “acute” health effects was notunderstood. The adverse toxic effects of

low concentrations of pollutants werebrought to the public’s attention byRachael Carson in her 1962 book,“Silent Spring.” Air pollution in thenation’s largest and most industrializedcities was causing dark, smoggy skiesand unacceptable health risks.

FederalThese conditions and the increasing

environmental awareness of the publicled to the landmark 1970 Amendmentsto the Clean Air Act (CAA).7 Congressinstituted a strong “command and con-trol” regulatory system to address airpollution in the United States. In 1970,through Reorganization Plan Number 3,Republican President Richard Nixoncreated the Environmental ProtectionAgency which began to enforce thisnew air pollution law in 1971.

The 1970 amendments to the CAAcontained a significant new sectiondirected at “Hazardous Air Pollutants”(HAPs). These air toxics were definedas those, “…which may reasonably beanticipated to result in serious irre-versible or incapacitating illness.”8 The1970 Clean Air Act required EPA topromulgate a list of HAPs and regulatethem through National Emission Stan-dards for Hazardous Air Pollutants(NESHAPs) based on, “… the levelwhich … provides an ample margin ofsafety.”9 This program proved ineffec-tive in the 20 years between 1970 and1990 and stimulated much litigationconcerning the issue of “risk.”10 Duringthis period of time, EPA listed onlyeight substances or categories of HAPsand only seven were regulated.11

In the 1980s, with the implementa-tion of new federal statutes dealing withhazardous waste, toxic chemicals andwaste disposal sites, public interest andconcern about the environmentexploded.12 Deficiencies in the effectivecontrol of air pollution through the 1970Act led to political interest in amending

ENVIRONMENTAL LAW

TThhee IImmppaacctt aanndd RReegguullaattiioonn ooff AAiirr TTooxxiiccss iinn KKeennttuucckkyy


the CAA again. Accordingly, in 1990,Republican President George H.W.Bush signed into law the Clean Air ActAmendments of 1990.13

This law implemented strict newmandates regarding HAPs. Congresslisted 187 HAPs to be specificallyaddressed by EPA. The chemicals speci-fied by Congress included volatileorganic compounds (VOCs), metals,inorganic chemicals, semi-volatileorganic chemicals, polycyclic organicmatter (POM) and polynuclear aromatichydrocarbons (PAH).14 The list containssuch diverse chemicals as asbestos, 1,3butadiene (of special interest inLouisville’s regulatory program), chlor-dane, ethyl benzene, formaldehyde,heptachlor, naphthalene, PCBs, per-chloroethylene (dry cleaning fluid) andvinyl chloride (plastics).15 These chemi-cals have been linked to cancer,neurological effects, reproductiveeffects, respiratory, and immuneeffects.16 Diesel fuel emissions, oftencited as health risks, are not collectivelylisted as a HAP. Many of the compo-

nents of diesel emissions are, however,specifically listed as HAPs. Some areconsidered “known, probable or possi-ble” carcinogens as described in theFederal Integrated Risk InformationSystem (IRIS).

EPA believes that there are “millionsof sources of air toxics.”17 In 2011, EPAreleased the National Scale Air ToxicsAssessment (NATA) which reviewedthe nation’s exposure to 177 air toxicsand diesel emissions in 2005. EPA con-cluded that the average increased cancerrisk was 50 in one million. Theydescribe that risk as, “…on average,approximately 1 in every 20,000 peoplehave an increased risk of contractingcancer as a result of breathing air toxicsfrom outdoor sources if they wereexposed to 2005 emission levels overthe course of their lifetime.”18 The studydescribed formaldehyde as the greatestnational HAP cancer factor with ben-zene, PAH, and naphthalene being ofregional concern.

The 1990 amendments required EPAto prepare a list of categories of HAP

sources defined as either a “MajorSource” or an “Area Source.” MajorSources are stationary sources in con-tiguous areas under common controland with the potential to emit (PTE) 10tons per year of any individual HAP, or25 tons per year or more of any combi-nations of HAPs. Area Sources arestationary HAP sources which are not“major” but which present a threat ofadverse effects to human health or theenvironment. Sources are categorizedby EPA using product or process con-siderations.

EPA was instructed to issue NationalEmission Standards for Hazardous AirPollutants (NESHAPs) for each sourcecategory. The agency was to considercost, energy and “any non-air qualityhealth and environmental impacts” insetting the standards.19 The emissionstandards are to be technology basedand incorporate Maximum AchievableControl Technology (MACT). MACT isto be based on the best performingsources in each source category with 30or more sources. If there are less than30 sources in a category, then EPA is touse the average of the five best perform-ing sources. For area sources, EPA mayeither require MACT or the more eco-nomic “Generally Available ControlTechnology” (GACT). To date, EPA haslisted 174 categories of major sources,70 area source categories, and haspromulgated 121 NESHAPs with appli-cable MACTs.20

The 1990 CAA amendments alsorequired a second risk-based analysis inHAP regulation. EPA was to reportback to Congress concerning the “resid-ual risk” that remained after theapplication of MACT or GACT.21 Eightyears after the promulgation of aMACT, Congress required this residualrisk to be addressed through a “Riskand Technology Review” (RTR) per-formed by EPA. EPA was to,“…provide an ample margin of safetyto protect public health…or to prevent,taking into consideration costs, energy,safety, and other relevant factors, anadverse environmental effect.”22 Inexamining this risk, Congress set a goalfor cancer-causing HAPs of reducinglifetime risk to exposed individuals tobelow one in a million additional can-


cers. Because Congress failed to takeaction on EPA’s recommendations in itsreport, EPA issued the first ResidualRisk Standards relating to Coke OvenBatteries in 2005.23

EPA was also required to identify andregulate urban area sources accountingfor 90 percent of the 30 HAPs posingthe greatest public health risk in urbanareas.24 75 percent of all HAPs arereleased in urban areas. EPA developedthe “National Air Toxic Program: TheIntegrated Urban Strategy” in order toaddress area sources and risk in urbanareas.25

Pursuant to settlements in a SierraClub lawsuit, EPA identified 70 areasource categories that it agreed toaddress. Regulated area sources includegasoline distribution plants, wood pre-serving, metal fabrication and finishing,paint and allied products manufacturingand municipal landfills. EPA has statedthat its goal “…is to reduce air toxicemissions by 75 percent from 1993 lev-els and to significantly reduce the riskto the public of cancer and other seri-ous health effects caused by airbornetoxins.”26

The current administration of Demo-crat President Barack Obama hasramped up regulatory efforts inresponse to court imposed deadlinesand administration priorities. As aresult, on March 21, 2011, EPA pub-lished two final rules relating to theemission of mercury, particulates,nitrogen oxides, and other contami-nants released from industrial boilersand incinerators.27 A companion ruledefining the identification of non-haz-ardous secondary materials used incombustion units describes whetheremissions from such sources are regu-lated by the CAA Section 112 HAPemission standards or the more strin-gent solid waste emission standards ofCAA Section 129.28 EPA has agreed toemission standards for cement kilnsrequiring the reduction of mercuryemissions by 92 percent, total hydro-carbons by 83 percent, particulatematter (a surrogate for toxic metalssuch as arsenic, cadmium, berylliumand lead) by 92 percent, and 97 percentof hydrochloric acid emissions by2013.29

LouisvilleLouisville has a robust industrial base

that includes strong chemical and auto-motive industries. In West Louisville,along the Ohio River, lies “Rubber-town,” an extensive industrial complexdating back as far as World War I. Thecurrent complex now produces productssuch as rubber, plastics, and specialtychemicals. Louisville supports a popula-tion of approximately one million peoplewithin its region with national motorvehicle traffic traversing the area alongits national freeway corridors. Because itis located in the Ohio River Valley,atmospheric conditions can concentratepollutants over the city.30

When EPA failed to comply in atimely fashion with many of the dead-lines set out in the 1990 amendments,states and local authorities moved toaddress the regulation of air toxics withintheir jurisdiction. The Louisville MetroAir Pollution Control District (APCD) isempowered by the Federal CAA andKentucky Revised Statutes (KRS) Chap-ter 77 to administer an air pollutionregulatory program in Louisville and Jef-ferson County. It is currently the onlycounty in Kentucky that exercises suchlocal air pollution authority. The Ken-tucky Division for Air Quality (DAQ)administers the air quality program forthe remainder of the state.

In September 2002, U.S. EPA Region

4, (covering the Southeast Region andheadquartered in Atlanta) released astudy entitled “Air Toxics Relative RiskScreening Analysis.”31 EPA performedthis analysis as part of the residual riskreview of air toxic emission standardsfor HAPs required by the 1990 CAAamendments. EPA examined data avail-able through the National Air ToxicsAssessment (NATA) and the ToxicsRelease Inventory (TRI) Risk ScreeningEnvironmental Indicator (RSEI) soft-ware. Jefferson County was determinedfirst out of 737 counties ranked inRegion 4 for relative health risks fromexposure to hazardous and toxic air pol-lutants.

The “West Jefferson County Commu-nity Task Force” (WJCCTF) wasestablished in Louisville involvingnumerous local stakeholders. This taskforce worked with EPA and the Univer-sity of Louisville to conduct an airmonitoring study in Jefferson County.They released the “West Louisville AirToxics Risk Assessment” in 2003.32

Seventeen cancer-causing chemicals,including 1,3 butadiene, were identifiedat unsafe levels for cancer risks, definedas greater than one in one million addi-tional cancers.

As a result of these studies, the APCDin 2004, under the leadership of DirectorArt Williams, began enactment of its“Strategic Toxic Air Reduction (STAR)


Program” for Louisville. This programlists and regulates the emission of 18“Toxic Air Contaminants” (TACs).33

Section 3 of Regulation 5.01 is entitled“General Duty” and states, in part: “… aperson shall not allow any process orprocess equipment to emit a toxic aircontaminant in a quantity or duration asto be harmful to the health and welfareof humans, animals, and plants.” As aresult, approximately 170 companies arerequired to model the health risks of theiremissions. Lauren Anderson is the cur-rent director of the APCD, beingappointed to that position following theretirement of Mr. Williams in 2008.34

KentuckyThe Kentucky Division of Air Qual-

ity (DAQ) has historically regulated airtoxics through its general duty regula-tion entitled, “Potentially HazardousMatter or Toxic Substances” whichstates, in part: “… No owner or operatorshall allow any affected facility to emitpotentially hazardous matter or toxicsubstances in such quantities or durationas to be harmful to the health and wel-fare of humans, animals and plants.”35

Pursuant to Section 3 of the generalduty regulation, DAQ is to administerthe regulation of air toxics in Kentuckyon a case-by-base basis.36 In addition,Kentucky’s HAP regulations closelyparallel and incorporate by referenceEPA’s HAP regulations. DAQ, there-fore, enforces the federal NESHAPs andMACTs for facilities in the statethrough state regulations.37

All applicants for an air pollutionpermit in Kentucky must identify theiremissions of criteria pollutants andHAPs.38 Using internal guidance andEPA resources such as the “Air ToxicsRisk Assessment Library,” DAQ per-forms an initial screening of the riskposed by HAPs described in the appli-cation. The vast majority of applicationsto the state of Kentucky pass thisscreening test.

Because EPA failed to meet CAAdeadlines to promulgate HAP regula-tions and, in light of the implementationof the STAR Program by the LouisvilleAPCD, DAQ established a stakeholderworkgroup to develop state air toxicsregulations more specific than its gen-

eral duty regulation. In 2006, DAQ for-mally proposed additional regulations toaddress stationary source emissions of129 Toxic Air Pollutants (TAPs). Theregulations proposed use of a one in onemillion cancer risk threshold, imple-mentation of Toxic Air Pollutant BestAvailable Control Technology (TAP-BACT), and a “Safety Net.” Citing atechnicality in responding to comments,DAQ withdrew the draft regulationsfrom legislative consideration. Thepackage was not resubmitted. DAQ rep-resentatives have indicated, however,that many of the review procedures con-tained in the proposed regulation areconsidered guidelines and are utilizedby the state in a case-by-case review ofa facility’s air toxic emissions under itsgeneral duty regulation in 401 KAR63:020.39

Air toxics are ubiquitous in Kentuckydue to electrical power generation,industrial operations and motor vehicleemissions. Air monitoring by the statefor HAPs is not generally performedstatewide. Instead, DAQ focuses onurban areas such as Northern Kentucky,Lexington, and the Ashland Tri-Statearea as part of EPA’s “National AirToxic Program: The Integrated UrbanStrategy.”40 The state also studies indus-trial areas like the Calvert CityIndustrial Complex in Western Ken-tucky and will perform site-specifictesting based on complaints.41 JohnLyons is the current director of DAQ.42

Electrical Generating UnitsThere are approximately 1,300 coal-

burning electrical generating units atvarious facilities in the nation. Mercurycontamination, of which power plantsare a major contributor, have resulted inhealth advisories being issued for fishcaught in the streams of many states,including Kentucky. The 1990 amend-ments established a “cap and trade”program for acid rain pollutants.43 Thesuccess of that program led the adminis-tration of Republican President GeorgeW. Bush to implement a similar “capand trade” program for mercury releasedfrom coal-fired power plants called theClean Air Mercury Rule (CAMR).44

This program was vacated, however, bythe United States Court of Appeals for

the District of Columbia Circuit as beingimproperly promulgated.45

On July 20, 2011, the national envi-ronmental advocacy group, the NationalResources Defense Council (NRDC),released a study entitled “Toxic Power:How Power Plants Contaminate Our Airand States.”46 Their study was based ondata accumulated by EPA in its ToxicsRelease Inventory (TRI) for 2009.NRDC notes that almost one-half of theair toxics released from industrialsources in the United States comes fromcoal or oil-fired power plants. They esti-mate that 49 percent of toxic industrialair pollution originates from the electri-cal generation sector, 15 percent fromthe chemical sector, and 13 percentthrough the paper products sector. Inaddition, NRDC estimates that the elec-trical generating sector was responsiblefor the release of approximately 75 per-cent of mercury air pollution released inthe United States in 2009.47

NRDC compiled a list of the top 20states emitting, by volume, what itdefines as “Total Toxic Air Pollution” in2009. Kentucky ranks fourth with emis-

Ronald R. VanStockum, Jr., isa graduate ofthe University ofLouisville LouisD. BrandeisSchool of Lawand has been inprivate practice,

concentrating in environmental law,in Louisville since 1981. In additionto his law degree, Van Stockum hasMaster of Science and Doctorate ofPhilosophy degrees in biology. He ispast chair of the Environmental LawSection of the Louisville Bar Associ-ation and immediate past chair ofthe Kentucky Bar Association Envi-ronment, Energy and Resources LawSection. He is former chair of theKentucky Chapter of the NatureConservancy and was vice presidentof the Filson Historical Society. VanStockum currently serves on theexecutive committee of the Univer-sity of Louisville Alumni Associationand now practices from his office inShelby County.


sions of 41,340,348 pounds. For Ken-tucky, NRDC lists the contributions bythe electrical generating sector at 77percent; chemical sector – 7 percent;paper products – 4 percent; printing andpublishing – 3 percent; primary metals –2 percent; and “other” – 6 percent.48 Formercury emissions, NRDC ranks Ken-tucky 14th among states, with 1,760pounds of mercury released in 2009.According to NRDC, 89 percent of thetotal mercury released to the air in Ken-tucky for that year is associated withcoal-fired electrical generating facilities.NRDC lists the Tennessee ValleyAuthority (TVA) Paradise Plant as thelargest source of toxic air pollutantsreleased from an electrical generatingplant in Kentucky.49

The American Lung Association(ALA) has also highlighted the issue ofair toxics in electrical generating facili-ties.50 They note that some of thesetoxic pollutants can be associated withfine particulate matter released bypower plants. In March of 2011, theALA issued a press release claimingthat, “Particle pollution from powerplants is estimated to kill 13,000 peoplea year.”51 After coal-fired power plants,ALA lists industrial boilers, paper mills,chemical manufacturing, landfills, andothers in rank priority for emissions ofhazardous air pollutants. In a referenceto Environmental Justice concerns, ALAcites an analysis of 2000 census dataindicating that 68 percent of AfricanAmericans in America live within 30miles of a coal-fired power plant.52

EPA finds that 50 percent of mercuryemissions originate from 1,350 coal andoil powered generating units located at525 facilities in the United States. TheObama administration has proposed toreplace the vacated Bush era CAMRrule with mercury HAP emission regu-lations issued under the authority of theair toxics provisions of the 1990 CAAamendments. On March 16, 2011, EPAproposed new stringent standards on theemission of mercury, arsenic,chromium, nickel, acid gases and otherHAPs from these plants based onauthority of Section 112(N) of the 1990amendments (“Utility MACT”).53

There has been a significant outcryfrom the regulated community indicat-

ing that these “Utility MACT” regula-tions are so stringent that they will havethe effect of closing smaller, older coal-fired electrical generating units. Inaddition, the new source standards mayeliminate the construction of new coal-fired plants because they are even morestringent.54 Some states have com-plained that the rule will cause joblosses and prevent the creation of newemployment opportunities. EPA’s costof compliance estimates may be unreal-istically low. As a result, KentuckyUtilities (KU) customers may face a19.2 percent rate increase by 2016.55

In addition to the toxic metals such asmercury, the Utility MACT proposes toaddress the acid gases such as hydrochlo-ric acid, sulfuric acid and hydrogenfluoride. These gases had not been com-pletely regulated in the emissions fromsmaller, older coal-fired plants becausethey predated emission reduction require-ments for new plants or benefited fromthe cap and trade program affecting acidgas emissions.56 Much of the industryfuror over the proposed Utility MACT isover the impact on these small, olderplants. As a result, some utilities maydecide to close the plants rather thanapply costly new air pollution controls.57

ConclusionThe implementation of the air toxics

provisions of the Clean Air Act hasresulted in some of the most complexand detailed regulations in the environ-mental arena. An initial focus on costsand technological feasibility is followedup by a sophisticated analysis ofremaining risk to human health and theenvironment. The application of theseregulations continues to demonstrate ournation’s leadership in environmentalprotection among industrialized nations.

The proposed regulation of hazardousair pollutants emitted from coal and coal-fired electrical generating units brings tobear the conflict between the public’sneed for healthy air while enjoying themore inexpensive electrical rates cur-rently available through the use of coal.This conflict is especially evident inKentucky which has abundant coalresources, an electrical-generating systembased upon that coal, and relatively inex-pensive rates charged for electricity.


Kentucky, Louisville and the nationwill, therefore, continue to benefitfrom, and struggle with, the impactand consequences of the hazardous airpollution provisions of the Clean AirAct.

ENDNOTES1. Diminutive descendants of this

ancient forest live on in Kentuckyunder the canopy of modern treesor along shaded moist rock out-crops. “Ground pines” and “clubmosses” are remaining representa-tives of the lycopsid group.“Horsetails” or “scouring rushes”are examples of sphenopsids.

2. Coal macerals are the crushed andaltered structure of these plants, theremains of which can be seen incoal under a microscope. On themacroscopic scale, segments offossil trees can often be seen incoal or associated shale beds. Themost common, Lipidodendron andSigillaria, still bear leaf scars ontheir trunks and stems. Parallellines in the casts of Calamites arealso commonly evident along withimpressions of their radial foliage.“Cannel coal,” which burns excep-tionally hot and bright, iscomposed primarily of the waxcoatings on wind blown plantspores and ancient pollen fromthese forests.

3. Ralph Waldo Emerson, “The Con-duct of Life,” (Part 3, “Wealth”);1860.

4. Bill Caylor, Presentation to Ken-tucky Chamber of Commerce, July26, 2006.

5. “Kentucky Coal Facts,” KentuckyOffice of Energy, Policy and theKentucky Coal Association, 2007-2008 Pocket Guide (updated by11th Edition).

6. The CAA “criteria pollutants” arecarbon monoxide, lead, nitrogenoxide, ozone, fine particulates andsulfur dioxide, 42 U.S.C. § 7408;see also the National Ambient AirQuality Standards (NAAQS), 40CFR Part 50.

7. Clean Air Act Extension of 1970,84 Stat. 1676, Pub. L. 91-604.

8. 42 U.S.C. § 7412(a)(1), (1982).

9. 42 U.S.C. § 7412 (b)(1)(B), (1982).10. See Natural Resources Defense

Council, Inc. v. EPA, 824 F.2d1146 (D.C. Cir. 1987).

11. These eight were asbestos, beryl-lium, mercury, vinyl chloride,benzene, radionuclides, inorganicarsenic, and coke oven emissions.The coke oven standards were notpromulgated. 40 CFR Part 61.

12. Toxic Substances Control Act(TSCA), 15 U.S.C. §§ 2601 et seq.;Resource Conservation and Recov-ery Act (RCRA), 42 U.S.C. §§6901 et seq.; and ComprehensiveEnvironmental Response Compen-sation and Liability Act (CERCLA,also known as Superfund), 42U.S.C. §§ 9601 et seq.

13. Clean Air Act Amendments of1990, Pub. L. 101-549, 104 Stat.2399. This legislation has remainedthe only major environmental legis-lation passed in the United States inthe last 21 years.

14. 42 U.S.C. § 7412(b)(1).15. Five chemicals have been removed

from the list: hydrogen sulfide,caprolactum, surfactant alcoholethoxylates and derivatives, ethyleneglycol monobutyl ether (EGBE),and methyl ethyl ketone (MEK). AMarch 30, 2009 petition filed by theSierra Club sought to have hydrogensulfide relisted as a HAP.

16. Federal Register, July 19, 1999, 64F.R. 38707.

17. See footnote 16, supra, at 38707.18. “Summary of Results for the 2005

National-Scale Assessment.”http://www.epa.gov/ttn/atw/nata2005/05pdf/sum_results.pdf.

19. 42 U.S.C. § 7412 (d)(2). 40 CFRPart 61, National Emission Stan-dards for Hazardous Air Pollutants(NESHAPs).

20. 40 C.F.R. Part 63. Three of theseNESHAPs (PVC, brick and struc-tural clay, and clay ceramics) havebeen vacated by the courts.

21. EPA submitted this Residual RiskReport to Congress in March of1999.

22. 42 U.S.C. § 7412(F)(2)(A).23. 70 F.R. 19,992, April 15, 2005.24. CAA § 112 (c)(3)(c)(6) and

(k)(3)(B); On March 21, 2011, EPA

certified compliance with the 90percent requirement on March 21,2011, 76 F.R. 15308.

25. 64 F.R. 38706, July 19, 1999.26. See footnote 25, supra, at 38708.27. “National Emission Standards For

Hazardous Air Pollutants For MajorSources: Industrial, Commercial,and Industrial Boilers and ProcessHeaters,” Final Rule, March 21,2011, 76 F.R. 15608; “Standards ofPerformance For New Sources andEmission Guidelines for ExistingSources: Commercial and IndustrialSolid Waste Incineration Units,”Final Rule, March 21, 2011, 76F.R. 15704. On May 18, 2011, EPAdelayed the effectiveness of theserules, “…until the proceedings forjudicial review of these rules arecompleted or the EPA completes itsreconsideration of the rules…”May 18, 2011, 76 F.R. 28662.

28. March 21, 2011; 76 F.R. 15456.29. Portland Cement Assn. v. EPA,

D.C. Cir. No. 07-1046, 2009.30. Mobile source HAP emissions are

indirectly controlled by Title II ofthe CAA, entitled “Emission Stan-dards for Moving Sources.” 42U.S.C. 7521-75909.

31. www.louisvilleky.gov/NR/rdon-lyres/3A0E72EA-BCBA-4E05-857C-F7A72E035E36/0/EPA_R4_rela-tive_risk_analysis.pdf

32. www.louisvilleky.gov/NR/rdonlyres/B376DACC-764E-4999-8822-32E1DD541C1B/0/wlats_riskassessmentreport.pdf

33. “Standards for Toxic Air Contami-nants and Hazardous Air Pollutants,”APCD Regulation Part 5.

34. Both Mr. Williams and Ms. Ander-son were previously staff attorneysfor the Kentucky Natural Resourcesand Environmental Protection Cabi-net (now part of the Energy andEnvironment Cabinet). Mr. Williamsalso served as Commissioner of theKentucky Department of Environ-mental Protection, a positioncurrently held by Bruce Scott.

35. 401 KAR 63:020. 401 KAR63:022, entitled, “New or ModifiedSources Emitting Toxic Air Pollu-tants,” was repealed in 1999. 401KAR 63:021, “Existing Sources


Emitting Toxic Air Pollutants” wasamended to prevent the removal ofinstalled air toxic controls alreadyin place (anti-backsliding). TheDAQ also cites KRS 224.20-120,“Considerations in Fixing Stan-dards” and 224.20-100, “Finding ofNecessity For Act” in support of itsregulation of air toxics emissions.

36. In 2010 DAQ petitioned EPA todelete 401 KAR 63:020 from theState Implementation Plan (SIP),thus removing the regulation as afederally enforceable regulation.

37. “40 CFR Part 61 National EmissionStandards for Hazardous Air Pollu-tants,” 401 KAR 57:002.

38. The permit application informationis required by 40 CFR 52.020 and52.030, which are incorporated intoKentucky regulations.

39. See also, KRS 13A. 130 entitled,“Matters Prohibited as Subject ofInternal Policy, Memorandum orOther Form of Action.”

40. July 19, 1999, 64 F.R. 38706; 42U.S.C. §§ 7412(k) and 7412(c)(3).

41. Louisville APCD addresses testingfor the Rubbertown IndustrialComplex in West Louisville.

42. Mr. Lyons has held this position for10 years and is the longest servingDirector of the Kentucky Divisionof Air Quality, eclipsing the tenureof the previous Director, JohnHornback.

43. 42 U.S.C. § 7411, 40 CFR Part 73.44. 70 F.R. 28606, May 18, 2005.45. New Jersey v. EPA, 517 F. 3rd 574.46. docs.nrdc.org/air/files/

air_11072001a.pdf; issued jointlywith Physicians for Social Respon-sibility.

47. Chinese coal-fired power plantscontribute significant amounts ofmercury contamination to the upperatmosphere which spreads the con-tamination to American soil,especially in the west.

48. NRDC lists Ohio as number onewith Total Industrial Toxic Air Pol-lution release of 68,863,474pounds, 65 percent from the Elec-trical Generating Sector.

49. The TVA Paradise Plant is locatedin Muhlenberg County, Kentucky.It is also the subject of a popular

folk song waltz by John Prine enti-tled, “Paradise.”

50. Georgia Coalition for the Peoples’Agenda, Black Leadership Forum,the Southern Organizing Commit-tee for Economic and Social Justiceand Clear the Air. “Air of Injus-tice,” 2002,http://www.catf.us/resources/publi-cations/files/Air_of_Injustice.pdf.

51. American Lung Association,“Toxic Air: The Case for CleaningUp Coal-Fired Power Plants,”http://www.lungusa.org/healthy-air/outdoor/resources/toxic-air-report/.

52. American Lung Association,http://www.lungusa.org/press-room/press-releases/power-plants-epa.gov.

53. “National Emission Standards forHazardous Air Pollutants FromCoal- and Oil-Fired Electric Utility,Steam Generating Units and Stan-dards of Performance forFossil-Fuel-Fired Electric Utility,Industrial-Commercial-Institutional,

and Small Industrial-Commercial-Institutional Steam GeneratingUnits” (“Utility MACT”); ProposedRule 76 F.R. 24976, May 3, 2011;42 U.S.C. 9612 (N)(1)(A).

54. “EPA proposes Franken-MACT forutilities,” by Kasi Dubbs, in Envi-ronmental Quality, August 9, 2011,Trinity Consultants.

55. Letter from Reidt Clemmer, P.E.,PPL Services Group to EPA docket,August 4, 2011.

56. This Cap and Trade Program wasimplemented, in part, through theClean Air Interstate Rule (CAIR).The United States Court ofAppeals for the D.C. Circuitvacated and remanded the CAIR in2008. North Carolina v. EPA, CaseNo. 05-124, D.C. Cir. (2008). OnJuly 6, 2011, EPA finalized theCross-State Air Pollution Rule(CSAPR) to replace the CAIR.August 8, 2011, 76 F.R. 48208.

57. KU’s electrical generation facilitiesat Tyrone, Cane Run, and theGreen River may be so affected.


M ost general-liability insurancepolices exclude from coverageclaims said to have been

caused by pollution created by thepolicy-holder’s operations. But in lightof a recent opinion from the KentuckyCourt of Appeals, one should not bequick to assume that the exclusion doesor does not apply. Whether the exclu-sion will be found applicable by a courtis a complex question. It is possible thata claim involving a substance tradition-ally understood to be a pollutant is notexcluded from coverage, while a claimbased on a substance not generallyregarded as a pollutant could be barredby the policy exclusion. Litigants

should focus on the injury the substanceis alleged to have caused, rather than thesubstance itself, in finding or avoidingcoverage.

In a case decided by the Court ofAppeals, the underlying claim was thata coal company had dispersed coal duston to a neighbor’s land. The company’sgeneral-liability policy contained a pol-lution exclusion. The Court reversed thetrial court’s determination that the claimwas covered under the policy despitethe pollution exclusion, but remandedfor the trial court to evaluate the factsconsistent with the test it set down. Cer-tain Underwriters at Lloyd’s, London v.Abundance Coal, Inc., — S.W.3d —,

2011 Ky. App.LEXIS (Ky.App.Jun 24, 2011) (NO.2009-CA-001283-MR), rehearingdenied (Aug 15,2011).

In its discussion,the Court recognizedthat under certaincircumstances thepollution exclusionmay not apply eventhough (1) the under-

lying claim involved coal dust and (2)case law had previously held that coaldust was a pollutant. It acknowledged acase decided by the Sixth Circuit thatheld that coal dust necessarily constitutespollution and is, therefore, excludedunder a pollution exclusion, but stated itwas not bound by that decision. See U. S.Fid. & Guar. Co. v. Star Fire Coals, Inc.,856 F.2d 31 (6th Cir. 1988). Instead, theCourt said that application of a pollutionexclusion should be considered on acase-by-case basis based on MotoristsMut. Ins. Co. v. RSJ, Inc., 926 S.W.2d679 (Ky. App. 1996). It noted that eventhough the language of an exclusion isnot ambiguous on its face, the exclusioncould be ambiguous in applicationbecause “[s]ubstances which are ordinar-ily classified as pollutants (e.g.,chemicals like Drano and chlorine) maynot be pollutants in a given factual situa-tion (e.g., when spilled on the floorcausing a slip and fall).” Conversely,materials that may not ordinarily be clas-sified as a pollutant could constitutepollution in some cases, such as wherethe substance becomes particularly nox-ious. The Court cautioned against blindapplication of a pollution exclusionbecause the exclusion could have anunintentionally broad application:

In the case at bar, the Court held thatthe trial court properly determined thatthe exclusion was ambiguous under thefacts of the case. On remand, itinstructed the trial court to determinewhat type of injury the plaintiffsalleged. If the plaintiffs alleged that coaldust made the water undrinkable orcaused respiratory problems, then suchallegations may indicate a pollutionexclusion should apply. However, if the

[t]he terms ‘irritant’ and ‘contami-nant,’ when viewed in isolation, arevirtually boundless, for ‘there isvirtually no substance or chemicalin existence that would not irritateor damage some person or prop-erty.’ Without some limitingprinciple, the pollution exclusionclause would extend far beyond itsintended scope, and lead to someabsurd results.

Sam Hinkle, Travis Crump and Adam Goebel practice inthe Louisville office of Stoll Keenon Ogden. Their vari-ous practice areas include business litigation andenvironmental law issues.

ENVIRONMENTAL LAW

POLLUTIONIInn IInnssuurraannccee PPoolliicciieess,,

IItt MMaayy NNoott MMeeaann WWhhaatt YYoouu TThhiinnkk IItt MMeeaannss

by Samuel D. Hinkle IV, Adam T. Goebel and Travis A. Crump

POLLUTIONIInn IInnssuurraannccee PPoolliicciieess,,

IItt MMaayy NNoott MMeeaann WWhhaatt YYoouu TThhiinnkk IItt MMeeaannss

by Samuel D. Hinkle IV, Adam T. Goebel and Travis A. Crump


complaint simply alleged physical dam-age to property or the accumulation ofdirt without environmental conse-quences, then the pollution exclusionmay not apply.

A recent decision from the EleventhCircuit addresses the opposite scenariofrom Abundance Coal – the applicationof a pollution exclusion to a claim foralleged harm from a substance not tradi-tionally considered a pollutant. MarkelInt’l Ins. Co. v. Florida West CoveredRV & Boat Storage LLC, No. 11-11511,2011 U.S. App. LEXIS 16552 (11th Cir.Aug. 11, 2011). Despite being a federalcourt in Florida, Markel involves a sce-nario recognized by the Kentucky Courtof Appeals in Abundance Coal. Theunderlying claim involved a substancenot ordinarily considered to be a pollu-tant, but the Court found it came withina pollution exclusion because the allega-tions about substance met the definitionof “pollutant.”

In Markel, the court held that aclaim for injury from roadworkmillings was excluded from coveragebased on an absolute pollution exclu-sion clause. In that case, an individualsued a storage company alleging thathe contracted a bacterial infectionwhen he had to wade through floodwater mixed with roadwork millings toretrieve his personal property from astorage unit. The storage companysought coverage under its policy withMarkel International Insurance Co.Markel filed a declaratory judgmentaction, asserting that the claim wasexcluded from coverage. The districtcourt granted summary judgment toMarkel, and the storage companyappealed. Applying Florida law, theEleventh Circuit affirmed the districtcourt. It stated that the district courtcorrectly interpreted the definitions of“irritant” and “contaminant” as used inthe definition of “pollutants” by focus-ing on the dictionary definitions ofthose terms without consideringwhether roadwork millings are irritantsor contaminants under environmentalregulations and case law.

The Court focused on the allegationthat the presence of roadwork millingsin water caused the individual’s injury.Therefore, the millings were allegedly

an agent by which irritation was pro-duced and made the mixture “impure”as required by the definition of contam-inant. The Court explained that it is aproduct’s ability to produce an irritatingeffect that places it within a policy’sdefinition of pollution based on theholding in Technical Coating Applica-tors, Inc. v. U.S. Fid. & Guar. Co., 157F.3d 843, 845 (11th Cir. 1998). It rea-soned that a product that causes noharm when used properly may still beclassified as a pollutant under theexclusion because of its irritating effectwhen not used properly. The Courtfound it irrelevant that roadworkmillings were not commonly under-stood to be pollutants, let alonepoisonous or dangerous. It explainedthat pollution exclusions can encom-pass discharges that result from theproper, everyday use of otherwisebenign products and materials.

Therefore, despite their differences,Markel and Abundance Coal both illus-trate that it is proper to focus on thealleged effect of the substance at issue

when applying pollution exclusions,rather than just on the substance itself.However, it is at least possible thatMarkel is a situation cautioned againstby the Court in Abundance Coal wherethe terms “irritant” and “contamination”viewed in isolation could be virtuallyboundless. Other courts have echoedthis concern, with one pointing out thatapplying iodine with an eyedropper ontoa cut could be characterized as the dis-charge of an irritant within the wordingof a pollution exclusion. See MacKin-non v. Truck Ins. Exch., 73 P.3d 1205,1214 (Cal. 2003).

Accordingly, the potential applicationof a pollution exclusion should be care-fully considered regardless of whetherthe alleged substance causing the injuryis traditionally regarded as a pollutant.Focusing on the alleged effect of a sub-stance can provide a path to obtain oravoid coverage. As always, in seeking oravoiding coverage litigants should con-sider the specific facts of the case, theprecise language of the policy, and thecontrolling law of the jurisdiction.


A s technology increases its pres-ence in the agricultural lifestyleand livelihood, uncharted legal

and public policy issues slowly materi-alize. Reliance on scientific studies,which often take decades to determinesafety or harm in the environmentalfield, differentiates this sector of lawfrom other specialties where conse-quences of new developments are oftenmore rapidly apparent. Understandingsocial and ethical consequences of alter-ing nature, and creating appropriatepolicy, are societal challenges to befaced. This topic-specific overviewexemplifies such – and explores tech-nology introduced in 1982, yet which todate has been the subject of very fewindependent scientific studies and mini-mal governmental ethical discussions:The genetic modification of life forms,with a general focus on our food supply.

Many instances of environmentalcontamination can be cleaned up. Aircan be purified. Water filtering systemsare easy to assemble. Smog can bereduced so sunshine again reachesEarth’s crust. But of our four main tran-sient, life-sustaining resources, whatabout number four: food?

Is food in a category apart simplybecause it is a living resource that cross-breeds and may reproduce itselfexponentially in the open environment?And if so, is the biological health offood an even more complex issue whenits cellular makeup is synthetically mod-ified, released outdoors, and allowed toenter into — or some would say inter-fere with — nature’s reproductivecycle? There are those who see themodification as a good thing, yet othersview it as contamination of nature

which when released into the biospherethreatens the entire web of life in a waywhich could never be remedied.

Our nation has a highly developed,prevailing industrialized agriculture sys-tem that provides enough to keep ourcitizens fed at a very reasonable appar-ent consumer dollar cost. Yet there is agrowing market here and throughoutother parts of the world for agriculturethat capitalizes more on nature’s biol-ogy, and less on man’s syntheticinnovation. How do we keep our farm-ers competitive in the modern economyin light of this awareness? First, it isimportant to understand the farmingsystems and some of agricultural policyhistory.

GMO denotes “Genetically ModifiedOrganism.” There are a variety of waysto genetically modify a plant. A verybasic definition for purposes of this arti-cle addresses one type GMO – a plantthat has been genetically engineeredsuch that its DNA has been modified atthe cellular level to accept insertion of aforeign gene, which gene is spreadthroughout the plant via that vegeta-tion’s DNA. This differs from inbredand hybrid plant breeding. Some GMOtechnology can involve insertion of ananimal gene into a plant. This articleaddresses GMO plant life containingsynthetically altered genetic materialwhich originally would not have comeinto existence under natural conditionsor through natural processes.1

The USDA approved its first peren-nial GMO forage (alfalfa) forwidespread planting on January 22,2011. A number of countries throughoutthe world have banned the plantingand/or import of GMO food, feed, bio-

fuel and seed, including some countiesand townships in the US. Yet, a numberof the commodity crops have beenplanted commercially using GMO seedin this country over the past 15 years,and some perishables are also beingmodified as well. Trees, insects and fishare subjects of this technology, too.Even Kentucky Bluegrass seed is beinggenetically modified, and has been fieldtested at least since 2003.2

“USDA Certified Organic” is the onlyfederal US label that indicates GMO-freefood and feed. By law, if you sell over$5,000 per year of raised goods and usethe term “organic” to market thosegoods, you must be certified organic todo so. A basic tenet of the organic farm-ing system is that organic farmers useGMO-free seed. Four other main distinc-tions of organic farming are:

Conventional farming generally indi-cates use of non-GMO seed, butconventional practices are less restric-tive than organic, and use of syntheticchemicals is allowed. There is currentlyno federal label denoting conventionalfarming practices.

GMO farming uses GMO seed, andsynthetic chemical usage is specificallycompatible with traits in some of themore prevalently planted geneticallymodified crops. There is currently alsono federal label in this country to indi-cate GMO practices and products to USconsumers. Regardless of the end prod-uct, the means of creating any GMOleads to a change in the natural cellularmakeup of the plant (or animal). For anyGMO to be patented under the utilitypatent statute 35 U.S.C. § 101, it mustpass the patentability test of being bothuseful and novel. The alterations ofmost GMOs are significant (novel)enough for the US Patent & TrademarkOffice to issue a utility patent.

Some GMO crops are modified suchthat a foreign gene is inserted for an

• No synthetic chemicals (with lim-ited exceptions);

• No irradiation;• No human sewage sludge; and,• The grower must have an approved

third party certifier confirm farmingmethods comply with the OrganicFood Production Act standards.

ENVIRONMENTAL LAW

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by Cathy Franck, J.D., Policy Researcher


existent plant enzyme gene (such as theEPSPS enzyme) to create resistance to agiven herbicide. This genetic modifica-tion allows the farmers to spray theentire field - the weeds will die but thecrop, though chemically sprayed, willresist the herbicide and live. OtherGMO crops, such as Bacillusthuringiensis (Bt) corn and cotton areactually modified such that the naturallyoccurring Bt pesticide is incorporatedthroughout the plant’s cellular structure.Plants whose DNA is so altered arepatentable and every cell of such plantmay be considered a registered pesti-cide. Ironically, Bt happens to be one ofthe natural deterrents that organic farm-ers have been able to use in theirsystem, and there is concern that thewidespread planting of Bt GMO cropswill create pest resistance to this sub-stance and render this tool obsolete inthe organic system.

Different products utilize differingmethodologies in the GMO creationprocess, including the useof bacteria such as E. coli,or viruses such as the cau-liflower mosaic virus.Antibiotic resistant markergenes are in some casessynthesized into variousGMO products as well.

If these main USfarming processes were placed upon acontinuum (beginning with the systemmost aligned with natural practices andprocesses – the organic system), theywould most likely appear to the every-day consumer as: Organic -Conventional - GMO. Keep in mindthat there is no federal law defining orregulating the use of any of these terms,other than “organic.”

Agriculture has been important tosociety for 10,000 years, give or take afew. Yet it is only in the most recent 100years that synthetic chemicals have beenused on a widespread basis in conjunc-tion with our transient, sustainingresources, including food. This use hasaccomplished some production goals,but also has created some unforeseenconsequences.

Lack of plant diversity in monocul-ture plantings, combined with minimalcrop rotation, makes crops more suscep-tible to pests and diseases. Fieldssprayed with herbicides, pesticides, and

sometimes fungicides, eliminate notonly pests, but other segments of naturallife. This intensive cropping systemdepletes natural soil nutrients.

Such synthetic chemicals, includingfertilizers, do help increase yields forconventional and many GMO crops atleast temporarily, but science is justbeginning to study and understand unin-tended costs and consequencesassociated with their use. With intensiveproduction application, natural soilbecomes more and more depleted of itsnutrients; bacteria and microbes thatmake up healthy soil are destroyedalong with beneficial insects. Thefarmer may well be required to purchaseeven more chemicals to replenish theexhausted topsoil and destroy the peststhat flourish in the absence of naturalcontrols. All this can add up as extracost and expense.

Environmental questions surroundingthe use of synthetic chemicals in ourfood supply system are long-standing

and well-known. There do exist con-sumers who want to partake of food thathas not been exposed to toxins whichexterminate smaller, more fragile formsof life. Some think a buildup of suchtoxins in humans might be possible andunhealthy. Some property purchaserslook for land that has not been chemi-cally treated. Many conventionalfarmers accept chemical applications asa way of life; yet, some do not wantthemselves or their families exposed tothese airborne and waterborne chemi-cals which have long been part of theconventional farm culture. Still, othersare concerned for these farmers whohave chosen a life of providing food forour nation, yet through a system of sub-sidies and a pervasiveinformation-sharing network, have beensponsored, educated and trained, andhave developed skills in the conven-tional farming system that providesthem with a livelihood.

A few states have looked “back to

the future” and established sustainableagriculture and agriculture policy train-ing and teaching centers that valueagriculture and nature equally – to allowfor thought and production outside thecurrent synthetic regime box. Washing-ton State established “[a] center forsustaining agriculture and naturalresources” at its state university.3 Thisstatutorily created center provides“statewide leadership in research, exten-sion, and resident instruction programsto sustain agriculture and naturalresources.”4

And where synthetic chemical appli-cation has brought our nation’sprevailing farming system to the brinkof conquering nature, the added elementof GMOs in the agricultural, environ-mental and food structures as a wholecreates an uncertain precipice. Mainlyfrom the perspective that very little isknown about the long term effects ofGMOs. The use of modified seed tech-nology is an unknown frontier. Very few

independent, publishedstudies have been per-formed to determine theeffects of long-termingestion of food withgenetically-altered DNAon the health of its con-sumers. Very few studieshave been done to deter-

mine what GMO plant root systemsdischarge into the soil. No one seems tobe testing the level, if any, of GMOplant system discharge or decayed rootmatter that might be absorbed throughfuture plantings’ root systems. Mosttesting has been done by industry. Littleto no studies have been done to find theeffects of GMO pollen as it infiltratesour entire biosphere, landing on soil,lakes, rivers, plant foliage, plant pistils,wildlife, humanity. Pollen is inhaled,ingested, absorbed and ubiquitous.

So how did this most recent changein our agriculture system come about?

In 1972 and 1974, the US PatentOffice examiners denied patents for twoseparate living organism applications,because they were attempting to patentlife.5 One of these living organisms wasto be grown in a laboratory for medici-nal purposes. The other was to bereleased into open nature.

Then, in 1975, the Administration ofthe US Patent Office was moved from

Our nation has a highly developed, prevailing industrializedagriculture system that provides enough to keep our citizens fed at a very reasonable apparent consumer dollar cost. Yet there is agrowing market here and throughout other parts of the world foragriculture that capitalizes more on nature’s biology, and less onman’s synthetic innovation. How do we keep our farmers

competitive in the modern economy in light of this awareness?


under joint administration (as it hadbeen since 1925 with both State andCommerce departments) into soleadministration under the Department ofCommerce.

Five years after this patent officestructural change, on June 16, 1980,live, man-made organisms (oil-eatingbacteria) were held patentable under theUtility Patent Statute of the US Code, inthe Supreme Court case Diamond v.Chakrabarty.6 This was a 5-4 decision.This is one of the two patents that wereearlier rejected by the US patent exam-iner because the patent applicationsubject matter was a living organism.Again, to distinguish this case frommedical technology patent issues, thispatent was a request to provide a utilitypatent for an organism that would bereleased into the ecological chain ofnature and would cross-breed or repro-duce unchecked.

The Chakrabarty majority’s decisionexplanation found in the last paragraphof its opinion is worth noting:

The Supreme Court did not say “if”Congress amends the Patent Statute or“unless” Congress amends the PatentStatute. The wording used is: “until”Congress amends the Patent Statute.The word “until” indicates anticipationof some future act or event, and has cer-tainty about it.

Yet, up until as recently as the dereg-ulation of GMO alfalfa earlier this year,no bills to require even labeling ofGMO food and feed products have beenpassed in Congress. Legislation hasbeen introduced which would requirelabeling of genetically altered matter,prohibit the open-air cultivation of

genetically engineered industrial andpharmaceutical crops, and protectGMO-free farmers from economic harmsuffered by cross-pollination from GMOcrops.8 On January 31st of this year, S.230 was introduced to amend the Fed-eral Food, Drug, and Cosmetic Act toprohibit the approval of GMO fish. Nobill has addressed the issue of exempt-ing GMOs from patent protectionaltogether, as the Court had suggested,much less sought to impose penaltiesfor the creation and use of GMOs.

The month after the Court’sChakrabarty patent decision, in July of1980, a USDA study team on organicfarming published its famous lime-greenpaperback bound Report and Recom-mendations on Organic Farming. Thistreatise was a first step in “increasingcommunication between organic farmersand the US Department of Agriculture,”according to then-Secretary of Agricul-ture Bob Bergland. Undeniably theresearch and data gathered in this com-pilation proved useful in the ultimatepassage of the organic food law.

By 1982, organic farming bills wereintroduced in both the House and Senateat the federal level. That’s the same yearclaimed by our country’s most powerfulsynthetic chemical corporation as theyear their corporate scientists were firstto genetically modify a plant cell. Andas GMO technology expands, so contin-ues a much quieter voice for theopposite end of the spectrum – organicpractices to preserve nature and food asit’s been known.

Eight years later Congress finallypassed the Organic Foods ProductionAct of 1990 (OFPA) which created theframework to establish national stan-dards for organic agriculture.

Two key events occurred between1982 and 1990.

In 1984, the Office of Science &Technology Policy in the Reagan WhiteHouse published its proposal of an inte-grated regulatory scheme called TheCoordinated Framework for Regulationof Biotechnology. All administrationsthereafter have adopted this “Coordi-nated Framework.” It determined thatno new legislation was required to regu-late GMOs, and that the laws andregulations in place under the FDA,EPA, & USDA were adequate to regu-late GMO technology. No consideration

was given to social, ethical, or new sci-entific issues specific to GMOs.

At one point, after the adoption ofthis Coordinated Framework policy, atleast one agriculture secretary duringClinton’s presidency, Dan Glickman,took issue with GMO technology and itsrapid approval process, and was himselftreated dismissively by both industryand the administration because he wasmerely in the agriculture sector.9 Yet,this does not appear to be a partisanissue. It appears more to be an issue ofinitially good intentions - but whencombined with minimal scientific over-sight based on few and limited studies,disregard in considering all potentialeffects upon the environment, and lackof respect for natural cellular design -has become a public policy issue. Bothnationally and more so internationally.

While the US, through the Coordi-nated Framework, has chosen to look atGMOs as GRAS (Generally Recognizedas Safe), many other countries through-out the world look at new technologies,including GMOs, through a more strin-gent policy lens. The PrecautionaryPrinciple, a principle used by manycountries in the international community,states that even though scientific testingis not yet conclusive on a new productor technology, if possibilities of irre-versible or serious damage exist, stepsshould be taken to prevent degradationof the environment. This protectiveapproach is what has led to the banningof GMOs in some countries.

People from these more cautious cul-tures in general view nature – and notmankind’s technology – as the founda-tional provider of our sustenance andbelieve it is our duty as humans to pass tothe upcoming generations an environmentthat has been protected and not contami-nated by man’s technologically createdproducts. Cultures in existence millenniaprior to establishment of ours may tend tomake decisions affecting land and otherresources by projecting decades beyondthe current annual report due date, andmay also factor in a variety of differentdetails when evaluating an issue.

Also, many people in indigenous cul-tures still believe there is a directconnection between the health of thenatural world – including our food –and the health of humanity. Theybelieve nature has created food’s

“Our task…is the narrow one ofdetermining what Congress meant bythe words it used in the statute… .Congress is free to amend §101 [theUtility Patent Statute] so as toexclude from patent protectionorganisms produced by genetic engi-neering. Cf. 42 U.S.C. § 2181(a) …,exempting from patent protectioninventions ‘useful solely in the uti-lization of special nuclear material oratomic energy in an atomic weapon.’… But, until Congress takes suchaction, this Court must construe thelanguage of [the Utility PatentStatute] as it is.”7


makeup with the perfect elements tokeep people healthy, and if that makeupis changed, there might be health conse-quences. This manner of thought has ledto appreciation of the natural nutrientand micronutrient components of food,by other countries’ citizens, even somein this country.

The other major agricultural eventbetween 1982-90 took place in 1987.That year is maintained as the year theUS’s same powerful synthetic chemicalcorporation conducted the first fieldtests of GMO crops.

Then, in 1990 as mentioned above,OFPA passed, and two years later theEarth Summit took place in Rio DeJaniero. This was the summit attendedby Al Gore, who spotlighted the Con-vention on Climate Change.“Convention” is the term used for“Treaty” at these international gather-ings. There were also two otherconventions that got underway that yearat Rio: One to combat desertificationand the other was called the Conventionon Biological Diversity (CBD). This iswhere we get the term “biodiversity”

Subcategories of biodiversityinclude:

The CBD’s aim is to protect naturalbiodiversity. Because it is the loss ofnature’s variation in any of these cate-gories that is a threat to biodiversity,GMOs could be considered a detrimentto CBD goals, as GMOs in agriculturethreaten not just natural genetics, butalso threaten species and ecosystems byallowing and encouraging monocultureplanting.

As of today, 189 nation states and theEU have joined the CBD. Three govern-ments have not become a party:Andorra, the Vatican, and the US. Aspart of the CBD, protocol has been cre-ated as a supplementary agreement tothe convention. The Cartagena Protocolfor the CBD directly addresses potentialadverse effects of biotechnology on bio-diversity. The Cartagena Protocol wasadopted by the CBD Conference of Par-ties in 2000.

The following year, the US SupremeCourt, with no new legislation to pre-vent it from doing so, declared that not

• Species biodiversity,• Genetic biodiversity, and • Ecosystem biodiversity.


only is the utility patent available forbacteria, but also for plants that crosspollinate in the open environment.10 Ofthe two justices remaining from theChakrabarty Court, one sided with themajority; the other with the dissent.That was 2001.

In April 2002, those who signed onas parties to the CBD, committed them-selves “to achieve by 2010 a significantreduction of the current rate of biodiver-sity loss…to the benefit of all life onEarth.” The US, having not signed on asa party to the CBD, has not adopted itsprotocol, nor has it signed on to thisgroup commitment. Yet, in October ofthis same year, 2002, the USDA’s finalrules of the Organic Foods ProductionAct of 1990 were implemented. Keep inmind, an important outcome of OFPAand its standards is to reduce biodiver-sity loss.

A year later, on September 11, 2003,the Conference of Parties to the CBDentered the Cartagena Protocol intoforce.

Within the pages of the CBD’sGlobal Biodiversity Outlook 2 are listedactions groups concerned could take tomeet the goals 2010 goals of the Biodi-versity Treaty. Page 77 addresses theentire global community and states:“Finally, in our everyday choices, we allhave direct impacts on biodiversity andthe state of our Planet’s ecosystems.What we eat, wear and buy, where welive, work and travel, are not neutralchoices. Options for sustainable con-sumption are available and increasing(e.g., organic foods …).”

Some view the USDA CertifiedOrganic emblem as a label propelledwith meaning behind it in some ways

comparable to the peace symbol of anearlier era. By growing and buyingorganic, individuals have a baselinefrom which they can actively becomepacifists – living in concord with naturalelements, understanding consequencesof one’s production and purchasingpower and effects on others beyondimmediate personal gain or consump-tion, and beyond one’s immediatelocale. Expansion of the certifiedorganic program can open our farmers’products up not only to a number oflocal consumers, but also to interna-tional, GMO-free markets, and otherstates within our own nation, where thelabel is well understood and recognized.

States have taken differentapproaches to GMO technology. Forexample, in the early 2000s, a bill wasintroduced in Massachusetts to impose amoratorium on this technology to allowtime for more scientific studies. Hawai-ian farmers have wanted an outright banof GMOs legislatively. In other states,status quo reigns and many agricultureprograms plow onward unquestioned.

GMO corporations market productsfrom the standpoint of a solution-basedor need-based marketing effort. Theyare excellent, very convincing mar-keters.

Increased yield appeals to the com-petitive spirit, though it does tend todecrease price. Is there a way toincrease yield naturally? Should thateven be the goal? How much can yieldbe increased before soil is exhausted?

In 2010, the Nagoya-Kuala LumpurSupplementary Protocol was adopted.This agreement supplements the Carta-gena Protocol and provides internationalprocedures and rules for redress and lia-bility in the event of damage resultingfrom GMOs. The 2010 deadline as thetarget date for worldwide biodiversityloss reduction has not been extended. Anew deadline with the goal to preventfurther biodiversity loss has been set for2020. It would not make sense to tarryon working toward this goal. If naturalbiodiversity is the essence, then insepa-rably intertwined with it is time.

Our government’s policy must besensitive to keeping our farmers’ prod-ucts welcome in all markets. Is itpossible or necessary to create a coursetoward prevailing systems which pro-vide reward and profit to farmers,respect for natural order, and ample

nourishment to consumers? Whatwould it look like for our Common-wealth to develop policy that keeps ourproducts welcome among all consumersand provides a livelihood for our mostimportant professionals - thoseentrusted to steward the soil of the landand grow our sustenance? The policyweb is complex.

ENDNOTES1. GMO is layperson nomenclature for

this technology, and use of this termin some instances might legallyindicate a broader scope of modifi-cation than this article sets out toaddress, but is the most commonpublicly used term. Other, morenarrowly and in given instancesmore accurately defined terms mayinclude: Genetically Engineered,Recombinant DNA, Bioengineered,Transgenic. This is an emergingfield and this terminology list is notintended to be exhaustive.

2. See Andrew Pollack, U.S.D.A. Rul-ing on Bluegrass Stirs Cries of LaxRegulation, N.Y. Times, July 7,2011, at B2, where geneticallyengineered seed companyspokesman this year states “limitedfield testing of the Kentucky Blue-grass would begin soon….” But seelawsuit filed 8 years earlier allegingfield testing of genetically engi-neered Kentucky Bluegrass, U.S.Dist. Ct. for D.C. Civil Action 03-00020 (HHK) (2003), claimingsuch field testing interfered withplaintiffs’ interests, which allega-tion was ultimately upheld.

3. Wash. Rev. Code § 15.92.020(1991).

4. Id.5. U.S. Pat. App. No. 05/260563

(filed June 7, 1972); U.S. Pat. App.No. 05/477766 (filed June 10,1974).

6. 447 U.S. 303, 65 L. Ed. 2d 144(1980).

7. See 447 U.S. at 318, 65 L. Ed. 2dat 155-56.

8. See most recently H.R. 5577-5579. 9. See The World According to Mon-

santo, A documentary film directedby Marie-Monique Robin, 2008.

10. JEM Ag Supply, Inc, dba FarmAdvantage, Inc., v. Pioneer Hi-BredInternational, Inc., 534 U.S. 124,151 L. Ed. 2d 208 (2001).

Cathy Franck is alicensed attor-ney, real estateagent, and afood, feed, andbiofuel agricul-tural policyresearcher. Sherecently sold her

150+ acre farm, has moved closer totown, and is studying GMOs thatreproduce in the open environment asa biodiversity project. She providespresentations and recommendationsrelating to biodiversity.

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by William T. Gorton III

INTRODUCTION

As a very broad goal, Congresspassed the Clean Water Act(“CWA”) to “restore and maintain

the chemical, physical and biologicintegrity of the nation’s waters.”1 Underthe authority of the Constitution’s Com-merce Clause, our legislature, actingthrough the CWA, asserted federal con-trol over the nation’s “navigablewaters,”2 which the statute defines as“waters of the United States….”3 Find-ing the distinction between these twoterms in describing the nation’s waterresources has caused problems eversince, and has resulted in the expansionof federal environmental regulatoryjurisdiction across the country. It hasalso been, and continues to be, thesource of considerable tension as sur-prised citizens and organizations findthemselves to be members of the regu-lated community.

Congress left it to the newly-formedEnvironmental Protection Agency(“EPA”) and the U.S. Army Corps ofEngineers4 (“Corps”) to determine howextensive the federal reach should be inpermitting and regulating activities thataffect the water courses of America5

under two permitting systems. The per-mitting mechanism adopted to regulatepollution from point-source dischargesunder CWA Section 402 is known as a“NPDES” permit, which establishes thepermittee’s water discharge quality.6

The NPDES program is administered bythe EPA, however, the CWA allowsstates the opportunity to administer cer-tain aspects of the CWA with approvalby EPA.7 In Kentucky, the NPDES pro-gram is administered by the KentuckyEnergy and Environment Cabinet,Department of Environmental Protec-tion, Division of Water Quality (“KYDEP”).8

Not only does the CWA regulate thequality of discharges into the waters of

the United States, it also regulates cer-tain activities in the water bodies thatcan obstruct or affect water quality. Apermit from the Corps is required for aparty wishing to “discharge dredged orfill material into navigable waters.”9 Infundamental terms under CWA Section404,10 any digging in or dumping ofmaterial in the waters of the UnitedStates requires a permit, commonlyknown as a “404 permit.” Although theCWA allows the states to assume juris-diction of the “404 Program,”11

Kentucky, as most states, does notadminister the program.12 Hence, anydredging or filling in the waters requiresfederal authority.13

Due to the difference between statu-tory terms “navigable waters” and“waters of the United States” withinthe statute itself, it is not surprisingthat there has been confusion acrossthe nation regarding the reach of fed-eral jurisdiction over activities in waterbodies under Section 404. To under-stand the dilemma, one must focus onthe basic terms as defined by thecourts.

“Navigable” WatersThe term “navigable waters” histori-

cally included only waters that werenavigable in fact14 and eventually founda statutory home in the Rivers and Har-bors Act of 1899.15 Over time, the termhas expanded to include smaller water-ways. The Supreme Court hasrepeatedly recognized the fiction that“navigable waters” includes “all watersof the United States” and that Congress“evidently intended to repudiate limitsthat had been placed on federal regula-tion by earlier water pollution controlstatutes and to exercise its powersunder the Commerce Clause to regulateat least some waters that would not bedeemed “navigable” under the classicalunderstanding of that term.”16 Follow-ing this expansive Commerce Clause

interpretation, the federal agencies havedeveloped very broad regulatory defini-tions of “waters of the United States”that define waters to encompass notonly navigable waters used in tradi-tional interstate commerce, but alsotributaries of those traditional navigablewaterways, and wetlands adjacent tothose waters.17 Congress left it to theagencies to define just how farupstream and to what water bodies fed-eral regulation should attach as “watersof the United States,”18 and they even-tually followed the Commerce Clauseupstream all the way to ephemeralstreams and even to isolated wetlandsand other water bodies.

EPA and The Corps — Joint Jurisdiction?Both the EPA and the Corps have

jurisdiction under Section 40419 andboth have broadly defined “waters ofthe United States.”20 Both agencies havealso included wetlands adjacent to thosewaters in their definitions, despite thefact that wetlands are never expresslymentioned in the CWA.

The CWA has two permittingschemes for protecting water quality:the “Section 402” NPDES programadministered by EPA (and analogousKPDES program administered by KYDEP) related to pollutional discharges;and the “Section 404” program relatedto certain “activities in the water bod-ies,” primarily administrated by theCorps. The Section 404 program pro-vides an exception to the NPDESdischarge requirements, since it mayallow a discharge of dredged or fillmaterial into a water course. The 404permittee must, however, minimizestream impacts21 and mitigate for anyunavoidable losses of stream functionsby restoring, recreating or preservingother waters.22

Although the Corps has had the pri-mary role in permitting activities for thewaters of the United States, the CWA

ENVIRONMENTAL LAW

WATERS OF THE UNITED STATES:“Federal Jurisdiction Over Activities On My Property?”


gives the EPA the ultimate authority to“prohibit the specification (includingwithdrawal of specification) of anydefined area as a disposal site” [fordredge or fill material].23 Hence, all 404permits issued by the Corps are subjectto the EPA’s veto.24

SECTION 404 PERMITTING REQUIREMENTSWhat Activities Require Permits?

A party must obtain a Section 404permit25 from the Corps to conductactivities in the water courses subject to404 jurisdiction. Although the CWA gen-erally describes the 404 regulatedactivities as “the discharge of dredged orfilled material into the navigable watersat specified disposal sites,” such activi-ties include almost any activity whereone would disturb or change the bottomelevation of a water course or body bydredging, filling or conducting construc-tion activities therein. Such activitiesinclude, but are not limited to, construct-ing outfall and intake structures, bankstabilization, hydropower projects,docks, submerged utility lines, harborpile development, residential develop-ments, and almost any activity that canbe imagined in the “waters” of theUnites States. The term “dredged mate-rial” means material that is excavated ordredged from the waters of the UnitedStates.26 The phrase “discharge ofdredged or fill materials” means anyaddition of dredged material into … thewaters of the United States,27 andincludes any addition of excavated mate-rial into the waters of the United Statesfrom any activity including mechanizedland clearing, ditching channelization, orany other excavation.28 The latter defini-tion is very broad, encompassing manyactivities in the land development andnatural resource extraction businesseswhere landowners have “filled” wet-lands for development, and miningcompanies have filled ephemeral head-water drainage channels for spoilstorage.

Nationwide PermitsCertain discharges specified in the

Corps’ regulations are permitted as gen-eral permits under the CWA,29 which arereferred to as Nationwide Permits

(NWPs).30 Other discharges may beauthorized by the Corps on a regionalbasis. If a specific type of activity is noteither exempted31 by the regulations orallowed under a NWP, an individual per-mit is required. NWPs are issued onnationwide basis for any category ofactivities involving discharges ofdredged or fill material if the activitiesin the category are similar in nature, willcause only minimal adverse environ-mental effects if performed separately,and will have only minimal cumulativeadverse effect on the environment.32

Some NWPs require advance “pre-con-struction” notice to the Corps.33 Thebenefit to the regulated community isthat the NWP program is designed toprovide timely authorizations while pro-tecting the nation’s aquatic resources.Unlike an individual permit, whichrequires significant engineering, envi-ronmental and regulatory analysis, theNWP program is designed to allow theCorps to focus its limited resources onmore extensive evaluation of projectsthat have the potential for causing envi-ronmentally damaging adverse effects.NWPs in Kentucky and the Appalachiancoal fields may be affected by the signif-icant litigation and recent suspension ofNWP-21 — “Surface Coal Mine Activi-ties” used by the mining industry for,inter alia, storage of mine spoil in “headof hollow” or “valley fills” in headwater,intermittent or ephemeral streams. Anypractitioner studying the classificationand regulation of activities in theseupstream areas of a watershed must beaware of recent cases and agency actionsaddressing the issue of whether such“wet weather only” streams are jurisdic-tional waters.34 The subject is not withinthe scope of this paper.

Within this statutory and regulatoryframework, the following discussionsaddress the conflicts between environ-mental protection and private propertyrights that have resulted in significantlitigation. Simply: “What waters are wetalking about?”

JURISDICTIONAL THRESHOLD ISSUES —“CAN THEY DO THIS TO ME?”Courts Decide What Are “Waters”

Following the broad definitions ofjurisdictional waters adopted by the

agencies, it was not surprising to see thetendrils of agency authority extendingupstream to headwater, intermittent andwet weather ephemeral streams andeven to isolated wetlands.35 As a result,it is not surprising that the issue of howfar federal CWA jurisdiction extends hasbeen before the United States SupremeCourt three times since 1985,36 as prop-erty owners discovered jurisdictionalwaters of the United States on theirtracts and became entangled andembroiled in a complicated federal reg-ulatory experience.

After each Supreme Court decision,there has been significant litigation inthe lower federal courts, as well asagency attempts to conform policy tothe Court’s further refined interpreta-tion of Congressional intent in vaguelydefining what are, in fact, “waters ofthe United States.” Akin to the com-plexity of an aquatic ecosystem, thefederal courts’ attempts to developsome legal homeostasis in this turbulentarea of environmental law continue.Although many segments of our econ-omy can be affected by the regulatoryframework surrounding potential 404program activities, agricultural, naturalresource extraction and land develop-ment industries are particularlyimpacted. Members of the regulatedcommunity (be they individuallandowners or business entities) maynot only have their private propertyrights affected, they may also be sub-ject to civil penalties of up to $25,000per day of violation37 and criminalenforcement actions including impris-onment for violations of Section 404and its permitting requirements.38

Adjacent WetlandsIn the first case to reach the Supreme

Court, United States v. RiversideBayview Homes, a Michigan land devel-oper challenged the Corps’ authority torestrict land development in wetlandsthat did not have a direct physical con-nection to a traditionally navigablewaterway. The developer was placing fillmaterials on his property adjacent to theshores of Lake St. Clair, Mich. The Courtheld that CWA jurisdiction extends tointrastate wetlands adjacent to, but notdirectly connected with, a larger body of


water that ultimately flows into a naviga-ble waterway “if it performs a greaterecological function beyond the wet-land.39 The Court, in reviewingcongressional intent,40 found that “theregulation of activities that cause waterpollution cannot rely on … artificial lines… but must focus on all waters thattogether form the aquatic system,”41 andseemed to acknowledge the functionalvalues of the intact ecosystem and abroader view of environmental protec-tion. Perhaps foreshadowing the nextcase, the Court noted that isolated bodiesof water do not have a continuous sur-face connection.42

Isolated Water BodiesThe agencies continued to expand

their CWA jurisdiction, even to thepoint of regulating isolated man-madeponds and land features, until theCourt’s 2001 decision in Solid WasteAgency of Northern Cook County v. U.S.Army Corps of Engineers. In that case,the Corps exerted jurisdiction over anabandoned sand and gravel pit contain-ing isolated, non-navigable, intrastate,“permanent and seasonal ponds.” Thesite was being permitted as a landfill toserve the City of Chicago and, likemany abandoned quarries, containedimpounded water. The Corps’ jurisdic-tion was based on its “Migratory BirdRule,” which extended jurisdictionunder the Commerce Clause by findinga nexus to interstate commerce since thesite was visited by migrating birds.43 InSWANCC, the Supreme Court struckdown the broad Migratory Bird Rule,noting that it was not within the scopeof the CWA authority.44 Although theSWANCC decision trimmed the Corps’reach under Section 404, the agencystill maintained significant authorityover navigable waters, tributaries tonavigable waters, wetlands adjacent tonavigable waters, and wetlands adjacentto the tributaries of navigable waters.The Corps continued to assert jurisdic-tion broadly, ultimately reachingactivities allegedly affecting the hydro-logic regime far removed fromnavigable waters of the Unites States.The Corps’ extensive reach was chal-lenged and came to a head in 2006 forthe third time in U.S. v. Rapanos.45

Remote WatersJohn Rapanos was a land developer

in Michigan who, in the late 1980s,began moving earth on his property,most of which was dry, and diggingditches to drain moist areas discharginginto wetlands. These wetlands wereadjacent to non-navigable waters and 20miles from a real navigable waterway,Saginaw Bay. Rapanos’ property wasconnected to Saginaw Bay by 20 milesof ditches; however, the Corps chargedthat he was hydrologically connected towaters of the United States and he wasconvicted on criminal charges, finedhundreds of thousands of dollars, andordered to perform 200 hours of com-munity service.

In Rapanos, the Supreme Courtaddressed the jurisdictional reach of theCWA, and in particular, whether a wet-land or a tributary is a “water of theUnited States.” Unfortunately, the Jus-tices issued five separate opinions inRapanos: one plurality opinion, twoconcurring opinions, and two dissentingopinions, with no single opinion com-manding a majority of the Court. Amajority of the Court did find that theCorps’ definition of “waters of theUnited States”46 was overly broad sinceit allowed, as a matter of course, juris-diction over wetlands adjacent tonon-navigable waters.47 Generallyspeaking, however, the Court createdsignificant confusion since it did notprovide a better definition of the dis-puted term; rather, it provided multipledefinitions.

Justice Scalia vs. Justice KennedyMost of the analysis of the Rapanos

decision focuses on the four-memberplurality opinion authored by JusticeScalia48 (“Scalia opinion”), and on Jus-tice Kennedy’s concurring opinion49

(“Kennedy opinion”). The opinionshave proved to be complex and confus-ing, and have produced uncertainty onwhat is the post-Rapanos standard forSection 404 jurisdiction.

The Scalia opinion limited jurisdic-tion to “relatively permanent standingor continuously flowing bodies ofwater” and “wetlands with a continu-ous surface connection” to suchwaters.50 More in line with ecological

principles, the Kennedy opinion foundall waters that possess a “significantnexus” to navigable waters are jurisdic-tional waters.51 The Kennedy opinionfurther found that a determination ofwhether there is a significant nexus tonavigable waters requires a case-by-case analysis of whether wetlands,either alone or in combination withsimilarly situated lands in the region,significantly affect the chemical, physi-cal and biological integrity of othercovered waters that are more readilyunderstood as navigable.52

Lower Courts’ Interpretation of RapanosInterpretation of Section 404 of the

Clean Water Act in light of the Rapanosdecision has proven to be confusing,and not surprisingly has led to inconsis-tent decisions by the lower courts andthe agencies, and to confusion in theregulated community. Even Chief Jus-tice Roberts recognized the confusionthat would be caused by the Rapanosdecision: “It is unfortunate that no opin-ion commands a majority of the Courton precisely how to read Congress’ lim-its on the reach of the Clean Water Act.Lower courts and regulated entities nowhave to feel their way on a case-by-casebasis.”53 Since Rapanos, the courts ofappeals have split on which test to fol-low: the Scalia test, the Kennedy“significant nexus” test, or either.54 TheSixth Circuit in United States v.Cundiff55 highlighted the tensionbetween Justices Scalia and Kennedy bynoting that Scalia stated, “JusticeKennedy’s test simply rewrites thestatute,”56 while Justice Kennedy statedthat, “the plurality reads nonexistentrequirements into the Act.”57 The ten-sion expressed between the two Justicesis perhaps an apt metaphor for theuncertainty created by Congress in itsambiguous definition of waters of theUnited States.

Interpreting a PluralityIn deciding how to interpret a plural-

ity opinion, particularly one assplintered as Rapanos, many courtshave studied the law regarding interpre-tation of fragmented court decisions.Several have cited Marks v. UnitedStates58 to discern the holding in


Rapanos. The Marks case quotes Greggv. George,59 where the Supreme Courtinstructed that “when a fragmentedcourt decides a case and no singlerationale explaining the result enjoysthe assent of five justices, the holdingof the court may be viewed as thatposition taken by those Members whoconcurred in the judgments on the nar-rowest grounds.”

Sixth Circuit InterpretationIn a case from the Western District of

Kentucky, United States v. Cundiff,60 theSixth Circuit spent considerable timeand effort describing the Marks rule inan attempt to adopt the narrowestgrounds of the Rapanos decision. TheSixth Circuit found that it was almostimpossible to find the narrowestgrounds on which at least five membersconcurred in Rapanos. The CundiffCourt, in a well-written description ofthe CWA’s historical background andSection 404, explained the complexitiesof the Rapanos decision, noting that“parsing any one of Rapanos lengthyand statutory exegesis is taxing, but thereal difficulty comes in determiningwhich, if any, of the three main opinionslower courts should look to for guid-ance.”61 The Cundiff case involved afather-son farming team that chose todrain a tract of land adjacent to aban-doned coal mines and affected byacid-mine-drainage in order to convertthe property to crop land. The propertywas also adjacent to the Green River inMuhlenberg County, Ky. Cited by theKentucky Division of Water, the Corpsand ultimately the EPA, the Cundiffschose to ignore the agencies’ adminis-trative orders. Finding that CWAjurisdiction was proper under both theScalia and Kennedy tests, the Courtnoted that it did not need to reach adecision whether either test applied, andnoted that the Supreme Court hadrecently denied certiorari in two casespresenting the same question.62

AGENCIES (ONCE AGAIN) TRY TO PROVIDE GUIDANCE

As they did in 200363 and again in2008,64 to provide guidance to agencystaffs and the regulated community inidentifying jurisdictional waters, EPA

and the Corps issued their latest attemptto provide guidance on the jurisdic-tional water issue on April 27, 2011(“2011 Guidance”).65 The agencies’goal is to reconcile the variousSupreme Court opinions and both ofthe Rapanos standards. The 38-page2011 Guidance attempts to weave aregulatory fabric that will cover all nat-ural facts and circumstances in thehydrologic system. Some waters are defacto jurisdictional waters, while othersrequire significant technical and scien-tific analysis. The agencies maintainthat the 2011 Guidance is consistentwith the principles established by theSupreme Court cases, and that it is sup-ported by the agencies’ scientificunderstanding of how water bodies andwatersheds function.66 The 2011 Guid-ance discusses six categories of waterssubject to federal jurisdiction:

Traditional Navigable Waters67

As discussed previously, traditional“navigable waters” include “all waterswhich are currently used or were usedin the past or may be susceptible to usein interstate or foreign commerce,including all waters which are subject tothe ebb and flow of the tide.”68 Underthe 2011 Guidance, “navigable waters”also includes waters suitable for com-mercial waterborne recreation.

Interstate Waters69

Any waters that flow across or forma part of state boundaries are subject toSection 404 jurisdiction. Under this def-inition, lakes, ponds or other still-waterfeatures that cross state boundaries willbe deemed interstate waters in theirentirety.

Significant Nexus Analysis Waters70

Presenting perhaps the most compli-cated situation, the agencies will assertjurisdiction over waters that, eitheralone or in combination with similarlysituated waters in the region, signifi-cantly affect the chemical, physical orbiological integrity of traditional navi-gable waters or interstate waters. Theagencies have stated that they will applythe significant nexus standard in a man-ner that restores and maintains any ofthose three attributes. Clearly, there aremany variables in such an analysis thatwill likely require interpretation by thecourts.

The Tributaries71

EPA and the Corps will assert juris-diction over tributaries under either theSupreme Court’s plurality standard orJustice Kennedy’s significant nexus testif the tributary contributes flow to a tra-ditional navigable water or interstatewater, either directly or indirectly by

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means of other tributaries. The agencieshave determined that a tributary can benatural, or a man-altered or man-madewater body. A tributary is physicallycharacterized by the presence of a chan-nel in a defined bed and bank.

Adjacent Wetlands72

Taking details from both the Scaliaand Kennedy opinions, the agencieswill assert jurisdiction over “wetlandswith a continuous surface connection torelatively permanence, standing, orcontinuously flowing bodies of water”connected to traditional navigablewaters. Further, the significant nexustest will require jurisdiction over adja-cent wetlands if they, either alone or incombination with similarly situatedwetlands, have an effect on the chemi-cal, physical or biological integrity oftraditional navigable waters or inter-state waters that is more than“speculative or insubstantial.” Interest-ingly, the term “similarly situated”adjacent wetlands includes all wetlandslocated in a particular watershed. Itappears that this definition could leadto litigation regarding distinct water

features contained within the samewatershed, depending on the size of thewatershed.

Other Waters73

This catch-all phrase includes waterssuch as intrastate lakes, rivers, streams(including intermittent streams), mudflats, sand flats, wetlands, sloughs,prairie potholes, wet meadows, playalakes or natural ponds, if the use, degra-dation or destruction of those waterscould affect interstate or foreign com-merce. The agencies, recognizing thatthese “other waters” may be difficult togeneralize, have announced that theywill make a case-by-case fact-specificdetermination of their jurisdiction overthem. Based on the history of litigationregarding jurisdiction over waters onprivate property, it seems that the stagemay be set for litigation where anunsuspecting property owner finds thatfeatures on his/her property have beendetermined to be “other waters.”

CONCLUSIONThe assertion of federal jurisdiction

over water-related features and activi-

ties on private property has createdsignificant litigation for many years.Though the courts and agencies haveattempted to refine the scope of juris-diction under the Clean Water Act, thelatest enunciation from the SupremeCourt, followed by the latest genera-tion of guidance from EPA and theCorps of Engineers, guarantees addi-tional disputes and litigation regardingthe extent of the federal reachupstream to regulate activities on pri-vate property. Clearly, the protectionof valuable water resources is para-mount and was Congress’ intent inpassing the Clean Water Act. Theimplementation, however, of bright-line rules to deal with complexecosystems and countervailing privateproperty rights guarantees that dis-putes will arise that can only beresolved in the courts.

To the legal practitioner advisingclients, it is wise to conduct necessaryregulatory and technical analysis priorto any activities being undertaken onland with or near hydrologic features. Ifthere are “waters of the United States”under any definition, a determination ofwhether or not such activities are cov-ered by the Nationwide Permits asdiscussed above, or would require indi-vidual Permits, should be determinedlong before any activities commence.Otherwise, as has happened to manyunsuspecting landowners across Amer-ica, the client may find itself dealingwith an environmental regulatoryenforcement program well beyond anyexpectation.

ENDNOTES1. 33 U.S.C. § 1251(a) (2006).2. 33 U.S.C. § 1344(a) (2006)

(emphasis added).3. 33 U.S.C. § 1362 (7) (2006).4. The U.S. Army Corps of Engineers

has been involved in regulating cer-tain activities in the nation’s waterssince 1890 and until 1968, the pri-mary thrust of the Corps regulatoryprogram was the protection of navi-gation. See 33 C.F.R. § 320.1(a).

5. 33 U.S.C. § 1344(a)-(c).6. 33 U.S.C. § 1342; NPDES stands

for “National Pollutant DischargeElimination System.”

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7. See, e.g., 33 U.S.C. § 1342(b)regarding the NPDES permittingprogram. See also, 33 U.S.C. §1318(c) regarding inspections,monitoring and entry associatedwith point sources.

8. See KRS § 224.70 et. seq.; 401KAR Chapter 5. The permittingprogram regulating point sourcedischarges in Kentucky is referredto as the “KPDES” program.

9. 33 U.S.C. § 1344(a) (emphasisadded).

10. Id.11. See 33 U.S.C. § 1344(g)-(h).12. The KY DEP does maintain some

jurisdiction over activities resultingin permanent loss of streams andwetlands through what is referredto as the “401 Water Quality Certi-fication” requirements. In its basicframework, the KY DEP is requiredto certify whether activities under afederal permit or license (e.g., 404permit) will comply with other

state water quality standards. See401 KAR 9:020.

13. See 33 U.S.C. § 1341.14. See The Daniel Ball, 77 U.S. (10

WALL) 557, 563 (1870) —(“Rivers are navigable in fact whenthey are used or susceptible ofbeing used in their ordinary condi-tion as highways forcommerce…”).

15. 33 U.S.C. § 401 et seq.16. United States v. Riverside Bayview

Homes, Inc., 474 U.S. 121, 133(1985).

17. See 33 C.F.R. § 328.3(a)(1),328.3(a)(5), 328.3(a)(7).

18. See 33 U.S.C. § 1344(a)-(d).19. 33 U.S.C. § 1342 (b-c); 33 U.S.C.

§ 1344 (a-h).20. Cf. 33 C.F.R. § 328.3(a) (2009) and

40 C.F.R. § 230.3(s) (2009).21. 33 C.F.R. § 332.1(c)(2).22. 33 C.F.R. 332.3(a).23. 33 U.S.C. § 1344(c).24. See 33 U.S.C. § 1344(b) (404(b)

stating that permits are “subject to”33 U.S.C. § 1344(c) (404(c); Seealso, 40 C.F.R. § 231.1(a) notingAdministrator’s “veto.”

25. 33 U.S.C. § 1344(a), 33 C.F.R. §320.3(f).

26. 30 C.F.R. § 323.2(c) (emphasisadded).

27. 33 C.F.R. § 323.2(d)(1) (emphasisadded).

28. 33 C.F.R. § 323.2(d)(1)(iii).29. 33 U.S.C. § 1344(e).30. See 33 C.F.R. § 330.31. 33 C.F.R. § 323.4 provides specific

exemptions from 404 permittingincluding normal farming, silvicul-ture, and ranching activities such asplowing, seeding, cultivating,minor drainage and harvesting forthe production of food, fiber andforest products.

32. 33 U.S.C. § 1344(e).33. Of the forty-nine activities allowed

under NWPs, thirty require precon-struction notification to the Corpsfor certain activities, and twenty ofthose NWPs require preconstruc-tion notifications for all activities.Preconstruction notification to theCorps allows the agency to reviewthe notice and project to determineif it should assert its discretionary

authority to require an individualpermit if it is determined thatadverse impacts will be more thanminimal. See Nationwide PermitGeneral Conditions, 33 C.F.R. §330.4.

34. See Fuschino, Julia, “MountaintopCoal Mining and the Clean WaterAct: The Fight Over NationwidePermit 21,” 34 B.C. Envtl. Aff. L.Rev. 179, 194 (2007); Bragg v.Robertson, 72 F. Supp. 2d 642(S.D. W. Va. 1999); Bragg v.Robertson, 248 F. 2d 275 (4th Cir.2001); Kentuckians for the Com-monwealth v. Rivenburgh, 204 F.Supp. 2d 927, (S.D. W. Va. 2002);Kentuckians for the Commonwealthv. Rivenburgh, 317 F. 3d 425 (4th

Cir. 2003); Ohio Valley Environ-mental Coalition v. Bulen, 410 F.Supp. 2d 450 (S.D. W.Va. 2004);Kentucky River Keeper, Inc. v.Rowlette, Civ. 05-181 (E.D. Ky.May 8, 2008); See also, DetailedGuidance: Improving EPA Reviewof Appalachian Surface Coal Min-ing Operations Under the CleanWater Act, National EnvironmentalPolicy Act and the EnvironmentalJustice Executive Order (April 1,2010); Memorandum for Record:Suspension of Nationwide Permit21, R.L. Van Antwerp, LieutenantGeneral, United States Army; 76Fed. Reg. 9174.

35. 33 C.F.R. § 328.3(a) See also,Leslie Salt v. Froehlke, et al. 578F.2d 742, describing jurisdictionunder the Migratory Bird Rule.

36. United States v. Riverside BayviewHomes, Inc., 474 U.S. 121 (1985)(“Riverside Bayview”); Solid WasteAgency of Northern Cook County(SWANCC) v. U.S. Army Corps ofEngineers 531 U.S. 159 (2001)(“SWANCC”); Rapanos v. UnitedStates 547 U.S. 715 (2006)(“Rapanos”).

37. 33 U.S.C. § 1319(d).38. 33 U.S.C. § 1319(c); See, e.g.,

Pozsgai v. United States, 510 U.S.1110 (1994), where landownerJohn Pozsgai was charged withforty counts of knowingly fillingwetlands without a 404 permit inBucks County, PA. He was sen-

Bill Gorton isnational counselto numerousclients on natu-ral resource,environmentalregulatory andland and waterresources mat-

ters as well as large natural resource,business or corporate transactions,assessing and mitigating risks associ-ated with site conditions. Prior toattending law school, he was themanager of the Kentucky office ofSkelly & Loy Engineers-Consultantsand had managed natural resourcedevelopment and environmentalremediation projects throughout theUnited States. At Skelly & Loy, hedeveloped the mine land reclamationprograms under the Title IV of theSurface Mine, Control and Reclama-tion Act for Alaska and Virginia andalso managed technical projects forthe U.S. Department of Interior, U.S.Bureau of Mines, U.S. EPA,Appalachian Regional Commissionand numerous state agency and pri-vate sector clients.


tenced to inter alia three years inprison; See also U.S. v. Lucas, etal., 516 F.3d 316 (5th Cir. 2008)where the developer was sentencedto nine years in prison and signifi-cant fines for filling in wetlandsand selling property to low-incomefamilies.

39. 474 U.S. 121, 132 (1985).40. supra note 1.41. 474 U.S. 133-134.42. 474 U.S. 738-739.43. In its 1986 Guideline interpreting

its jurisdiction under Section 404,the Corps stated that it had permit-ting jurisdiction over waters thatare used to irrigate crops sold ininterstate commerce and waters thatare or could be used as habitat bymigratory birds or endangeredspecies.

44. 531 U.S. 174.45. Carabell v. U.S. Army Corps of

Engineers, 391 F.3d 704 (6th Cir.2004): U.S. v. Rapanos, 376 F.3d629 (6th Cir. 2004). These caseswere consolidated at the Supreme

Court and were decided underRapanos v. U.S., 547 U.S. 715(2006).

46. 33 C.F.R. § 328.3(a).47. See 547 U.S. at 739 (plurality opin-

ion; Id. at 781-782 (Kennedy,concurring).

48. 531 U.S. 719-57 (plurality opin-ion).

49. Id. at 759-87 (Kennedy, J., concur-ring).

50. 547 U.S. at 739, 742.51. Id. at 779-780.52. 547 U.S. at 755 citing the purpose

of the CWA. See infra note 1.53. 547 U.S. at 758 (Roberts, C.J., con-

curring).54. The First Circuit noted in U.S. v.

Johnson, 467 F.3d 56 (1st Cir.2006) that either the Scalia test orKennedy test would determinewhether wetlands qualify as“waters of the United States.” TheSeventh and Ninth Circuit Courtsof Appeals found that JusticeKennedy’s significant nexus testcontrolled. See respectively N. Cal.

Riverwatch v. City of Healdsburg,457 F.3d 1023 (9th Cir., 2006) andU.S. v. Gerke Excavating, Inc., 464F.3d 723 (7th Cir. 2006). TheEighth Circuit in U.S. v. Bailey,571 F.3d 791 (8th Cir. 2009) joinedthe First Circuit and found that theCorps had Clean Water Act juris-diction over wetlands if thewetlands met either of the testscited in Rapanos. Most recently,the Fourth Circuit in Precon Devel-opment v. U.S. Army Corps ofEngineers F.3d (4th Cir. 2011) heldthat it would follow JusticeKennedy’s significant nexus test,which governs and provides theformula for determining whetherthe Corps has jurisdiction over sitewetlands.

55. Infra note 60.56. 547 U.S. at 756.57. Id. at 778.58. 430 U.S. 188 (1977).59. 428 U.S. 153 (1976) (emphasis

added).60. 555 F.3d 200 (6th Cir. 2009).61. 555 F.3d at 206.62. 555 F.3d at 210 “….we leave ulti-

mate resolution of theMarks-meets-Rapanos debate to afuture case that turns on which testin fact controls.”

63. 68 FR 1991, 1995 (Jan. 15, 2003).64. http:\\water.epa.gov\lawsregs\guid-

ance\wetlands\CWAwaters.cfn.65. See “Draft Guidance Regarding

Identification of Waters Protectedby the Clean Water Act,” 76Fed.Reg. 24479 (May 2, 2011),http://www.epa.gov/indian/pdf/wous guidance 4-2011.pdf. Though thecomment date closed on July 1,2011, there is no specific date forissuance of the final version. Whenfinalized, the 2011 Guidance willsupersede all previous guidancedocuments.

66. Id.67. 2011 Guidance at pp. 6, 23.68. See, e.g., 33 C.F.R. § 328.3(a)(1);

40 C.F.R. § 230.3(s)(1).69. 2011 Guidance at pp. 7, 24.70. Id. at 7, 25.71. Id. at 11, 27, 28.72. Id. at 15, 30.73. Id. at 19, 32.

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P rofessionals learn from each other.The Kentucky Law Updates exem-

plify this, especially where theassembled lawyers join in the teachingand learning. Even at the mid-waypoint, the statewide bar training cycleof social media forensics and ethics for2011 has produced its own goodlessons on issues for practitioners. Onearea of interest has been the forensicqualification of social media evidencefor use in court.

Print-outs of social media sites maysuffice under the best evidence rule, butauthentication (KRE 901) and hearsay(KRE 801) concerns were common.Having a litigant authenticate the evi-dence of their social media activityappeared the most straight-forwardmeans of qualifying it, as counsel inLalonde v. Lalonde did. Generally, thepurported creator of social media evi-dence might qualify it from the witnessstand. But absent some identifyingmarkers in that evidence that satisfy theauthentication rule to a judge’s satisfac-tion, there might be problems. Counselcould run a risk in attempting to intro-duce such evidence through third partieslike investigators.

At several presentations policedetectives trained in digital forensicsexaminations were able to offer somefurther advice on this. Detectives MikeLemon and Tim Wilson of BowlingGreen Police Department, MikeCrawford and Ryan Conley of AshlandPolice Department and Justin Crowellof Paducah Police Department dis-cussed ways that a local deviceaccessing social media, whether a lap-top computer or a smartphone, wouldretain evidence on it. They noted thetechniques and tools that could quickly

and affordably retrieve that evidencefrom those local devices produced forexamination.

The contrast was in how social mediaevidence might be acquired from thesocial media companies themselves, likeFacebook, and the investigative inter-view techniques that might be used.Police in criminal investigations haveprocedures and relationships that madethe preservation and production of evi-dence easier for them than for civil andprivate practitioners. For private practi-tioners the cost and effort of suchproduction might be very high.

As with any prudential decision in

litigation, the decision on how much tospend to develop social media evidencemay come down to how much is atstake in a case and how much can beinvested in case development.

Other practice issues showed howunsettled things are with social mediause.

In some key areas the few ethicsopinions that have come out have beensplit, not a comforting guide for con-duct. For example, as to limits onseeking social media evidence there aresplits between states as to whethercounsel or their agent may “friend”someone without disclosing the purposeis investigative. Polling of the audiencesindicates a similar split in opinionamong Kentucky lawyers.

A similar split of opinion exists as towhether or not due diligence requirescounsel to investigate social media postsby parties or witnesses.

In such an unsettled area, how shoulda practitioner proceed? Seeking anethics hotline opinion would seem asafe course, but that might be onerousfor both practitioners and the hotlinevolunteers. FaceBook has 500 millionmembers. Sixty-six percent of surveyeddivorce attorneys use FaceBook as aprimary source of investigative evi-dence, as indicated by the membershipof the American Academy ofMatrimonial Attorneys. And electronicevidence in social media is quickly andeasily manipulated, fabricated andspoiled, raising the cost of reliableforensic retrieval. What are the implica-tions for proper legal practice?

Lastly, Kentucky judges had someinteresting observations on the growing

Outside perspectives always help.This year’s KLU Social Media pre-sentations were supported byDetectives Mike Lemon and TimWilson of Bowling Green PoliceDepartment, Mike Crawford andRyan Conley of Ashland PoliceDepartment and Justin Crowell ofPaducah Police Department. As spe-cialists in digital forensic evidencecollection and analysis, they offeredtheir insights for Kentucky lawyers.

They and I are all part of theDigital Forensics Mini-Lab Project ofthe Kentucky Regional ComputerForensics Laboratory and theUniversity of Louisville, myemployer. This project, funded by theDepartment of Justice, is an effort tosupport digital forensic investigationsby local police departments aroundKentucky.

And from the evaluations theseinterdisciplinary contributions werewell-received by the bar. Anotherway we work together for the admin-istration of justice.

Michael Losavio

SHOP TALK

FIELD NOTES ON SOCIAL MEDIA

FORENSICS AND PRACTICE

continued on page 31


P ilots do it, surgeons do it, evenDavid Lee Roth does it. Legal

writers should do it, too.Do what? Use checklists. You’ve probably heard horror stories

about what can happen when a pilotfails to check that he’s cleared for take-off, or a surgeon neglects to be sure allthe sponges have been removed from apatient before closing an incision.People can die from such mistakes –mistakes that the use of a checklistwould likely have prevented. However,the stakes don’t have to be life anddeath for a checklist to be a good idea.

The idea behind checklists is simple:to produce the result you want, whetherit’s to fly a plane safely, successfullyoperate on a patient, or write a brief thatwill help you win a case, you go througha series of steps. If you miss a step, orperform it badly, you’ve made a mistakethat could mean you won’t get the resultyou want. On the other hand, if you usea checklist to ensure you’ve completedeach step, you can avoid making mis-takes that can lead to failure. In otherwords, we fail not because we don’tknow how to do something, but becausewe neglect to do every step correctly. AsAtul Gawande puts it in his bestsellingbook, The Checklist Manifesto, “Whatdo you do when expertise is not enough?What do you do when even the super-specialists fail?”1 You make a checklist.

Checklists aren’t just a tool for theinexperienced to be sure they’re doing atask correctly. Checklists are for experts,too, because they “remind us of the nec-essary steps and make them explicit.They not only offer the possibility ofverification but also instill a kind of dis-cipline of higher performance.”2

Gawande cites an experiencedinvestor who uses checklists as amethodical way to evaluate potentialinvestments. Did his investment teamread the footnotes on cash flow state-ments? Check. Did they review thestatement of key management risks?Check. Did they see whether cash flowand costs match reported revenuegrowth? Check. The checklists force hisinvestment team to look at the details ina financial statement that can reveal acompany in trouble. Speaking aboutEnron, the investor notes that “[p]eoplecould have figured out it was a disasterentirely from the financial statements.”3

If only they had used a checklist.If a checklist can work for pilots, sur-

geons, and investors, it can work forlawyers, too. Some lawyers swear bychecklists. My civil procedure II profes-sor, who was a partner in a civillitigation firm, told us he had a checkliston the wall in his office to remind him ofevery step he needed to take in a case,from filing or answering the complaint tofiling post-trial motions. This despite hismany years of experience as a litigator.He encouraged us to do the same whenwe became practicing attorneys.

But what about legal writing?Writing memos and briefs is just onepart of the litigation process, and whileit’s by no means easy, it’s not brainsurgery. Still, using a checklist can“instill a kind of discipline of higherperformance” in the legal writer byforcing her to confirm that she has notonly Shepardized all the cases andchecked citations, but has formatted thedocument correctly, anticipated orresponded to counterarguments, usedeffective techniques of persuasion,avoided clichés, used passive voice

only where appropriate, proofread care-fully, and so on.

Recognizing the usefulness ofchecklists, especially (but not solely)for novice writers, the authors of manylegal writing textbooks include check-lists in their texts. For example, TheLegal Writing Handbook4 has check-lists for the discussion section inmemos, the argument section in briefs,argumentative headings in briefs, issuestatements and brief answers in memosand briefs, the statement of facts inmemos and briefs, revision, opinion let-ters, and oral argument. The Basics ofLegal Writing5 includes checklists forlegal research, techniques for enhanc-ing clarity, receiving and presentinginformation orally, writing a persuasivestatement of facts, choosing an argu-ment’s content, organizing theargument, unifying the brief, revising,preparing for oral argument, writing aclient letter, identifying causes ofaction, writing complaints, drafting leg-islation, and drafting jury instructions.In A Lawyer Writes, the authors providea sample comprehensive checklist forediting and polishing a legal document,but recommend that each writer createher own checklists that focus on “theparticular problems [she] routinelyface[s]” and that will help the individ-ual writer create legal documents thatare “complete, understandable, and pro-fessional.”6 Sound advice, to be sure.

But back to David Lee Roth.Perhaps you remember hearing thestory some years ago about the “brownM&M” clause the rock group VanHalen had in their contracts with con-cert promoters. The contracts requiredthat a bowl of M&M’s – with all thebrown M&M’s removed – be provided

by Diane B. KraftUniversity of Kentucky College of Law

Checklists: Not Just for Pilots Anymore

EFFECTIVE LEGAL WRITING

use of social media. As Bill Sharp of theKentucky ACLU has noted, Kentuckytakes the measured approach to thesocial media speech and associationalrights of the judiciary. A Kentuckyjudge using FaceBook to “friend” anattorney who appears before him doesnot solely by that violate judicial ethicsnor create the appearance of bias. Thiscontrasts with other state disciplinarybodies that forbid such social mediainteraction by judges and lawyers.

To one judge it seemed that urbanjudges were finally seeing what rural

judges have always seen: that the peopleappearing before you, whether as coun-sel or litigant, will say hello at the courthouse, at the high school games and inthe Wal-Mart. And it’s reasonable torespond and talk about the game. Yetanother jurist noted a concern with par-ties themselves sending “friend”requests, requiring a delicate handling ofsuch interactions. These are not newissues, as for a long time some litigantshave sent ex parte letters to the courtsthat judges have dealt with. And it’s notlike a judge texting one counsel or ajuror “tweeting” during trial, as has hap-pened elsewhere. But the ease and wideuse of social media may have an impact.

Important issues, as it may not be agood thing to isolate judicial officersand lawyers from the community as tonew social media. Finding the appropri-ate accommodation may be thechallenge we face.

Perhaps we can discuss how we canbest address this. If you have thoughtson this and wish to share them for dis-cussion, please post them at StuartAdam’s Social Media Practice andForensics site at LinkedIn.com or emailthem in. We will continue this discus-sion as these issues evolve.

Please send your comments toMichael Losavio at [email protected].

backstage at each concert. Turns out thisbizarre requirement was part of a check-list. In addition to the M&M clause, thecontract included detailed instructionsfor setting up the complex gear requiredfor the concerts. If any steps in theinstructions were skipped, the resultcould be anything from a lighting glitchto a collapsed stage. Roth knew if theinstructions in the contract had been fol-lowed to the letter by checking forbrown M&M’s in the bowl.7

If you’re human, at some pointyou’ll be inclined to skip a step here

and there just to keep the in-box fromoverflowing. Checklists can help youresist that urge, and keep you focusedon the task of being the best legalwriter you can, and therefore doingyour best for your clients. And after all,there’s nothing like the satisfaction ofchecking off that box on the checklistand saying “Done!”

ENDNOTES1. Atul Gawande, The Checklist

Manifesto: How to Get ThingsRight 31 (2009).

2. Id. at 36.3. Id. at 167.4. Laurel Currie Oates and Anne

Enquist, The Legal WritingHandbook: Analysis, Research &Writing (5th ed. 2010).

5. Mary Barnard Ray, The Basics ofLegal Writing (rev. 1st ed. 2008).

6. Christine Coughlin, Joan MalmudRocklin & Sandy Patrick, ALawyer Writes: A Practical Guideto Legal Analysis 264 (2008).

7. Gawande, supra note 1, at 79-80.


Shop Talk (continued from page 29)

Have an item for

WHO, WHAT, WHEN & WHERE?

The Bench & Bar welcomes brief announcements about member placements, promotions, relocations andhonors. Notices are printed at no cost and must be submitted in writing to: Managing Editor, KentuckyBench & Bar, 514 West Main Street, Frankfort, KY 40601 or by email to [email protected]. Digital photosmust be a minimum of 300 dpi and two (2) inches tall from top of head to shoulders. There is a $10 fee perphotograph appearing with announcements. Paid professional announcements are also available. Pleasemake checks payable to the Kentucky Bar Association.


JUDICIAL CONDUCT COMMISSION

COMMONWEALTH OF KENTUCKYJUDICIAL CONDUCT COMMISSION

IN RE THE MATTER OF:

DANIEL L. BALLOU, CIRCUIT JUDGETHIRTY-FOURTH JUDICIAL CIRCUIT

AGREED ORDER OF PUBLIC REPRIMAND

Daniel L. Ballou is Circuit Judge for Kentucky’s 34th Judicial Circuit composed of McCreary and Whitley Counties. OnNovember 19, 2010, the Commission initiated formal proceedings on three counts of charges against Judge Ballou. Judge Bal-lou has waived formal proof and has agreed to the disposition made in this order.

After initiation of formal proceedings, Judge Ballou communicated with the Commission in regard to Count III and clarifiedfor the Commission the scope and intent of the subject order, as a result of which the Commission on its own motion dismissedthat count.

In his answer to Count I, Judge Ballou denied that his conduct violated the Code of Judicial Conduct. In view of the agreeddisposition made in this order and Judge Ballou’s agreement that he will not engage in conduct violating the Code of JudicialConduct in the future, Count I is hereby dismissed. In regard to Count II, the Commission has determined with Judge Ballou’sagreement that he sent an email which contained campaign materials for Rand Paul for U. S. Senate to all Kentucky circuit judgesand to more than fifty other addressees. In doing so, Judge Ballou violated the Kentucky Code of Judicial Conduct, SCR 4.300,Canon 5A(1)(b) by publicly endorsing a candidate for public office and Canon 5A(4) by engaging in political activity. For thisconduct Judge Ballou has agreed to accept a public reprimand. Therefore, for the foregoing violation of the Code of JudicialConduct, Judge Ballou is hereby publicly reprimanded.

In making the determinations in this order, the Commission has duly considered that Judge Ballou met with the Commissionand cooperated in the investigation.

This order is issued on September 7, 2011.

Stephen D. Wolnitzek, Chair

Agreed to:

John G. Prather, Jr. George F. Rabe Counsel for the Commission

Howard O. MannCounsel for Judge Daniel L. Ballou

Judge Daniel L. Ballou


JUDICIAL CONDUCT COMMISSION

COMMONWEALTH OF KENTUCKYJUDICIAL CONDUCT COMMISSION

PRIVATE REPRIMAND

The Judicial Conduct Commission issues this private reprimand to a judge for violation of SCR 4.300, the Code of JudicialConduct, Canons 3B(4) and 3B(5).

The Commission determined after an informal investigation that the judge made inappropriate statements in open court whichwere critical and demeaning to female petitioners in domestic violence hearings. The judge also made insensitive commentsregarding sexual conduct in some cases which were unnecessary for the consideration of the issues.

The Kentucky Code of Judicial Conduct, SCR 4.300, provides in Canon 3B(4) that a judge shall be patient, dignified and cour-teous to persons in the judge’s court, including litigants; and in Canon 3B(5) that a judge shall not, in the performance of judicialduties, by words or conduct manifest bias or prejudice including, among others, bias or prejudice based upon sex. The commen-tary to Canon 3B(5) states “A judge must be alert to avoid behavior that may be perceived as prejudicial.” The Commission findsthat by the statements described in this order the judge violated the above provisions of the Code of Judicial Conduct and ishereby privately reprimanded.

In issuing this order, the Commission duly considered that the judge had no prior infractions, and fully cooperated with theinvestigation.

This order is issued this 19th day of August, 2011.

STEPHEN D. WOLNITZEK, CHAIR

CERTIFICATE OF SERVICE

This is to certify that a true copy of this order has been served on the judge by mail this 22nd day of August, 2011.

SCOTT D. MAJORSEXECUTIVE SECRETARYJUDICIAL CONDUCT COMMISSION


JUDICIAL ETHICS OPINION

JUDICIAL ETHICS OPINION JE-122October 10, 2011

RECUSAL ISSUES WHERE A DRUG COURT OR MENTAL HEALTH COURT JUDGE PRESIDES IN AREVOCATION HEARING BASED ON DEFENDANT’S VIOLATION OF TERMS OF PARTICIPATION IN

DRUG OR MENTAL HEALTH PROGRAM

The Kentucky Supreme Court has recognized the importance and value of addressing drug and mental health issues thatoften contribute to crime and recidivism, and the benefits to society from alternatives to incarceration. In 2006, the Courtadopted policies and procedures governing drug court. Administrative Procedures of the Court of Justice, Part XIII Drug Court.Similarly, in January 2010, the Court approved Local Rules for the Northern Kentucky Regional Mental Health Court PilotProject; that project is colloquially known as “Mental Health Court.”

The Ethics Committee of the Kentucky Judiciary has been asked for opinions regarding the ethical duties of judges whoserve on these court-supervised alternatives to incarceration. The sense of the Committee is that those who serve as “drugcourt” or “mental health court” judges throughout the Commonwealth would benefit by a formal opinion regarding recusalwhen the drug or mental health court judge will be the same judge presiding over a probation revocation hearing. To para-phrase a recent inquiry to the Committee, the subject of this Opinion is:

May a drug court judge or mental health court judge, who has decided to terminate a defen-dant’s participation in drug court or mental health court, preside as the sentencing judge overa subsequent probation revocation hearing conducted in a criminal action in which the termi-nation serves as a basis for the revocation?

The Committee has decided that the answer to the foregoing question is a qualified “yes,” and that recusal would only berequired in certain circumstances.1

In Commonwealth v. Nicely, 326 S.W.3d 441 (Ky. 2010), the Supreme Court discussed the philosophy and operation of drugcourts, and the Committee believes that the reasoning in that case applies equally well to mental health court. Without goinginto the details of the opinion, the Court determined that more than sufficient statutory authority existed for the operation ofdrug courts. The Court described drug court as a treatment program offered to a criminal defendant with addiction problems asa condition of probation or a term of a diversion agreement. The program allows judicial discretion in modifying the condi-tions or terms as needed during the program. The trial court has the discretion to condition probation on successful completionof the program, but participation in the program is voluntary. The Court noted, at 445:

The program requires a defendant to make several commitments to enter the program andavoid immediate incarceration. One of these commitments is a waiver of full hearing rightsduring program participation, which does not affect the participant’s due process rights in aprobation revocation hearing if for some reason he is exited from the program.

The opinion discusses the role of the judge in the on-going supervision of the participant, noting, at 446:

[T]he drug court judge generally monitors the probation by having the defendant report tothe court on a regular basis to have his progress reported. This allows the drug court judge toimpose sanctions as punishment for relapses or other acts of bad judgment, or to simply“exit” or discharge the defendant from the program and set a probation revocation hearing.This monitoring is post-judgment, and consists of active review of a probated defendant’streatment program by the trial court.

Nicely was concerned with the punishment levied against Nicely, not whether the presiding judge should or should not haverecused. However, the Committee has the benefit of Stewart v. Commonwealth, 2007-CA-000252-MR, 2008 WL 399626(Ky.App., Feb. 15, 2008). In that case, the Muhlenberg Circuit Court allowed Stewart to participate in drug court as an alterna-tive to further incarceration. Several months later, the sentencing judge terminated Stewart from the program, for failure tocomply with conditions, and then scheduled a probation revocation hearing. At the hearing, a probation and parole officer pro-vided the testimony regarding Stewart’s violations of the terms under which Stewart was allowed to participate in drug court.

1 The Hon. Jean Logue recused from consideration of this issue.


Stewart argued that the sentencing judge should have recused from the probation revocation proceedings since he alsopresided over Stewart’s drug court. Stewart cited the provisions of KRS 26A.015, requiring a judge to recuse from proceedingsin which he has personal knowledge of disputed evidentiary facts concerning the proceedings, and in which he has knowledgeof any other circumstances in which his impartiality might reasonably be questioned. The Court of Appeals held:

[I]t was essentially undisputed that Stewart violated the terms of his probation. Thus, regard-less of whether Judge Jernigan indicated, when issuing his oral ruling, that there had been“other problems” with Stewart in drug court, there is no indication that Judge Jernigan hadany “personal knowledge of disputed evidentiary facts concerning the proceedings,” or thathe was “likely to be a material witness in the proceeding.” KRS 26A.015(2)(a) and (d)4.

The Court of Appeals went on to state:

Further, no reasonable basis exists for questioning Judge Jernigan’s impartiality simplybecause he presided over both Stewart’s drug court proceedings and his probation revocationproceedings. As the United States Supreme Court has explained, “[i]t has long been regardedas normal and proper for a judge to sit in the same case upon its remand, and to sit in succes-sive trials involving the same defendant.” Liteky v. United States, 510 U.S. 540, 551, 114S.Ct. 1147, 1155, 127 L.Ed.2d 474 (1994). The same rationale applies here, where JudgeJernigan presided over both of Stewart’s proceedings.

The Kentucky Supreme Court has stated that drug court “is a court function, clearly laid out as an alternative sentencingprogram under the applicable statutes.” Nicely, 326 S.W.3d at 444 (emphasis added). Ordinarily, “recusal is appropriate onlywhen the information is derived from an extra-judicial source. Knowledge obtained in the course of earlier participation in thesame case does not require that a judge recuse.” Marlowe v. Commonwealth, 709 S.W.2d 424, 428 (Ky. 1986) (citation andquotation omitted). See also Harpring v. Commonwealth, 2004-CA-000898-MR, 2005 WL 1924728 (Ky.App., Aug. 12, 2005)(rejecting defendant’s claim that due process was violated by same judge presiding over trial proceedings, drug court, and pro-bation revocation absent evidence in the record to suggest judge harbored personal bias or prejudice against defendant, hadpersonal knowledge of disputed evidentiary facts outside of the record, or expressed any opinion showing pre-judgment).

The Committee has considered non-Kentucky authority, some of which holds that a judge in the circumstances at hand shouldrecuse, but nonetheless finds the reasoning of the Kentucky Supreme Court and Court of Appeals to be more persuasive.

The Committee has concluded that a drug court or mental health court judge, by the very nature and purpose of the pro-gram, must remain familiar with the status of the participant, who has voluntarily elected to enter the program. If the judgereceives the reason for the termination from the program in the course of his or her official duties, and no part of the evidenceat a subsequent revocation hearing is dependent on the judge’s personal knowledge of any pertinent circumstances, no recusalis required. However, recusal may be required in situations where information on which the revocation may be based comesfrom the judge’s “personal knowledge,” i.e., information learned by the judge outside the regular drug or mental health courtprocess. For example, if the judge personally observed the drug court participant committing some act that would form or sup-port the basis for termination from the program, and that act formed the basis of probation revocation, then recusal would berequired.

Please be aware that opinions issued by or on behalf of the Committee are restricted to the content and scope of the Canons ofJudicial Ethics and legal authority interpreting those Canons, and the fact situation on which an opinion is based may be affectedby other laws or regulations. Persons contacting the Judicial Ethics Committee are strongly encouraged to seek counsel of theirown choosing to determine any unintended legal consequences of any opinion given by the Committee or some of its members.

Sincerely,

Arnold Taylor, ChairmanThe Ethics Committee of the Kentucky Judiciary

cc: Donald H. Combs, Esq.The Honorable Laurance B. VanMeter, JudgeThe Honorable Jean Chenault Logue, JudgeThe Honorable Jeffrey Scott Lawless, JudgeJean Collier, Esq.


SCR 3.370 Procedure before the Board and the Court

SCR 3.370 shall read:

(1) Thirty (30) days after the filing of the notice of appeal,the Appellant shall file a brief supporting his/her position onthe merits of the case. Fifteen (15) days thereafter, theAppellee shall file his/her brief. No reply brief shall be permit-ted.

(2) Upon motion by the parties or upon the Board’s ownmotion, oral arguments may be scheduled before the Board.

(3) Within sixty (60) days of completion of briefing by theparties, the Board shall consider and act upon the entirerecord. Only the President, the President-Elect, the Vice-Pres-ident, the fourteen (14) duly-elected members of the Boardfrom their respective Supreme Court Districts, and four (4)adult citizens of the Commonwealth who are not lawyersappointed by the Chief Justice as hereinafter described, shallbe eligible to be present, participate in and vote on any disci-plinary case. Any member, including a non-lawyer member,who has participated in any phase of a disciplinary case sub-mitted to the Board under this rule, or who has been chal-lenged on grounds sufficient to disqualify a Circuit Judgeshall be disqualified. If disqualification or absence results inlack of a quorum the Chief Justice shall appoint a member ormembers (or, if applicable, non-lawyer participants) sufficientto provide a quorum to consider and act on the cases. Anychallenge to a member’s qualifications shall be determinedby the Chief Justice in accordance with KRS 26A.015, et seq.

(4) Eleven (11) of those qualified to sit in a disciplinarymatter must be present to constitute a quorum for considera-tion of such matters.

(5) (a)The Board, after deliberation, and consideration oforal argument, if any, shall decide, by a roll call vote:

(i.) To accept the Trial Commissioner’s Report as tothe guilt, innocence, and the discipline imposed, by con-

cluding that the Trial Commissioner’s report is supportedby substantial evidence and is not clearly erroneous as amatter of law, or,

(ii.) To conduct a de novo review, in its discretion. Inthat event it shall make findings as to the guilt or inno-cence on each Count, and the appropriate discipline to beimposed, if any, and take separate votes as to each. If theBoard votes to take de novo review of the case, saidreview shall be confined to the evidence presented and therecord of the case. The Board may consider the admissibil-ity of evidence as well as the appropriate weight of it. TheBoard shall state, in its written report required by subsec-tion (8), the difference between its findings and recom-mendations and the report of the Trial Commissioner.

(b) In the event of a case submitted under SCR3.210, the Board shall decide, by a roll call vote, guilt orinnocence on each Count and the appropriate discipline tobe imposed, if any. It shall make findings of fact in theevent of a disputed fact, and make conclusions of law.Failure to answer may be deemed an admission of thefacts stated in the charge.

(c) Each roll call vote under (5)(a)(b) shall be agreedupon by eleven (11) or three-fourths (3/4) of the membersof the Board present and voting on the proceedings,whichever is less.

(d) At any time during deliberations the Board by avote of a majority of the Board present and voting, mayremand the case to the Inquiry Commission for reconsid-eration of the form of the charge or remand the case tothe Trial Commissioner for clarification of the Trial Com-missioner’s report or for an evidentiary hearing on pointsspecified in the order of remand. The Board may order theparties to file additional briefs on specific issues.

(6) The Board shall issue a written decision within fortyfive (45) days of voting on the cases. The Disciplinary Clerkshall mail copies of such report to the Respondent, counselof record, and to each member of the Inquiry Commission.The Disciplinary Clerk shall place ten (10) copies of the

IN RE:ORDER AMENDING

RULES OF THE SUPREME COURT (SCR)

2011-11

_______________________

Upon review of this Court, the following amendment to SCR 3.370 of the Rules of the Supreme Court shall become effective November 15, 2011.

AMENDMENT TO THE RULES OF THE SUPREME COURT

Supreme Court of Kentucky

report in the record and file the entire record of the case withthe Court, unless the Board has taken actions under subsec-tion (5)(d), in which case the matter will proceed in accor-dance with the Board’s direction.

(7) Within thirty (30) days after the Board’s decision isfiled with the Disciplinary Clerk, Bar Counsel or the Respon-dent may file with the Court a Notice for the Court to reviewthe Board’s decision stating reasons for review, accompaniedby a brief, not to exceed thirty (30) pages in length, support-ing his/her position on the merits of the case. The opposingparty may file a brief, not to exceed thirty (30) pages inlength, within thirty (30) days thereafter. No reply brief shallbe filed unless by order of the Court.

(8) If no notice of review is filed by either party, the Courtmay notify Bar Counsel and Respondent that it will review thedecision. If the Court so acts, Bar Counsel and Respondentmay each file briefs, not to exceed thirty (30) pages in length,within thirty (30) days, with no right to file reply briefs unlessby order of the Court, whereupon the case shall stand sub-mitted. Thereafter, the Court shall enter such orders or opin-ion as it deems appropriate on the entire record.

(9) If no notice of review is filed by either of the parties, orthe Court under paragraph eight (8) of this rule, the Courtshall enter an order adopting the decision of the Board or the

Trial Commissioner, whichever the case may be, relating toall matters.

(10) When the Respondent is proceeded against by warn-ing order, the notice in paragraph two (2) and paragraph eight(8) of this rule shall be deemed to have been served thirty(30) days after the date of the making of the warning order.

(11) In each case to be presented to the Trial Commissioner,there shall be supplied with the Disciplinary Clerk’s file a sealedenvelope containing a statement of the Respondent’s years ofmembership in the Association, all orders of unprofessionalconduct, and all withdrawals from the association and reasonstherefor. The envelope will be opened only if the Trial Commis-sioner makes a finding of a violation and may be considered indeciding what discipline to impose. Such statement willbecome part of the record of the case and be transmitted withthe rest of the file to the Disciplinary Clerk, Board and/orSupreme Court. Before submission of a case to the Trial Com-missioner or the Board a copy of said statement shall be sent tothe Respondent, who may review documents relative to it at theBar Center, and may comment to the Trial Commissioner or theBoard upon the statement and point out errors contained in it.

All sitting. All concur.

ENTERED: November 15 , 2011.


The remaining amendments to the Supreme Court Rules will be published at a later date.

The Kentucky Bar Foundation onJune 16, 2011, awarded a $55,000 grant,the largest in its history, to help providecivil legal assistance to low-income vet-erans throughout Kentucky. This grantenables the expansion of the KentuckyCorps of Advocates for Veterans(KCAV) program in Jefferson County tobe made available to veterans in theother 119 counties in Kentucky.

Despite a statewide population of344,000 veterans and the surge of veter-ans returning home from the conflicts inIraq and Afghanistan, Kentucky did nothave any formal or structured legalassistance program in place for veteransuntil KCAV. Launched in December of2009 by the Legal Aid Society inLouisville with initial funding from theLouisville Bar Foundation, KCAVworks in partnership with veterans serv-ice organizations, the private bar, andthe Kentucky Department of Veterans’Affairs to help veterans resolve civillegal problems and achieve stability.

Like other low-income individuals,veterans face a broad range of civillegal concerns, such as wills, domesticmatters, housing, consumer and bank-ruptcy law, among others. In Kentucky,however, nearly one-third of veterans donot have the legal representatives thatthey need. To date, KCAV is responsiblefor helping 430 veterans resolve civillegal problems. KCAV seeks to extendthis early success by establishing astatewide program that delivers free

legal assistance to low-income veteransthroughout Kentucky by using the col-laborative partnerships of legal aidprograms, bar associations, pro bonoprograms, and the private bar. In thecoming year, KCAV will be conducting“legal clinics” throughout theCommonwealth to help low-income vet-erans identify options and resolve thoselegal problems that prevent a veteranfrom successfully transitioning intocivilian life. KCAV will recruit volun-teer attorneys, provide them withessential training on common veteranissues, and match them with veterans inneed of legal help.

Clinics are scheduled to begin inNovember 2011 in Louisville andElizabethtown and continue into 2012 inPaducah, Bowling Green, Owensboro,Covington, Lexington, Ashland,Elizabethtown, London, Prestonsburg,

and Hopkinsville. The Legal Aid Societyin Louisville will provide outreach, train-ing and support needed to ensure eachKentucky legal aid program and probono bar association program has thecapabilities to reach and serve their localveteran population through these clinics.

An essential component of the KCAVis volunteer attorneys. Attorneys withexpertise in family matters, bankruptcy,housing, wills, public benefits, employ-ment, and consumer law are particularlyneeded to address the legal needs of vet-erans attending clinics. Attorneysexperienced in other practice areas arealso welcome to contribute their legalexpertise. Training materials for volun-teers are available, and volunteers arecovered under the regional legal aidorganization’s malpractice policy.

As part of its total 2011 grants in thesum of $230,000 awarded to fund vari-ous programs and projects to meetlaw-related needs, the Kentucky BarFoundation chose to fund the KCAVprogram with its largest single grant.The Kentucky Bar Foundation has nowawarded grants in the sum of over $1.8million since 1988 to fund law-relatedcommunity-based programs benefitingthe citizens in both urban and ruralregions throughout the Commonwealth.It is a tribute to the Kentucky legal pro-fession that the success of the KentuckyBar Foundation is due primarily to thefinancial support and volunteer leader-ship from the members of the KBA. Insupporting such programs as KCAV, theKentucky Bar Foundation is helping toincrease public trust in the legal profes-sion and the justice system. Involunteering to participate in the KCAVprogram through their offering of probono services, the members of theKentucky Bar Association are helping tocreate a greater appreciation and respectfor the role of the legal professionals inour society on the part of theCommonwealth’s citizens.

To volunteer for a KCAV Clinic or tovolunteer to take a veteran’s case probono, contact Legal Aid Staff AttorneyLea Hardwick at [email protected] (502) 614-3112.

2011 Law Day Award RecipientCongratulations to the

Daviess County Bar Association,the recipient of the 2011Medium Bar Association LawDay Award.

“No Courts, No Justice, NoFreedom” will serve as thetheme for Law Day, 2012. Formore information on how to par-ticipate in Law Day and applyfor a Law Day Award, pleasecontact Shannon Roberts [email protected] or at502.564.3795 ext. 224.

Susan Montalvo-Gesser and J. Andrew Johnson, left,accept the Medium Bar Award for the Daviess CountyBar Association from Gailen W. Bridges, Jr.

Staff attorney, Lea Hardwick, has been workingat the Legal Aid Society for ten years. Leaspecializes in Bankruptcy and Consumer Law.

A $55,000 Grant Has Been Awarded by the Kentucky Bar Foundation to Assist Low-Income Veterans



WHO, WHAT, WHEN & WHEREON THE MOVEWyatt, Tarrant & Combs, LLP, ispleased to announce that it has electedfour new partners and a new executivecommittee member from its Louisvilleand Lexington offices. Clifford H.

Ashburner is a mem-ber of the firm’s RealEstate & ConstructionService Team andleader of the firm’sSustainability ServiceArea. Ashburner ischairman of the boardof the KentuckyChapter of the U.S.Green Building

Council, and was recently appointed byGov. Steve Beshear to the board ofdirectors for the Center for RenewableEnergy Research and EnvironmentalStewardship. He received his undergrad-uate degree from James MadisonUniversity and his law degree from the

University ofKentucky College ofLaw. Ben T. Keller isa member of the firm’sNatural Resources &Environmental ServiceTeam. He concentrateshis practice in theareas of general busi-ness, mineral and

energy, accounting and legal malprac-tice, and estate litigation. Before joiningWyatt, Tarrant & Combs, LLP, he was acertified public accountant at Deloitte &Touche, LLP. Keller has successfullyrepresented a wide variety of clients invarious types of litigation, including nat-ural resources companies in royalty andpricing disputes, banks in commercialforeclosures, and attorneys and account-ants in professional malpractice actions.He has served as a volunteer for theAlzheimer’s Association, MASHServices of the Bluegrass, and theUnited Way in its Loaned ExecutiveProgram. Keller received his B.S. inaccounting, summa cum laude, and hisJ.D. from the University of KentuckyCollege of Law. Leila G. O’Carra is amember of the firm’s Labor &Employment Service Team. She concen-trates her practice in the areas of labor

and employment andcommercial litigation.Prior to joiningWyatt, she served aslaw clerk to JudgeJennifer B. Coffman,U.S. District CourtJudge for the Easternand Western Districtsof Kentucky. She regu-

larly provides legal advice andemployee training, and drafts employ-ment contracts, policies, and handbooks.O’Carra is a member of the board of theFCBA Young Lawyers Section. Shereceived her B.S. in Biology fromVanderbilt University and her J.D. fromthe University of Kentucky College of

Law. G. Brian Wellsis a member of thefirm’s NaturalResources &Environmental ServiceTeam. He concentrateshis practice in the areaof corporate mergersand acquisitions, withan emphasis in mineral

and energy transactions. Wells is a mem-ber of the executive committee and onthe board of trustees of the Energy andMineral Law Foundation. He is a mem-ber of the board of directors of theKentucky Coal Association, and a mem-ber of the Rocky Mountain Mineral LawFoundation, the Kentucky Oil and GasAssociation, and the Lexington CoalExchange. Wells received his B.A. fromthe University of Kentucky, his J.D.from the University of Louisville LouisD. Brandeis School of Law, and hisLL.M. from Georgetown University

Law Center. PatrickW. Mattingly hasbeen named to Wyatt’sexecutive committee.Mattingly is the chairof the firm’s NaturalResources &Environmental ServiceTeam. Mattinglyreceived his under-graduate degree from

the University of Miami (Ohio) and hislaw degree from the University ofLouisville Louis D. Brandeis School ofLaw.

Fisher & Phillips LLP, a national laborand employment law firm, announcesthat Emily N. Litzinger has joined thefirm’s Louisville office as an associate.She represents management in employ-ment and labor litigation involving civilrights, retaliation, wrongful terminationand discrimination under Title VII. Shealso advises and represents clients indevelopment of employment policiesand procedures, responding to adminis-trative charges, and dealing withemployee separation matters. While inlaw school, she was an editorial boardmember of the Northern Kentucky LawReview and was the author of the article“The Ethical Dilemma of ScrubbingMetadata: The Pathway to a BetterApproach.” Also in law school, shecompleted sufficient coursework toobtain a concentration in labor andemployment law and was a member ofthe national arbitration team, which wasnamed regional champions.

Stoll Keenon Ogden PLLC (SKO) ispleased to announce that two attorneyshave joined the firm. Joseph A. Bilbyand Alexander G. Staffieri, both formerSKO summer associates, will work fromthe firm’s Louisville office. Bilby, whoworked in the SKO Louisville office in2009 as a summer associate, joins thefirm’s Labor, Employment & EmployeeBenefits Practice Group. He earned aJ.D. from the University of KentuckyCollege of Law and a Bachelor of Artsdegree from the University of Virginia.Bilby is a U.S. Marine Corps veteran,serving from 2003 to 2007. Staffieriearned a J.D. from the University ofKentucky College of Law, a Master ofScience degree in accountancy from theUniversity of Notre Dame, and aBachelor of business administrationdegree from the University of NotreDame. He joins the firm’s CorporateFinance & Lending Group. Staffieri wasa summer associate in the SKOLouisville office in 2009.

White Peck Carrington, LLP,Attorneys at Law, Mt. Sterling, ispleased to announce that Rebecca G.Phillips has joined the firm as an associ-ate. Phillips, a native of Campton, Ky., isa 2007 graduate of the University of

Clifford H.Ashburner

Ben T. Keller

Leila G. O’Carra

G. Brian Wells

Patrick W.Mattingly

WHO, WHAT, WHEN & WHERE


Louisville and received a J.D. from theUniversity of Kentucky College of Lawin 2010. Phillips is a member of theAmerican and Kentucky Bar Associationsand engages in the general practice oflaw. She can be reached at (859) 498-2872 or by email at [email protected]. White Peck Carrington isa full service law firm with eight attor-neys and an 11 member paralegal andsupport staff serving clients in central andeastern Kentucky. It is the latest practiceentity in a law practice that began in1862. It’s offices are located at 26Broadway in Mt. Sterling.

Maury D. Kommor & Associates,PLLC, is pleased to announce thatDonna J. Foust has joined the firm ofcounsel. Her practice areas will focuson domestic law and civil litigation.

The Paducah firm of Denton & KeulerLLP is pleased to announce that

Kristen N. Worakhas become associatedwith the firm. Herundergraduate degreeis from Mid-ContinentCollege, and she grad-uated magna cumlaude. She graduatedfrom the SouthernIllinois University

School of Law. Her practice will focusin the areas of general civil litigationand the defense of civil rights claims.

Michael A. Goforth has joined theKentucky Bar Association’s Office ofBar Counsel as a deputy bar counsel.

Goforth received hisundergraduate degreefrom EasternKentucky Universityand his J.D. from theUniversity ofKentucky College ofLaw. He has beenpracticing law for 26years. Before comingto the Kentucky Bar

Association, Goforth was in privatepractice in London, Ky.

Wyatt, Tarrant &Combs, LLP, ispleased to welcomeAllison BrownVermilion to itsLitigation and DisputeResolution ServiceTeam. Vermilion islicensed to practice inKentucky and will beworking from Wyatt’s

Louisville office. Vermilion receivedboth a B.S. and a B.A. from BostonUniversity, and earned her J.D. fromUniversity of Washington School of Law.

Greenebaum Doll & McDonaldPLLC is pleased to announce thatAdam Clay Reeves has joined the firmas an associate in the Lexington office.Reeves joins the firm as a member of itsLitigation and Dispute ResolutionPractice Group. After graduating fromlaw school in 2010, he spent a yearclerking for the Honorable Eugene E.Siler, Jr., on the U.S. Court of Appealsfor the Sixth Circuit. Reeves received

his bachelor’s degree, magna cumlaude, from the College of William &Mary and his law degree from theWilliam & Mary School of Law.

Anne E. Sharrard has been appointed aUnited States Administrative Law Judgewith the Social Security Administrationin Lawrence, Mass. She graduated,summa cum laude, from the Universityof Rhode Island in 1987 and earned herJ.D. in 1990 from the University ofKentucky College of Law. She previ-ously worked for the U.S. Department ofLabor Office of Administrative LawJudges, the Kentucky Workers’Compensation Board, and the KentuckyCourt of Appeals, before going into pri-vate practice as a Social Securityclaimant’s representative.

Fowler Measle &Bell PLLC is pleasedto announce RobertC. Welleford hasjoined the firm.Welleford has earned adistinguished reputa-tion in Lexington andthroughout theCommonwealth ofKentucky as a prose-

cutor and medical malpractice and civildefense litigation attorney for the past 20years. He received his undergraduatedegree in business and economics fromthe University of Kentucky and his J.D.from the University of KentuckyCollege of Law. His primary areas ofpractice will be in litigation, insuranceand medical malpractice defense.

Greenebaum Doll & McDonald PLLCis pleased to announce that Brigid O.Gies has joined the firm as an associatein the Louisville office. Gies joined thefirm as a member of its Labor andEmployment Practice Group. She has abroad range of litigation experience notonly in the court room, but in arbitra-tions, mediations and administrativehearings. She has represented clients inmatters involving employment discrimi-nation, covenants not to compete, injunc-tions, trade secrets, premises liability,unemployment appeals, grievances,antitrust and complex business disputes.

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WHO, WHAT, WHEN & WHEREGies received her bachelor’s degree fromMiami University and her law degreefrom the University of Louisville LouisD. Brandeis School of Law.

Bubalo Rotman PLCannounced the electionof Paula Bliss as apartner. Bliss worksprimarily in the Bostonoffice but handlescases from all over theU.S. She focuses herpractice in all aspectsof civil litigation

involving catastrophic injuries, primarilypharmaceutical and medical device masstort litigation, wrongful death, medicalmalpractice and personal injury actions.Prior to joining Bubalo Rotman in 2007,Bliss practiced in a large New Englandfirm where she litigated cases involvingcatastrophically injured plaintiffs acrossthe country in various pharmaceuticalmass tort litigation, involving diet drugs,phenylpropanolamine, ephedra,Duragesic pain patches, and individualpersonal injury and medical malpracticelawsuits. Bliss has extensive experiencein every facet of complex tort litigationand manages large scale tort litigationprojects involving dozens and often hun-dreds of individual complex tort cases.She regularly appears in court on variouscivil litigation matters, summary judg-ment and Daubert hearings, pre-trial con-ferences, medical malpractice tribunalsand discovery and evidentiary motions.Bliss has also successfully negotiatedsignificant pre-suit and post-filing per-sonal injury settlements and mediatedseveral pharmaceutical liability tortactions. Bliss earned her undergraduatedegree from the University ofMassachusetts at Amherst, and her J.D.degree from Northeastern UniversitySchool of Law. She is a member of theMassachusetts and Kentucky BarAssociations, American Association forJustice (AAJ), and the MassachusettsAcademy of Trial Attorneys.

Fulkerson, Kinkel & Marrs, PLLC, ispleased to announce that Gary W.Thompson has joined its office as anassociate attorney. Thompson receivedhis B.A. in biblical studies from Boyce

College, a school of the SouthernBaptist Theological Seminary. Hereceived his J.D., summa cum laude,from the Mississippi College School ofLaw, where he was executive editor ofthe Mississippi College Law Review.Thompson is licensed to practice law inKentucky and Tennessee. His primaryarea of practice will be insurancedefense litigation with a special empha-sis on medical malpractice defense andprofessional liability defense.

DelCotto Law Group PLLC is pleasedto announce the hiring of ClairEdwards, as an associate attorney in itsdebt restructuring firm. Edwardsreceived her J.D. from Thomas M.Cooley Law School in 2008. She gradu-ated from Eastern Kentucky Universitywith a B.A. in political science andEnglish literature in 2005. Clair is amember of the Fayette County, Kentuckyand American Bar Associations.

Thompson Miller &Simpson is pleased toannounce that DavidKiebler has joinedthe firm as an associ-ate. Kiebler receivedhis B.A. fromTransylvaniaUniversity and hisJ.D. in 2009 from

Washington and Lee University School of Law. He served as team cap-tain of the Washington and Lee MootCourt Team. He was previously a judi-cial law clerk to Justice Will T. Scott ofthe Supreme Court of Kentucky.Kiebler will be practicing in the fieldsof commercial and healthcare litigation.

Beckman WeilShepardson LLC ispleased to announcethat Laurie A. Lambhas been elected tothe membership ofthe firm and she prac-tices in the areas ofcommercial and resi-dential real estate,

including acquisitions, development,leases, closings, conveyances, low-income housing tax credits, and condo-

minium development and conversions.Lamb earned her J.D. from NorthernKentucky University Salmon P. ChaseCollege of Law in 2003.

Greenebaum Doll & McDonaldPLLC is pleased to announce thatSteven R. Wilson has joined the firm asan associate in the Louisville office.Wilson is a member of the firm’s EstatePlanning, Health and Insurance Groupand the Wealth Transfer Team. He hasover three years of experience workingin trusts and estates. Wilson also hasexperience in commercial real estateand litigation. He received his bache-lor’s degree, magna cum laude, fromEastern Kentucky University and hislaw degree, cum laude, from theUniversity of Louisville Louis D.Brandeis School of Law, where he alsoserved as executive editor of theUniversity of Louisville Law Review.

IN THE NEWSChristopher M. Hillhas been elected aschairman of the SmallFirm Group of theAmerican Legal &Financial Network.The American Legal &Financial Network(ALFN) is the leadingnational organizationof mortgage default

attorneys and other professionals associ-ated with the mortgage servicing indus-try. The Small Firm Group was formedwithin ALFN for the purpose of advanc-ing the interests of the smaller ALFNmember law firms. Hill has also beennamed the 2011 president-elect of theFrankfort Area Chamber of Commerce.As president-elect, Hill will serve as vicepresident of membership developmentfor the Chamber and will serve as presi-dent of the Chamber in 2012.

Greenebaum Doll & McDonald PLLCis pleased to announce that Peter L.Thurman, Jr., an associate in the firm’sLouisville office, has been appointed tothe board of directors for The HeuserHearing Institute and Heuser Hearing &Language Academy. Thurman also serves on the development committee

Paula Bliss

David Kiebler

Laurie Lamb

Christopher M.Hill



for these organizations. The HeuserHearing Institute, is a comprehensive, not-for-profit, regional center of excellence forhearing loss and ear-related disorders.Thurman is a member of Greenebaum’sHealth and Insurance Team and EmployeeBenefits Team. He concentrates his prac-tice in the areas of health care and insur-ance law, including state and federalregulatory compliance, certificate of need,licensure, fraud and abuse, and litigation.He also advises clients on issuesinvolving state procurement law andemployee benefits. In addition to his workwith The Heuser Hearing Institute,Thurman serves on the board of directorsfor the Neighborhood House, a multi-cul-tural, multi-lingual center with programsin basic needs, education and youth lead-ership. He received his bachelor’s degree,summa cum laude, from DenisonUniversity and his J.D., magna cumlaude, from the University of LouisvilleLouis D. Brandeis School of Law.

McBrayer, McGinnis, Leslie &Kirkland, PLLC, would like to

announce that David Cohen, associatein our Lexington office, has beenappointed to the LFCUG Division ofHistoric Preservation Commission(HPC). Since the mid-1950s, 14 dis-tricts and two landmarks have beendesignated as local historic districts andHPC is responsible for activities relatedto the conserving of these historicstructures, districts and resources.

David Kramer, apartner withDressman BenzingerLaVella PSC (DBL),was recentlyappointed by theKentucky BarAssociation’s Boardof Governors as itsrepresentative on the

Kentucky Supreme Court Civil RulesCommittee. The committee makes rec-ommendations to the Supreme Courtabout amendments to the KentuckyRules of Civil Procedure. Kramer hasserved on the KBA Board of Governors

since June 2008 and on several com-mittees of the KBA, including theRules Committee and the AnnualConvention Committee. He is the pri-mary author of the leading treatise onthe Kentucky civil rules, volumes 6 and7 of West Publishing Company’sKentucky Practice series. He is also co-author of DBL’s Civil Litigation blog atcivilprocedure.dbllaw.com. He has beenwith DBL since 1986 and practices pri-marily in the areas of civil litigationand health care law.

Capella Healthcarehas announced theappointment of NeilW. Kunkel, as seniorvice president, gen-eral counsel, and sec-retary. Kunkel comesto Capella fromLifePoint Hospitals,where he has been

vice-president and associate generalcounsel since the company’s foundingin 1998. Prior to that, he was affiliatedwith HCA, where he served as groupoperations counsel then as managingcounsel prior to assisting in the spin-offof hospitals to form LifePoint. Hebegan his career as law clerk forJustices W. Joel Blass and C.H. McRaewith the Mississippi Supreme Court in1990. A member of the board of gover-nors of the Federation of AmericanHospitals, Kunkel has served as chairand vice-chair of the Legal andOperations Policy Committee. He iscurrently serving as chair of the HealthFacilities Interest Group of theAmerican Bar Association’s HealthLaw Section. Kunkel earned his lawdegree from the University ofLouisville Louis D. Brandeis School ofLaw, where he was a member of theBrandeis Honor Society. He earned hisbachelor’s degree from Wake ForestUniversity.

Greenebaum Doll & McDonald PLLCis pleased to announce that Jennifer Y.Barber, an attorney in the firm’sLouisville office, has been chosen asone of Business First’s 2011 “FortyUnder 40.” Barber, 27, is the youngestaward recipient in the 2011 class and isfeatured in Business First’s special

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publication “Forty Under 40,” pub-lished on September 23. Barber is amember of the firm’s Tax and FinancePractice Group. She concentrates herpractice in state and local tax matters,including tax controversy/litigation,economic development/incentives andgovernmental affairs. She received herbachelor’s degree from the Universityof Kentucky and her J.D. from theUniversity of Kentucky College ofLaw.

Angela Stephens, anattorney in theLouisville, office ofStites & Harbison,PLLC, is the first everattorney from theCommonwealth ofKentucky to be nomi-nated for theAmerican Bar

Association’s (ABA) NationalOutstanding Young Lawyer Award. Thisannual award honors the most talentedyoung lawyers in the nation whodemonstrate professional excellence andservice to their community as well as tothe legal profession. Stephens, a mem-ber of the firm whose practice isdevoted primarily to construction law, isa LEED Accredited Professional anduses her knowledge of sustainabledesign and construction to advise clientsabout various legal issues arising out ofgreen or sustainable design and generalconstruction matters. She is also thefirst attorney in the Commonwealth ofKentucky to achieve Green Advantage®certification. The ABA NationalOutstanding Young Lawyer Award wasestablished in 2007. Nominations aremade by the Young Lawyers Division ofthe ABA. The 2011 award will be pre-sented at the ABA Midyear Meeting inFebruary 2012 in New Orleans.

Marcus A. Roland of the Lexington-based law firm Roland Legal PLLC hasbeen awarded the credential of MedicareSet-Aside Consultant Certification(MSCC) by the InternationalCommission on Healthcare Certification(ICHC). As defined by the ICHC, “theMedicare Set-Aside Consultant Certified(MSCC) credential is designed to iden-tify those professionals who work

within the workers’compensation benefitsystem as either ahealth care profes-sional, legal represen-tative, or as aninsurance claimsadjuster, who haveachieved specific pre-approved training in

Medicare set-aside trust arrangements,and have demonstrated a breadth ofknowledge regarding the developmentand application of the Medicare set-aside trust arrangement process.Additionally, this credential is designedto express to the consumer that the per-son holding the MSCC credential hasagreed to come under the scrutiny of acertifying review board (CHCC), to bepeer reviewed, and to adhere to a set ofstandards governing ethics and profes-sional behaviors.” A Medicare Set-Asideis an intricate financial arrangementdesigned to protect the interests ofMedicare or Medicaid in workers’ com-pensation settlements. With his designa-tion, Roland is certified to design,submit and negotiate these arrange-ments. To earn the certification, Rolandcompleted 30 hours of training throughthe University of Florida, passed a pre-certification exam from the universityand passed a final certification examfrom the International Commission onHealthcare Certification.

McBrayer, McGinnis, Leslie &Kirkland, PLLC would like to announcethat W. Terry McBrayer has beenselected for induction into JuniorAchievement’s Bluegrass Business Hallof Fame. Members are individualswhose work has moved the CentralKentucky community in a better,stronger direction. To be considered, anindividual’s record of business achieve-ment must demonstrate courageousthinking and actions, vision and innova-tion, business excellence, inspiring lead-ership, and community mindedness.

James H. Frazier, III, managing part-ner of McBrayer, McGinnis, Leslie &Kirkland, PLLC, has been elected aschairman of The Lexington & FayetteCounty Parking Authority Board ofCommissioners.

Charles H. Pangburn III, chief legalofficer and general counsel for UCPhysicians, recently received the WalterR. Dunlevy/ Frontiersman Award fromthe Northern Kentucky Chamber ofCommerce at the Chamber’s annual din-ner. The award is presented to a personwho demonstrates a life long history ofoutstanding service to the NorthernKentucky community, outstanding serv-ice to his or her profession or industryand the highest standards of personalintegrity and family responsibility.

Greenebaum Doll & McDonald PLLCis pleased to announce that Job D.(Darby) Turner, a member in thefirm’s Lexington office, has beenappointed to the University of KentuckyCollege of Law Visiting Committee.The visiting committee is comprised of30 to 40 of the most distinguished grad-uates of the College of Law, includingUnited States congresspersons, gover-nors, judges, corporate CEOs and lawpartners. The visiting committee meetsregularly with the dean, faculty and stu-dents of the College of Law, and alsoconsults with the president, provost andother top administrators of theUniversity. Turner is a member ofGreenebaum’s Corporate andCommercial Group and the Tax andFinance Group. His practice focuses ongeneral corporate representation, taxincrement financing, real estate law,governmental affairs, including repre-sentation before the Lexington-FayetteUrban County Planning and ZoningCommission, and business and estate

Fowler Measle & Bell PLLC ispleased to announce Jana SmootWhite and Christopher G. Colsonhave been selected to participate inthe 2011-2012 class of LeadershipLexington.

Jana Smoot White Christopher G.Colson

Angela Stephens

Marcus A. Roland




planning matters. In addition to his rolewith the visiting committee, Turnerserves on the board of directors for theUniversity of Kentucky AthleticAssociation. He received his bachelor’sdegree from the University of Kentuckyand his law degree from the Universityof Kentucky College of Law.

Louis I. Waterman has been electedchairperson of the Jewish Hospital & St.Mary’s HealthCare Board of Trustees.Over the past 13 years, he has served onthe boards of the Jewish HospitalFoundation and Jewish HospitalHealthCare Services and was an inaugu-ral member of the Jewish Hospital & St.Mary’s HealthCare Board. A Louisvillenative and honors graduate of theUniversity of Kentucky and theUnviersity of Louisville Louis D.Brandeis School of Law, Watermanmaintains a domestic relations practicein Louisville. He chairs The BinghamChild Guidance Center Board ofTrustees and the Churchill DownsOfficial Host Program, and serves onthe boards of the Louisville ZooFoundation, the Kentucky DerbyFestival and the Louisville Sigma ChiAlumni Association. Waterman receivedthe Louisville Bar Association’sDistinguished Service Award and theKentucky Bar Association’s LegalEducation Award and was named theOutstanding Volunteer Lawyer by theLegal Aid Society.

Jerry J. Cox, of Mount Vernon, Ky.,was sworn in as First Vice-President ofthe National Association of CriminalDefense Lawyers (NACDL) at theAssociation’s 53rd Annual Meeting inDenver, Colo., on August 6.Previously, Cox served on the NACDLBoard of Directors and was the 2007-08 parliamentarian, the 2008-09 secre-tary, the 2009-10 treasurer, and the2010-11 second vice-president. He isalso a past president of the KentuckyAssociation of Criminal DefenseLawyers, an NACDL state affiliateorganization. Cox is a sole practitionerand has been practicing criminaldefense law for over 40 years, and is a1968 graduate of the University ofKentucky School of Law and a 1965graduate of Berea College.

James D. Harris, Jr.,was presented the2011 Gwyneth B.Davis award forOutstanding PublicService at the LawDay Ceremonies con-ducted by the BowlingGreen/Warren CountyBar Association. Theaward is presented to a

member for commitment to public serv-ice and dedication to the principles ofcommunity spirit. Harris received hisJ.D. from the University of AlabamaSchool of Law. He currently practices inBowling Green.

The Bluegrass Chapterof the American RedCross recently electedStites & Harbisonattorney Laura Maysto its board of direc-tors. Mays will servewith 35 other boardmembers. Her term isone year. The

Bluegrass Chapter of the American RedCross provides a variety of programs,including disaster services, service tothe Armed Forces, health and safetytraining classes, and the WheelsProgram, designed to meet the trans-portation needs of local Lexington resi-dents with disabilities. Mays is anattorney based in the Lexington officeof Stites & Harbison. She is a memberof the firm’s Torts & Insurance Practiceand Employment Service Groups. Shereceived her J.D. from the University ofKentucky College of Law.

McBrayer, McGinnis, Leslie &Kirkland, PLLC would like to announcethat Jaron Blandford, partner in ourLexington office, has received a AVMartindale-Hubbell® Peer ReviewRating™. Lawyer Ratings serve as anobjective indicator that a lawyer has thehighest ethical standards and profes-sional ability and are used by buyers oflegal services to justify their hiring deci-sions. An AV® Preeminent™ certificationmark is a significant rating accomplish-ment - a testament to the fact that alawyer’s peers rank him or her at thehighest level of professional excellence.

RELOCATIONChristina M. Delis ispleased to announcethe grand opening ofThe Law Office ofChristina M. Delis,PLLC. Located inCovington, the lawoffice is a full servicegeneral law practiceproviding legal serv-

ices to individuals and small businesseswith a focus on civil litigation and familylaw. Delis is a graduate of the Universityof Kentucky with honors and earned herlaw degree from Northern KentuckyUniversity Salmon P. Chase College ofLaw. Delis is licensed to practice in theboth the state and federal Courts ofKentucky and Indiana She can be reachedat (859) 609-1172 or [email protected]. Her office is locatedat 27 East Fourth Street, Covington, Ky.,41011. More information is available atwww.delislawoffice.com.

Sebastian M. Joy is pleased toannounce the opening of his new lawoffice, the Joy Law Office located at2710 Louisa Street, Catlettsburg, Ky.,41129. The telephone number for thenew office is (606) 739-4569. He willengage in the General Practice of lawaccepting cases in both Kentucky andWest Virginia.

Christine Ward ispleased to announcethe opening of her lawoffice located at 429W. Muhammad AliBoulevard, Suite 504,Louisville, Ky.,40202. Ward practicesin the areas of familylaw, personal injury,

and wills & estate planning. Beforeentering private practice, Ward servedas an assistant county attorney whereshe prosecuted defendants in domesticviolence and child abuse cases. Sheearned her law degree from theUniversity of Kentucky College of Lawin 1994. Ward serves on the board ofthe Bellarmine Alumni Association andon the planning team for ChristianBusiness & Professional Women.

James D. Harris, Jr.

Laura Mays

Christina M. Delis

Christine Ward

KENTUCKY BAR NEWS


SUMMARY OF MINUTESKBA BOARD OF GOVERNORS

MEETINGJULY 22, 2011

The Board of Governors met on Friday,July 22, 2011. Officers and BarGovernors in attendance were, PresidentM. Keane; President-Elect D. Myers;Vice President T. Rouse; Immediate PastPresident B. Davis; Young LawyersSection Chair R. Rechter. BarGovernors 1st District – J. Freed, S.Jaggers; Bar Governors 2nd District – J.Harris, R. Sullivan; 3rd District – R.Hay, G. Wilson; 4th District – D.Ballantine, D. Farnsley; 5th District – A.Britton; 6th District – D. Kramer, S.Smith; and 7th District – M. McGuire.Bar Governors absent were: W. Garmerand B. Rowe.

In Regular Session, the Board ofGovernors conducted the followingbusiness:

• Heard a status report from the 2012-2013 Budget & Finance Committee,Kentucky Lawyers Assistance Programand Office of Bar Counsel.

• Young Lawyers Section ChairRebekkah Rechter reviewed the fol-lowing programs: Disaster LegalServices, Voices Against Violence,U@18, CLE Programs and the LawSchool Mentoring Pilot Program.

• Approved the Bench & Bar EditorialGuidelines.

• Director of Accounting/MembershipMichele Pogrotsky presented the finan-cial report.

• Approved the following appointmentsand reappointments to the KentuckyBar Foundation for three-year termsending on June 30, 2014: 1st SupremeCourt District – appointment of DiannaKay Douglas; 4th Supreme CourtDistrict – reappointment of Edward N.“Ted” King and the appointment ofJeffrey A. McKenzie; 5th Supreme

Court District – appointment of J.David Porter; 6th Supreme CourtDistrict – reappointment of Tasha KayScott; 7th Supreme Court District –reappointment of Catherine C. Hughesand Jonathan C. Shaw.

• President Keane reported that sheappointed former Bar Governor FredE. “Bo” Fugazzi, Jr. of Lexington asthe president’s designee on theKentucky Bar Foundation for a one-year term ending on June 30, 2012.

• President Keane reported that KBAPast President Charles E. “Buzz”English, Jr., of Bowling Green wouldserve as the past president’s designeeon the Kentucky Bar Foundation Ex-Officio Board of Directors for aone-year term ending on June 30, 2012.

• President Keane reported that sheappointed Vice President Thomas L.Rouse of Erlanger as the president’sdesignee on the IOLTA Board ofTrustees for a one-year term ending onJune 30, 2012.

• President Keane reported that theExecutive Committee has appointedRobert C. Ewald of Louisville, GeorgeE. Long II of Benton and Jerry D. Truittof Lexington to serve on the SpecialConflicts Committee for another one-year term ending on July 1, 2012.

• Approved the recommendation ofmembers to serve on the followingSupreme Court Committees on behalfof the Board of Governors: Civil RulesCommittee – David V. Kramer ofCrestview Hills; Criminal RulesCommittee – Douglass Farnsley ofLouisville and Supreme Court RulesCommittee – Thomas L. Rouse ofErlanger.

• Approved having the 2012Board/Court Reception on the Belle ofLouisville.

• President Keane reviewed with theBoard an invitation to attend the UKCollege of Law and Kentucky LawJournal Symposium scheduled forSept. 23-24, 2011.

• President Keane reviewed with theBoard the criteria for the DistinguishedService Awards and encouraged themembers to consider names from theirrespective districts who would be eligi-ble for these awards.

• Approved the recommendation torescind the Board’s decision to rein-state the Paralegal Committee.

• Executive Director John D. Meyersreported that there were 2,007 atten-dees at the 2011 Annual Conventionheld in Lexington on June 15-17 andthe event was a financial success.

• Approved adding the following surveyquestions to the 2011 dues statement: 1)I consider myself (check all that apply);2) Are you a member of the U.S.Military or a veteran; and 3) Are youwilling to take pro bono assignments.

• Approved the bylaws changes for thefollowing sections: Business LawSection, Taxation Section andWorkers’ Compensation Section.

• Approved the request of the CorporateHouse Counsel Section to considertheir 2011 annual meeting in recessuntil their spring CLE program.

• Approved the transfer of funds fromthe Immediate Past Presidents LineItem up to $2,000 for expenses in con-junction with the Northern KentuckyBar Association reception for ABAPresident Wm. T. (Bill) Robinson IIIco-hosted by the KBA, the NorthernKentucky Bar Association andLMICK.

To KBA MembersDo you have a matter to discuss

with the KBA’s Board of Governors?Board meetings are scheduled on

January 20-21, 2012March 16-17, 2012

To schedule a time on the Board’s agendaat one of these meetings, please contact

John Meyers or Melissa Blackwellat (502) 564-3795.

Kentucky AOC to Offer “Legal Training for Dependency, Neglect and Abuse Cases”

The Department of Family andJuvenile Services for the Kentucky

Administrative Office of the Courts willpresent a CLE seminar entitled “LegalTraining for Dependency, Neglect andAbuse Cases” on Jan. 24, 2012, at theRowan County Judicial Center, CircuitCourtroom, 2nd Floor, 700 West MainStreet, Morehead.

While previously titled “Guardian adlitem Seminars,” the training wasrenamed last year to be more represen-tative and inclusive, according todepartment officials. Individuals invitedto attend include Guardians ad litem(GAL); parents’ attorneys; supervisorsand caseworkers for the Cabinet forHealth and Family Services (CHFS);volunteers for the Citizen Foster CareReview Board; volunteers with Ky.

Court Appointed Special Advocates(CASA); as well as any others inter-ested in the program.

There will be a $25.00 attendance feeto attorney’s seeking continuing legaleducation (CLE) credits and licensedsocial workers in private practice.DCBS workers, CFCRB volunteers andCASA volunteers will be exempt. Toregister, please send your training loca-tion and date, name, title, address,phone, email, Kentucky Bar Associationnumber, and check or money ordermade payable to the Kentucky StateTreasurer (with GAL in memo/notessection) to: Administrative Office of theCourts; Attn: Eboni Blackford; 100Millcreek Park, Frankfort, KY 40601.For more information, email:[email protected].

Grants Awarded by IOLTATotal $590,000

The Kentucky Supreme Court hasapproved the 2011-2012 grant recom-mendations made by the IOLTABoard of Trustees for law-related pro-grams in the sum of $590,000 with$500,000 of this sum going to theCommonwealth’s four regional LegalServices Programs. The followinggrantees are receiving IOLTA grantsduring fiscal year 2011-2012:

LEGAL SERVICES PROGRAMS• Appalachian Research & Defense

Fund of KY, Inc. ($178,300)• Kentucky Legal Aid ($107,100)• Legal Aid of the Bluegrass

($111,300)• Legal Aid Society, Inc. ($103,300)

IOLTA PUBLIC SERVICEFELLOWSHIPS

• Salmon P. Chase College of Law,Northern Kentucky University($30,000)

• UK Student Public Interest LawFoundation ($30,000)

• U of L Louis D. Brandeis School ofLaw Research Foundation ($30,000)

Please call the Kentucky IOLTAFund at 800-874-6582 (KY) formore information.

■ In Memoriam

Max Bohrer Bloomington, INNicholas W. Carlin LouisvilleSharon Lee Conyer LouisvilleDorothy Gaines Cox New CastleClifford F. Duncan Jr. LouisvilleThomas Lee Feazell Amelia Island, FLJohn C. Fogle Mount SterlingRuben G. Hicks Whitley CityPaul Nathaniel Ingram Sarasota, FLRonald E. Johnson LouisvilleFrank C. Leach Jr. LexingtonWillie Mathis Jr. UnionL. R. McClure LouisvilleRichard French McCready Jr. WinchesterW. Randall Morris LexingtonW. L. Schmaedecke Crestview HillsWilliam K. Sparks LouisvilleThomas W. Speckman LouisvilleRobert L. Taylor Park HillsPaul J. Theissen CovingtonJohn K. Vittitow LouisvilleJennifer T. Westermeyer NewportHerbert A. Zachari Jr. Versailles


KENTUCKY BAR NEWS

CLICKwww.kybar.org

KENTUCKY BAR NEWS


United States Postal Service Statement of Ownership, Management, and CirculationPublication Title: The Bench & Bar. Publication Number: 1521-6497.Filing Date: September 14, 2011.The Bench & Bar is published Bi-monthly by the Kentucky BarAssociation, 514 West Main Street, Frankfort, KY 40601-1812, (502)564-3795. Number of issues Published Annually: Six. AnnualSubscription Price: $20.00. Contact Person: Shannon H. Roberts. TheGeneral Business Office of the Publisher is at the Kentucky BarAssociation, 514 West Main Street, Frankfort, KY 40601-1812. The FullNames and Complete Mailing Addresses of Publisher, Editor, andManaging Editor are: Publisher, John D. Meyers, Kentucky BarAssociation, 514 West Main Street, Frankfort, KY 40601-1812; Editor,Frances E. Catron, Kentucky Bar Association, 514 West Main Street,Frankfort, KY 40601-1812; Managing Editor, Shannon H. Roberts,Kentucky Bar Association, 514 West Main Street, Frankfort, KY 40601-1812.

The Owner of the publication is the Kentucky Bar Association, 514West Main Street, Frankfort, KY 40601-1812. There are no KnownBondholders, Mortgagees, and Other Security Holders Owning orHolding 1 Percent or More of Total Amount of Bonds, Mortgages, orOther Securities.

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e. Total Free or Nominal Rate Distribution: 105f. Total Distribution: 17,035g. Copies not Distributed: 205h. Total: 17,240i. Percent Paid: 99%

Publication of Statement of Ownership for a general publication isrequired and will be printed in the November 2011 issue of thispublication.

I certify that all information furnished is true and complete.John D. Meyers, Publisher, September 13, 2011

Before You Move...Over 16,000 attorneys are licensed to practice in the state of Kentucky. It is vitally important that you keep the Kentucky Bar Association (KBA)informed of your correct mailing address. Pursuant to rule SCR 3.175, all KBA members must maintain a current address at which he or shemay be communicated, as well as a physical address if your mailing address is a Post Office address. If you move, you must notify theExecutive Director of the KBA within 30 days. All roster changes must be in writing and must include your 5-digit KBA member identificationnumber. There are several ways to do this for your convenience.

VISIT our website at www.kybar.org to make ONLINE changes or to printan Address Change/Update Form

EMAIL the Executive Director via the Membership Department [email protected]

FAX the Address Change/Update Form obtained from our website or otherwritten notification to:Executive Director/Membership Department (502) 564-3225

MAIL the Address Change/Update Form obtained from our website or otherwritten notification to:

Kentucky Bar AssociationExecutive Director514 W. Main St.Frankfort, KY 40601-1812

* Announcements sent to the Bench & Bar’s Who, What, When & Where col-umn or communication with other departments other than the ExecutiveDirector do not comply with the rule and do not constitute a formal rosterchange with the KBA.

By Sierra WilliamsCommunications Coordinator

NKU Chase Alumni AssociationPresents Alumni Awards

The NKU Chase College of LawAlumni Association honored four

alumni during its annual Chase AlumniLuncheon on Friday, October 7, at the

Bank of KentuckyCenter on NKU’s cam-pus. Timothy L.Timmel ’76, seniorvice president foroperations with TheCincinnati InsuranceCompany, was therecipient of theLifetime Achievement

Award; Gregory L. Sizemore ’92, presi-dent of Sizemore & Company, LLC,was the recipient of the ProfessionalAchievement Award; The Honorable

Michelle M. Keller’90, Kentucky Courtof Appeals, was therecipient of theExceptional ServiceAward; and CandaceS. Klein ’08, counselwith Ulmer & BerneLLP, was the recipientof the Outstanding

Recent Alumnus Award. More than 250Chase alumni and friends attended theluncheon. Edward J. McTigue ’78, pastpresident of the Chase AlumniAssociation, served as the emcee for the

luncheon. The luncheon spon-

sor was TurnerConstruction Companyand the program spon-sor was Reminger Co.The table sponsorswere Adams, Stepner,Woltermann &Dusing; Arnzen,

Molloy & Storm; Chase College ofLaw; Cors & Bassett; Dinsmore &Shohl; Dressman, Benzinger & LaVelle;

The Farrish Law Firm; Frost BrownTodd; The Honorable Michelle M.

Keller ’90; Candace S.Klein ’08; TheLawrence Firm;Lerner, Sampson &Rothfuss; Edward J.McTigue ’78; NKUAlumni Programs;NKU Foundation;O’Hara, Ruberg,

Taylor, Sloan & Sergent; Reminger Co.;Schuh & Goldberg; Gregory L.Sizemore ’92; Sutton Rankin Law; Taft,Stettinius & Hollister; Timothy L.Timmel ’76; Turner ConstructionCompany; and Wood & Lamping.

NKU Chase College of LawEstablishes Children’s Law Center Clinic

The Chase Children’s Law CenterClinic is a partnership between the lawschool and the Children’s Law Centerin Covington. The clinic is the brain-child of alumna Kim Brooks Tandy,director of the Children’s Law Center,and professor emeritus LowellSchechter. The clinic will be housed inthe Lowell Schecter Student LearningCenter, a newly-renovated and fully-equipped 3000 plus sq. ft. clinic spaceon the third floor of the Children’s LawCenter.

Professor Amy Halbrook will directthe clinic. Professor Halbrook joins thelaw school after completing clinicalteaching fellowships in the Children andFamily Justice Center at NorthwesternUniversity School of Law and theLoyola University Chicago CivitasChildLaw Clinic.

Clinic students will receive special-ized instruction and training in child and

family law and advocacy, with a focuson abuse and neglect, family law, juve-nile justice, education, professionalresponsibility, and advocacy techniques.Under close supervision, students willthen provide high-quality legal repre-sentation to child clients in childprotection, high-conflict custody,school, and other matters. In addition totheir litigation duties, students may par-ticipate in research, policydevelopment, and community educationrelated to children’s issues.

The clinic will equip the studentswith the knowledge and skills they willuse throughout their professionalcareers, with a focus on the uniquepractical and ethical challenges relatedto representing children. In addition, itwill respond to unmet legal needs andimprove the quality of legal representa-tion to children and teens.

NKU Chase Moot Court Team isNational Runner-Up

The NKU Chase team of TravisBewley and Jeremiah Schlotman fin-ished as National Runner-Up at theNational Latino Law StudentAssociation Moot Court Competition,which was held in New Orleans onSeptember 29-30. The Chase team alsowon the following awards: BestRespondent Brief, Best Preliminary-round Advocate, and Best Final-roundAdvocate.

The team was coached by ProfessorEmily Janoski-Haehlen, alumnus GregIngalsbe, and student Bruna Lozano.“This was the first time NKU Chaseparticipated in this competition, and weare certainly pleased with our results,”said Associate Dean for AcademicsLawrence Rosenthal.

Salmon P. ChaseCollege of Law

Timothy L.Timmel

Gregory L.Sizemore

Michelle M.Keller

Candace S. Klein

Professor Amy Halbrook with Director Kim Brooks Tandy

Chase students Travis Bewley and Jeremiah Schlotman


KENTUCKY BAR NEWS

KENTUCKY BAR NEWS


By Jim ChenLegal Education and the Heir ofSlytherin

That was then. This is now. In myown lifetime, fiction for young

adults has moved from S.E. Hinton toJ.K. Rowling. Gritty stories about rum-bling gangsters at an Oklahoma highschool have given way to soaring fan-tasies about dueling sorcerers at theHogwarts School of Witchcraft andWizardry. At heart, though, I stillbelieve what John Steinbeck saidin East of Eden: There is one story inthe world, and only one. Whether thesetting is Will Rogers High, Hogwarts,or the law school of your choosing, for-mal schooling often pits Socs againstGreasers and Purebloods againstMudbloods. The narrative is one ofepic, ceaseless competition betweenelites and outsiders.

If you’ve managed to miss one of thegreatest cultural phenomena of the lastgeneration, let me introduce you to themagical world of Harry Potter. The boywizard finds himself locked in a life-and-death struggle against theirredeemably evil Lord Voldemort. Inhis own time as a student at Hogwarts,Voldemort revived an old grudge thatthe ancient wizard, Salazar Slytherin,held against those he felt unworthy topractice magic. As the self-anointedHeir of Slytherin, Voldemort sought topurge all Muggle-born witches and wiz-ards from Hogwarts and the magicalarts. Who are Muggles? We non-magi-cal folk are Muggles. Voldemort had nouse for witches and wizards bornof ordinary, nonmagical parents. In themind of the Dark Lord, only those bornto pure-blooded witches and wizardsdeserve to command the potions, incan-tations, and spells of his profession.

All of this prepares me to open oneof the darkest chambers of secrets inlaw and legal education. Law schoolsand the country’s largest law firms havelong occupied — and jealouslyguarded — the most coveted corners in

the American legal profession. Indeed,these institutions perpetuate each other’slock on power and prestige. Every cityhas its collection of “BigLaw” firms —highly leveraged partnerships perform-ing a wide range of legal services onbehalf of the corporate and institutionalclients that control our society’s greatestconcentrations of wealth. BigLaw drawsits talent from the most highly creden-tialed students emerging from our lawschools. Without elite grades, no studentstands a chance of scoring a BigLawinterview, let alone a BigLaw job.

At some schools, BigLaw does digdeeper in the talent pool. Of course,those schools are the prestigious oneswith national reputations. Typicallythey’re named for dead white men whoconquered and paved North America, orelse for big, wealthy states. At schoolssuch as Harvard, Duke, or Vanderbilt, orVirginia, Michigan, or Berkeley, BigLawhistorically has been willing to interviewa broader spectrum of students. Atschools that historically operated under amunicipal charter and have dedicatedthemselves to the higher training anduseful education of local youth, BigLawhas been decidedly pickier.

This is not an altogether flatteringportrayal. I admit as much. In fairness, Iwill say this: My own corner of the pro-fession, legal education, has beencomplicit in this elitist exercise. That isa severe understatement. Indeed, lawschools collectively have elevatedgrades and rankings above all other con-siderations. Legal educators devised theelitist complex of grades, honors, lawreview credentials, and federal courtclerkships on which BigLaw has builtits entire model for evaluating talent. Ifanything, academia has doubled downon BigLaw’s bet. We draw our own fac-ulty ranks from an even more selectivepool of candidates. BigLaw andAmerican law schools have anointedtheir superstars on the basis of schoolsattended and grades attained when theselawyers and professors were students intheir twenty-something years, as thoughancient educational credentials repre-sented the lone basis of membership insome sort of professional apostolic suc-cession.

Excessive emphasis on pedigree overperformance has pushed the legal pro-fession to a point of reckoning. Hourlybilling, at hundreds of dollars per hourand without regard to actual value deliv-ered, is a barbarous relic thatcontemporary clients, sensitive to theirown economic survival, have rightfullybegun to reject. Law schools can nolonger indulge the conventional assump-tion that they can focus entirely ontraining their students to “think likelawyers,” without attention to concreteskills or the pragmatic nuances of actualpractice. Every instance of mismatchbetween paper credentials and actualperformance on the job signals incom-pleteness or even outright inaccuracy inthe elite model of legal education andBigLaw recruitment. Every BigLaw hirethat flames out after two unproductiveyears should prompt honest recognitionof the limits of elite credentials.Honesty about the limits of the existingmodel of legal education should promptall law schools to ensure their students atrue return on their educational invest-ment, to prepare all students not just toace an exam or “book” a subject, but tobe as fully prepared to serve clients anddeliver results as a lawyer can be uponpassing the bar exam.

This is not a jeremiad against legaleducation and elite law firms. All mod-els of legal practice, in firms large andsmall, in government as in educationand in philanthropy, deliver value toclients and to society at large. I believewholeheartedly in the transformativepower of legal education, motivated bya passion for teaching and informed byserious scholarship. For me to believeotherwise would force me to declare myown life an evil, bankrupt waste, and Iemphatically believe that I have notlived in vain.

For good reason, jobs in BigLawand the legal academy are very highlycoveted. A BigLaw salary is one of thevery few ways a new law school grad-uate can realize an immediate return oneducational investment. Law professorsearn very decent pay, with tenure, forintellectually stimulating work in anenvironment dedicated to educatingyouth and elevating society. If any-

University ofLouisvilleSchool of Law

thing, though, the benefits of workingin BigLaw or the legal academy affir-matively compound the heavy burdenthat its defenders must discharge.Those of us who care most about thelegal profession and have gained themost from it owe a correspondingduty to take a hard look at the weak-nesses of our shared calling. Whateverpersonal or professional inconveniencewe may incur, those of us at the pinna-cle of professional success must tell thetruth.

How shall we make things better? Ialways recommend some combinationof honesty and optimism. Speak thetruth and point to hope. This messagecombines my own experience withinsights from history and literature. Theworld in which S.E. Hinton came of agewas one that locked the rival political

ideologies of the Soviet bloc and thenorth Atlantic alliance in mortal combat.The world of Harry Potter is one thatpits the virtuous Order of the Phoenixagainst Lord Voldemort’s degenerateDeath Eaters. Those stories, real andfantastic, teach us useful lessons.Extreme opponents often become agentsof reconciliation. The greatest break-through between the Communist worldand the West came when RichardNixon, the consummate Cold Warrior,visited “Red” China. By contrast, thosewho prevail through conflict and con-frontation often do so by virtue of someclose connection to the enemy, perhapseven kinship. At the risk of spoiling J.K.Rowling’s books and the moviesinspired by them, I will tell you thatHarry Potter ultimately defeatsVoldemort on the strength of a mysteri-

ous connection that links the boy wiz-ard to the Dark Lord’s most treacherouspowers. The intermediary who helpsHarry harness those powers had himselfbeen seduced in his youth by the DeathEaters. The power of the enemy, per-sonally taken, holds the key to victoryover that foe.

And so it must be that a critic ofelite legal education, to be credible,must be one who has succeeded by itsterms, both in school and in later pro-fessional life. With your indulgence,I’ll make my argument very personal.In my twenties I enjoyed a double doseof privilege and prestige: Not only didI attend Harvard Law School alongsidethe future President of the UnitedStates; I also clerked at the SupremeCourt of the United States. These expe-riences gave me the privilege ofchoosing between BigLaw and thelegal academy. I spent many hours inmy thirties divining some of the law’smost intellectually challenging myster-ies, from the use of macroeconomicindicators in utility regulation to thelegal protection of biodiversity andfunctioning ecosystems as informationplatforms. All those things came to me,in large measure, because I turned infantastic performances in torts, federalcourts, and international business trans-actions. Those grades predictedintelligence of some relevance to thelegal profession, and I worked myhardest to make good on the promise ofmy youth. But the task to which I havedevoted my forties, that of managing acomplex educational institution for thebetterment of its students and theclients they will ultimately serve, is onethat transcends my grades, my diplo-mas, my clerkships, and even thearticles on my curriculum vitae.Everything I’ve done in life didn’t getgraded in law school. Grades werethen. Life is now. As a firmly commit-ted Muggle, I am no heir of Slytherin.Fate did bestow upon me a bundle oflegal education’s most elite experi-ences. And this is what I have learnedsince graduation: There is no value inprestige or credentials. There is onlyperformance, and those who have thewisdom to prize it.

Kentucky Attorney Honored in White House Ceremony Addison Parker, former litigation director at the Appalachian Research and

Defense Fund in Kentucky (AppalRed), was honored Thursday, October 13, in aWhite House Ceremony as a “Champion of Change” throughthe U.S. Department of Justice’s Access to Justice Initiative andthe President’s Winning the Future Initiative. At the event,Attorney General Eric Holder, Senior Counselor for Access toJustice Mark B. Childress, and White House representativesparticipated in a discussion on efforts to close the nation’s jus-tice gap.

Until his recent retirement in June 2011 after 32 years withthe AppalRed, Parker served as AppalRed’s co- litigation direc-

tor and director of AppalRed’s Stop Foreclosure Clinic. He continues to providepro bono services to AppalRed and its clients, as AppalRed Attorney Emeritus.AppalRed provides free legal assistance to low income persons living in thirty-seven counties, located primarily in Eastern Kentucky.

Parker’s practice has included mortgage foreclosure defense and predatorylending issues; consumer and contract law; Chapter 7 & Chapter 13 bankruptcies;usury, Truth in Lending, and consumer credit issues; UCC and collectiondefenses; mobile home litigation; credit access issues; landlord-tenant and publichousing law; employment discrimination and wrongful discharge; Section 1983civil rights litigation; unemployment insurance law; and wage and hour disputes.

Parker is a past chairman of the Kentucky Bar Association Bankruptcy Sectionand a long-time Chairman of the Consumer Law Task Force of Kentucky LegalServices Programs. He has been a speaker on consumer law topics and foreclosuredefense locally at numerous Kentucky continuing legal education seminars andnationally at seminars and conferences sponsored by the National Consumer LawCenter, AARP, and the National Association of Consumer Advocates. He has alsowritten articles on foreclosure defense for publications of the National ConsumerLaw Center, the Kentucky Bar Association, the University of Kentucky College ofLaw CLE, and National Association of Consumer Advocates. He received hisB.A. from Dartmouth College and his J.D. from the University of Iowa, where hewas Contemporary Project Editor of the Iowa Law Review.

Addison Parker


KENTUCKY BAR NEWS

KENTUCKY BAR NEWS


by Stefan Bing, UK Law 3L and editor-in-chief of the Kentucky Law Journal

University of Kentucky College ofLaw Hosts National State CourtFunding Symposium

This past month, the University ofKentucky College of Law and the

Kentucky Law Journal hosted aSymposium at the University ofKentucky focusing on the ever-growingnational issue of the underfunding ofstate courts across the country. The two-

day event, held September 23 and 24,celebrated the 100th Volume of theJournal as well as the ascension ofCollege of Law and KLJ alumnus Wm.T. (Bill) Robinson III to the Presidencyof the American Bar Association. The

event, sponsored by the ABA, theNational Center for State Courts, andLexis-Nexis, brought many prominentjudges, court administrators, practition-ers, legislators, and scholars to Lexingtonto focus on the funding crisis facingcourts nationwide, including Kentucky.

On Friday morning, Chief Justice ofthe Supreme Court of Kentucky John D.Minton, Jr., welcomed everyone in atten-dance and set the stage for the dialogueof the next two days. Renowned consti-tutional scholar Erwin R. Chemerinsky,dean of the University of California,Irvine School of Law, delivered a keynoteaddress about the federal constitutionalramifications of state court underfunding.At lunch at the Student Center GrandBallroom, Mary McQueen, president ofthe National Center for State Courts,addressed the importance of unificationamong state judges, court administrators,and members of the business communityin order to realize change.

On Friday afternoon, Chief Justice ofthe Ohio Supreme Court MaureenO’Connor moderated an interdisciplinarypanel discussion entitled “Courts,Business, and the Economy.” JusticeJack B. Jacobs (Delaware SupremeCourt), Lisa Rickard (U.S. Chamber ofCommerce), Jon Mills (former Speakerof the Florida House of Representatives),and Donna Melby (business trial lawyerfrom Paul Hastings LLP) discussed therole that courts play in a viable economy.Chief Justice of the South CarolinaSupreme Court Jean Toal moderated asecond panel entitled “Autonomy,Access, and Accountability,” whichincluded panelists Chief Justice ChristineDurham (Utah Supreme Court), ChiefJustice Peggy Quince (Florida SupremeCourt), Professor David Barron (HarvardLaw School), Professor G. Alan Tarr(Rutgers University), and Robert S. Peck(president, Center for ConstitutionalLitigation). The debate focused on provi-sions within state constitutions thatrequire adequate court funding and theappropriate means by which to effectchange.

The highlight of the Symposium wasFriday night’s gala dinner at theLexington Convention Center, hostedby the Kentucky Law Journal. Speakersincluded Charles E. English and deanof the College of Law, David A.Brennen. Robinson delivered a riveting

keynote stressing his goal of tacklingthe court funding crisis in the UnitedStates during his tenure as president ofthe ABA.

Saturday morning began with a finalpanel entitled “18th Century Courts,21st Century Expectations” which

addressed the need for, and challengesto, modernization of state courts movingforward. The symposium closed withmemorable remarks from the HonorableMargaret Marshall, former chief justiceof the Massachusetts Supreme Court,who spoke about how her experiencesas a leader of the anti-apartheid move-ment in South Africa and subsequentimmigration to the United States havecrafted her appreciation for, and desireto maintain, the unique judicial systemin this country.

University ofKentuckyCollege of Law

Chief Justice John D. Minton, Jr., UK Collegeof Law Dean David A. Brennen, University ofCalifornia-Irvine School of Law Dean ErwinChemerinsky and Kentucky Law Journal Editor-in-Chief Stefan Bing gather during the galadinner held in honor of ABA President Wm. T.(Bill) Robinson III as a part of the recentsymposium on court funding in Lexington.

ABA Immediate Past President Stephen N.Zack participates in a panel discussion on“Courts, Business and the Economy” duringthe recent symposium on court funding.

ABA President Wm. T. (Bill) Robinson IIIaddresses the audience during the recentsymposium on court funding sponsored by theKentucky Law Journal, the American BarAssociation and the National Center for State Courts.

Peggy Quince, at left, former chief justice ofthe Florida Supreme Court , and Jean H. Toal,chief justice of the South Carolina SupremeCourt, participate in a panel discussion on“Court Funding: Autonomy, Access andAccountability.”


Great Place to StartResource Center for New Attorneys in Kentucky

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