Saturday, February 27, 2016

Six Group Homes Win State Approval

By Walter F. Roche Jr.

A state board has easily approved six new group homes in Eastern Tennessee to provide new residences for the remaining residents of the Greene Valley Development Center, a facility under a federal court closing order.
Approved without opposition at a meeting this week by the board of Tennessee Health Services and Development agency were five facilities to be operated by the Georgia based Open Arms Care Corp and a sixth to be operated by Sunrise Tennessee, an affiliate of a Florida non-profit. Each of the facilities will have four beds.
The quick approvals granting certificates of need for all six homes were in contrast to another group home proposal in Greeneville which was approved only after several local residents and some political leaders voiced strong opposition. 
A proposed Sunrise facility on Old Shiloh Road in Greeneville drew widespread opposition at a previous meeting of the same board.  Despite the opposition, the facility was granted a certificate of need, a prerequisite to obtaining a state license.
 The newly approved Sunrise facility will be located at 680 Quaker Knob Road in Chuckey, Greene County.
The Open Arms Care Corporation homes will be located at E. Church Street (2) and Chuckey Pike in Greeneville and Gamble Road (2) in Georgetown Hamilton County.
 All six of the homes had been recommended for approval by Melanie M. Hill, executive director of the state health development agency.
The state is under a federal court order to close the Greene Valley Development Center by June 30, although an extension is regarded as a near certainty.

Friday, February 26, 2016

Judge Tosses Case on Pipeline Challenge

By Walter F. Roche Jr.

A chancery court judge today dismissed a suit challenging the legality of a permit that allowed the installation of a 12 mile pipeline in Greene County built for the use of US Nitrogen.
Following a more than one hour hearing Judge Claudia Bonnyman granted a motion for dismissal filed by the Tennessee Department of Transportation. Lawyers for US Nitrogen and the area industrial development board had joined in support of the dismissal motion.
Bonnyman's decision, which still could be appealed, ends, at least for now, yet another legal challenge to the 12-mile pipeline to the Nolichucky River from the US Nitrogen plant in Mosheim.
Elizabeth Murphy, attorney for local landowners who filed the suit, said she was surprised and disappointed in the ruling.
"It doesn't make any sense," Murphy said, adding that the decision appeared to ignore 40 years of established law.
Lawyers for TDOT had argued that the landowners lacked standing to bring the suit in  the first place.
The plaintiffs said that the pipeline, which already is in place, trespassed on their property and, once in operation would pollute and dry out the river.
All of the plaintiffs own property abutting the river.
The suit also challenged the legal right for TDOT to grant the permit. The pipeline will be utilized by US Nitrogen but owned by the Industrial Development Board of Greeneville and Greene County. US Nitrogen has announced plans to begin operation of its $200 million facility later this year.
Murphy argued that under Tennessee law such permits can only be granted to public utilities.
The suit was one of the few remaining legal challenges to the pipeline, which will be used to pumps millions of gallons per day from the Nolichucky for use in US Nitrogen's production of ammonium nitrate.
“It is a shame to live in a state, that has deteriorated to the point that the judiciary can be intimidated by the executive branch," said Donahue Bible, one of the plaintiffs.

I am very disappointed and very sad that the judge thinks we have no standing in this case," said Ann Calfee, another plaintiff. Park Overall, a local resident opposed to the pipeline project, but not a plaintiff in the suit, said, "It is very hard to deal with a rigged system where the law only applies to money."
She said a decision will have to be made on whether to file an appeal.
Murphy indicated she will be talking with her clients about the possibility of an appeal.


Thursday, February 25, 2016

Affidavit Disputes Draft Permit Claims

By Walter F. Roche Jr.

A sworn affidavit cited in pending litigation contradicts assertions in a draft permit issued for the controversial 12-mile Greene County pipeline recently issued for comment by the Tennessee Department of Environment and Conservation.
The affidavit by Butch Shaw, the former chairman of the Old Knox Utility District, states that the utility district had told officials of US Nitrogen that they could easily supply the firm with the water needed for the operation of its $200 million ammonium nitrate manufacturing facility.
Stating that he was "directly involved" in the negotiations with US Nitrogen, Shaw swore that claims that the district could not supply the needed water were false.
"That is not accurate" Shaw wrote in the affidavit. "As the Old Knox system existed when negotiations began with US Nitrogen, the utility system would have required an upgrade. With the upgrade, the volume was available."
Shaw's statement stands in contrast to the draft permit recently issued for the pipeline by TDEC.
"The permittee chose not to connect to a public water supply for its industrial process water for several reasons, the main one being lack of guaranteed uninterrupted water supply," the draft states.
According to a motion filed this week in Nashville, Shaw's affidavit was filed as an attachment to a motion for summary judgment filed earlier in a suit pending in Chancery Court in Davidson County by landowners opposed to the pipeline. The pipeline has already has been installed but has yet to be put into full operation.
The landowners have charged that the Tennessee Department of Transportation exceeded its legal authority when it issued a permit allowing the pipeline to be placed within the rights-of-way of two state highways.
In his affidavit, Shaw, who resigned from the district board last year, said that as the board's representative he was personally involved with the hiring of an an engineering firm to study the upgrade and getting approval from the a federal agency for a loan to cover the $3.2 million estimated cost.
Shaw stated that because of its location, the utility district would have been the designated supplier of water for US Nitrogen. The district, in turn, would purchase the water from the Greeneville Utility District.
"In anticipation of selling more water to us, for US Nitrogen, Greeneville Utility spent money to upgrade their pumps to handle the added volume that USN was going to buy. I was involved in those discussions as well," Shaw continued.
He added, " As the liaison for the board with USN, I was actively negotiating with US Nitrogen in July of 2014 for a water rate of $2.31 per thousand gallons, or a flat rate of $15,000 per month per the Board’s directive."
He said that after being told by a US Nitrogen representative that they had a deal, he learned during a conference call that the deal was off. Still later he learned from a newspaper article that US Nitrogen planned to draw water directly from the Nolichucky.
US Nitrogen officials did not respond to a request for comment.
"Greeneville( Old Knox's supplier) could have supplied enough water to USN, and still can. The Greeneville Utility is permitted for 16 million gallons a day of capacity, and they are only using about 7.9 million," the affidavit concludes.
The draft permit recently made public by TDEC would allow US Nitrogen to draw millions of gallons of water per day from the Nolichucky. Several local residents already have formally requested that a public hearing be held on the permit.

Tuesday, February 23, 2016

Landowners Contest Motion to Dismiss

By Walter F. Roche

Charging that the state has turned the case into a three ringed circus, landowners have asked a judge to reject a motion seeking the dismissal of a suit challenging the legality of a permit for a 12-mile Greene County pipeline.
In a 14-page response filed this week in Davidson Chancery Court in Nashville, the attorney for the landowners is charging that the state is using procedural challenges to prevent the court from ever reaching the central legal issue, the legality of the pipeline permit.
"According to the defendant, no matter how illegal the permit, no matter how open the disregard for the law, there is no way to challenge the permit from the Tennessee Department of Transportation," the filing by Nashville attorney Elizabeth Murphy states.
The filing comes just before a scheduled Friday hearing in the case filed by landowners challenging a permit that allowed construction of the pipeline to the Nolichucky River. The pipeline, already installed, will serve US Nitrogen, the company that plans to pump millions of gallons of water per day for use in the production of ammonium nitrate.
The Tennessee Attorney General, along with attorneys for US Nitrogen and the Industrial Development Authority of Greeneville and Greene County, have asked for the suit to be dismissed citing the state's sovereign immunity. They also  contend the plaintiffs, who own land along the Nolichucky, lack the legal standing to even make such a challenge.
The suit charges that TDOT exceeded its legal authority when it reversed course and granted the permit to the IDB.
The landowners latest filing charges that TDOT's reversal was based on "a mumble of clarified intentions" and represented a clear overreach of its authority. The law, the landowners contend, only allows TDOT to issue such permits to public utilities.
"The court has the duty to correct this overreach by TDOT," the filing states.
The motion also charges that US Nitrogen was "playing a price game" by abandoning plans to purchase needed water from local utilities.
"The local utilities had the capacity; they are using half of the 16 million gallons per day," the motion states.
As for standing, the landowners' motion states that construction and operation of the pipeline will cause direct injury "to their land, title and money."
"The state contends not only does it have immunity, but can break the law with impunity," the motion concludes.
Arguments on the motion to dismiss are scheduled to be heard Friday before Chancery Judge Claudia Bonnyman.

Monday, February 22, 2016

Draft US Nitrogen Permit Cites Possible Toxicity

By Walter F. Roche Jr.

The draft permit for US Nitrogen to draw and return millions of gallons of river water cites a concern for toxicity in the water being returned to the Nolichucky River.
The toxicity concerns are mentioned briefly in an 83-page draft permit posted on the website of the Tennessee Department of Environment and Conservation. The agency has served notice that it intends to approve the permit.
"Since the permittee discharges to a stream with low critical flow conditions, there is a concern for toxicity effects of the discharge on the receiving stream, which is relatively unknown," the draft states.
"Biomonitoring will provide information relative to the toxicity of the discharge," the draft continues.
Despite those concerns, the state Department of Environment and Conservation states in a cover letter that it intends to approve the permit.
"The proposed activity will have a de minimis on the waters of the state," TDEC concluded. "This permitted activity will not result in pollution.
The announcement already has brought a call for a public hearing from Donahue Bible, whose property abuts the river. Bible formally filed the hearing request last week.
The permit, which is actually a renewal of an existing permit, will authorize US Nitrogen to draw millions of gallons of water per day from the Nolichucky and to return some, but not all of that water untreated back to the river.
According to the draft, because of the toxicity concerns US Nitrogen will be required to conduct quarterly toxicity tests.
"If toxicity is demonstrated in any of the effluent samples specified above, this will constitute a violation of the permit," the draft states.
Included in the public filing are a series of questions and concerns registered during a comment period along with the agency responses.
Responding to another question, the draft states that even if US Nitrogen were to buy water from the Old Knox Utility District, the water would  also have come from the Nolichucky.
"The water would still come from the same source but would carry the environmental and financial costs of treatment and distribution, along with making that volume of water used in a non-consumptive way, unavailable for domestic use."
"Furthermore," the draft continues," Old Knox and US Nitrogen have not been able to reach an agreement for the required quantities of  guaranteed uninterrupted water supply."
 The draft concludes that the proposed permit sets limits "to protect all aquatic species" and will not cause pollution.
The water from the Nolichucky will be pumped through a 12-mile pipeline to the US Nitrogen manufacturing facility which will be manufacturing ammonium nitrate, which will ultimately be shipped to another location for use in the production of explosives.
The $200 million  facility is slated to open later this year.

Thursday, February 18, 2016

Landowner Seeks Hearing On US Nitrogen River Permit

By Walter F. Roche Jr.

Greene County resident Donahue Bible has formally requested a public hearing on the proposed renewal of a US Nitrogen permit to draw millions of gallons of water per day from the Nolichucky River that runs along his property.
"It won’t be beautiful any more, it won’t be drinkable, or usable for much except saving US Nitrogen money," Bible wrote in an affidavit attached to his request for a hearing.
Bible's request follows the notification by the Tennessee Department of Environment and Conservation of its intent to renew the permit that will allow US Nitrogen to draw some 2 million gallons of water per day from the Nolichucky and return some of it untreated  back into the same river.
The notice stated that both US Nitrogen and local residents could request a public hearing on the renewal request.
US Nitrogen officials have announced plans to open the $200 million ammonium nitrate manufacturing facility in Midway on a phased basis early this year. The already installed double barrel pipeline will run from the plant to the river.
US Nitrogen did not immediately respond to a request for comment on the hearing request. 
In the affidavit, Bible recounts the history of the 12-mile pipeline which he charges trespasses on his Fish Hatchery Road property.
"They came on our land over my objection in March of 2015, to install the pipelines with the TDOT (Tennessee Department of Transportation) permit. Those lines now cross the front on our property and are on our property, not in a designated State right-of-way," Bible wrote.
Bible charged that both the drawing of water from the river and the return of untreated effluent to the same river will have an adverse effect on his properties.
"When the river loses flow, the water can’t get up and over the shoals and down to our property. It will pond upriver of us. In summer we may lose all of it. Then we lose the fish and the mussels and wildlife, recreation and irrigation. This is just common sense," he wrote.
Stating that he is "legally obligated" to protect his property, Bible said that some 38 of the 40 acres he owns at 3175 Fish Hatchery Road "is in a permanent Wildlife Refuge, permanent Woodlands-Conservation Easement with the Foothills Land Conservancy."
Bible added that the company could obtain the water needed for its manufacturing from the local utility district.
  "When the pipes start to leak, or break, we will have a mess on our property and US Nitrogen will come back and trespass. So far, they have been a terrible experience" Bible wrote. 
"Water adds value to property. Polluted rivers take value away. We will lose property values with a shallow polluted river of industrial waste along our frontage," Bible concluded, adding  that he had no desire to get into a costly court fight, "I just wanted to be left alone."

Please consider this letter and the following information from a sworn affidavit to be my request for a public hearing on this above referenced permit, concerning my property and the effect that this permit has had, and will have, on it.
Don Bible
3175 Fish Hatchery Road
Mohawk, TN 37810

Tuesday, February 16, 2016

State Signals Approval for US Nitrogen Water Permit

By Walter F. Roche Jr.

State officials have notified US Nitrogen that they intend to approve the renewal of a key water discharge permit needed to draw millions of gallons of water per day from the Nolichucky River.
In a notice sent to US Nitrogen, officials of the Tennessee Department of Environment and Conservation stated they intend to approve a renewal for the permit which has been under an administrative extension since it expired last year.
US Nitrogen needs the permit to both draw and discharge water from the Nolichucky in the production of ammonium nitrate.
Records show US Nitrogen filed a renewal application on June 2, 2015. The existing permit had a Nov. 30, 2015 expiration date.
TDEC officials disclosed late last year that they had granted an administrative extension for the permit since the application had been submitted well in advance of the scheduled expiration.
In the recent notice to US Nitrogen plant manager Andrew Velo, TDEC Manager Vojin Janic said a notice would be issued informing the public of its intent to issue the permit.
"The notice affords the public an opportunity to review the draft permit and, if necessary, request a hearing on this issuance process," the notice states.
TDEC spokesman Eric Ward said today that thus far no hearing requests have been submitted.
It also gives US Nitrogen 30 days to file an appeal if it disagrees with any provisions of the permit.
"The issuance of an official modified permit is contingent upon your meeting all of the requirements of the Tennessee Water Quality Control Act and the Rules and Regulations of the Tennessee Water Quality, Oil and Gas Board,"  the notice adds.
A copy of the 37-page draft permit, along with several appendices, is attached to the notification
The same permit file shows that magnesium levels in all groundwater monitoring spots on the US Nitrogen site recently showed levels substantially exceeding benchmark levels. The company has attributed the readings to naturally occurring factors and the recent application of fertilizers.
US Nitrogen has already constructed a 12-mile double pipeline to move water to and from the river. According to the application, the pipeline enters the river at 20.8 miles from its origin.
Also pending before TDEC is a US Nitrogen air permit that would  triple the level of allowable emissions of nitrous oxide at the Midway facility, which is slated to open shortly.

February 5, 2016
Mr. Andrew Velo, Plant Manger
US Nitrogen LLC
471 Pottertown Road
Midway, TN 37809
Subject: Draft of NPDES Permit No. TN0081566
US Nitrogen LLC
Midway, Greene County, Tennessee
Dear Mr. Velo:
Enclosed please find a draft copy of the NPDES Permit No. TN0081566 which the Division of Water Resources proposes to issue. This draft copy is furnished to you solely for your review of its provisions. No wastewater discharges are authorized by this modified permit. The issuance of an official modified permit is contingent upon your meeting all of the requirements of the Tennessee Water Quality Control Act and the Rules and Regulations of the Tennessee Water Quality, Oil and Gas Board.
Also enclosed is a copy of the public notice that announces our intent to issue this permit. The notice affords the public an opportunity to review the draft permit and, if necessary, request a public hearing on this issuance process. If you disagree with the provisions and requirements contained in the draft permit, you have thirty (30) days from the date of this correspondence to notify the division of your objections. If your objections cannot be resolved, you may appeal this permit upon issuance. This appeal should be filed in accordance with Section 69-3-110 of the Tennessee Code Annotated.
If you have questions, please contact the Johnson City Environmental Field Office at 1-888-891-TDEC; or, at this office, please contact Mr. Vojin Janjic at (615) 532-0670 or by E-mail at
Vojin Janjić
Manager, Water-Based Systems
cc: Permit

Friday, February 12, 2016

Six Group Homes Recommended for Approval

By Walter F. Roche Jr.

The executive director of a state agency has recommended that a state board approve pending applications for six new group homes for residents of the Greene Valley Development Center.
In a series of notices issued Thursday Melanie M. Hill, executive director of the Tennessee Health Services and Development agency recommended that certificates of need be awarded to Sunrise Community of Tennessee and the Open Arms Care Corp.
Five of the proposed four bed homes are being developed by Open Arms and one by Sunrise. The state board already has approved a Sunrise four bed facility on Old Shiloh Road in Greeneville despite opposition from some local residents and officials.
In the memos, Hill concluded that all six of the applications met the criteria for the state law governing the licensing of health care facilities. They will be placed on the agenda for a HSDA Board meeting scheduled for Feb. 24.
As Hill noted in her memo, the homes are needed because the Greene Valley facility is being closed under a federal court order.
The Open Arms Care Corporation homes will be located at E. Church Street and Chuckey Pike in Greeneville and Gamble Road in Georgetown Hamilton County. The Sunrise home is planned for  Quaker Knob Road in Chuckey.
Hill noted that there has been no opposition to the six applications which also have the backing of the state Department of Intellectual and Developmental Disabilities.
Seven additional applications to open group homes for Greene Valley residents are currently scheduled to come before the HSDA  board in March.

Thursday, February 11, 2016

Key Pipeline Hearing Delayed

By Walter F. Roche Jr.

A key hearing on a challenge to the legality of a permit issued for a 12-mile pipeline to the Nolichucky River has been postponed, court records show.
The hearing had been scheduled for Friday (Feb. 12) but will now be held Feb. 26 in Nashville before Chancery Court Judge Claudia Bonnyman.
The suit filed against the Tennessee Department of Transportation challenges the legal basis for the permit granted to the Industrial Development Board of Greeneville and Greene County. The pipeline has already been built and will be used by US Nitrogen in the production of ammonium nitrate.
A group of local property owners contend that permits like the one issued to the industrial development board can only be granted to public utilities.
In pending motions to dismiss, the state, joined by US Nitrogen and the development board, contends that the landowners bringing the action lack standing to challenge the permit.

Monday, February 1, 2016

US Nitrogen PAC Backs House, Senate Leaders

By Walter F. Roche Jr.

A newly formed US Nitrogen political action committee donated $2,500 each to the leaders of both branches of Tennessee's General Assembly.
In its first detailed report since the committee was formed in December the PAC donated $2,500 to Lt. Gov. Ron Ramsey, who presides over the state Senate, and the same amount to House Speaker Beth Harwell. Both contributions were dated Dec. 15, 2015. Ramsey and Harwell are both Republicans, Ramsey from Blountville and Harwell from Nashville.
The money came from a $6,100 contribution from US Nitrogen itself. The PAC has a balance of $1,100, according to the brief report filed by the Feb. 1 deadline.
The committee was formed on the same day as the donation and contributions with Robert "Robbie" Helton listed as the chairman and Mark Mueller as the treasurer. Helton is a US Nitrogen logistics manager.
The committee's address is 471 Pottertown Road in Midway, the same address as the company.