Appeal Denied In USN Permit Suit

By Walter F. Roche Jr.

A Davidson Chancery Court Judge Friday turned down an appeal of a decision dismissing a legal challenge to a state permit for a 12-mile pipeline to the Nolichucky River in eastern Tennessee.
Judge Claudia Bonnyman turned down the appeal following a morning hearing in her Nashville courtoom.
The appeal was filed in behalf of six residents who own property along the Nolichucky. They had charged that the Tennessee Department of Transportation exceeded its authority when it granted a permit allowing the pipeline to be installed along the rights of way of two state highways.
Attorneys for US Nitrogen, TDOT and the Industrial Development Board of Greeneville and Greene County argued that the landowners lacked the legal standing to challenge the permit. Bonnyman agreed.
The pipeline already is in use with millions of gallons of river water being pumped to and from the river to the new $200 million manufacturing facility of US Nitrogen in Mosheim.
Bonnyman's decision means her May 5 decision dismissing the suit will stand barring a successful appeal to a higher court.
The suit is one of several legal challenges to the pipeline and the US Nitrogen project. None so far have been successful and officials at the ammonium nitrate plant have filed formal startup notices with the state.
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US Nitrogen, IDB Challenge Court Appeal

By Walter F. Roche Jr.

The Greene County industrial board and US Nitrogen are asking a Nashville judge to reject the appeal filed in behalf of local residents challenging the legality of a state permit allowing construction of a 12-mile pipeline to the Nolichucky River.
In a 13-page joint filing in Davidson Chancery Court lawyers for the county agency and US Nitrogen are charging that the area residents are simply repeating the arguments already rejected by Judge Claudia Bonnyman.
The filing comes before a hearing in Bonnyman's courtroom scheduled for tomorrow.The suit challenges the legality of a permit issued by the Tennessee Department of Transportation authorizing construction of the pipeline along the rights of way of state highways.
Citing Bonnyman's May 5 decision to dismiss the suit, the filing states, "The court did not make any errors in its order and the court was correct in ruling that petitioners lack standing to bring their claims."
The suit was filed by six residents who own property along the Nolichucky River; Ann Calfee, Don Bible, Jack Renner, Jeremiah Cluesman, Ruth Dolin and Rubin Stone. The pipeline goes from US Nitrogen's $200 million ammonium nitrate manufacturing facility in Mosheim to the Nolichucky River.
The six contend TDOT did not have the authority to grant such a permit to a private company which is not a public utility. They also contend the pipeline has negatively impacted their properties.
The Industrial Development Board of Greeneville and Greene County and US Nitrogen, however, argue that the pipeline has already been in operation for six months and has caused no damage.
"Petitioners cannot point to any harm or injury caused by their use during the last half year," the joint filing states.
"With only hypothetical injuries and no adverse effects, petitioners cannot establish standing," the motion states.
The two also charge that the appeal filed by Nashville attorney Elizabeth L. Murphy improperly raises a new argument: that "their ability to farm and use their farmland is affected by the pipelines."
"A motion to alter or amend is not a proper mechanism to present new arguments and theories based on the same facts," the filing continues.
The motion also cites the fact that Bonnyman concluded that the the plaintiffs did not meet any of the three requirements to establish standing.
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New US Nitrogen Permit Concerns May Be too Late

By Walter F. Roche Jr.

A representative of the Sierra Club has written to state officials warning that the review of the potential impact of the US Nitrogen project on the Nolichucky River and its marine life has been rushed and inadequate.
The objections were contained in a two-page letter from Scott Banbury of the Sierra Club to officials of the Tennessee Department of Environment and Conservation (TDEC), but the letter was filed a day after the deadline for comment on a proposed permit renewal.
Banbury wrote that the project should be subjected to a "full anti-degradation" analysis and questioned the conclusion of state officials that pumping 1.8 million gallons of water per day would have a "de minimis" effect on the waterway.
"We continue to object to the term de minimis," Banbury wrote, adding that ammonia from the discharge "may be lethal to protected species and natural population of mussels and other aquatic species.
He said there was not sufficient data to justify a "de minimis" finding.
TDEC officials did not immediately respond when asked whether Banbury's comments would be considered even though he missed the deadline for commenting on the proposed five year permit renewal.
Banbury said that he missed the deadline because he was on the Appalachian Trail and could not transmit his letter of objections.
The state agency already has given notice that it intends to renew the permit that allows US Nitrogen to pump 1.8 million gallons of water a day into the eastern Tennessee river.
But Banbury said that because of the lack of data and the fact that the ammonium nitrate plant is yet to go into full operation, the application should be considered a new request and not a renewal. A new permit, he added, would require more in depth scrutiny.
In addition the Sierra Club representative said the proposed limits on nutrients that will be discharged into the river were inadequate. Sulfates, for instance, he said would be potentially toxic.
"The draft (permit) does not adequately address the impact of increased nutrient loading on fish and other aquatic life," Banbury stated.
He asked that the permit in its current form be denied.
Dozens of other Greene County and area residents filed their objections to the permit renewal prior to the July 25 deadline. 

US Nitrogen Opponents File Comments

By Walter F. Roche Jr.

In a flurry of last minute filings, opponents of a key permit for the $200 million US Nitrogen Greene County project ran up to the 5 p.m. deadline today, even as the facility nears full operation.
The filings, which were posted on  the Tennessee Department of Environment and Conservation website, show dozens of area residents oppose the granting of a five-year permit allowing US Nitrogen to dump some two million gallons of water per day into the Nolichucky River.
As of the 5 p.m. deadline only one local resident had registered support for the project and the permit. On the last day for comment alone, 10 area residents urged disapproval of the permit renewal.

Meanwhile TDEC records show US Nitrogen has filed a startup notice for its anhydrous ammonia production plant.
In earlier filings the company's top local official Andrew Velo notified TDEC of the startup of other operations including a nitric acid plant, a gasoline distribution facility and a flare system.
In the latest comments opponents of the permit warned that it would have a serious negative impact on the river and endangered species who live within its banks.
"We do not need to pollute our waterways," wrote Terry English.
Ann Harris charged that officials failed to notify residents of neighboring counties who will be impacted. She also questioned why the U.S. Environmental Protection Agency had not become involved and why an environmental impact study had not been performed.
"Where is the EPA?" she asked repeatedly.
"We don't want our river poisned," wrote Elizabeth Malone, who noted her family relies on well water.
Bonnie Hilliard of Sullivan County also submitted comments opposing the permit.

Deadline Nears For US Nitrogen Permit Comments

By Walter F. Roche Jr.

With the deadline less than 24 hours away, Greene County and other eastern Tennessee residents are continuing to file objections to a proposed five year renewal of a key permit for US Nitrogen.
Tennessee Department of Environment and Conservation officials have set 5 p.m. Monday as the final deadline for comments on the proposed renewal of a permit allowing US Nitrogen to pump millions of gallons of water per day to the Nolichucky River.
Three more local residents filed their objections to the permit late last week. Benjamin Frazer wrote that the permit should be denied because environmental impact reports were never performed for neighboring counties. He also charged that area residents had not been given proper notice of the renewal.
Others filing objections included Anne Smith and Veronica Cox.
TDEC has already served notice that it intends to grant US Nitrogen a five year renewal.
The action comes as the company, a subsidiary of Ohio-based Austin Powder, is gearing up for full operations.
A recent TDEC inspection showed some limited production has taken place with some needed chemicals brought in from offsite. The company has also filed monthly reports on the water taken from and discharged to the Nolichucky through a 12-mile pipeline going from the $200 million Midway plant to the river.
The company will produce ammonium nitrate which will be used by Austin Powder to manufacture explosives.
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US Nitrogen Reports Monthly River Discharge

By Walter F. Roche Jr.

US Nitrogen has reported to Tennessee environmental officials that it has dumped an additional 477,433 gallons of water into the Nolichucky River.
The report comes as Greene County and area residents are continuing to file objections with the state Department of Environment and Conservation to the five year renewal of a key permit for the ammonium nitrate manufacturer.
In the report to TDEC signed by Andrew W. Velo, the company said it discharged the nearly 500,000 gallons on June 23. No water was pumped from the river during June, the company stated.
In prior months beginning earlier this year the company has reported pumping millions of gallons of water from the river and discharging a nearly equal amount.
The company is still in a startup stage, according to a recent evaluation report from TDEC.
TDEC files show local residents have continued to file statements in opposition to the renewal of US Nitrogen's permit allowing then to dump millions of gallons of water per day into the river. The deadline for filing statements of support or objection is July 25.
Among those filing objections were Jeff Luster, Jane Maxson, Dave Mundt and Terry Massey.
Massey charged that "What US Nitrogen is doing is illegal"
Maxson wrote that she objected to the permit renewal "in the strongest possible terms."
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State Completes On-Site US Nitrogen Inspection

By Walter F. Roche Jr.

State environmental inspectors have completed a 19-day on-site inspection of the US Nitrogen's Greene County facility and while concluding that it generally appears to be operating within its permits, dozens of deficiencies were recorded.
The deficiencies including missing data, conflicting data and simply incorrect data, were included in a 15-page report from the Tennessee Department of Environment and Conservation dated July 8. Still other deficiencies were detailed in eight pages of appendices.
The report concludes with the statement that US Nitrogen must submit an action plan by Aug. 3 that will ensure "discharges (to the Nolichucky River) that are protective of downstream fish and aquatic life and water quality."
The inspection, which ran from June 2 to June 21, included a review of thousands of pages of records and the actual physical inspection of the $200 million ammonium nitrate manufacturing facility.
As the report notes, full production has yet to begin and, as a result, some of the desired data does not yet exist.
"At the time of the inspection, the US Nitrogen and Industrial Development Board Water Treatment facilities were still undergoing startup and prove-out testing," the letter to US Nitrogen's Andrew
Velo states.
"Based on the information discussed and site observations, the facilities generally appear to be consistent with the provisions of the permits referenced above," the letter continues, adding that US Nitrogen officials were "encouraged to maintain open communications."
The letter noted that one of the permits under review, allowing millions of gallons of water to be regularly discharged to the Nolichucky River, was the subject of a recent public hearing and the public comment period has been extended to July 25.
 According to the report, US Nitrogen began pumping limited amounts of water to the Nolichucky River in February, but the company outfall logbook did not indicate the analytic methods used to analyze the outfall.
Inspectors found "conflicting information regarding the methods and versions used for equipment calibration and field analysis," according to the report.
"Numerous discrepancies in inflow reporting" were noted for February apparently due to confusion by US Nitrogen personnel over which day to report results of the outfall.
"Consistent accurate reporting is essential for NPDES permit compliance," the letter states.
In several categories, the report states that US Nitrogen must submit corrected or more complete data to maintain compliance with existing permits.
Incorrect data was noted in records reported in March, April and May.
The report states that there is a two million gallon water holding tank on the site for fire water and other uses. The tank is currently filled with water purchased from the Old Knox Utility District.
"Plans still call for the intake structures, pipeline and primary water treatment facilities to be turned over to the Industrial Development Board (of Greeneville and Greene County) once commissioned," the letter states.
"Cooling tower and ammonia, nitric acid and ammonium nitrate solution production areas appeared to be largely complete, but the two ammonia plants were not yet operational," the letter states, adding that efforts were underway during the inspection to start ammonia production.
It states that limited production of nitric acid had occurred and some ammonium nitrate had been produced using purchased ammonia.
Also operational was a secondary water treatment plant, but testing of water being pumped to the Nolichucky was not yet being performed.
Deficiencies cited include leaking steam condensate valves and a leaking steam condenser. Inspectors also noted areas where soil erosion had taken place.
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