Chancery Judge Won't Halt Pipeline Construction

By Walter F. Roche Jr.

Residents seeking an immediate halt to the construction of a 12-mile pipeline from Mosheim to the Nolichucky River were turned back Thursday during a lengthy hearing before a Greene County judge.
Chancellor Douglas Jenkins ruled that the citizens group did not provide sufficient evidence that the continuation of construction on the US Nitrogen pipeline would cause irreparable harm.
Ruling from the bench after a lengthy hearing in Greeneville, Jenkins denied the motion for a temporary injunction.
The ruling came in a suit filed by area residents who oppose the more than $200 million project. US Nitrogen, a subsidiary of Ohio explosives manufacturer Austin Powder, plans to open an ammonium nitrate manufacturing facility this Spring.
Jenkins also rejected claims that the development board lacked the legal authority to enter into the agreement with US Nitrogen.
But Jenkins stopped short of dismissing the suit altogether and the litigation will continue albeit on narrower grounds.
He ruled that the plaintiffs can go forward with their claim that the Industrial Development Board of Greeneville and Greene County violated the state Open Meeting Law during the July 18 session at which the pipeline plan was approved.
If they succeed, the agreement between the IDB and US Nitrogen could be nullified.

"It's a big win in that we can now take depositions of those involved. We want to prove that this violation was intentional," said April Bryant, one of the plaintiffs.

The suit charges that the law was violated because citizens attending the meeting could not hear the discussion prior to the favorable vote. In fact one resident, Eddie Overholt, was arrested when he complained about the muffled discussion.

Charges against Overholt were later dropped.
Bryant said the judge also agreed to move forward quickly with the suit and schedule an expedited trial date.

US Nitrogen has stated that the pipeline will be completed this spring along with the manufacturing facility that will produce ammonium nitrate. Water piped from the Nolichucky will be used in the manufacturing process.
In a statement released after the court hearing, Justin Freeark, plant manager for US Nitrogen, stated that work on the pipeline will continue.
"US Nitrogen remains committed to the pipeline project, and our contractors will continue construction, which began last October," he said.

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Open Government Lawyer to Appear at US Nitrogen Hearing

By Walter F. Roche Jr.

By agreement of all parties, an attorney for a coalition favoring open government will be allowed to address the court tomorrow at a hearing on a suit aimed at blocking a proposed 12-mile pipeline from the Nolichucky River to a new industrial facility.
The agreement to allow Rick Hollow, the lawyer for the Tennessee Coalition for Open Government to appear was announced on the eve of the hearing in the suit against US Nitrogen and the Industrial Development Board of Greeneville and Greene County.
The coalition had requested approval to present arguments on whether citizens attending a meeting of a public body have a right not only to attend meetings but also to hear the discussions of board members.
The issue arose in the suit brought by a group of area residents who have challenged the legality of the development board's July vote to approve the pipeline plan. The challenge is based in part on the fact that residents attending the meeting were not able to hear the deliberations preceding the favorable vote.
Lawyers for the board and US Nitrogen have argued in court papers that the state Open Meeting Law does not mandate that citizens be able to hear the deliberations.
Also at Thursday's hearing Scott Hurley, the lawyer for the plaintiffs, will present arguments to Chancellor Douglas Jenkins in favor of the issuance of a temporary injunction to halt the ongoing construction of the pipeline. Both the pipeline and the $200 million US Nitrogen ammonia nitrate manufacturing facility are slated for completion this spring.
Lawyers for the board and US Nitrogen will be arguing for their motion to have the suit dismissed.
The hearing will be held at 9 a.m. Thursday in the Greene County courthouse.
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Large Turnout Likely for US Nitrogen Hearing

By Walter F. Roche Jr.

A large turnout is anticipated for a key court hearing Thursday in a case filed by local residents seeking to block plans for a 12-mile pipeline from a new Greene County industrial facility to the
Nolichucky River.
The 9 a.m. hearing before Chancellor Douglas Jenkins will include arguments for an order to halt the pipeline construction immediately and a motion by US Nitrogen and the county industrial development board to have the suit thrown out.
The plaintiffs in the suit include dozens of local landowners along the path of the pipeline, which is already well under construction.
On its web site, Save the Nolichucky has posted details about the time and location of the hearing and encouragements for high attendance. "Stand up for your river," reads the title of a recent posting.
The suit charges that the development board acted improperly in approving the pipeline last year and cites the arrest of local resident Eddie Overholt, when he complained that those in attendance at the session could not hear the discussion.
Lawyers for the IDB and US Nitrogen countered with the claim that the state Open Meeting Law does not give residents the right to hear the proceedings.
It was that claim that prompted the Tennessee Coalition for Open Government to file a motion seeking to join in on the suit. That motion will also be up for consideration Thursday.
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Open Government Group Moves to Intervene In US Nitrogen Suit

By Walter F. Roche Jr.

An advocacy group for open government has moved to intervene in a pending suit challenging the legality of actions taken by Greene County officials on a controversial industrial development project.
In a filing with the Greene County Chancery Court, the Tennessee Coalition for Open Government is charging that the assertions of Greene County officials about the interpretation of the state Open Meeting Law are "clearly wrong."
The action comes in a suit filed by area residents opposed to the placement of a 12 mile long double barreled pipeline from the Nolichucky River to the site of a new US Nitrogen manufacturing facility.
The Nashville based non-profit is challenging the claim by lawyers for the Industrial Development Board of Greeneville and Greene County that the state Open Meeting Law does not give citizens the right to hear the proceedings of a public body.
Calling that assertion "in error and contrary to the spirit and intent of the legislation," the coalition is asking the court not to base a decision in the case on that claim.
The filing states that the coalition is not taking a position on the underlying issues in the lawsuit.
The suit is one of several challenging the legality of various aspects of the $220 million US Nitrogen project.
The audibility of public proceedings became an issue after a local resident was arrested during a development board meeting when he complained that board members couldn't be heard. The charges were later dropped.
The new facility is slated to become operational later this year and will produce ammonium nitrate.
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Firm Tied to Second IDB Member Sells Land to US Nitrogen

By Walter F. Roche Jr.

A second Greene County firm with ties to a member of the Industrial Development Board of Greeneville and Greene County has sold property to US Nitrogen, state and county land records show.
The 3.58 acre property on Pottertown Road was sold Dec. 11 by J and J Warehousing to US Nitrogen for $75,000. J and J is headed by Jerry Fortner, who is a member of the industrial development panel which has strongly backed US Nitrogen in its efforts to open a more than $200 million ammonium nitrate manufacturing facility.
Another Fortner company, C & C Millwright,  is the lead contractor for the US Nitrogen project. As a result Fortner abstained from key IDB votes on US Nitrogen matters.
Fortner did not respond to emails requesting comment about the sale.
Records show J & J bought the property on Oct. 15 of last year for $69,000.
A company tied to another IDB board member, J W. Douthat, also sold property to US Nitrogen but Douthat did cast a favorable vote on a US Nitrogen matter in mid-July. He had abstained in an earlier vote.
Douthat Properties sold two parcels to US Nitrogen for a total price of more than $1 million. A 13.67 acre property was sold for $148,740 on Oct. 9 while a 78.7 acre parcel was sold for $851,257 on Oct. 24.
The US Nitrogen project, which includes a double barreled 12 mile pipeline to the Nolichucky River, has sparked four pending lawsuits challenging both the state and local approvals of the project.
Meanwhile C & C, US Nitrogen and Merkel Brothers Construction Monday announced they were offering a $10,000 reward for anyone providing information leading to the arrest and conviction of the party or parties responsible for damage at a US Nitrogen construction site on the river. The damage to a cofferdam on Dec. 3 is currently under investigation by the Greene County Sheriff's department.
 "The recent vandalism of the cofferdam jeopardized the safety of our workers, damaged specialized equipment and caused delays in construction," according to the company statement.
Anyone with information on the incident is asked to contact the sheriff's office at 423-798-1800.
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County Number: 030

County Name: GREENE

Tax Year: 2015

Property Owner and Mailing Address
	Jan 1 Owner: US NITROGEN LLC 471 POTTERTOWN RD MIDWAY, TN 37809

Property Location
	Address:  POTTERTOWN RD Map:  070 Grp: Ctrl Map:  070 Parcel:  083.01 PI: S/I: 000

Value Information
	Reappraisal Year: 2013 Land Mkt Value: $52,300 Improvement Value: $0 Total Market Appraisal: $52,300 Assessment %: 40 Assessment: $20,920

General Information
	Class:  09 - INDUSTRIAL City #:  000 City: SSD1:  000 SSD2:  000 District:  19 Mkt Area:  R01 # Bldgs:  0 # Mobile Homes:  0 Utilities - Water / Sewer:  00 - PUBLIC / NONE Utilities - Electricity: 01 - PUBLIC Utilities - Gas / Gas Type: 00 - NONE Zoning:

Subdivision Data
	Subdivision:   LINDA RENNER PROP Plat Bk:   H Plat Pg:   42 Block:    Lot:   1-4

Additional Description

Building Information

Extra Features

Sale Information
	Sale Date Price Book Page Vac/Imp Type Instrument Qualification 12/11/2014 $75,000 549A 2354 VACANT WD M 10/15/2013 $69,000 533A 1460 VACANT WD M 05/29/2008 $48,000 449A 463 VACANT WD A 08/10/2007 $0 433A 1754 09/01/2000 $25,000 194A 500 VACANT WD B 01/01/1982 $2,000 368 388 VACANT WD A

Land Information
	Deed Acres: 3.58 Calc Acres: 0.00 Total Land Units: 3.58  Land Type:   03 - SMALL TRACT  Soil Class:     Units:   3.58

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US Nitrogen Got Early Fast-Track Approval for Confidential Gas Deal

By Walter F. Roche Jr.

US Nitrogen and Atmos Energy got swift state approval in late 2011 for a confidential gas transportation contract that is key to the operation of a multimillion dollar Greene County manufacturing plant.
Records at the Tennessee Regulatory Authority show the agreement was approved on Dec. 19, 2011 less than five months after its submission on Aug. 2, 2011. The state board also allowed the companies to keep secret the actual payment rate for the 10 year deal which can be extended for up to 20 years more in five year increments.
The docket for the case shows not only the original application but subsequent responses to authority questions were either filed under seal or had key sections redacted. The 12-page agreement was signed by Shawn Rana for US Nitrogen and William Greer for Atmos.
"Details of the contract, including rate structure, are confidential business information," Amanda Jennings, a US Nitrogen spokeswoman wrote in an email Monday.
In a statement issued in early 2012, state regulatory authority chairman Kenneth C. Hill said the approval had been fast-tracked because the panel "recognized the significant economic impact this would have for the area."
Hill and other authority members also attended a January 2012 groundbreaking ceremony for the new plant
The state files on the project also detail the timeline leading to the agreement which show the groundwork for the project was being set long before any public notice, which came in February of 2011.
In fact talks between Atmos and US Nitrogen, the application states, began in October of 2010. At that time US Nitrogen was considering Tennessee along with unspecified sites in other states. US Nitrogen filed incorporation papers in Tennessee on Dec. 1, 2010.
The agreement between Atmos and US Nitrogen came on June 23, 2011.
Though an exact date was not provided, the filings also show that the first contact to Atmos was made by the Greene County Partnership "and other area industrial development interests."
In January of 2011, the filings state, US Nitrogen informed Atmos of the location choice on Pottertown Road in Greene County. That same month, records show US Nitrogen made its first land purchase, a 1.38 acre property in Greene County.
An Atmos Energy official said that the contract approved by the state was only for the transportation of natural gas, but declined to respond to other questions.
"The contract between Atmos Energy and US Nitrogen is a transportation-only contract," Mike Ellis of Atmos wrote in an email.
Jason Freeeark of US Nitrogen, however, indicated in response to questions that Atmos might also be supplying gas.
"When fully operational , US Nitrogen will be one of Greene County's largest natural gas consumers, purchasing approximately $18 million annually. US Nitrogen considered several other options and proposals before selecting Atmos Energy as its natural gas supplier," Freeark said in a written response to questions.
He noted that part of the contract calls for US Nitrogen to pay Atmos $600,000 for the construction of "necessary facilities" to supply the plant.
The natural gas will be used in the manufacture of ammonium nitrate, which will then be shipped to Austin Powder facilities in other states. US Nitrogen is a subsidiary of Ohio based Austin Powder.
According to the state application the state authority approval was necessary because the proposal called for US Nitrogen to pay for gas transit services below an established tariff.
The filing states that a counterproposal to the Atmos proposal was offered by Spectra Energy but provides no further details.
Though the filing indicated the contract would go into effect with the then anticipated plant start-up date of October of 2012, Freeark said that the effective date will be set when the plant actually opens. That has been projected for March of next year.
US Nitrogen has faced delays in obtaining some necessary approvals and now faces four lawsuits challenging state and local approvals for the project.
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Note to view TN Regulatory docket on petition: http://www.tn.gov/tra/dockets/1100122.htm

Chancellor Hears Arguments in Greene County Pipeline Case

By Walter F. Roche Jr.

A Davidson court official has taken under advisement motions to throw out a suit brought by landowners opposed to a 12-mile pipeline in Greene County being constructed by US Nitrogen.
Chancellor Russell Perkins Friday indicated he could rule on the matter within the next two weeks.
The case was brought by a group of landowners who are challenging the authority of the Tennessee Department of Transportation to grant a right-of-way permit issued for the US Nitrogen project.
Attorneys for the state argued that the suit was premature and the landowners had failed to exhaust administrative appeals. They also have questioned the right of the landowners to file the suit in the first place.
Elizabeth Murphy, representing the landowners, said that because of a new state law, the permit issued by the state was final 60 days after it was issued Aug. 1 and there was no mechanism for an administrative appeal.
The landowners suit charges that TDOT did not have the legal authority to grant a right-of-way to a company other than a public utility.
The suit, which seeks an immediate halt to the pipeline construction, is one of several ongoing legal challenges to the US Nitrogen project.
The company intends to use the pipeline to pump millions of gallons of water per week from the Nolichucky River to its $200 million ammonium nitrate manufacturing plant now nearing completion in Midway.
The company disclosed Friday that repairs had been completed along the river where the pipeline will be located. They have charged that a cofferdam had been damaged by vandals. US Nitrogen officials said that with the repair completed, work on the pipeline will resume.
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