New Motions Filed In Lawsuit Against Greene County And GC Partnership

The Tennessee Department of Environment and Conservation (TDEC) has extended the public comment period for water permit requests connected to the US Nitrogen plant under construction in Midway for 30 days, until May 30.

Written comments may be mailed to TDEC-DWR, William R. Snodgrass Tennessee Tower, 312 Rosa L. Parks Avenue, 11th Floor, Nashville, TN 37243.

Comments can also be emailed to Maybelle.Sparks@tn.gov.

US Nitrogen has applied for two National Pollutant Discharge Elimination System (NPDES) permits.

The first is for a modified Individual NPDES permit to the Lick Creek Valley Wastewater Treatment Plant in Mosheim.

The new individual NPDES proposed permit to US Nitrogen is to authorize treatment and discharge of process, non-process and cooling water from production of nitric acid, ammonia and ammonium nitrate solution.

The proposed discharge is to the Nolichucky River.

TDEC has determined that the activity will not cause degradation to the river that comes up to a minimal level, its officials have said.

TDEC regulator Vojin Janjic said at a public hearing in April that TDEC evaluates how much chemical content can be placed back into a given stream according to how the stream's use is designated.

Seven designations include everything from navigation (meaning boating), to irrigation for crops, to aquatic wildlife, which typically has the most stringent criteria for the amount of chemicals allowed, according to Janjic.

He said the proposed levels of ammonia, nitrates and nitrites that US Nitrogen proposed to discharge into the Nolichucky River are considered by TDEC to be de minimis, or minimal amounts.

Those chemical levels are less than 5 percent of what is allowed in the Nolichucky River, Janjic said.

US Nitrogen is a subsidiary of Ohio-based Austin Powder Company, a large international producer of explosives for mining, construction and building projects. The company has manufacturing plants in various sections of the country.

The US Nitrogen plant is designed to produce Liquid Ammonium Nitrate, a substance that, together with other ingredients, can be used to manufacture explosives.

Austin Powder officials have emphasized that, without other chemicals which will not be present at the US Nitrogen site at Midway, liquid ammonium nitrate will not explode.

OTHER PERMIT

US Nitrogen has also applied for an for an Aquatic Resource Alteration Permit (ARAP) and a water quality certification that would authorize the withdrawal of water from the Nolichucky River near Conway Bridge.

"No decision has been made whether to issue or deny the permit for which this application is presented," according to TDEC.

The proposal includes construction of an intake structure and pipeline from the Nolichucky River to the plant location about 8.5 miles to the northeast. This pipeline requires about 20 different crossings of streams along the way.

Associated with the intake and pipeline is an outfall structure and associated pipeline from the plant.

The majority of both the raw water pipes and the outfall pipes would be placed in the same trench, according to the US Nitrogen application.

US Nitrogen permit applications can be viewed on the TDEC website, http://www.tennessee.gov/environment/.

INVOLVEMENT URGED

Brian Paddock, a Jackson County lawyer who said he is legal chairman of the Tennessee chapter of the Sierra Club, urged citizens to request an extension of time to comment during an April 24 rally held at the Nolichucky Vineyard in Hamblen County, near the Greene County border.

Paddock, who spoke via Skype from his home, urged those present to voice concerns they have about the US Nitrogen operation related to the water permit applications in handwritten comments to TDEC.

Paddock said the appeals process that state law provides if TDEC approves the revised water permit could take an extended period of time.

"An appeals process can easily take a year or more," he said.

LAWSUIT MOTIONS FILED

Meanwhile, a law firm hired by the Greene County Partnership has filed motions in Greene County Chancery Court objecting to discovery information sought by plaintiffs in a US Nitrogen-related lawsuit in that court.

Both sides in the civil action have filed a flurry of motions and other documents in recent weeks.

The lawsuit claims that the Greene County Planning Commission acted "unlawfully and unconstitutionally" in February 2011 in recommending rezoning of property for the then-proposed US Nitrogen plant "without having been previously sworn."

It also alleges that any action taken by the Greene County Commission or Greene County "based on the prior void action" of the county planning commission was also void.

Plaintiffs in the lawsuit, represented by Knoxville lawyer Herbert Moncier, maintain that the Greene County Partnership (GCP) is a governmental entity and played a key role in the process of attracting US Nitrogen.

Plaintiffs claim they are entitled to review GCP documents, letters and other discovery relating to US Nitrogen.

LAW FIRM HIRED

The Greene County Partnership (GCP) has hired its own law firm, Baker, Donelson, Bearman, Caldwell and Berkowitz, with an office in Johnson City, to represent its interests in the case.

In earlier hearings, Greene County Attorney Roger Woolsey has argued that the Greene County Partnership is a quasi-governmental entity and is not subject to Open Meetings Act disclosures.

County officials said recently they haven't had enough time to review the discovery requests filed by Moncier, and filed motions requesting additional time to prepare responses.

On April 4, GCP filed an amended motion for summary judgment in the case, citing reasons why the organization is not subject to Tennessee's Open Meetings Act.

"Various pleadings and amended pleadings" have been filed by the plaintiffs in the case, much of which, the GCP believes, "is focused on whether the GCP is some sort of governmental entity that is subject to Tennessee's Open Meetings Act," the newest summary judgment brief said.

'NOT' GOVERNMENTAL ENTITY

The GCP "steadfastly insists that it is not a governmental entity and is not subject to the Open Meetings Act."

The brief said it is "undisputed that the meetings upon which (the plaintiffs') claim against the GCP is based involved only one Greene County commissioner at a time, the court can easily determine that the Open Meetings Act did not apply to the meetings in question and dismiss the GCP from the case."

A recent ruling by Chancellor Douglas T. Jenkins essentially opens the door for the Greene County Partnership to be included as a defendant in the legal action.

The lawsuit between landowners and other interested parties against Greene County, the Greene County Partnership and other entities is scheduled for a three-day trial in Chancery Court beginning Oct. 22.

RULING PENDING

Jenkins has allowed the case to move toward trial but has not yet ruled on the GCP question.

He recently said in court that a decision on whether the GCP is a governmental entity or a quasi-governmental entity would be made by a jury or himself.

GCP President Tom Ferguson said in an Oct. 17. 2013, affidavit filed in support of the GCP's motion to dismiss that he arranged to have meetings between representatives of US Nitrogen and 20 individual Greene County commissioners "that occurred at some point between Feb. 8, 2011, and Feb. 22, 2011."

"The only persons present at each meeting were Mr. Ferguson, two representatives from US Nitrogen and an individual commissioner."

The GCP maintains in the brief "that nothing in the text of the Open Meetings Act, the cases interpreting the act, or common sense could support an argument that the act applied to the meetings in question."

PUBLIC FUNDING

The Greene County Partnership receives most of its funding from a combination of membership payments and fund-raising events, but also receives substantial public funding from several sources, including a share of Greene County hotel/motel tax receipts.

The lawsuit, filed in April 2011, names the Greene County Planning Commission, the Greene County Commission, the Greene County government and the Greene County Partnership as defendants.

The civil action takes issue with the process used in the rezoning of property on Pottertown Road in Midway for use as the US Nitrogen site.

Moncier, whose office is in Knoxville, represents a group of citizens and property-owners collectively known as "Public Spirited Citizens of Greene County."

Plaintiffs include owners of property near the 500-acre US Nitrogen site, which is currently under construction and scheduled to open in late 2014.

Recommended for you