STATE OF
TENNESSEE
DEPARTMENT OF ENVIRONMENT AND CONSERVATION
IN THE MATTER
OF: DOCKET NUMBER 04.30-1412531J
STAN OLMSTEAD
CASE NUMBER WPC 16-0097
Petitioner,
v.
TENNESSEE
DEPARTMENT OF DIVISION OF WATER RESOURCES
ENVIRONMENT AND
CONSERVATION
Respondent,
Administrative Judge
Mattielyn B. Williams
and
US NITROGEN
LLC,
Intervenor,
PETITIONER’S SUPPLEMENT TO THE
OPPOSITION OF MOTION TO DISMISS
As the Petitioner in the matter of TDEC and NPDES Permit TN0081566 authorization, I respectfully ask that
the respondent’s and Intervenor’s request for a Motion to Dismiss, “once again”
be rejected, the following is a supplement to my original opposition to their
motion. As petitioner and Pro Se appellant I continue to argue my opposition for
the dismissal based on statutes and law.
The right to appeal before an administrative judge is clear in the statutes
of the state.
In the matter of the Hearing Set For September 26 -27, 2017, delayed
until October 26th, 2017 and due to the respondents Motion to
Dismiss and the Petitioner’s obligation to argue why the Motion to Dismiss
should be denied, I plead with the Administrative Judge to allow the hearing to
occur and the argument for dismissal is faulty based on the following.
Motion to Dismiss: The Respondents have submitted three
arguments for dismissal.
- Tenn. R. Civ. P. 12.02(6): the Petitioners failure to state a claim upon which relief can be granted.
- Collateral Attacks on Tennessee’s General Water Quality Criteria should be excluded from any contested case hearing.
- Under Section 303 (c) of the Federal Water Pollution Control Act there is another avenue of administrative procedures for argument: a). Designated uses of water-bodies. b). Establishing water quality criteria is based on the protection of these uses. c). Anti-degradation policy is in place.
1). The Federal Water Pollution Control Act also known as
the Clean Water Act (CWA); Section 101 clearly states the objective of the Act
is to restore and maintain the chemical, physical and biological integrity of
the Nations Waters. I am able show proof that the policies of the state has not
resulted in restoring and maintaining the chemical, physical and biological
integrity of state waters and that the degrading biological make up of aquatic
organisms are “Facts of Truth” to this appeal.
2). The Tennessee
Water Quality Control Act; T.C.A. 69-3-102 clearly states: “it recognizes that the waters of Tennessee are the property of the state
and are held in public trust for the use of the people of the state, it is
declared as public policy that the people of Tennessee, as beneficiaries of
this trust, have a right to unpolluted waters. In the exercise of its public
trust over the waters of the state, the government of Tennessee has an
obligation to take all prudent steps to secure, protect, and preserve this right”.
The State’s surface waters as administered by TDEC is not fulfilling this trust
and that based on the understanding of the biological community of surface
waters there is proof of failure.
3). Endangered Species Act of 1973: Sec. 2
(a) Findings, (1) various species of fish, wildlife, and plants in the United
States have been rendered extinct as a consequence of economic growth and
development un-tempered by adequate concern and conservation; (2) other species
of fish, wildlife, and plants have been so depleted in numbers that they are in
danger of or threatened with extinction. Numerous species within the direct
physical and chemical disturbance of this action (U.S. Nitrogen) warrant, not
only the protection of federally listed species but also the protection of
species not listed that will necessitate listing in the future.
The “cavalier behavior” and process of the authorization of
permit TN0081566, places in jeopardy species of life that are listed on the
Federal Register of Endangered species. The original request to use Lick Creek
for discharged water conflicted with Section 303(d) of the Federal Water
Pollution Control Act and necessitated a pipeline installed to discharge into
the Nolichucky River. The preferred location of discharge into the Nolichucky
River and the least expensive for development resulted in the finding of a
small number of individual fresh water mussels listed as endangered would be
physically disturbed. U.S. Nitrogen’s needed then to select an alternate
location which was up stream of these few federally listed individual organisms
now threatened with chemical contamination due to the authorization of U.S.
Nitrogen’s discharge.
I am able to argue that “cause and effect” due to chemistry
is as negative to these organisms as would be physical disturbance.
4). Rules of the Tennessee Department of Environment and
Conservation; 0400-40-03-.06 Anti-degradation Statement. I claim the issuance of the National Pollution Discharge Elimination
Permit TN0081566 based on de minimis, 7Q10 Rule and mixing zone prevents degradation
is not a reality and that the rules and regulations in and of themselves are in
conflict with the intent of the Clean Water Act as well the states obligation
to myself in protecting the surface waters to fulfill it’s Anti-degradation
obligation . Review of this TDEC Rule and directive to prevent the degradation
of waters, “Weaves In and Out of Degrading and Anti-degradation” language that
is challengeable scientifically and requires the state in the discharge of
pollutants into the Nolichucky River to have more “factual truth”. Dilution has
been used as an argument for most of human history and the author “Rachel Carson, Silent Spring - 1962”
demonstrated that parts per million and less can have devastating impacts to
species. It is the same today with this authorized permit allowing nitrates,
nitrites and metals to be discharged.
5). Tennessee Code Annotated 69-3-105 subsection (i): Duties and authority of the Water
Quality Board allows for an appeal and that the final authority of the rules is
solely the responsibility of the Board. However for the Board to hear this
argument and accept the serious nature of the argument, it must be acknowledged
by an Administrative Judge and if the court rules in favor of this appeal it would
be the best course of action for the Board to respond seriously to the argument
of the continued water degradation. You
are aware that procedures have changed from previous procedures in that appellants
previously argued first before the Board and then appealed to the courts and
now the petitioner argues to an Administrative Judge with an Initial Order
reviewable by the Board.
6). Title 69-3-110; Hearings: Any hearing brought before the
board pursuant to 69-3-105(i) … et.
al … shall be conducted as a contested case. The hearing shall be heard before
an administrative judge sitting
alone pursuant to 4-5-301(a)(2) and 4-5-314(b), unless settled by the parties.
It is clear that the issue before the court is unsettled and I request that I
be given the opportunity to argue the case in full, without being encumbered by
a lesser legal statute where as there are many other far compelling statutes that
prevail.
7). Collateral Attacks on Tennessee’s General Water Quality
Criteria: My arguments are far from being collateral. There are many in the
same opinion as myself and take offence of being subordinate, in an attempt to
acknowledge these others and which the respondents refers to a collateral,
subordinate, without direct objection; I contend my argument serves to support
the failure of the state in its obligation to accomplish Anti-degradation of
state waters.
- Clean Water Expected in East Tennessee
- Tennessee Clean Water Network
- Sierra Club Tennessee
- Park Overall concerned citizen withdrawn Pro Se
- Anne Harris concerned citizen withdrawn Pro Se
- Save the Nolichucky web site
- Hundreds if not more individuals that attended public meeting protesting U.S. Nitrogen
- Brian Paddock Attorney and dedicated environmental activist
- Gary Davis and Elizabeth Murphy attorneys for previous appellants during the first round of legal challenge
- Hundreds of citizen posting their property with “No Free Water, Save the Nolichucky
The before list of concerned groups and citizens are only a
sample of those concerned for the protection of the Nolichucky River and the
respondents continue to state via Tenn. Civ. R. of Procedures 12.02(6) there is
no claim as the process worked well and the standards are being met. “ Worked For
Whom”? & “Who’s Standards”? Language within Rule 12.02 states: “If a pleading sets forth a claim for relief
to which the adverse party is not required to serve a responsive pleading, the
adverse party may assert at the trial any defense in law or fact to the claim
for relief”. The respondent asserts there is no claim and the petitioner
asserts there is a claim. The rule states that a trial (hearing) is to resolve
the claim/counter claim.
I also state as in my original appeal that: T.C.A 69-3-105 (b): The board has and shall exercise the power, duty, and responsibility to
adopt, modify, repeal, and promulgate, after due notice, all necessary rules
and regulations that the board deems necessary for the proper administration of
this part, the prevention, control, and abatement of pollution, or the
modification of classification and the upgrading of the standards of quality in
accordance with subsection (a). I
ask that you let me argue this need so I may have greater influence when
presenting to the board.
8). Under Section 303 (c) of the Federal Water Pollution
Control Act the respondents state that there is another avenue of administrative
procedures to argue: a). That designated uses of water-bodies. b). That
established water quality criteria is based on the protection of these uses.
c). Anti-degradation policy is in place.
The idea that the correct course of action based on
executive and legislative installed procedures to be the best course of action,
I argue that solely because Tennessee assumes they have met Section 303 (c) of
the CWA; “water quality standards applicable to
interstate waters which was adopted by any state and submitted to, and approved
by, or is awaiting approval by, the Administrator pursuant to the CWA as in
effect immediately prior to the date of enactment shall remain in effect unless
the Administrator determined that such standard is not consistent with the
requirements of the Act as in effect immediately prior to the date of enactment
of the CWA”.
There are repeated cases of concern presented to the
legislative and executive branches of government only to be heard by the courts
to correct. This is the case here that the hearing now set for October 26, 2017
must be allowed to present a much more holistic argument associated with the
negative impacts that will occur by TDEC granting U.S. Nitrogen the
authorization to pollute the Nolichucky.
9). Section 303(d) of the CWA: The implementation of the CWA
provides “caveats” to the Anti-degradation of water quality and Section 303(d)
requires the state identify impaired waters. The use of the Nolichucky River for
discharge waters is only occurring because the original discharge outfall was
Lick Creek and Section 303(d) although “valuable if not vital” is a single
parameter pollution issue and the cumulative or synergistic impact of pollution
is not rendered important. Lick Creek as with the Nolichucky are both impaired,
the difference in the waterways is that Lick Creek is impaired for nitrogen
where as the Nolichucky is not. The authorized discharge of the polluted discharge
waters are located on river mile 20.8, the out flow of Lick Creek into the Nolichucky
is approximately river mile 12; only 8 miles separates these nitrogen “laced” fluids
from the two locations, resulting in the nitrogen pollutants to contaminate the
surface waters of the state and to down stream locations. Additionally I
contend that the “Best Available Technology economically achievable is with
fault, that “to whom are we expecting to measure economically achievable”? The
issue of pollution is not a statute issue designed for monetary gain as much as
it is for biological, human health and value issues.
CLOSING
The above is a clear and legal explanation that challenges
the respondent and intervenor for their Motion to Dismiss. I argue that all my
actions have been in good faith and the Motion to Dismiss is less so. I have
listed above a holistic and cumulative argument that clearly identifies a
problem and where the respondents are trying to use a single statute to discourage,
I am trying to make the argument that the procedures of TDEC are industry
biased and contrary to citizen-rights.
Please reject the Dismissal Motion and allow the hearing to
go forward as scheduled. Although I
assure you I will make the specific argument of an “offence of law” in the
issuance of this permit. There remains a greater need to analyze through this
authorization a greater failure of water quality management and the only
logical solution is to have an impartial decision maker in the Judicial Court
to rule on the subject of “legal water
degradation”. Only this process presently before the court has the
opportunity to provide the necessary justice; where as the influence contrary
to our state’s obligation to provide for social justice, economic justice and
environmental justice clash within our system of governance. Let the case be
heard.
Respectfully submitted,
____________________________________
Stan Olmstead – Natural Resource Advocate
P.O. Box 403
Jonesborough TN 37659
___________________________________________________________________________
Certificate of
Service
I certify that a true and correct copy of this document was
deposited in the U.S. mail, postage prepaid, September 22, 2017 addressed to:
Administrative Judge
Mattielyn B. Williams
Administrative Procedures Division
Office of Tennessee Secretary of State
William R. Snodgrass TN Tower, 8th floor
312 Rosa L. Parks Avenue
Nashville Tennessee 37243
Patrick Parker: Attorney
TDEC Office of General Counsel
Department of Environment and Conservation
William R. Snodgrass TN Tower, 2nd Floor
312 Rosa L. Parks Avenue
Nashville, Tennessee 37243
Michael K. Stagg: Attorney
Waller Lansden Dortch & Davis, LLP
511 Union Street, Suite 2700
Nashville, Tennessee 37219
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