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 OPPOSITION TO MOTION TO
DISMISS
In the matter of the Hearing
Set For September 26 -27, 2017 by the June 1st, 2017 order before Judge Mattielyn B. Williams I contend the argument
for dismissal is faulty based on the following:
1). Background: This is not a routine reissuance of a National
Pollutant Discharge Elimination Permit as asserted by Respondents. An earlier
permit had been Commented on, Appeal made and a Hearing set before Judge Rob
Wilson and only dismissed due to the state not informing Judge Wilson that a
second hearing was being considered on the same permit. Judge Wilson received the details of the new
permit from the petitioner. The previous permit and the present permit all were
prior to U.S. Nitrogen going into production. With the original permit
expiration it was necessary for U.S. Nitrogen to start over, which has required
a new period for public comment, this timely filed appeal and a scheduled Contested
Case hearing (September 26 & 27th, 2017). This appeal process by
the petitioner was initiated in May of 2014 and has been known by the
respondent (TDEC) and intervenor (US Nitrogen) for more than three years. Now
four weeks from the hearing they ask for dismissal.
2). Hearing Set for September 26-27, 2017 by order of
Administrative Judge Wattielyn B. Williams; June 1, 2017. Since this date
little has changed from my original Comment and Appeals letter with the
exception of my due diligence in timely responding to the joint demands for
discovery and my service of Petitioner’s Interrogatories and Request for
Production (mailed July 11, 2017; due July 17, 2017).
3). My First set of Interrogatories and Production requests July
17, 2017 and Second set July 24, 2017 by the petitioner in an effort to
determine facts and prepare for trial. More than thirty days there remains no
response by the respondent or the intervenor.
4). Tennessee Department of Environment and Conservation and US
Nitrogen filed a Joint Motion for leave to file Dispositive Motion, August 14,
2017; Leave was Granted August 17, 2017. The Motion request was two weeks past
the August 1, 2017 requirement without objection as a demonstration of good
faith by petitioner and yet at this late date, without good faith, nor;
procedural responsibility the respondent requests dismissal.
6). August 28, 2017 the respondent and intervenor ask for a
Motion to Dismiss.
TDEC and U.S. Nitrogen have missed repeated time obligations for
submittal. I argue that at the latest it should have been made when I asked for
their Interrogatories and Production. They are deliberately by calculation or by
lack of competence submitting their documents not in good faith. Their
dismissal argument is that I have not shown a claim upon which relief can be
granted based on Tennessee Rule of Civil Procedures 12.02(6) and secondly that
I have made collateral attacks on the Tennessee General Water Quality Criteria;
which should be excluded. They have
extracted excerpts from my appeal letter to show lack of understanding, however
they have had a long period of time to ask for a dismissal and now do so at
this “late hour”.
This dismissal request is based completely on their
interpretation of the law and would not allow me to argue Section 101 of the
National Pollution Control Act or the Tennessee Code Annotated 69-3-102 of the Tennessee
Water Quality Control Act. The respondent and intervenor are noted and
experienced attorneys and are familiar with procedural requirements and for
them to be repeatedly late on providing requested documents; where as I as a
Pro Se, have worked hard in an unfamiliar legal environment to be on time and
within protocol. Lastly; for the respondent and the intervenor to accept the
status quo of water pollution without allowing the petitioner to demonstrate a
failure by the state within a judicial setting knowing that the other two
branches of government have abdicated their responsibility it is necessary that
a judicial hearing be held and the best date for that hearing is before Judge
Mattielyn B. Williams on September 26 – 27, 2017.
A). The Federal Water Pollution Control Act also known as the
Clean Water Act (CWA). Section 101 of the CWA clearly states that the objective
of the Act is to restore and maintain the chemical, physical and biological
integrity of the Nations Waters.
B). The Tennessee Water Quality Control Act (TWQCA; T.C.A 69-3-102)
clearly states that 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.
C). I have repeatedly
stated that the issuance of the National Pollution Discharge Elimination Permit
TN0081566 based on the de minimis, 7Q10 and a mixing zone prevents degradation is not a reality and that the rules and regulations in and of
themselves are not achieving Anti-degradation and are in conflict with the intent of the Clean Water Act and the
states obligation to myself in protecting the surface waters.
D). Tennessee Code Annotated
69-3-105 subsection (i): Duties and
authority of the Water Quality Board allows for an appeal. I also state that
the final authority of the rules and if TDEC has applied them correctly or if
they should be understood differently is solely the responsibility of the
Board. A subsequent court decision may alter the ruling of the Board. The procedure
here has changed from previous procedures in that the appellant 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.
E). In an Aquatic Resource
Alteration Permit; Sierra Club v. TDEC,
Docket No. 04.30-140452A – TDEC Case No. WPC16-0084 of 2017, TDEC argued to
dismiss a Petition using the Pickard v. Tennessee Water Quality Control Board
(2013). In that decision TDEC cited
Pickard for the proposition that Tenn. Code Ann. Subsection 69-3-105(i) is the
exclusive statutory authorization for administrative appeals to the Board of
Water Quality Control, Oil and Gas. As petitioner I agree and “ask” the
Administrative Judge to make that happen. The Board is the sole entity to say
whether or not it foresaw and intended to create a “de minimus” definition that
prevents Anti-degradation and which may or may not be destructive to
Exceptional Waters of the State. It is most certainly not TDEC’s. I am arguing
that I can demonstrate a factual violation, I contend that my allegation via
science are not refutable and that this contested case should go forward and
allow me to present before court and additionally before the Board to challenge
the Board’s rules and challenge them for a reexamination of these rules.
This process is a “tortuous
and labyrinthine” procedure and this case demonstrates the wisdom of the
decision making by which any aggrieved person or group of persons would be able
to obtain an administrative remedy or if necessary future judicial review of a
decision by the Commission regarding our state and national waters that are
legally being allowed to be polluted. Parties dissatisfied with the Board’s decision
then can appeal and seek judicial review of the Board’s decision by filing a
petition for judicial review in accordance with Tenn. Code Ann. 4-5-322. Once
again I argue that the factual, legal, and policy issues involved in this
dispute are undoubtedly within the particular expertise and competence of the
Board’s consideration and disposition of the appeal, the courts will have the
benefit of a full record and an authoritative explanation of the Board’s
decision should either of the parties seek judicial review of the Board’s
determination.
F). In E. Ron Pickard et al. v.
Tennessee Water Quality Control Board et
al. in the court of appeals Chancery Court for Davidson County (2013) states
that Tenn. Comp. Code Ann. 69-3-105(i)
that the exclusive procedure and the responsible entity to hear a contested
case as in this case is exclusively the Tennessee Water Quality Control Board
and that any party desiring to seek judicial review of a decision to issue a
discharge permit must first exhaust their administrative remedies before
seeking judicial review. My efforts in this case has always been to work
through the procedures as best as a Pro Se can with limited procedural
knowledge.
G). In E. Ron Pickard et al. v.
Tennessee Water Quality Control Board et
al. filed in the court of
appeals Chancery Court for Davidson County (2104) it is stated that In
accordance with Tenn. Code Ann. 4-5-225(b) 2011 that petition can be filed in
the trial court only after a petition with the Tennessee Water Quality Control
Board for a declaratory order and the Board refused to issue a declaratory
order. Additionally, Tenn. Code Ann. 69-3-105(i) is the “exclusive means for obtaining administrative review of
the commissioner’s issuance of denial of a permit.
CLOSING
The above is a clear and I
contend 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 not in good faith based on procedure, law, rules
and science. Please reject the Dismissal Motion and to allow the hearing to go
forward as scheduled and allow me the necessary time without interference to
prepare for the hearing.
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 1, 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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