Monday, April 29, 2013

Davidson County Judge Sides With Residents in Camden, Tenn., Landfill Fight (Updated)

Posted By on Mon, Apr 29, 2013 at 10:03 AM

In an unexpected victory for the little guy, a Davidson County Chancery Court judge has sided with the long-suffering residents of Camden, Tenn., who have been fighting a landfill that is literally in their neighborhood.

The ruling handed down last week by Judge Carol McCoy states that Tennessee Department of Environment and Conservation commissioner Robert Martineau approved permit modifications at the site without sufficient evidence that the Jackson Law — a statute requiring public hearings, and approval by local government before the state can approve a permit — had been satisfied, or that landfill owner EWS had posted required notices. As a result, McCoy declares that modifications in 2008, changing the site's classification from Class IV to Class II, and in 2011, to expand the landfill's operation within its property, "null and void."

The case essentially hinges on two letters TDEC received in 2004, which the department argues were the basis for its belief that the Jackson Law had been followed, and that it could properly approve the 2008 and 2011 modifications.

One, from the then-mayor of Benton County, stated that the Benton County Commission had voted to authorize an expansion at the landfill site "under the Jackson Law." McCoy finds that "a reasonable person would concur that the Commissioner could rely upon the Benton County letter as sufficient documentation to allow him to act."

But the second letter, from the City of Camden, made no reference to the Jackson Law, and McCoy finds that it "fails to provide adequate support to reasonably conclude [the city's] satisfactory compliance with the law." Without sufficient evidence that the local government bodies had complied with the Jackson Law first, McCoy rules that Martineau did not have the authority to act on the site.

"An administrative decision that is not supported by substantial and material evidence is, by definition, arbitrary and capricious," McCoy writes in the conclusion of her ruling. "The record lacks substantial or material evidence to support the 2011 and 2008 approvals of the permit modifications for the landfill. Accordingly, the decision was arbitrary. In addition, the Commissioner exceeded his authority in approving the permit modifications. Accordingly, the decision of the Commissioner to approve the 2008 and 2011 modifications are declared null and void."

All the tedious details can be perused at your leisure by way of the PDF below, or the link above to our March cover story on the matter. The upshot is this: as it stands, when the order takes effect in less than 30 days, the landfill would be operating without a valid permit.

"We're obviously pleased with the ruling," Elizabeth Murphy, attorney for the Camden residents, tells Pith. "And we understand it's probably unprecedented, so everyone is going to need a little time to digest it and see how the commissioner responds to the order, and how the landfill responds."

Of course, there are still options in the legal playbook for those on the losing side — a request to stay the ruling, for instance. But anything of that nature would have to happen quickly. TDEC spokeswoman Meg Lockhart tells Pith the department is still considering the way forward.

"Staff will be reviewing the contents of the Chancery Court's order with the Attorney General's office in the coming week to determine how to best proceed," she writes in an email.

We have not been able to reach EWS as of yet, but will update here if and when we do.

Camden Final Order [PDF]

UPDATE: In an email, EWS sends this comment on the ruling:

"Environmental Waste Solutions has always been and continues to be committed to operating the Benton County landfill in a manner that meets or exceeds the state's rigorous regulatory requirements and in compliance with all federal, state and local regulations associated with the operation of a landfill. We are aware of the court's ruling and have reached out to TDEC for additional information regarding the impact of that ruling on the landfill in Camden. Facilities to manage Tennessee's solid waste stream are necessary to protect public health and the environment from existing and future contamination. That's why Environmental Waste Solutions is committed to continually striving to improve our waste management standards and uphold the highest level of environmental responsibility. I would refer you to TDEC for additional information about the court's ruling and other questions regarding its impact. Detailed information about the technologically advanced design and operation of our landfill is available on our website at http://ewssite.com/."

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