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A Tennessee community wonders whose side TDEC is on: theirs, or the local landfill’s

Something Stinks

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"The myth is that government aggressively enforces environmental protection rules," she says in an email to the Scene. "They don't. I watch people go through the same process every time. They think the state is going to ride to the rescue, and then they come to realize the state is part of the problem. Enforcement often makes business mad, whether they deserve it or not. It costs money. So you may not know your state representatives, but any landfill business does."

TDEC flatly denies that they rubber-stamp landfill permit applications, and the department's spokeswoman, Meg Lockhart, pointed to the time and money involved on the front end by landfill operators as a reason for the rarity of permit denials.

"There is a very formal regulatory process landfill permit applications and major permit modifications must follow, and the department has the responsibility to ensure that all requirements are met before issuing a permit," Lockhart tells the Scene, in an emailed response to questions. "Given the cost of landfill construction (approximately $150,000 to $200,000 per acre), most landfill permit applicants perform significant research on the property to be used for a landfill before submitting a landfill application. This is one reason that very few landfill permit applications are submitted without a high degree of certainty that the landfill site will meet the state's regulatory requirements for landfills."

When asked by the Scene for a record of solid waste permit denials, Lockhart said TDEC's Division of Solid Waste Management does not keep a record of denials. The agency did, however, provide two examples of applications that were denied.

One application, for a site in Sullivan County, was denied in 1995. After the applicant appealed to the Solid Waste Disposal Control Board, the board requested information as to how the applicant would monitor groundwater at the proposed site. The applicant never responded.

Another application, to expand the Cedar Ridge landfill in Marshall County, was initially denied in 2007, but that decision was later reversed and the permit modification was granted in 2011.

"You don't get these things unbuilt or unpermitted easily," says Barry Sulkin, an environmental consultant and 12-year TDEC employee whose tenure included a stint as chief of enforcement for water pollution. (He says he left the department in 1990 after "feeling pressure to not fully carry out my job.")

Many times, Sulkin says, by the time residents register their concern, the operation is already in full swing. Public notices in the back of the newspaper are easily missed. And as the residents of Camden have learned, once you smell the waste, it may well be too late.

A clue as to how such a major change could occur, apparently without the knowledge or full understanding of nearby residents, can be found on EWS' own website. On a section answering frequently asked questions about the Camden landfill, the company answers whether "the public was informed about [the] proposal to change the landfill from Class 4 to Class 2."

"Yes," the answer reads. "The change was classified as a major modification of the landfill's permit. As a result, a legal notice was placed in the Camden Chronicle requesting public comment about the plan. No comments were received. Under state regulations, when there are no public comments a public hearing is not held. No hearing was conducted in this case."

The overpowering odor of ammonia, it seems, served as a more effective public notice. By 2011, when EWS applied for a permit modification to allow for an expansion of the site, the residents were paying closer attention. Increased awareness, however, did them little good. As Melton describes it, they screamed for a public hearing; TDEC gave them a public hearing; they screamed at the public hearing — and TDEC approved the expansion anyway.

One problem, Sulkin says, is the overall lack of an advocacy base that focuses on landfills. Other environmental areas (e.g., water) get plenty of attention, largely because people use them for recreation. But few advocacy groups dedicate themselves solely to keeping watch on the solid waste industry. The same goes for the government agencies charged with regulating them.

"There is no shortage of rules," Murphy says. "Just a shortage of will to enforce them. [TDEC's Solid Waste Management department] has some wonderful staff who try every day to do the right thing, but they get overruled by embedded bureaucrats who have the power to make critical public health decisions and never be held accountable. It is hard to watch again and again. Science and public health protection are not the principles driving the decision-making. It is fair to say the public is at risk because TDEC has not been serving the core mission of public health for a while. It was not always like this, but it has veered off track."

The lack of citizen advocacy groups "makes it even more difficult for the public to get involved," Sulkin says. If they do get involved, they are often late in coming, poorly informed by no fault of their own — and outmatched when it comes to resources.

Moreover, a statute like the Jackson Law can end up as an additional shield for state regulators. A rationale for the law — along with the lack of local zoning regulations in many Tennessee counties in the early 1990s — was that back then the state did not consider a landfill's proximity to things like neighborhoods and schools.         

Today, TDEC considers a few more factors, including facility design. When asked specifically about the role that proximity to homes or schools plays in the department's decision process, Lockhart told the Scene that "the landfill applicant is required to demonstrate that the landfill meets the 'buffer' distances required in the Solid Waste Management Act." The EWS site does (barely) meet these requirements — 100 feet from all property lines, and 500 feet from all residences.

Nevertheless, in his affidavit, Melton says that Mike Apple, then director of TDEC's Division of Solid Waste Management, met with him personally in the spring of 2011, before TDEC approved an expansion at the EWS site. According to Melton, Apple "admitted [the Camden landfill] was a bad location."

Reached by the Scene, Apple confirms as much.

"I don't think anyone quite realized the proximity to the city limits, and how close it was going to be, when they were reviewing it in the field office," says Apple, who was fired in early 2012 amid a shakeup at the department.

If TDEC officials don't know how close the sites they approve are to residential areas, is it because they don't need (or want) to know? Apple further concedes the unfortunate placement of the site.

"Nobody wants a landfill in their backyard," he says. "It's heavy industry, and it impacts the community it's in. And I think generally, anyone who had a landfill would like to have it more isolated than this one is."

If the Jackson Law didn't deliver the protection Camden residents hoped, maybe other legislation will. State Rep. Tim Wirgau, whose district includes Camden, is actively trying to slow the landfill permitting process. He's filed a bill (HB952) that would amend the Jackson Law by adding a requirement for public notice and a public hearing prior to an increase in a landfill's classification, or an expansion of the type of waste the landfill is authorized to accept.

Last year, Wirgau sponsored a bill that would have effectively shut down the EWS site. The bill made only one proper appearance in a subcommittee — which was not attended by EWS representatives — and was eventually deferred without ever getting a vote.

His new bill is yet to appear for the first time at the legislature. Wirgau says he's optimistic, but that his guard is up after support he thought he had in his camp last year vanished. And he's already heard from the opposition.

"We have heard from some of the larger landfill people with concerns, like, 'Oh, we've already got enough problems so I don't think we're going to be on your side on this one,' " Wirgau tells the Scene. "My take is on it, look — if you're a landfill operator and you are doing a good job, and you are working within your communities and all the boundaries, I don't think any of the locals are going to have a problem with the operation that you're running right now. But if you're a bad actor, and not doing things properly, then you're going to have a tough time getting an expansion or a new permit, especially from the locals."

One former legislator would no doubt sympathize with Wirgau's uphill battle. In 1989, Doug Jackson learned about the dirty politics of trash. Then a Tennessee state representative, he proposed the legislation nicknamed for him in response to a large landfill that had been proposed in his Dickson County district.

Suddenly, Jackson remembers, he was a popular man on Capitol Hill — or at least his office was crowded.

"It had lobbyists lined up 20 deep, and all the landfill companies obviously mobilized in opposition," says Jackson, who left office after his defeat in 2010 and now serves as executive director of The Renaissance Center in Dickson. "And then the Tennessee Municipal League opposed it. The County Governments Association opposed it. It just seemed to have no friends."

It was the toughest piece of legislation he ever sponsored, he says. He adds that it was notable for another reason: the first and only time in office he was ever offered a bribe.

The day after the bill passed out of the House environment committee, Jackson recalls, a man from South Carolina showed up at his law office without an appointment. He said he was involved with several landfills, Jackson says, including what was then the largest hazardous waste landfill in the country along with the landfill proposed for Jackson's district. And he had a proposition.

"He said, 'I've made all the money that I could ever hope to spend in my life, this landfill up here is going to be another good one, and I know you're under pressure. And we're used to addressing that, the pressures of local officials,' " Jackson remembers. "He said, 'I think we can make this worth your while.' "

At that point, Jackson stepped outside and asked his secretary to come into the office and have a seat.

"Now do you want to go ahead and continue this conversation, or do you want to change the subject?" Jackson recalls telling the man.

The man just laughed, Jackson says, and got up to leave saying that he could see they weren't going to get anywhere. Several years later, after the bill had passed into law, the two crossed paths again. Jackson says the man flagged him down, reminded Jackson who he was, and told him he'd done a "very stupid thing."

"You would've made enough money out of that, you would've never had to work another day in your life," Jackson recalls him saying.

His interactions with other opponents did not involve criminal innuendo, but were no less tense. Jackson remembers one lobbyist telling him his clients "[wouldn't] be able to put a landfill in Tennessee" if the law was enacted. Another said he could "have that bill overturned with my eyes blindfolded and my hands tied behind my back in the appellate courts."

In fact, the bill was eventually upheld by the state Supreme Court. But it has not put an end to landfills in Tennessee, as the citizens of Camden have learned.

The ability to leave their houses without burning eyes and difficulty breathing has not brought peace to Michael Melton or his neighbors. The approved expansion of the landfill will bring the waste closer to their homes. They see it as a further encroachment, and an exacerbation of a previous mistake. EWS is only opening up a new waste cell on its property, but residents know the landfill's reach extends beyond its borders.

Standing in his driveway, Melton invites a reporter to run a finger along the hood of his car. Caked on the surface, like salt on the windshield of vehicles in any seaside town, is a granular substance that rubs off on the skin like coarse dust. Melton had a sample tested once. He says it contained particles of aluminum dross, one of the waste substances collected at the landfill.

Travis Busby, a Camden resident who lives less than a mile from the landfill and owns 6.7 acres adjoining it, learned of some potential hazards through a somewhat less scientific source: a bank. In a sworn affidavit, Busby says he and his wife received an unsolicited offer in 2010 of $250,000 from a prospective buyer interested in purchasing the 6.7 acre parcel. He signed a contract with Lynn Greer Construction Co. of Rogersville, Ala., which wanted to put a 48-unit housing development on the property. The contract was contingent on two things: financing for the buyer, and government approval to subsidize the project.

The contractor obtained government approval, Busby says in his affidavit. But the bank approving the financing balked at the deal. In a letter included with Busby's affidavit, Bank Independent — a nearby Alabama bank — states that they would "not be able to provide construction and permanent financing" for the proposed development "due to recognized unacceptable environmental conditions with the real estate involved."

GMS Testing Inc., which performed the due diligence for the deal, explained that conditions in Camden posed "an imminent environmental risk to the proposed residential development."

"Aluminum dross is a caustic and corrosive material," writes John Gregory, senior environmental consultant for GMS Testing, in a letter included with the affidavit. "When airborne it can have an ammonia-like smell and can degrade metals. The proposed residential development could potentially experience accelerated degradation of wiring, metal fasteners, joist hangers, wind bracing, etc. When in contact with groundwater or surface water infiltration the aluminum dross could potentially degrade the foundations and underground utilities.

"Health risks may also be associated with this aluminum reclamation by-product material and should be carefully considered before construction of the planned residential apartment complex."

Another affidavit in the case, from Charles Webster, a chemistry professor at the University of Memphis, underscores Melton's concern about what gases other than ammonia might be wafting undetected near his home. Webster notes that the only gas being sampled beyond the site in the neighborhood is ammonia, despite the fact that other odorless gases such as hydrogen, methane and acetylene could be produced by reactions between the waste and water.

EWS president White calls this "somewhat of a misnomer." "We are a Class II landfill," he says, "and so Class II landfills do not produce methane gas." Other gases, he says, are "being monitored in real time" and are "fully compliant within the standards of TDEC's parameters."

And yet in a response TDEC gave in public comments before approving the site expansion — which stated that a "detailed characterization of on-site gases was done" — the agency said that "[m]ethane and hydrogen are present, and are being controlled by the gas collection system but only ammonia is being monitored."

Perhaps even more disconcerting is Webster's assessment of whether the material being collected at the EWS site should be classified as hazardous waste. A material must meet only one of the criteria in the EPA's Code of Federal Regulations in order to be considered hazardous waste, he says. The waste in Camden meets three.

A final hearing in the residents' case against TDEC and EWS took place in January, and a ruling is still pending. Meanwhile, walking along his property during the Scene's visit last month, Melton points out the surrounding wetlands. He notes that Charlie Creek runs just behind the EWS property and empties into the Tennessee River.

Through some trees just off the road, you can see down into the landfill. A truck full of waste leaves a warehouse and heads down a dirt path. It climbs up the mound until it backs up to the new cell and tips the load. A cloud of dust rises, and slowly dissipates.

"See what we're living in?" Melton says. "And no one cares."

Email editor@nashvillescene.com.

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