NASHVILLE, TN – MAY 15, 2012 - In a hostile action seeking to prevent a citizen suit by the Tennessee Clean Water Network (“TCWN”) under the federal Clean Water Act, the State of Tennessee filed a complaint in Davidson County Chancery Court against the Teknor Apex Tennessee Company just hours before TCWN could file its own lawsuit in federal court. Teknor Apex was previously represented by Tennessee Department of Environment and Conservation (“TDEC”) Commissioner Robert Martineau when he was in private practice. “Commissioner Martineau has a clear conflict of interest in this case, and we can only hope the filing of this lawsuit is not just a brazen attempt to insulate a former client from effective enforcement,” TCWN Executive Director Renée Victoria Hoyos said.
“The State of Tennessee’s complaint comes after many years of inaction and complicity by TDEC in allowing Teknor Apex to rack up literally hundreds of days of violation of the Clean Water Act with the equivalent of a traffic ticket and a few written warnings,” Hoyos said. “Yet, TDEC’s own court filing shows Teknor Apex routinely exceeds permit limits on Bis(2-ethylhexyl) phthalate (“DEHP”), a toxic pollutant that is a potential endocrine disruptor, along with other pollutants,” she said.
According to TCWN records, TDEC issued an agreed order negotiated with the company in 2005 imposing a meager $3,250 in penalties. That order required no mitigation for environmental harm, and simply restated that the company had to comply with the law without requiring it to take any specific action to bring itself into compliance. Teknor Apex has continued to violate its permit nearly every month, and TDEC has issued two notices of violation (“NOVs”) listing multiple pages of these violations, but has issued no further penalty and has done nothing to stop the company from polluting Tennessee waters. One of these NOVs was issued on March 29, 2011, and was signed by TDEC’s Division of Water Pollution Control’s Manager of Compliance and Enforcement. Teknor Apex also reported a significant spill to TDEC in November 2010, which resulted in no penalty or requirement for corrective action by TDEC. The 2011 NOV did not mention the spill, which had occurred only four months earlier.
While at TDEC on April 17, 2012, TCWN Staff Attorney Stephanie Matheny informed TDEC’s pretreatment program coordinator of a number of violations Teknor Apex had reported regarding its indirect discharges to the Brownsville Energy Company. TCWN did not include these violations in its notice letter, and instead asked TDEC to take action. Tennessee did not include these violations in its complaint.
Tennessee also chose to file its case in state court, a maneuver that reduces the company’s potential liability from $37,500 per day per violation to $10,000. TDEC operated in secret, failing to notify TCWN prior to taking this action even though it was clearly TCWN’s notice letter that spurred the State’s action. TDEC also chose to bypass the opportunity for public notice afforded by an administrative penalty action before its Water Quality Control Board. To TCWN’s knowledge, the State has not previously filed such a complaint directly in state court.
TCWN has issued numerous 60-day notices in the past five years, but this is the first time TDEC has tried to preclude a TCWN lawsuit by filing a state court case. “This is a very unusual action for the State to take,” Matheny said, “TCWN has not seen it before.”
“We hope this is not just a sweetheart deal for a former client of Commissioner Martineau,” Hoyos said. “Prior to TCWN’s notice letter, TDEC allowed Teknor Apex to routinely violate the Clean Water Act for years with little more than a slap on the hand. Even now, TDEC has not sought to fully enforce the Act.”
The Clean Water Act allows citizens to file suit in federal court and obtain injunctive relief, civil penalties to be paid to the federal government of up to $37,500 per day per violation, and costs and fees of litigation. However, citizens first have to file a notice letter with the violator, the State, and the U.S. Environmental Protection Agency and then wait 60 days before filing suit, giving the agencies a final chance to diligently enforce the law. “We sent our notice letter because TDEC did not do its job,” Matheny said, “even though it was well aware of a pattern of serious violations. The State should not continue its secret backroom negotiations to give this chronic violator a favorable settlement.”
Current TDEC Commissioner Robert Martineau was a partner with Waller, Lansden, Dortch & Davis, LLP, prior to being appointed to his current position by TN Governor Bill Haslam. Waller Lansden has long represented Teknor Apex (previously called the Haywood Company). On January 5, 2009 – just two years before being sworn in as TDEC Commissioner - Martineau filed an appeal of a TDEC compliance order related to air violations on behalf of his then-client, Teknor Apex. Martineau’s appeal claimed the penalties TDEC had imposed in that air compliance order were “excessive.”
Teknor Apex discharges DEHP to a tributary to Little Nixon Creek, which flows through an environmental justice community. “This community has been negatively affected for years by the polluted discharges coming from Teknor Apex, and TDEC has allowed that to happen. TDEC’s history of enforcement is so weak that this suit in state court does not give us much reason to hope that the problem will finally be solved.” Says Hoyos.
To read TCWN’s report on TDEC’s enforcement program, click here.
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Renée Victoria Hoyos 865.522.7007 x 100 or 865.607.6618 (cell)
