TN Clean Water Network prepares lawsuit over Holston River pollution

By Travis Loller, Associated Press
NASHVILLE, Tenn. — The Tennessee Clean Water Network says it is prepared to sue a Kingsport ammunition plant over its continued pollution of local drinking water.

BAE Systems Ordnance Systems Inc. operates the Holston Army Ammunition Plant for the U.S. Army. Wastewater from the plant is discharged into the Holston River, about 10 miles upstream of a drinking water intake for the First Utility District of Hawkins County.

According to a notice of intent to sue filed Monday, the state told BAE in 2007 that it had to reduce the amount of the explosive RDX that it was releasing into the river to no greater than 12.2 pounds per day, based on a monthly average.

That limit was designed to bring the level of RDX in local drinking water to 2 parts per billion or less. That’s the U.S. Environmental Protection Agency health advisory limit for RDX, which the EPA says is a possible human carcinogen.

Despite having five years to comply with the new limits, the plant was releasing more RDX in 2012 than in 2007. Furthermore, the plant continues to significantly violate daily limits, the notice says. In June 2013, for example, the plant released 843 percent more RDX than was permitted.

And the RDX is getting past the filters at the First Utility District of Hawkins County. According to TDEC, sampling of the finished drinking water there earlier this year found levels of RDX up to three times higher than the 2 parts per billion EPA advisory limit.

Messages left with BAE officials on Monday were not immediately returned.

Despite BAE’s ongoing and constant violations of its permit, the Tennessee Department of Environment and Conservation has not issued an enforcement order or any fines.

The situation caused one TDEC employee to refuse to continue working on the permit. In July, Environmental Protection Specialist Julie Harse sent a letter to the director of TDEC’s Division of Water Resources in which Harse cited “the lack of an enforcement order combined with the fact that I know that the membrane plant is not removing the RDX” as the reason for ending her involvement.

She also referenced her obligation as a professional engineer “to protect the safety, health and welfare of the public.”

While TDEC has not issued an enforcement order, the agency did sign a compliance agreement in August with BAE and the Army.

The agreement calls for “best efforts” to address the continued RDX violations and mentions possible penalties, saying that TDEC “may seek a court order” to impose them.

It is unclear why TDEC chose to negotiate a compliance agreement rather than issue an enforcement order, and a spokeswoman for the agency declined to answer that question on Monday. Instead, she referred to an emailed statement from the agency regarding the notice of intent to sue.

It states, in part, “we do think it is important to note that the Compliance Agreement TDEC entered into with the Army and BAE is a fully enforceable document that includes $654,000 in contingent penalties should the Army miss compliance deadlines. … Additionally, the compliance agreement calls for BAE to provide $100,000 in monetary assistance to First Utility District of Hawkins County for costs related to RDX monitoring.”

The Tennessee Clean Water Network attorney Stephanie Matheny, said she has never seen TDEC issue a compliance agreement before and criticized it as having no teeth.

“They just made it up,” she said.

Of the agreement’s “best efforts” language, the notice states, “the Permit already imposes a mandatory, non-negotiable requirement to actually comply with the RDX loading limit as of May 2012, not merely to try to comply.”

A spokesman for the U.S. Army said he could not comment until officials there had received a copy of the notice of intent to sue.