Lawsuit filed over orange gunk

While people shopped for rod-n-reels at a Wal-Mart, a group of environmentalists stood at the edge of the shopping center development looking at globs of orange gunk floating in water.

It was a designated conservation area.

The irony wasn’t lost on Barry Sulkin, a man who once headed compliance and enforcement for the Tennessee Department of Environment and Conservation. He says “incremental insults” to the headwater streams that feed into the state’s river systems pose a serious threat to fishing and outdoor tourism in Tennessee.

The organization he now works for, Public Employees for Environmental Responsibility (PEER), sued the developer of the Mt. Juliet shopping center this month — one of a series of federal lawsuits it has filed in Tennessee.

The state has ended up being the defendant in three of those cases.

“We have noticed in Tennessee there has been sort of a pattern where people are granted these permits and they never fully complete the mitigation,” said Laura Dumais, staff counsel for PEER. “They are an acre short here or two acres short there or their mitigation efforts really fail. Then nothing happens.”

An executive with The Gipson Company, the Atlanta-based developer of the Mt. Juliet shopping center, said the project is in compliance with state and federal environmental requirements.

“I have no idea what the basis of this lawsuit is that we’re going to have to defend,” said Colin Barker, a vice president at The Gipson Company.

The company obtained permits to fill 1.23 acres of wetland and nearly 1,600 feet of streams on the property in 2007, according to the suit, then received a violation notice from the state in 2011. A year later, the company filed a report stating all the violations had been remedied.

But in November, the group of environmentalists observed and took photographs of an orange substance forming slime or globs along a stream that feeds into Stoners Creek.

John McFadden, an aquatic biologist who is the chief executive officer of the Tennessee Environmental Council, said “The orange gunk was seeping out — or creeping out might be a better word for it — from underneath all that asphalt and pavement.”

The substance floated about 1,250 feet downstream, according to the suit.

“It’s some of the nastiest stuff I’ve seen in a creek in a long, long time,” said McFadden, who has worked in his field since 1989.

The substance appears to be an iron oxide or iron precipitate, which can significantly change the habitat of a stream, he said.

TDOT targeted

The Tennessee Department of Transportation has turned up three times as a defendant in lawsuits filed by PEER and partner environmental organizations.

The Tennessee Department of Environment and Conservation, the state agency where Sulkin once headed enforcement actions, is now the chief defender for TDOT. That’s because of a 2009 agreement between the two agencies after a study revealed that TDOT had failed to live up to its wetlands obligations over a number of years.

The state transportation agency gave the state environmental agency $5.7 million to go toward correcting wetlands problems associated with highway projects between 1990 and 2006.

“We don’t think that agreement would hold water in court,” Dumais said.

Joseph Sanders, the staff lawyer for the state environmental agency, said in a letter that it considers all TDOT-permitted projects prior to 2006 to be closed and in compliance. About $1 million remains in TDOT’s mitigation and repair fund.

“We request that PEER and (Tennessee Clean Water Network) direct their resources on more recent, ongoing environmental issues that we feel should be brought to our attention in order for us to use our limited resources to address these more relevant issues,” Sanders wrote in a letter to the lawyer for another environmental organization.

PEER filed the most recent suits against TDOT in June and December.

PEER and Tennessee Scenic Rivers Association accuse TDOT of not meeting the terms of an environmental permit in Hickman County. They contend the state agency fell 2.5 acres short of a 6-acre mitigation requirement. The state was supposed to create 4.6 acres of wetland and preserve another 1.5 acres under the terms of a 1994 permit.

The Tennessee Department of Environmental Conservation staff lawyer admitted that the mitigation did not meet the acreage but it was a “no-net-loss” situation because of a “high quality functioning wetland system.”

Striped bass fishing

The other suit concerns an area that drains into Cherokee Lake in East Tennessee, where the attorney for PEER says acidic water is running off into “one of the state’s prime striped bass fishing lakes.”

PEER points out in legal documents that the Tennessee Department of Transportation created only one acre of wetlands instead of a 3.27-acre requirement to offset the loss caused by a highway-widening project.

But Sanders wrote in a letter that creating a bigger wetlands area would disturb naturally occurring pyrite, a potential water pollutant. He also said water samples indicate the one-acre wetlands site is actually a buffer from more acidic areas surrounding it.

The state settled the third lawsuit PEER filed against TDOT — a case where wetlands had been filled on Tennessee Route 12 between Nashville and Ashland City. Sulkin said the settlement cost the state about $500,000 but Tennesseans benefited because the state agreed to restore 10 acres of wetlands at Bells Bend.

PEER also sued Kroger Company in 2013 because of a dispute over wetland being filled for a supermarket in Murfreesboro, but a settlement has been reached in that case.

McFadden said tiny streams matter.

“When we take one out, it is like cutting one of your fingers off,” he said. “Your hand is still there because you got a thumb and three fingers. But every time we destroy one of these streams, we destroy a little bit of the support system.”

Reach Tom Wilemon at 615-726-5961 and on Twitter @TomWilemon.