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Starlink Logistics, Inc. v. ACC, LLC

Court of Appeals of Tennessee, Nashville

January 31, 2018

STARLINK LOGISTICS, INC.
v.
ACC, LLC, ET AL.

          Session April 12, 2017

         Appeal from the Chancery Court for Davidson County No. 121435II Carol L. McCoy, Chancellor

         In this case, several entities were attempting to address the pollution issues of Sugar Creek and Arrow Lake. An Amended and Restated Consent Order was approved. StarLink Logistics, Inc., a property owner, appealed. Initially, this court reversed. After an appeal, the Supreme Court of Tennessee remanded for this court to review under the proper standard of review. We now affirm the trial court's decision to approve the Consent Order.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed; Case Remanded

          William L. Campbell, Jr., Nashville, Tennessee; Sheryl G. Snyder, Louisville, Kentucky; and Wm. T. Robinson, III, Christopher S. Habel, and Stephen N. Haughey, Cincinnati, Ohio, for the appellant, StarLink Logistics, Inc.

          Sharon O. Jacobs and C. David Briley, Nashville, Tennessee, and Thomas W. Hardin and Kori A. Bledsoe, Columbia, Tennessee, for the appellee, ACC, LLC.

          Herbert H. Slatery, II, Attorney General and Reporter; Andree S. Blumstein, Solicitor General; and Elizabeth P. McCarter, Senior Counsel, for the appellee, Tennessee Solid Waste Disposal Control Board.

          Donald Capparella and Elizabeth Sitgreaves, Nashville, Tennessee, for the Amici Curiae, Claude T. Brawner, Eldon R. Cummins, Sara J. Cummins, W. Dwight Green, James Earl Jones, Leslie Liles, Gail P. McCain, Morris Ray McCain, and Larry Patton.

          John W. McClarty, J., delivered the opinion of the court, in which Frank G. Clement, P.J., M.S., and W. Neal McBrayer, J., joined.

          OPINION

          JOHN W. MCCLARTY, JUDGE

         I. BACKGROUND

         While the development of this case is complicated and intricate, the underlying facts are not in dispute between the parties. Even though most of the history of this suit involves ACC, LLC ("ACC") and the Tennessee Department of Environment and Conservation ("TDEC"), StarLink Logistics, Inc. ("StarLink") has no issues with or opinions of the history preceding its involvement.

         In 1981, the State of Tennessee through TDEC issued ACC a permit to construct and operate a landfill in Maury County. The landfill was built on approximately 14 acres of a larger parcel owned by ACC. During the landfill's 13 years of active operation, ACC disposed of aluminum recycling waste from a nearby aluminum smelting plant. This waste included mostly bag-house dusts and "salt cake" slag, which contains high concentrations of sodium chloride and potassium chloride salts. ACC closed the landfill in 1993 and submitted a certification of completion of closure to TDEC in 1995, which was approved with an acceptance of closure by TDEC in 1996.

         Within a few years of beginning operation, ACC and TDEC learned that the landfill was leaching high levels of chloride and ammonia from the slag into the groundwater and surface water that drained into Sugar Creek and Arrow Lake, which is on 1, 500 acres owned by StarLink. This leachate resulted in the pollution of those two bodies of water. Both ACC and TDEC worked to find a solution to the leaching, including various investigative and corrective efforts, but they were unsuccessful. As a result of this pollution, ACC was found to have violated Tennessee Code Annotated sections 69-3-108(a) and (b), 69-3-114(a) and (b), and 68-211-104(1), (3), and (4).[1]

         It was not until 2003 that TDEC requested that ACC provide a Corrective Action Plan ("the Plan") detailing the feasibility of various options for mitigating the release of contaminated leachate based on the information available. These options included waste removal from the landfill, leachate collection and treatment, and natural or enhanced site attenuation. However, the Plan ultimately concluded that there was no remedy that could satisfy the criteria in Tennessee Compilation of Rules and Regulations Chapter 1200-1-7-.04(7)(a)8(ii)[2] within the next two to three years. In 2004, TDEC did then approve ACC's plan to build a "Wetlands Treatment Alternative" that would retain and buffer leachate and improve the water quality and habitat of the affected waters. However, this system failed to stop the pollution into Arrow Lake and Sugar Creek.

         After the wetlands failure, in 2008, TDEC requested that ACC submit a modified plan to address the increase in contaminants in the groundwater. Later that year, ACC submitted a modified plan ("the Modified Plan") that TDEC approved in 2010. This Modified Plan included a report that detailed ACC's efforts since April 2010. It also included a request that TDEC clarify the corrective action goals, summarize the current site conditions, and other general actions. The Modified Plan led to a series of meetings and inspections in determining the best next steps for ACC to take in stopping the pollution from its landfill.

         In June 2011, ACC and TDEC entered into an Initial Consent Order that acknowledged that ACC was in violation of the Tennessee Water Quality Control Act[3]("WQCA") and the Tennessee Solid Waste Disposal Act[4] ("SWDA") and set forth ACC's obligations in moving forward to address the continued contamination. As specified in the order, ACC agreed to submit a new plan to reduce the contamination stemming from its landfill. This order gave the TDEC Commissioner permission to modify future plans and extend compliance deadlines for a show of "good cause." The civil penalty of $228, 300 would only become due if ACC failed to file and implement the plans called for by the order. The order could also be waived in its entirety by the TDEC Commissioner for demonstrated good cause by ACC. This order was filed for entry as a judgment by consent in the Davidson County Chancery Court.[5] At this point, StarLink intervened and objected to the initial consent order.

         After failing to resolve the issues themselves among the three parties, the Chancery Court remanded the order back to the Tennessee Solid Waste Disposal Control Board ("the Board") for further proceedings. StarLink was given specific notice that ACC and TDEC would be asking for adoption of an Amended and Restated Consent Order ("the Amended Order") that had different orders and assessments from the Commissioner. In relevant part, ACC was ordered as follows:

A. [ACC] shall take the following actions to prevent the unauthorized discharge of leachate contamination in water flowing from the [landfill] Site into the Arrow Lake impoundment of Sugar Creek:
1. Within 120 days of the effective date of this Amended and Restated Consent Order, or as is otherwise agreed to by the parties, [ACC] shall construct a berm upgradient of the site to divert uncontaminated storm water away from the Landfill prior to the commencement of any corrective action activities on the Landfill.
2. As a part of the Corrective Action Plan [("CAP")]…[ACC] shall submit to the Commissioner for his review and comment or approval a modified Discharge Reduction Plan (hereinafter "DRP") that incorporates TDEC's comments and revisions to [ACC's] draft DRP that was submitted to TDEC in September 2011. The modified DRP shall significantly reduce, particularly during periods of low area surface water flow, the loading of contaminants that are currently discharging from the Site via surface waters. The modified DRP shall include a schedule for implementation.
3. The DRP shall contain a plan to divert surface water away from the landfill area and the current wetland system. The DRP shall eliminate, to the extent practicable, the potential for surface water to migrate from the surface into the landfill and eliminate the potential for surface water to enter the excavated area of the landfill once corrective action begins.
… B. [ACC] shall remove from the current landfill all solid waste, to the extent practicable, that has the potential for future contact with ground or surface water. All waste removed will be located to a new landfill cell constructed on the Site or to a permitted off-site landfill.
1. Prior to the Commissioner's approval of the Corrective Action Plan… but after commencement of waste removal activities, [ACC] shall capture ground water entering the excavated area, analyze the ground water to determine its chemical characteristics, and then either (a) redirect the collected water back into the landfill or (b) discharge the collected ground water directly into Arrow Lake if the water is consistent with background concentrations as approved by TDEC [or] Tennessee water quality criteria[.]
2. After the Corrective Action Plan…has been approved by the Commissioner, a list of constituents, their concentrations, and frequency of analysis shall follow the sampling plan contained in the approved Water Monitoring Plan as contained in the approved CAP[.]
3. As waste is removed from the Site, [ACC] shall capture ground water that is upgradient of the remaining waste and handle such ground water as described in the approved DRP, or as is otherwise required by the CAP. Treatment, transport or disposal of water is not required pursuant to this Order until the TDEC approved CAP has been completed.
C. Within one hundred and fifty (150) days of the effective date of this Amended and Restated Consent Order, [ACC] in general accordance with the ground water corrective action provisions of Rule 1200-01-07-.04(7), shall submit to the Department a Corrective Action Plan… which provides for the methods and schedule for removal of solid wastes that have been disposed of in the ACC Landfill which have the potential for future contact with surface or groundwater.

         The Amended Order, which is the point of contention in this case, requires ACC to detail an estimate of the amount of waste to be removed daily and proposed methods of removal, a schedule for the removal and relocation of all impacted waste, the design of any landfill cell to be built on site, the development and implementation of a water monitoring and sampling plan for the leachate discharging from the landfill and for any ground water pumped from the worksite. As with the original order, the plan can be modified upon written approval of the Commissioner and ACC, and the Commissioner may extend the compliance dates if ACC provides a written request. The Amended Order ...


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