The
conflict in this case arose when the Tennessee Water Quality Control Board
and the Department of Environment and Conservation issued a permit to
Spencer to discharge sewage effluent into Dry Fork Creek, a small intermittent
stream that sinks into an underground river leading into Rumbling Falls
Cave, a huge cavern under Fall Creek Falls State Park. The environmental
community has vigorously objected to polluting this high quality stream
and the delicate cave ecosystem where it flows. Complicated legal arguments
have been made before the Water Quality Control Board on three separate
occasions between May 2000 and December 2001. During those arguments all
have agreed that Spencer needs to have a sewage treatment plant system.
At
issue between the parties is the question of a discharge method that will
be protective of this world-class cave ecosystem. The state contends that
the permit parameters for Dry Fork Creek discharge will protect the underground
water quality but the world’s leading experts on cave biology adamantly
insist that any pollution into this special cave environment will severely
damage cave life and potentially wipe out entire species living there. Cave
biology experts have clearly painted a bleak picture of creeping bacterial
sludge that will coat the walls of the cave stream within weeks of nutrient
pollution from sewage discharge.
The
8-acre, 300 feet tall cavern called Rumbling Falls Cave was only recently
discovered in 1996. It is already recognized to be the nation’s second largest
underground dome yet discovered. A rapid biological assessment has been
carried out by Dr. Jerry Lewis, a noted expert in cave biology. His findings
clearly show this cave system to be a globally significant biodiversity
hotspot, worthy of maximum protection.
He identified 24 separate cave species, all considered exceedingly
rare and fragile, requiring absolutely pristine cave water conditions.
The
threat to this cave ecosystem is receiving national and international attention.
Several national media outlets, including Good Morning America and CNN have
a specific interest in an in-depth expose on this story. Several national
environmental organizations, such as the World Wildlife Fund and the Sierra
Club, are keenly interested in the outcome of this controversy.
This is a global heritage issue and must be addressed with that level
of regard and respect.
Fortunately,
there is a solution to this conflict. A suitable discharge method by land
application of treated effluent is the answer to the problem. The Environmental
Protection Agency (EPA) conducted a thorough assessment of land application
as a solution in this particular case. They reviewed the location, identified
suitable sites, and issued a report showing that land application of treated
effluent on local forested areas would be the best possible discharge solution
and the most protective of the environment. The only measurable effect of
land application would be that the trees of the area would grow a bit faster.
The town of Spencer has indicated that they are willing to do land application
if they have adequate funding to do so. The land application method is already
being used successfully in Sewanee, Tennessee and other sites in similar
ecoregion zones.
The
roadblock causing all the problems is the additional estimated $2 million
needed to implement land application methods instead of direct stream discharge.
Spencer has received loans
and grants of $6.5 million to construct the sewage plant facility. The plant
is now complete and will soon be ready to begin operation. It is imperative
that funding for the land application method be secured in the very near
future.
Governor
Sundquist has come forward recently to voice his concern over the damaging
impacts to the cave and to Fall Creek Falls State Park. He has asked the
Tennessee General Assembly to provide a grant to Spencer to allow them to
do the right thing and protect Dry Fork Creek. We applaud this new initiative
on his part and will work hard to help persuade our state legislators to
follow his recommendation.
However,
in the current state budget climate, the real likelihood of getting a state
grant of $1.5 to 2.0 million is poor. That is why it is imperative that
we secure a federal EPA infrastructure grant for Spencer, with no cost share,
in the FY 2003 appropriations cycle. A successful federal grant could bring
about a happy resolution to this thorny issue that has plagued our state
for many months and will continue to do so until solved in a manner that
protects the waters of the cave and the park.
The
nation is watching how Tennessee deals with this issue. The environmental
community is determined to find a solution to this problem by securing the
necessary funds for Spencer to use land application methods that will protect
the cave system as a global biodiversity heritage treasure
The Basics:
Spencer is a small town of about 600 households in the Cumberland Plateau region
of Southeastern Tennessee. It is the last county seat in Tennessee that
does not have a sewage treatment plant and the town claims to have a high
rate of septic tank failures causing raw sewage health threats to the
public.
Dry
Fork Creek
is a small intermittent stream running past the town of Spencer that has
been graded a Tier II, or very high quality, water that runs into swallets
and dives into underground streams leading to an extensive cave system
under Fall Creek Falls State Park.
Rumbling
Falls Cave
is a recently discovered huge dome cavern inside an extensive cave system
fed by Dry Fork Creek and other underground waters of the area. This world
class cave room is 8 acres in size and 320 ft tall. It is the second largest
cave in the nation and is home to at least 24 globally significant rare
cave species, including blind cave fish, blind cave crayfish and numerous
beetles and invertebrates. The underground river runs for over 6 miles
and in some places is large enough for boat races.
The Environmental
Coalition includes the Nashville Grotto, the Tennessee Environmental
Council, the Tennessee Scenic Rivers Association, and Save Our Cumberland
Mountains. Additional supporters include the Tennessee Chapter of the
Sierra Club, the National Speological Society and the World Wildlife Fund.
In May 2000,
the TN Department of Environment and Conservation (TDEC) brought before
the TN Water Quality Control Board (Water Board) a proposal to grant a
permit to the town of Spencer, Tennessee to build a new sewage treatment
plant and discharge treated sewage into Dry Fork Creek.
Because Dry
Fork Creek had been rated by TDEC as a Tier II, high quality, stream,
it was required that the permit be approved by the Water Board directly,
and not by TDEC, as is the usual case with Tier I waters. This was the
first time the Board has been asked to consider a permit to degrade a
Tier II stream in Tennessee.
The federal
Clean Water Act requires that degradation of Tier II streams can only
be done if special consideration is given and a determination must be
made that social and economic hardships justify the pollution of a pristine
stream.
In a hastily
organized Water Board meeting, conducted without proper public notice,
the Water Board was presented with evidence by TDEC, the town of Spencer,
and members of the environmental community regarding the need for and
the environmental hazards posed by the discharge permit. The Commissioner
of TDEC made the initial presentation to the Board and spoke of his support
for issuing the permit. All sides agreed that Spencer needed a sewage
treatment plant and no one was in opposition to that. The disagreement
centered on finding an acceptable discharge method.
The town
of Spencer was given unlimited time to present evidence to the board.
They claimed over 40% failing septic tank rate and raw sewage threatening
human health. They also revealed that plant construction had already begun
without securing a permit.
Cavers and
environmental groups presented evidence against the discharge of sewage
into Dry Fork Creek by the permit including 1) the need to protect a remarkable
world-class cave system, only recently discovered, and at serious risk
from the discharge, 2) the lack of proper public notice by TDEC before
writing the permit, 3) the lack of adequate consideration of alternative
solutions or discharge methods for the sewage, 4) the lack of a thorough
biological risk assessment by TDEC, and 5) the lack of proper anti-degradation
guidance procedures for the Board to use in making a Tier II degradation
decision. (It should be noted that the environmental community was limited
to 5 minutes of presentation time per person. The town of Spencer was
allowed rebuttal time but the environmental community was not given the
same consideration.)
The Board
voted in May 2000 to issue the permit to Spencer to degrade Dry Fork Creek.
A coalition
of environmental groups organized to oppose this unwise and inappropriate
permit decision by the Board. Two
critical issues were involved: 1) the imperative to prevent devastation
to the sensitive cave ecosystem, and 2) the dangerous precedent of allowing
Tier II stream degradation in the absence of acceptable procedures for
making such an important decision.
The environmental
community submitted a petition for declaratory order to be heard before
the Water Board on the grounds that the board decision was made without
proper public participation and without adequate anti-degradation procedures
in place by the state, as required by federal law. (It should be noted
that citizens of Tennessee do not have the right to appeal a permit decision
directly. Only regulated permittees have that right, in spite of federal
laws that required a citizen right to appeal.)
Formal consideration
by the Board was postponed while good faith negotiations were begun with
TDEC and the town of Spencer to see if an acceptable alternative discharge
method could be found that would protect the waters of underground cave
system and still provide the town with a new sewage treatment facility.
An EPA expert,
Dr. Nutter, conducted a study of the Spencer area and determined that
land application was an appropriate and technically feasible sewage disposal
method for the Spencer sewage treatment plant. His report indicated land
application was preferable and that suitable land sites were available.
He estimated that an additional 1.5 million dollars would be needed to
use land application instead of direct stream discharge.
The environmental
coalition brought in an independent, world recognized expert on cave biology,
Dr. Jerry Lewis, from Indiana. Dr. Lewis conducted a rapid and thorough
biological assessment of the cave system. He provided a report indicating
that the cave system was of global significance. He identified at least
24 globally significant rare cave species.
In his expert opinion, any nutrient discharge into this rare cave
ecosystem would decimate these rare species populations and cause permanent
devastation to the ecosystem.
Members of
the Nashville Grotto and other cavers carried out extraordinary expeditions
to capture photographic images of the Rumbling Fall Cave system. Cave
photographer Christopher Anderson went to extreme measures to illuminate
and photograph the largest cavern. His photos can be views at www.darklightimagery.net.
After drawn
out negotiations between the parties for many months, a resolution to
the problem was not found. The state and the town of Spencer failed to
cooperate fully in efforts to secure the necessary funding for land application.
The environmental community then decided to continue pursuing their objections
before the Water Board.
September
2001
The Water
Board was officially convened for two days to hear the formal presentation
of a petition for declaratory order by the environmental coalition. Attorneys representing TDEC and the environmental plaintiffs
were present. The procedure was managed by an administrative law judge
from the TN Administrative Procedures division of the Secretary of State’s
office. Sworn testimony and evidence were presented for 2 full days by
two parties, TDEC vs. the environmental coalition.
In a surprising
turn, the Board reversed itself. In a final vote of 7 to 2 vote, the Board
found that the environmental coalition demonstrated that the state did
not have adequate anti-degradation procedures in place. This vote effectively
halted the permit to Spencer to discharge. The Board adjourned at 10 pm
the second day after the final vote but without finishing the step of
writing a final Board order.
Following
this surprising vote by the Board, the town of Spencer decided to take
an active role in the petition before the board.
When the
Board reconvened at its next monthly meeting, they were presented with
a request for intervention by the town of Spencer, now represented by
attorney Andrew Goddard of Bass, Barry and Sims. The Board did not complete
the final order and voted to allow Spencer to intervene late in the process.
The environmental
community objected to this intervention after the fact and pointed out
that the town of Spencer knew about and had the opportunity to participate
in every step of the process and had chosen not to do so. Nevertheless,
the Board took the unprecedented decision and voted to allow the town
of Spencer to intervene following their final vote.
The environmental
community stepped up its effort to raise public awareness of this issue
through increased press coverage and public education on the importance
of protecting underground water.
The Water
Board heard evidence by the town of Spencer.
One member of the previous board was missing from the meeting.
In a new vote, the board came to a tie vote of 4 to 4 on the question
of the validity of the permit decision making process. The law judge made
the decision that a tie vote meant a win for Spencer. In his opinion,
the environmental community failed to make its case and therefore lost
the decision. Thus the Board had reversed itself for a second time and
the discharge permit was deemed to still be valid.
By this time
the sewage treatment plant construction was nearly complete and initial
start up was anticipated in another 30 to 60 days times.
The environmental
community made heroic efforts to find federal, state or private monies
that would allow land application and prevent the stream discharge. These
efforts were done in spite of a lack of cooperative efforts on the part
of the state or the town of Spencer.
The environmental
community became extremely alarmed over the eminent danger to the cave
by the start-up of the plant. It is well known that in the start-up phase
of a sewage treatment operation, procedures are often faulty and serious
hazardous discharges can be made far beyond the allowable permit conditions.
Irreparable harm could be done to the cave ecosystem in a matter of days.
The environmental
groups came before the Water Board again with request for a stay of the
permit by the Board for two reasons: 1) to stop the devastating discharge
from the plant from starting up and 2) to satisfy the requirement of exhausting
administrative remedies before being allowed to proceed to Chancery court.
The Water Board voted to allow the stay but at the same time declared
that the stay did not invalidate the permit and allowed Spencer to go
ahead with the plant operations.
Considerable
press coverage in both state and national media of the environmental concerns
generated increased interest in the issue in the Governor’s office.
Governor Sundquist issued a press release calling for the TN General
Assembly to provide a state grant in the budget for Spencer to implement
an alternative discharge method.
The TN General
Assembly, House Environment and Conservation Committee held a public hearing
on the Spencer issue and the cave protection question. Testimony was heard
from TDEC and the environmental community.
In the current
fiscal crisis of the state it is extremely unlikely that a state grant
will be possible to solve this problem. The environmental parties continue
to seek a federal grant solution.
Negotiations
are continuing between the parties as they continue to search for an acceptable
solution.
Chancery
court hearing of the case is anticipated in late February 2002.
Operation
of the plant and discharge into Dry Fork Creek could occur as early as
late February or early March 2002.
