Early last month the TCWN staff conducted a site visit at Rarity Oaks.  The purpose of this visit was to determine if the site was in compliance with a settlement Rarity Communities, Inc. and TDEC signed in May of this year.  You see, since June of 2006, Rarity Oaks has been in violation of TDEC’s rules and regulations for land disturbing activities and impacting waters of the state.  At first the site was being graded and waters of the state were being excavated all without permits.  I find it difficult to believe Rarity Communities, who has developed numerous previously undisturbed tracts of land in Eastern Tennessee, was unaware they needed a permit.  Once TDEC did issue them permits the developer consistently failed to install the appropriate measures to protect our waters which in turn caused significant amounts of sediment to pollute two streams on site.  Over the course of two years TDEC issued the site 2 notices of violation, and finally in April of 2007, filed a Commissioner’s Order against Rarity.  This type of order requires the permit holder to complete specific tasks and establishes a fine to be paid for violations. Rarity, of course, appealed this order, and in May of this year settled with TDEC in what is called an Agreed Order which also addressed permit violations from another Rarity site.

So TCWN became curious as to whether Rarity had complied with this Agreed Order.  We spoke with TDEC’s Knoxville Environmental Field Office, conducted a file search and finally visited the site.   This is what we found:

Which causes this:

It was obvious Rarity had not complied with the Agreed Order.  Our next step was to let TDEC know.  We wrote them a letter detailing each way in which the conditions of the Agreed Order had not been met. We requested the site immediately be stabilized and for Rarity to pay the full extent of the fine, which is $2,500 a day.  TDEC promptly and adequately responded to our letter in a brief statement agreeing the site was not complying with the Order.  TDEC stated they fully intend to enforce the Order and will keep TCWN copied with any follow up actions on the matter.  Thanks TDEC!

This site is a perfect example of blatant disregard for the rules and direct indifference towards causing conditions of pollution in our waters.  How many of us would sign a binding legal agreement to complete certain tasks and then walk away without fulfilling any of them?  There is no reason for deliberately ignoring the Order. This is a developer working throughout Eastern Tennessee who has no excuse to be unaware of the rules or be in consistent violation of them.  We appreciate TDEC’s recognition of these obvious violations and look forward to working with the Department to address this issue. We also hope TDEC recognizes this pattern of behavior in which some developers either think they are above the rules or simply believe they won’t get caught if they break them. Why else would Rarity Communities, Inc. so deliberately break the rules and the conditions of the settlement unless they believed they could get away with it?

Most recently, we got curious again and went back to the site last week.  And this is what we found on our second visit:

Apparently Rarity Communities does not like the public knowing what is happening on their site.  It’s great to see the site has been seeded and straw has been distributed to initiate stabilization, however, there is much more to be done.  We’ll keep you posted on what happens next!

It was a big day today.  The Guy loaded me up in the truck and we went to work. Instead of getting out and going to the office, I was thrown in the way back and The Other Lady, The Lady Next Door, and The Lady with the Treats all jumped in.  Even though I was denied my normal seat next to the Guy, I was excited that we were all going on a trip.

So after a drive in the car (the back is fun, btw!  You can see the other dogs better and growl at them. I recommend it.) we went to look at the water.  I think i need to tell you readers out there; I do not like the water…I love the water.  So when we saw all of the water that was out there, I was sure that this would be a big day for Koa.

But the water is all muddy.  I can’t see the fish and I’m not allowed to even jump in.

Woof

On the way home, The Other Lady was talking about things that we can do to make sure the water doesn’t get so muddy.  She was saying that there are rules that need to be followed by people digging (I like to dig!) in the dirt to keep it from going into the streams and killing the fish (I like fish, too!).

The Other Lady works hard at helping people in Nashville make and follow rules to help with this stuff.  On the drive home, I showed her how to growl.  I think she should try that when she talks to the people in Nashville.

I hope it works soon.  The water isn’t as fun when I can’t get in.

Boy, has there been a lot of traffic at the office here regarding the news yesterday about Rarity mining it’s golf coarse for coal without a permit. The Office of Surface Mining took offense and did a stop work order. TDEC mulls.

Do you remember the big stormwater enforcements of the spring? The ones against Rarity that were millions of dollars? Well, here is the enforcement order.  oakridgeland-company-rarite The millions of dollars are now just thousands of dollars and 80% are going to be forgiven on the promise of future compliance. I wish I could talk last week’s traffic cop into that? Can you imagine? “Officer, I only want to pay $30 of my $150 fine. Is that ok by you?” That’s what these guys do all the time. Read the order. Pay special attention to the Order and Assessment section XXII. Everything listed in 1, 3, and 5 were required by Ross’ permit. Ross agreed to do those things before he started work, and now he gets a benefit for non-compliance. If he does them now, he doesn’t have to pay the fine. VERY, VERY BAD…

RvH

A secret, internal EPA memo recently uncovered and released by two House committee chairmen revealed that EPA has dropped or de-prioritized over 500 Clean Water Act enforcement cases since July 2007 because of questions about whether the waters that the polluters discharged into is still covered by the Clean Water Act. Congress must act immediately to fix this nationwide problem.

It is critical that you TAKE ACTION NOW to contact Senator Lamar Alexander. Passage of this vital legislation will mean that the original intent of the Clean Water Act to protect all of our nation’s waters will be restored. This is our last big push before Congressional members embark on the fall campaign trail.

Click here to learn more about the Clean Water Authority Restoration Act.

Just last month, Chairman James Oberstar of the Committee on Transportation and Infrastructure, and Chairman Henry Waxman of the Committee on Oversight and Government Reform released an internal EPA document that indicates that the Supreme Court’s decision in Rapanos v. United States, combined with the agencies’ 2007 guidance, has resulted in “significant adverse impacts” to the clean water enforcement program. The internal memo was written by EPA Assistant Administrator for Enforcement and Compliance Assurance Granta Y. Nakayama. In the memorandum, Nakayama states: “Data collected from the regions shows that a significant portion of the CWA enforcement docket has been adversely affected… The Rapanos decision and the resulting Guidance have created uncertainty about EPA’s ability to maintain an effective enforcement program with respect to other [Clean Water Act] obligations.”

This situation is completely unacceptable - Congress must act now to ensure the Clean Water Act is being enforced. We cannot afford to wait while our nation’s rivers, streams, and wetlands are being polluted and destroyed with impunity.

If you want a copy of the EPA memo and the letter to EPA sent by Chairmen Oberstar and Waxman seeking more information, you can go to http://transportation.house.gov/News/PRArticle.aspx?NewsID=700

ACTION NEEDED: The next step for Tennesseans is to get the bill voted successfully Senate Environment and Public Works (EPW) Committee with no weakening amendments inserted. Senator Lamar Alexander sits on this committee. Senator Alexander is currently not a co-sponsor of the bill.

We recommend calling Senator Alexander’s District Offices to advocate for the bill. A list of number for his district offices are here. Call him up and tell him that you want him to stand up for clean water by co-sponsoring this bill and passing it out of the EPW without weakening it. It’s a short conversation. The more calls the better. The only thing this bill does is remove the word “navigable” from the Clean Water Act thus restoring it to its original intent to protect ALL waters of the state. Opponents of the bill have been saying that this is an opportunity for the feds to regulate puddles and bird baths. Ridiculous!

THANK YOU FOR TAKING THE TIME TO CALL!

RvH

Yesterday the Tennessee Court of Appeals ruled in our favor in the Cumberland Trail State Park rock “harvesting” case. In a strong, well-reasoned, and clear opinion, the Court stated that “general mineral reservations in a deed will not be construed so broadly as to include extraction methods that destroy the surface rights conveyed in the same deed. If a grantor wishes to retain the right to obtain minerals through destructive surface extraction, he must explicitly reserve that right within the deed; a general mineral reservation will not suffice.” This is the rule that we advanced in the amicus brief.

The Court went on to explain that the case-law, “as well as basic common sense and equity, compel the conclusion” that the mineral owner does not have the right to destroy the state’s surface rights by depriving the state of the reasonable use of its land by, for example, destroying the trees in the park. The opinion showed clear signs of our amicus brief’s influence.

The Court of Appeals remanded the case back to the trial court in Hamilton County for further proceedings consistent with the opinion. We will be working with our partner organizations through the appeal process.

This is a great outcome for our effort to keep the Cumberland Trail State Park free of rock harvesting and goes a long way towards establishing clear law on this issue in Tennessee for all land owners. Many thank got to the TCWN Board Chair Greg Buppert who co-wrote the Amicus brief with Sarah Franciso of Southern Environmental Law Center!

Read the attached document for the fine details.

State of Tennessee vs. Lahiere-Hill, LLC

RvH