Memphis Commercial Appeal 8/19/01

Dickson County store owner Bennie Cathey says he's heard news reports but he hasn't noticed any problems with his water.

By A.J. Wolfe

Highway agency tries to roll back trail of ruin

TDOT has reputation as worst water polluter

By Tom Charlier

FAIRVIEW, Tenn. - Before bulldozers arrived to carve an interstate-style highway across several delicate watersheds here, local officials pleaded with the Tennessee Department of Transportation to take special care to protect one stream in particular.

Turnbull Creek, after all, was no ordinary waterway. It bubbled up from the earth through hidden springs and limestone crevices, coalescing in a cool, clear stream where small-mouth bass snapped up minnows and insects that flitted across gravel shoals.

More important, 35,000 people depended on the stream for drinking water.

The pleas by the Turnbull-White Bluff Utility District came in vain. During construction of state Route 840, erosion-control measures were so shoddy, regulators said, that rain unloosed thousands of tons of soupy red clay, clogging 46 miles of the creek and its tributaries with up to 3 feet of muck and wreaking havoc on the utility's water quality and equipment.

The Turnbull episode last year was nothing less than an environmental "disaster," Williamson County Chancellor Russ Heldman wrote in a recent ruling on a lawsuit over the project. But it was hardly the first involving TDOT.

Time and again, while constructing and improving the state's highway network, TDOT has built and cemented a reputation as the most profligate polluter of water in Tennessee.

In the past dozen years alone, the department and its contractors have broken pollution laws by sullying waterways from trout streams along the North Carolina border to natural springs in West Tennessee.

They have tainted the headwaters of streams flowing into the Great Smoky Mountains National Park, heavily damaged at least two public drinking water systems and racked up by far the most water-quality violations of any water-polluter in the state.

They have illegally funneled streams into underground drains, left previously pristine creeks blanketed with mud and swerved to avoid federal oversight of their work.

These days, TDOT's environmental track record takes on new significance as it begins planning the Interstate 69 project across West Tennessee. Although the exact route hasn't been chosen, it will traverse forested wetlands and one of the state's most scenic rivers, the Hatchie.

No one disputes that road-building can be an unavoidably messy task. And TDOT can point to a long list of environmental achievements dealing with everything from wildflower-plantings to historic preservation to wetland restoration.

But a number of critics - including some state and local officials, judges, legislators and conservation groups - contend TDOT consistently runs roughshod over the state's waters and fails to rein in contractors.

"The ever-apparent central issue is that TDOT has no environmental commitment," said Elmo Lunn, Turnbull-White Bluff utility chairman and formerly the state's top water-pollution control official, in a letter to the Department of Environment and Conservation.

It's a view shared by David McKinney, chief of environmental services with the Tennessee Wildlife Resources Agency. He says "tremendous damage to aquatic resources" occurred because TDOT refused to let environmental concerns slow construction.

McKinney cites cases in which "they had ample evidence that things were going to hell in a hand basket, but they weren't about to slow the contractors down."

Concerns over TDOT's environmental practices have been simmering for years. In the mid-1990s, the Tennessee Conservation League got a contract to help TDOT clean up its act after complaining to then-Gov. Ned McWherter that the department was "out of control."

But Tony Campbell, former executive director of the league, said he discovered lasting improvements don't come easily at TDOT.

"You've got a culture over there that's build 'em as quick and cheap as you can, and there's a lot of things that get lost along the way," he said.

State Rep. Rob Briley (D-Nashville) contends the department often seems deaf to public concerns.

"I don't think they're accountable. They're not accountable to the public, to the legislature, their constituency," Briley said.

TDOT is, to be sure, distinct among state agencies in enjoying a measure of immunity from Tennessee's chronic budget woes and meddling from legislators.

Like transportation agencies in other states, the department's budget - about $1.4 billion this year - comes from dedicated highway-user fees, such as fuel taxes, and federal aid. But unlike departments in some neighboring states, TDOT has no civilian board overseeing it.

While acknowledging its pollution problems over the years, TDOT officials say the department's environmental record is far better than its critics contend.

Just last month, TDOT reaffirmed an environmental policy adopted seven years ago pledging to "preserve and enhance the existing landscape, environment and associated wildlife." In signing the statement, TDOT commissioner Bruce Saltsman said, "On a day-to-day basis, our employees go about doing their job with sensitivity to our environment."

If TDOT attracts a lot of environmental concern, department spokesman Luanne Grandinetti said, it's largely because its work to keep the state's highway system running is so exhaustive and far-reaching.

Between 1994 and 2000, for example, TDOT let contracts on nearly 5,000 projects and applied for some 2,000 water-related permits.

"There's probably not any other entity with the direct contact with the land that TDOT has," Grandinetti said. "We're probably the biggest developer in the State of Tennessee."

State water-quality officials say that point is well taken.

"They (TDOT) are statewide. They are constantly at the plate, so they have more opportunities to make strikes than anyone else does," said Paul Davis, director of the Department of Environment and Conservation's division of water-pollution control.

Even so, TDOT has worked hard to minimize its impact on the environment.

It has won environmental and design awards from the Federal Highway Administration for projects scattered from East Tennessee to Shelby County. It has developed methods to reduce the relocation of streams and use selective tree-cutting instead of bulldozing.

The department also has improved its erosion-control practices. In 1999, its projects included $2 million to plant seed on exposed construction areas and $1.7 million to erect silt fences and barriers.

The U.S. Fish and Wildlife Service, which reviews endangered species and other environmental matters with TDOT, has noticed slow, steady improvements.

"Obviously, there are some bad examples of things that have happened," said Bob Bay, a senior staff biologist with the service in Cookeville, Tenn. "But things have gotten better."

Even critics like Campbell and McKinney say TDOT sometimes fastidiously protects the environment. "You'll see individual projects where they do an outstanding job," McKinney said.

Nowhere has the department's environmental progress become more apparent than in the field of wetlands "mitigation" - the restoration or enhancement of swamps to compensate for damage from road projects.

A recent study found that TDOT does a better job than industry and other agencies in mitigating damage to wetlands. "Most of their projects now seem to be well-done,'' said Thomas Roberts, a biology professor at Tennessee Tech University.

TDOT officials also emphasize that many pollution problems occurred during rains intense enough to strain the best erosion-control measures.

And, among state transportation agencies, TDOT is hardly alone in encountering environmental violations.

"TDOT certainly does not have an exemplary environmental record. Unfortunately, neither do a lot of the other DOTs, especially in the South," said Trip Pollard, a senior attorney with the Virginia-based Southern Environmental Law Center.

But in other states, rampant environmental violations have led to reforms in transportation departments.

In August 1999, Virginia Gov. Jim Gilmore accepted the resignation of state Department of Transportation Commissioner David Gehr and asked for an investigation of the agency's environmental practices following the unauthorized destruction of wetlands and a major sewage sludge spill caused by road construction. Further reforms improved contractor compliance, VDOT spokesman Tamara Neale said.

TDOT officials say their department, too, has made adjustments designed to deal with environmental issues ranging from hazardous waste-management to alternative transportation and water quality.

About a year ago, for instance, the environmental planning and permitting director's job became a division-level post, which increased its authority and beefed-up its staff.

And TDOT has been hiring environmental coordinators and assistants for each of its regional offices.

"Where the shovel meets the dirt, so to speak, that's where you need to have people watching," said Paul Degges, director of TDOT's regional office in Middle Tennessee.

Spurred in part by past pollution orders and lawsuits, TDOT officials also set tougher general and site-specific erosion-control standards to guide projects.

Erosion control generally is achieved by seeding exposed dirt and installing silt fences, filter barriers and sedimentation basins to limit the flow of polluted water from construction zones.

"Erosion control is like pouring concrete or laying asphalt - we have specs that are to be followed," Degges said. "And in the majority of cases, we have compliance with those issues."

Still, a review of major TDOT projects and enforcement cases reveals a pattern of repeated pollution problems resulting mostly from poor erosion control.

Since 1992, the Department of Environment and Conservation has issued 110 notices of violation against TDOT for water pollution.

And since the late 1980s, five TDOT projects have generated pollution so severe that the state issued orders seeking a total of up to $809,500 in penalties.

Those cases included pollution from construction sites on the Foothills Parkway outside the Great Smoky Mountains National Park in 1989. Regulators blamed inadequate erosion-control measures for the mud and silt that washed into 16 tributaries of the Little River and Cove Creek.

"There was absolutely no connection between (TDOT's) construction operations and their environmental monitoring," said McKinney of TWRA. "The data was right there that you have terrible water quality problems."

In the years that followed, similarly damaging pollution occurred along construction of U.S. 23 in Unicoi County and state Route 111 in Sequatchie County.

Some five years after the Foothills Parkway pollution, state inspectors still were finding "minimal" erosion-control efforts along the state Route 218 bypass near Paris. And more than five years after that, regulators reported "gross violations" along state Route 840.

The problems occurred in some cases despite explicit warnings from regulators and local officials about the dangers of pollution.

Before U.S. 23 was built to Sam's Gap on the North Carolina border, regulators stressed to TDOT and contractors the critical importance of maintaining erosion control in steep terrain. Nevertheless, water-quality officials documented pollution problems along the entire length of the project.

"They were clearing right up to the stream bank and weren't leaving a buffer," said Phil Scheuerman, a professor and director of the environmental health sciences laboratory at East Tennessee State University, who advised TDOT.

"They'd open up a half-mile of stream bank, and there's nothing to protect it."

Once-pristine mountain streams looked "like coffee" as a result, Scheuerman said.

McKinney said the pollution from the TDOT project was so extreme that TWRA took the unusual step of backing a lawsuit filed by residents and environmentalists against its sister state agency.

Another project that was preceded by pollution warnings was state Route 840. Turnbull-White Bluff utility officials wrote a letter urging TDOT to "plan and provide close attention to erosion control as the project goes forward."

The warning was "largely ignored," said Lunn, the chairman. The utility district contends erosion-control measures were "virtually non-existent" through the first nine months of construction.

However, Steve Wright, vice president of Wright Brothers Construction Co., the contractor on state Route 840, said erosion-control measures were up to standard, but catastrophic rains overwhelmed them.

"Yes, some brown water got loose, but it didn't hurt anything," Wright said.

As dramatic as pollution appears, TDOT officials say damage usually is short-lived.

A consultant's report prepared for TDOT concluded that the U.S. 23 erosion caused little or no long-term damage to water quality and fish habitat, especially in larger streams.

But McKinney notes that some smaller streams essentially were destroyed by the project - funneled into buried drainage lines and covered with tons of fill.

"There are miles and miles of streams up there that will never again see the light of day," he said.

Lasting harm also resulted from two projects that polluted public drinking water systems.

The state Route 111 construction in Sequatchie County caused a landslide of unstable soil that cascaded down Henson Creek and into a branch of the Sequatchie River, which supplies water for the city of Dunlap.

"All that sediment migrated down the mountain, into the creek, into the river and into our intakes. It destroyed both our pumps," said Clayton Smith, field superintendent for Dunlap.

When rains disgorged mud and clay in the Turnbull Creek watershed along state Route 840, the turbidity levels measured at the Turnbull-White Bluff utility treatment plant ranged up to five times greater than ever before recorded.

Since then, storms occasionally have required utility officials to shut the plant down for hours at a time and apply ever-greater amounts of treatment chemicals. Divers have been called in twice to scrape mud and clay out of intakes.

In many cases, pollution problems were attributed to poor planning by TDOT.

In the U.S. 23 construction, TDOT "severely underestimated" runoff and failed to acquire enough right-of-way for sedimentation basins, according to the consultants' report.

Further concerns about TDOT planning arose during the state Route 840 project.

The highway, a route looping around metropolitan Nashville, was described as "Interstate 840" in state legislation authorizing a gas-tax increase to help pay for it.

But well before construction began, TDOT dropped its application for interstate designation.

Some testimony in a recent lawsuit filed by Williamson County opponents of the highway suggested TDOT dropped the designation to avoid intense federal oversight of the project.

Dennis Cook, now an assistant chief engineer for TDOT, testified that when he was with FHA, a former key TDOT official complained about the major time delays that often resulted from federal involvement.

"You guys keep us from screwing up sometimes, but you just kill me with time," Cook recalled the official, Ray Terrell, as saying.

"And that's why he (Terrell) didn't want the Federal Highway Administration to oversee 840, right?" plaintiff's attorney David E. Lemke asked. Cook answered it was.

The interstate designation likely would have required the preparation of a full-scale environmental impact statement, which would have been subject to extensive review by federal officials and the public.

Instead, TDOT drafted an "environmental assessment," which Heldman, in his ruling, called an "extremely insufficient" document.

In apparent contradiction of their own policies, TDOT officials also began right-of-way acquisition through Williamson County without the concurrence of county commissioners, who sought an environmental impact statement on the project.

This month, the state Route 840 project is attracting further attention. The Tennessee Court of Appeals heard arguments Aug. 7 dealing with TDOT's appeal of a ruling by Heldman last year that halted portions of the project pending further environmental studies.

And, in a meeting of the state Water Quality Control Board set Aug. 28-29, TDOT will be appealing an order calling for up to $350,000 in pollution penalties.

Lawsuits filed by Turnbull-White Bluff utility officials against TDOT and contractors are pending.

Meantime, on the east end of the state, TDOT has generated new complaints on a current project, the widening of U.S. 321 near Gatlinburg. The department, saying it has fulfilled requirements, began construction even before receiving water-quality permits for the stream crossings it will encounter.

Despite the controversies and TDOT's checkered record, Davis, the state water-pollution control chief, said the state can protect streams during highway work.

"We are committed to keeping the water clean, and we are working with our colleagues at TDOT to make that happen," Davis said.

- Tom Charlier: 529-2572

August 19, 2001