21 August 2013
Robert T. Lee
General Counsel
Comptroller of the Treasury
Office of General Counsel
RE: Request Review RFP 32701-01528; Expert Witness
Dear Mr. Lee:
BURNT has followed this RFP 32701-0158 closely. We began writing five months ago
when this was a “Waste Reduction Plan”. We have continued to point out fundamental
non-compliance by TDEC with laws including TCA 68-211-803. TDEC has many
skilled managers and staff. However, the vested power and money of a few multinational
solid waste companies appears to unduly influence policy. We believe that
TDEC RFP 32701-0158 is not valid because
1. the audits of TDEC and the Division of Solid Waste demonstrate that the
Comptroller’s Office does not understand the complex issues of managing Tennessee
solid waste;
2. TDEC has flagrantly and willfully violated TCA 68-211-803 ‘Public Policy’
since 1991. For 22 years, multiple loop-holes have disguised the high rate of landfilling,
water has been polluted, and the public has been injured. Title VI Civil rights Law may
have been violated. Tennessee law “…assure[s] that solid waste facilities…do not
adversely affect the health, safety and well-being of the public and do not degrade the
quality of the environment…” TCA 68-211-803 Since specific, disadvantaged groups
including poor, minority, and rural are injured, there may be Tennessee Constitution and
Federal Constitution questions. Separation of solid waste management under TCA 68-
211-803 ‘Public Policy’ and landfill regulation and permitting under TCA 68-211-102
may violate statutes and the Tennessee and Federal constitution.
3. An Expert Opinion by Mark Quarles, P.G. [attached, Advisory Committee
Letter] ] describes the TDEC policy of inadequate landfills in karst terrain throughout
middle and east Tennessee, that landfills commonly pollute drinking water, and landfills
injure citizens.
615-327-8515 NASHVILLE, TENNESSEE 37212
4. BURNT offers a positive alternative for this RFP. The contractor develop
established methodologies to recycle construction waste rather than landfill. The
contractor will evaluate and plan methods for composting food waste, yard waste, and
paper with emphasis on composting centers in the 20 largest counties in Tennessee.
Financing will be a central component of the RFP. .
A. Do not release this RFP until the Division of the Audit completes a new Audit
which reflects the factual concerns stated here. There should be citizen input.
B. A RFP must include the provision that TCA 68-211-803 (a), (b) is the guiding
‘Public Policy’ for Tennessee solid waste. And, that any contractor must understand
there have been past problems with false solid waste numbers, multiple landfill
problems including horrific Dickson County Landfill and TVA Coal ash disasters, and
pollution of drinking water by landfills.
C. The Audit and TDEC must acknowledge that certain classes of citizens including
rural, poor, and minority lose property values, air quality, well water safety, and health
from landfills even though TCA 68-211-803 (a), (b) “…assure[s] that solid waste
facilities…do not adversely affect the health, safety and well-being of the public and do
not degrade the quality of the environment by reason of their location, design, method of
operation…” TCA 68-211-803 (a)
White, affluent, urban citizens, state and local governments, and multi-national solid
waste companies benefit. We believe this violates the Tennessee and U.S. Constitution
D. Give prohibitive weight to the 2008 expert opinion of Professional Geologist
Mark Quarles written to assist the 2008 solid waste reform and rule making effort.
E. Specific strategies for diverting waste from landfills by composting waste,
recycling construction waste, and financing new facilities must be part of the RFP.
Unspecified public hearings across the state, “goals”, and rule making should are less
F. This $400,000 RFP will determine if there are any significant changes over the
next ten years in a system which generates $1,4 billion a year in near cash income for
collection, processing, transport, and landfill fees. We must support TDEC staff and
managers by specifying waste diversion through composting strategies, recycling, and
need to generate financial plans are required.
AUDITS The 2010 and 2012 Audits by the Office of the Comptroller
demonstrate scant understanding of the management of the Division of Solid Waste and
TDEC. No RFP for a Solid Waste Plan should be issued until there is a new Audit.
BURNT wrote more than 20 letters to the Division of the Audit and the Legislature after
the Audit of TDEC in 2010, before the 2012 Audit, and after the 2012 Audit. The 2010
Audit spent more than 50% of the space on the Division of Parks which had just won a
prestigious national award. The Audits did not address the Dickson County Landfill or
the Coffee County Landfill both of which polluted groundwater with toxic chemicals.
The TVA Coal Ash disaster was mentioned in passing. Fraudulent solid waste numbers
based on loop holes not in use in any other state were given scant consideration
Tennessee is the only State to count landfilled construction waste as recycled. TDEC
claims 50% diversion from landfills while a 2010 national study by Columbia University
and Bio-Cycle Magazine states Tennessee diverts 4.74% of waste from landfills.
There are three separate methods for local governments to meet the 25% reduction
goal—quantitative, qualitative, and economic growth basis. Under TCA 69-211-861,
local governments may use either the 1995 base year or go back to 1985. A new loophole
passed in 2012 allows businesses to count alleged technical manufacturing
improvements as waste reduction without documentation. The 2012 Audit examined in
detail whether Solid Waste Control Board members signed ‘Conflict of Interest’ forms
without examining the actual conflicts of interest solid waste rules, Cedar Ridge
Landfill, and A-1 Landfill in Jackson. From east Tennessee to Jackson, our State has
mostly karst terrain with caves and fissures which allow ground water pollution to
migrate. Yet, TDEC uses the same minimal permitting standards across the state.
Landfills often border sources of drinking water and leak leachate into the water. [see
attached Expert Report] The Audits did not evaluate landfill standards. Apparently,
EnSafe, an environmental consultant selected to be under contract to TDEC, and also
TDEC experts, were ridiculed during a Federal Court hearing on Dickson Landfill
brought by Natural Resource Defense Council. The audits do not demonstrate a
strong knowledge of Tennessee solid waste needed to issue this RFP.
EXPERT OPINION [attached] Written by Professional Geologist Mark Quarles in
2008 to the Solid Waste Advisory Committee
A. “To-date, TDEC’s data show that landfills have and routinely contaminate our
groundwater. Further, landfill permits are being issued at sites that TDEC determined to
be unsuitable for land disposal.” Pg. 1, Letter to Advisory Committee, General
“Landfills are commonly located immediately adjacent to waterways—even some that
are used for public drinking water….Middle Point Landfill in Rutherford County is located
along the flood plain of the Stones River, which is used for drinking water by Smyrna,
Murfreesboro and Consolidated Utilities of Rutherford County. The Smith County
Landfill is located along the floodplain of the Cumberland River…Cedar Ridge Landfill is
located adjacent to the East Fork Globe Creek. In each case above there has been a
release of landfill leachate to the groundwater that eventually discharge to springs that
feed these surface waterways” pg 2, Letter to Solid Waste Advisory Committee, ‘Landfills
Commonly Located Next To Sensitive Waterways’.
B. NOTE: Tennessee is the only state to credit landfilled construction waste as
“The U.S. EPA identified these problematic elements in construction/demolition
waste: containers with excess liquids such as adhesives, coatings, solvents, paints,,
and pesticides 2.) Machinery lubricants and fuel 3.)Inseparable Roofing tar, 6.)
sulphates in drywall, 7.) paints and coatings in wood 8.) arsenic, chromium, and
creosite wood preservatives 9.) Napthalene 10.) PCBs in transformers and
capacitators and 11.) Mercury in light switches ad bulbs. pg 2, Letter to
Advisory committee, Landfills Commonly Located Next To Sensitive Waterways”.
NOTE: This is the construction waste Tennessee credits as recycled when landfilled
usually in an unlined landfill
C. “Karst geologic conditions of sinkholes, sinking streams, and shallow bedrock
conduit flow are commonly found in middle and eastern Tennessee. Even though such
conditions exist, TDEC’s minimum landfill design standards still apply as they would for
any other landfill located in a more stable geologic environment. Recent conclusions at
the Cedar Ridge Landfill near Lewisburg, as an example, suggest that more stringent
standards are needed in karst environments” . pg 4, Letter to Advisory committee, Landfills
Commonly Located in Extreme Karst Conditions” .
NOTE: In 2011, TDEC permitted a 1.4 billion tons expansion of Cedar Ridge Landfill
directly over a massive sink hole
D. “Landfills that are used for the disposal of landscaping, yard wastes, and
construction/demolition debris landfills are commonly used to divert wastes from Class I
municipal solid waste landfills in order to achieve the 25 percent waste reduction goal.
While such disposal diverts waste from Class I landfills, the procedure results in no real
waste reduction at all—just the creation of more landfills that are less protective to the
hold the waste that was diverted from Class I landfills.” pg 4, Letter to Advisory
Committee, Landfills Commonly Located in Extreme Karst Conditions” .
TDEC PERFORMANCE The massive disasters in Dickson County, TVA Coal
Ash, and Coffee County Landfill are not aberrations. The Expert Opinion demonstrates
that TDEC regularly landfills chemical laden construction waste [while counting it as
recycled], puts landfills into marginal karst geology which pollutes ground water, and
has multiple loop holes to inflate counts of solid waste diversion. This violates TCA 68-
211-803 .
Thousands of jobs from recycling and composting [see study : by College of Charleston
and US EPA] are lost because the state has not enforced TCA 68-211-803(b) to insure
“…maximum utilization of the resources contained in solid waste” Tennessee is a
landfilling state with poor regulation, poor permitting, and poor geology. The RFP must
recognize the affirmative obligation to protect the public from solid waste facilities. The
solution is to mandate thorough examination of recycling construction waste, compost
food waste, yard waste, and unrecycled paper, and examine financing for the facilities
to recycle construction waste and to compost. This will create jobs and give local
governments the numbers they need to satisfy their local citizens.
A. Title VI, 42 U.S.C. § 2000d
Title VI was enacted as part of the landmark Civil Rights Act of 1964. It prohibits
discrimination on the basis of race, color, and national origin in programs and activities
receiving federal financial assistance.
1. Tennessee solid waste policy was made by official groups that that
were overwhelmingly white. 46 out of 49 members of the ‘Solid Waste Task Force’, the
‘Solid Waste Advisory Committee’, and the ‘State Solid Waste Disposal Control Board’
were white [2010] The solid waste “Task Force” comprised primarily of public works
leaders and activists to make initial recommendations was all white—23 out of 23 white
members, 21 out of 23 white males
2. Landfills are overwhelmingly located were minority and poor people live
B. TCA 68-211-102 “Pubic Policy”
TDEC separates the governance of landfills [TCA 68-211-102 “Pubic Policy”]
from management of solid waste. [TCA 68-211-803]. This has very significant impact
within TDEC and on citizens near landfills.
TCA 68-211-102 “Pubic Policy”
(a) In order to protect the public health, safety and welfare, prevent the
spread of disease and creation of nuisances, conserve our natural
resources, enhance the beauty and quality of our environment and
provide a coordinated statewide solid waste disposal program, it is
declared to be the public policy of the state of Tennessee to regulate
solid waste disposal to:
(1) Provide for safe and sanitary processing and disposal of solid
(2) Develop long-range plans for adequate solid waste disposal
systems to meet future demands;
(3) Provide a coordinated statewide program of control of solid waste
processing and disposal in cooperation with federal, state, and local
agencies responsible for the prevention, control, or abatement of air,
water, and land pollution; and
(4) Encourage efficient and economical solid waste disposal systems.
(b) The general assembly declares that it is the policy of this state to ensure that no
hazardous waste, as regulated under chapter 212 of this title, is disposed of in a solid
waste disposal facility. Therefore, subject to the appropriation of funds in the general
appropriations act for such purposes, the
Discussion TCA 68-211-102 “Pubic Policy”
1. TCA 68-211-102 separates the permitting and regulation of landfills from the
solid waste landfilled. This is artificial and likely illegal. There are not two systems—
waste before landfilled and then landfilled. Governance of landfills can not be separated
from the nature of the waste landfilled as Tennessee does. Waste which might be
satisfactory in a West Tennessee landfill might be very damaging in karst terrain of East
and Middle Tennessee.
2. However, the marked dichotomy between regulation of solid waste in TCA 68-211
803 and regulation of landfills in TCA 68-211-102 creates discriminatory and
unconstitutional practices. TDEC can not “…provide for safe and sanitary processing
and disposal of solid wastes if the landfill is separated from the solid waste. (TCA 68-
These Tennessee laws completely separate how solid waste is collected, counted, and
processed is completely separated from how landfills are permitted or regulated. For
example, the waiver of regulations to allow a massive expansion of Cedar Ridge Landfill
over a major sink hole never once considered the type of waste or if more of the waste
could be composted or recycled. . Nothing in the law except TCA 68-211-102 supports
this erroneous assumption. Tennessee separates the nature of the waste landfilled
from the permitted landfilling. This is not legal or constitutional as Tennessee does. .
C. . TCA 68-211-803 (a) and (b) “Public Policy” [emphasis added]
(a) It is declared to be the policy of this state, in furtherance of its
responsibility to protect the public health, safety and well-being of its
citizens and to protect and enhance the quality of its environment, to
institute and maintain a comprehensive, integrated, statewide program
for solid waste management, which will assure that solid waste facilities,
whether publicly or privately operated, do not adversely affect the
health, safety and well-being of the public and do not degrade the
quality of the environment by reason of their location, design, method of
operation or other means and which, to the extent feasible and practical,
makes maximum utilization of the resources contained in solid waste.
(b) It is further declared to be the policy of this state to educate and
encourage generators and handlers of solid waste to reduce and
minimize to the greatest extent possible the amount of solid waste
which requires collection, treatment, incineration or disposal through
source reduction, reuse, composting, recycling and other methods. TCA
The purpose of TCA 68-211-803 is to assure “…that solid waste facilities ….do not
adversely affect the health, safety and well-being of the public and do not degrade the
quality of the environment..” Instead,
1. landfills do adversely affect the health, safety, and well-being of the public
2. further, people hurt by landfills are inevitably poor, rural, and minority.
3. Urban, affluent, white, local and state governments, and multi-national
solid waste companies benefit.
Not only do landfills injure the public and the environment but TDEC has developed a
system where this burden in inflicted unequally and unfairly. This appears to be
Constitutional Considerations—Tennessee Constitution
Article 8, Declaration of Rights, Tennessee Constitution
Section 8. That no man shall be taken or imprisoned, or disseized of his
freehold, liberties or privileges, or outlawed, or exiled, or in any manner
destroyed or deprived of his life, liberty or property, but by the judgment
of his peers, or the law of the land
The Dickson County Landfill, Middlepoint in Murfreesboro , Cedar Ridge in Lewisberg,
And the TVA Coal Ash Land fill each “…deprives [a man] of his life, liberty, or property”
Article 8, Declaration of rights Tennessee Constitution
Article 21, Declaration of Rights, Tennessee Constitution
Section 21. That no man’s particular services shall be demanded, or
property taken, or applied to public use, without the consent of his
representatives, or without just compensation being made therefore.
Landfills take property, value values, water quality, health, and air quality “…without just
compensation being made therefore.
Article XI, Miscellaneous Provisions, Tennessee Constitution
Section 8 The Legislature shall have no power to suspend any general
law for the benefit of any particular individual, nor to pass any law for e
benefit of individuals inconsistent with the general laws of the land; nor
to pass any law granting to any individual or individuals, rights, privileges,
immunitie, [immunities] or exemptions other than such as may be, by the
same law extended to any member of the community, who may be able to
bring himself within the provisions of such law. No corporation shall be
created or its powers increased or diminished by special laws but the
General Assembly shall provide by general laws for the organization of all
corporations, hereafter created, which laws may, at any time, be altered or
altered or repealed, and no such alteration or repeal shall interfere with or
divest rights which have become vested
Specific regulations governing remediation of groundwater polluted by landfills
were not enforced.
All persons born or naturalized in the United States, and subject to the jurisdiction
thereof, are citizens of the United States and of the state wherein they reside. No state
shall make or enforce any law which shall abridge the privileges or immunities of
citizens of the United States; nor shall any state deprive any person of life, liberty, or
property, without due process of law; nor deny to any person within its jurisdiction the
equal protection of the laws.
Tennessee landfills do “…deny to any person within its jurisdiction the equal protection
of the laws.”
The leadership of Tennessee long ago decided to allow multi-national corporations to
treat our solid waste as a profit center. Efficiency—garbage is collected, landfilled, and
rarely dumped in the middle of the road–has been achieved at the cost of extraordinary
pollution of people and the environment and violations of the law.. With the high value of
energy, the need for raw materials, and need for jobs, present practices are untenable.
We can no longer afford to flatly contradict laws and apparently provisions of the
Federal and State Constitutions. This RFP can guide TDEC to do what staff and
managers want to do: recycle construction waste rather than landfill; evaluate and plan
methods for composting food waste, yard waste, and paper with emphasis on
composting centers in the 20 largest counties in Tennessee; and financing will be a
central component of the RFP
Thank you
Bruce Wood
cc BURNT Board
Enc: Expert Opinion, Advisory Committee Letter