Toxic Dumping? An Open Letter to Judge Edgar

Chattanooga Fax, Week of Oct. 8, 2001

To: The Honorable R. Allan Edgar, U.S. District Judge
From: Dean Arnold, Publisher

I am glad to know that the final chapters to the toxic dumping saga in Chattanooga's streams and landfills involving Bill Foxworth and Hydro-Vac Corporation are being written in your courtroom.

Your reputation as a federal judge in this community continues to be one of fairness and honesty. I remember your address to the lawyers and judges on Law Day several years ago with this bottom line: moral stability in the community is the only foundation for a healthy legal community. That thinking is, I believe, in line with the concerns I bring forward in this letter.

This past week, Bill Foxworth, owner of Hydro-Vac, pled guilty in your court to 40 false reports over the past three years where he misrepresented the amount of zinc and copper that he was discharging into the city sewer system. He will be sentenced by you on Jan. 14 and faces a maximum of 2 years and $750,000 in fines.

This is a good start. But I am troubled by the court record.

The file in the Federal Court Clerk's office details only the false reporting violations by Foxworth. There is not even a mention -- much less a charge, indictment, or conviction -- of the years of toxic dumping, mishandling of pollutants, blatant disregard of EPA engineering requirements, and direct dumping into the rivers, streams and landfills that has been documented in this publication and elsewhere over the past several years. Nor is there mention of credible evidence of collusion and/or cover-up by some local officials associated with the matter. We have had a serious problem in our community, and I am now aware that the much larger story of this case was not disclosed to you, or perhaps hidden from you.

To make matters worse, the federal prosecutor in the case -- U.S. Attorney Guy Blackwell -- blatantly stated in open court that "This is it. This is all the United States is aware of. This bill of information is the extent of our investigation."

However, U.S. Attorney John McCoon, who worked on the investigation with Blackwell, was handed all the documentation regarding environmental damage and cover-up. It is hardly believable that this material was never shown to Blackwell. On top of that, Mr. Blackwell did not return several of my calls over the last three months to apprise him of these problems. And, even though he was in his office, he did not return my several calls over the last two days, although I left a voice mail detailing my concerns.

If, by some chance, Mr. Blackwell is not aware of more problems, he certainly seems to have little desire to ensure that the allegations he made in your court are accurate.

Had Mr. Blackwell informed your honor of the larger story, he would have told you about employee Randall Blevins' 1991 sworn statement where he said his Hydro-Vac boss instructed him to "back a tanker up to the ditch which runs into the Chattanooga Creek" and saw his boss "allowing the untreated liquid waste to run into the ditch and into the Chattanooga Creek." Although Hydro-Vac's purpose as a wastewater pretreatment facility was to treat pollutants before going to the sewage plant, Blevins testified that only 20 percent was ever treated before being dumped into the sewer.

Regarding the 700,000 gallon tanks at Hydro-Vac, he said: "There were times when the tanks in the back were full and we would just start them siphoning and they would run into the ditch and then into Chattanooga Creek....we tried to treat what waste water we could, but it was coming in so fast and once all of the holding tanks were full, we were told to 'let it go.'"

Mr. Blackwell would have also informed you of another Hydro-Vac employee, Jerry Magness, who in a 1992 sworn affidavit stated that a backhoe was used "to crush approximately 100 to 150 barrels and bury them on the back lot of Hydro-Vac near the Chattanooga Creek. As I observed the barrels being crushed by the backhoe, I saw liquid spew from the barrels onto the ground. The barrels and spilled liquid were buried 20 feet deep."

Mr. Blackwell would also have informed you of another employee's statement that toxic materials taken during the EPA Superfund cleanup of Chattanooga Creek were taken by Foxworth's company to 56th Street in St. Elmo, a residential neighborhood. The employee observed children playing on the containers of waste, which were corroding on the outside from the hazardous substances.

"They were eaten up with corrosion," said Greg Krum, a former Hydro-Vac Sales Manager. "Those people down there never even knew it. He had all sorts of contaminated stuff down there."

Mr. Blackwell would have informed you that city officials have knowingly allowed Hydro-Vac to operate despite the plant being rejected by the city's systems design engineer in 1989. EPA regulations require the plant to be approved by an certified engineer. Former city engineer George Kurz, who now works in Nashville, in a 1999 memo to Chattanooga Fax, admonished the public works department for allowing "an obvious, pathetic attempt to cover up by Hydro-Vac."

Mr. Blackwell would have informed you of the lawsuit filed in 1991 by Ernest Oliver, who ran Hydro-Vac's lab after working as a scientist for the University of Michigan and for the Michigan State Police. He has testified as an expert witness in 504 court proceedings. Oliver charged Foxworth with collecting hazardous and non-hazardous waste from nearly 100 local corporations and has now been crusading against the toxic dumping by Foxworth for over ten years, since being fired by Foxworth in 1989. After years of litigation, Oliver's case was appealed all the way to the Supreme Court but denied a hearing. However, he was awarded $25,000 by  Department of Labor Secretary Robert Reich who agreed with Oliver's accusation that Hydro-Vac was dumping hazardous wastes into the Tennessee River.

Oliver has been rebuffed by some for naming various local officials as part of a cover-up or even larger conspiracy. His paranoia that those promoting Chattanooga as an "Environmental City" were conspiring to silence him gained a bit more credibility, however, after he sent a complaint to Alice Ford, who was an investigator with the local Human Rights & Human Relations Board.. Oliver claimed he was improperly fired by Chattanooga State as a chemistry instructor, which he felt was related to his whistleblowing. Ford ruled in Oliver's favor, saying he had "cause" to sue Chattanooga State. But Ford's superiors in Nashville told Ford to change the ruling to "no cause."

Ford refused, and within a day, the state officials shut down the entire Chattanooga Human Rights office and moved Ford to Knoxville. She then threatened to sue and stated in an affidavit that her removal was due to her ruling on Oliver and that Senator Ward Crutchfield told her Oliver was "crazy." But before the case went to court, the Chattanooga Human Rights office was reinstated and Mrs. Ford promoted from Investigator to Director of the office. Later, she was named a Tennessee Hero.

Oliver worked relentlessly to present his documentation to the grand jury. But, in spite of ancient laws allowing citizens to appear before a grand jury, the forewoman said it was okay for her to deny Oliver. She said even Jerry Summers said it was okay.

Of course, Mr. Summers is the criminal attorney representing Foxworth, and, quite frankly, he seems to have done a remarkable job with the eventual plea bargain.

It was especially frustrating that Mr. Blackwell successfully petitioned to have this case before you sealed from the public, although it was eventually unsealed. An explanation of that ruling would also help to alleviate the suspicion that continues to brew over this matter.

All these facts and strange circumstances demand an open hearing by a high official such as yourself, Judge Edgar.

Thank you, your Honor, for considering these matters and for doing, as I trust you will, all that you can appropriately do in your power to bring the truth to light and to assure public protection and integrity in our community.

Sincerely,
Dean Arnold, Publisher