Accuser of Toxic Dumping in City Granted Appeal

Week of Dec. 11, 1997

Chattanooga Judge Samuel Payne had no idea Ernest Oliver was secretly taping their conversation inside his chambers on March 12, 1993. To such lengths will Oliver go to finally get his day in court. The man who accuses higher-ups of concealing major illegal dumping of poisonous and hazardous waste into Chattanooga's creek, river, and landfill is not the best poster child for "The Environmental City." Oliver told Judge Payne the law required him to provide a trial on the allegations, but Payne ruled otherwise. According to a transcript submitted in court records by Oliver, Payne admits on tape he did not read Oliver's allegations. And when Oliver asks the judge if he is concerned about a dumping operation, he responds:

• Payne: "No, and I don't know anything about it."
• Oliver: "Well, it's hazardous waste going into the Chattanooga Summit landfill."
• Payne: "Fine, go do something about it."
• Oliver: "You're not interested in that?"
• Payne: "Why, I'm certainly not. I've got plenty to do here. I don't go out and trump up lawsuits, for God's sake. I've been here 20 years."

Judge Payne says he does not recall the incident. Undaunted, Oliver appealed to a higher court - the 6th Circuit Court of Appeals in Cincinnati. That case is now pending.

Oliver's road to Cincinnati began after he was fired on Aug. 27, 1990 by the laboratory of a non-hazardous waste dumping company in Chattanooga - Hydro-Vac Services, owned by Bill Foxworth.

Oliver, an expert in toxic substances and a former laboratory scientist in Michigan who has testified as an expert in 504 cases, claims he observed Hydro-Vac dumping poisonous and hazardous waste into Chattanooga Creek (a few hundred feet from the river), into the Chattanooga sewer system, and into solid wastes sent to Summit Landfill. The poisons he names, which are listed in a May 9, 1991 investigation report by The Tennessee Department of Health and Environment, include arsenic, lead, cadmium, barium, benzene (a gasoline additive), trichloroethane (dry cleaning fluid), and mercury - which Oliver says causes cancer.

According to Oliver, hazardous waste should be sent to certified facilities such as the Laidlaw Corp. behind Lookout Mountain. But he says Hydro-Vac, which takes only non-hazardous wastes, offered low prices to a large portion of area manufacturers (82 were named in the lawsuit) which sent their hazardous wastes to Hydro-Vac. Oliver says he warned Foxworth several times and then blew the whistle to the Tennessee Department of Conservation and was fired shortly after. Oliver than filed a complaint with the Department of Labor and filed a lawsuit with federal court.

The Department of Labor ruled against Oliver as did Federal Court Judge James Jarvis of Knoxville. Jarvis noted in his opinion that Guy Moose, Chattanooga's regional director for the Division of Waste Management at the Dept. of Health and Environment, "concludes that all of Mr. Oliver's allegations were 'groundless.'"

Oliver's case was dismissed and never tried. In fact, the judge ordered him to never file another complaint on the matter. The affidavit filed by Moose has been central to the Oliver crusade. Moose's Feb. 21, 1992 sworn statement says "[Oliver's] unfounded allegations have cost the State of Tennessee substantial expenditure of monies... ." However, in a report of Hydro-Vac signed by Moose a year earlier (1/24/91), he writes: "During the inspection leachate from waste storage bins was observed migrating into the Chattanooga Creek" and "contaminated soil (rolloff boxes) leaking onto the ground and into Chattanooga Creek."

Another report filed by Moose's employee Janet Dutto on Dec. 5, 1991 states: "Hydro-Vac Services was found in violation of the Tennessee Hazardous Waste Management Act." Less than three months later, Moose testified that Oliver's accusations were "unfounded," the statement Jarvis relied on to rule that all of Oliver's accusations were "groundless."
Moose sticks to his affidavit "His allegations to us when we did the inspection of the facility in Sept. 10, 1990, were groundless," he told The Chattanooga Fax. Moose says the later citations of Hyro-Vac were not relevant to Oliver's earlier specific charges.

Oliver complains that Moose's citation was not included in the record when he appeared before the Department of Labor in January of 1991. Records show Moose dated the report of leachate and contaminated soil on January 22, 1991, testified to the D.O.L. on the Jan. 23, and then signed the report on Jan. 24. Calls to Moose's attorney James Gentry did not help clarify whether those documents were indeed withheld from the record.

Oliver appealed the Department of Labor's decision. Four months later, he says he went to Moose's workplace while he was out and had the secretary provide him copies of the Hydro-Vac reports and sent them to the D.O.L. Three years later on 11/1/95, according to Oliver's brief to the 6th Circuit, Secretary of Labor Robert Riech ruled that Oliver had been illegally fired from his lab director position. On Feb. 19, 1997 Federal Judge Daniel Sarno, acting for the D.O.L., ordered Hydro-Vac to pay Oliver $43,000 in back pay plus interest for illegally firing Oliver, according to Oliver's brief.

In 1994, Oliver lost his position at Chattanooga State as a chemistry and biology instructor. Oliver insists his environmental whistleblowing was a factor at the college now pushing "ecolonomics" in its future. Oliver had such problems in his original suit against Judge Jarvis that two of his attorneys quit the case. Oliver has represented himself in court ever since. In direct violation of Judge Jarvis's orders, this Indiana Jones of Tennessee filed another lawsuit in federal court over his second lost job.

The suit included the original charges of poisonous dumping in Chattanooga. The case went before Judge Thomas Hull of Greenville who has allowed Oliver to pursue the allegations of being fired, but not the charges of a cover-up of poisonous dumping - a conspiracy Oliver now calls "Tennessee-Gate."

However, Judge Hull decided not to fine Oliver for contempt of Jarvis' order, saying, "Jarvis may have relied upon a false affidavit in dismissing the previous lawsuit." Hull's question of the Moose affidavit was all Oliver needed to appeal his original lawsuit to one layer below the Supreme Court, the Sixth Circuit Court of Appeals in Cincinnati, which has already stated Oliver is entitled to "a full appellate review." That case is still pending.

Hydro-Vac's attorney, William Colvin, would not be interviewed and said owner Bill Foxworth would not be interviewed.
In a statement, Colvin said, "Mr. Oliver's allegations with regard to Hydro-Vac have been investigated by numerous state and federal agencies, including the criminal division of the United States EPA. His allegations have been aired in state courts, federal courts, and administrative proceedings before a variety of state and federal agencies." Oliver says the EPA investigation is still pending. He also says he has never been allowed to address his original allegations in a court of law, but has done so before the Department of Labor which ultimately ruled in his favor.

He wants a trial. "I could punch out a major official in public and I wouldn't get charged," says Oliver. "They can't afford to have me in court."

Does the dumping continue? Oliver believes it does and that Hydro-Vac continues to disregard the law. In fact, a June 12, 1996 citation from Rick Tate, Pretreatment Coordinator for Waste Resources Division of the City of Chattanooga, charges Hydro-Vac with "discharging a prohibited pollutant."

Tate's report says a Hydro-Vac employee, when he saw the investigators, began "running" to move a hose dumping into the sewer which was below the meter, which would lower the sewer bill. The report states: "This is a willful violation of permit conditions and will not be tolerated." Asked if problems continue, Tate told The Chattanooga Fax, "As far as I know, the problems were corrected and they are in compliance." Oliver is no stranger to exposing scandals. While a crime lab scientist in Michigan, he lost his job for blowing the whistle on mishandling of evidence and improper laboratory procedures. Even a secretary had access to the lab.

After special hearings by the Republican senate whip where Oliver was the key witness, the procedures were changed and the State Police chief "admitted that Oliver's allegations were factually accurate," according to the Lansing State Journal. The chief resigned a month later. Oliver was awarded $400,000 by the court. A bound volume of Michigan Court of Appeals now contains the case of Oliver vs. State Police where the court says, "the undisputed factual evidence is that the petitioner's [Oliver's] allegations to the newspaper were substantially true."

Most attorneys refuse to comment on the record about Oliver, but only say he is obsessed with "conspiracies." In a letter to Al Gore, Oliver does mention that "Tennessee is number 1 in the country for dumping hazardous waste in our creeks and rivers," says Chattanooga's Alton Park area has a 25% higher rate of cancer than other areas of the city (calling the problem "environmental racism"), and says "organized crime" plays a part in the cover-up of his whistleblowing. In fact, in his brief to the Sixth Circuit, Oliver names the following as part of the conspiracy: Guy Moose, Judge Jarvis, Judge Payne, William Colvin, attorneys Rick Hitchcock and James Gentry, Mayor Gene Roberts, Grand Jury Foreman Marcia Crabtree, D.A. Bill Cox, Gov. Don Sundquist, V.P. Al Gore and several others.

To many, the conspiracy seems far-fetched. Then again, so did the conspiracy to cover up evidence tampering in Michigan's crime lab. At least one official has benefited from believing Oliver's "crazy" accusations - the senate whip, John Engler, who offered a forum for Oliver in public hearings. Now Governor of Michigan, Engler is considered a prime candidate for president by many Republicans.