Oliver Claims Toxic Dumping Hurts City's Water Company Ambitions

The Chattanooga Fax, Week of Feb. 8, 1999

The city has no credibility to run the water company according to local chemical expert Ernest Oliver.
At the recent meeting held by the mayor at the Tivoli, Oliver repeated his claims that local authorities continue to allow companies like Hydro-Vac Services to dump illegal pollutants into our creeks, river, and landfill. The 700 person crowd responded with thunderous applause. Oliver's opponents say he is the one lacking credibility. "Mr. Oliver is an idiot," says Bill Foxworth, owner of Hydro-Vac, a non-hazardous wastewater treatment plant located next to Wheland Foundry and behind the Bilo on Broad Street, where Chattanooga Creek enters the river. "There is absolutely no truth to this crap." City officials and various attorneys knock Oliver's credibility by pointing to all the court cases he has lost. And there have been many. Oliver ran Hydro-Vac's lab in 1989 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 claimed in 1989 and continues to insist today that Hydro-Vac collects hazardous and non-hazardous waste from nearly 100 local corporations, stores up to 700,000 gallons of the waste in several large tanks by Chattanooga Creek, and then dumps the tanks straight into the creek and nearby river during rainstorms when muddy waters disguise the pollutants.

Oliver's allegations were corroborated in a sworn affidavit by HydroVac employee Randall Blevins in 1991: "It is my belief, based on actual on-site experience, that no more than 20% of all liquid waste which came into Hydro-Vac was treated before it was discharged into the Chattanooga sewer system."

Blevins testified that he was ordered by his boss to "back a tanker up to the ditch which runs into the Chattanooga Creek, and have observed him allowing the untreated liquid waste to run into the ditch and into the Chattanooga Creek." Regarding the 700,000 gallon tanks, 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.'"

Bunky Wright, director of Waste Resources for the City of Chattanooga, told the Chattanooga Fax that HydroVac is inspected twice a year for a week at a time. "I don't think HydroVac has had a violation in a couple of years," he said.
Bi-annual inspections admittedly would not prevent direct dumping into the streams during heavy rains, but Wright said his agency only had jurisdiction over what is dumped into the sewer system. He said direct dumping into the creek or river would be a matter for the state's Division of Water Quality Control.

Oliver's accusation were also corroborated by 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 approximately 20 feet deep."

An inspection report by the Tennessee Department of Health and Environment shows that Hydro-Vac owner Bill Foxworth directed a backhoe operator to dig a trench at the site "to a depth of approximately three (3) feet." The report states that "no fill material or disturbed earth was noted" and "no drums were found."

Oliver says the drums are still there, 20-feet deep, leaking poisons into the creek and river.

After being fired by Hydro-Vac, Oliver filed a suit in federal court to expose the toxic dumping.

A 1991 inspection of Hydro-Vac by Tennessee Division of Waste Management Director Guy Moose states: "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."

However, less than three months later, Moose testified in a sworn affidavit that Oliver's accusations were "unfounded." Federal Judge James Jarvis relied on Moose's affidavit to throw out Oliver's lawsuit against Hydro-Vac without an opportunity to present the evidence. When another federal Judge ruled that Judge Jarvis "may have relied on a false affidavit," Oliver appealed Jarvis' ruling to the 6th circuit in Cincinnati. That court ruled against Oliver, stating that "perjured testimony alone does not constitute fraud upon the court." Oliver appealed again, but the Supreme Court refused to hear it. However, Oliver was vindicated in another venue - a complaint to the Labor Department. Secretary of Labor Robert Reich ordered Hydro-Vac to pay Oliver $25, 018 for improperly firing the "whistleblower." Oliver received the check from Hydro-Vac's attorneys on May 4, 1998. The Secretary of Labor's ruling stated that "the test results taken from Hydro-Vac's gasoline contaminated soil revealed the presence of benzene at 160 times the allowable or threshold limit....Thus, I conclude that Oliver's complaints and concerns about the gasoline contaminated soil were based on his reasonable and factual legal belief that Hydro-Vac was violating SWDA. Oliver's concerns that the contaminates would run-off and pollute the nearby Tennessee River was reasonable and implicates the FWPCA."

Oliver is a multifaceted and complex character. He was educated as an attorney and usually represents himself in court. He's a scientist, a master plumber and a commercial pilot. He was army captain of the artillery. A professionally trained opera singer, he has played piano and sung for hire in nightclubs.

His legal antics since 1990 include the following: a complaint to Dept. of Labor over his HydroVac firing. The first judge died, and the second judge ruled against Oliver. He then appealed to the Secretary of Labor and won. He also sued Hydro-Vac and others in state and federal court and was countersued by clients represented by attorneys Bill Colvin, Rick Hitchcock, and James Gentry for $5 million. Judge Samuel Payne dropped Oliver's suit in state court along with the $5 million counter suit. Judge Jarvis dismissed Oliver's federal suit while the three attorneys sought $100,000 from Oliver in sanctions which was reduced to $1500. Jarvis also filed an injunction against Oliver from ever filing suit again.
Upon being fired from Chattanooga State, Oliver claimed a conspiracy and sought a "letter to sue" from the Tennessee Department of Human Rights. Employee Alice Ford was ordered by Nashville not to grant the letter. She refused. A few days later the Chattanooga office was shut down. Ms. Ford filed her own lawsuit, claiming conspiracy against Oliver. Oliver than obtained his "letter to sue" from the federal EEOC. He filed his suit against Chattanooga State and all former defendants in Jarvis' court and immediately faced charges of contempt and heavy sanctions. Since Jarvis was named in the suit, another federal judge heard the case, but refused to fine Oliver for contempt because "Jarvis may have relied on a false affidavit." Oliver again filed a motion before Jarvis to overturn his case based on the false affidavit. Jarvis refused and Oliver appealed to circuit court and then the Supreme Court.

As an appropriate ending to Oliver's surreal legal crusade, the envelope from the Supreme Court containing Oliver's letter also contained two other letters - to a man from Los Angeles and a woman from Israel also being informed that their cases would not be heard. Oliver wrote the Court asking what was going on up there, if his documents were actually read, or, as he said to CFax, "were being handled by a bunch of drunk Yale students." Supreme Ct clerk William Suter wrote back assuring that each individual justice reviewed his case.

"As to the two extra letters that were included with your notice," he wrote, "all I can say is that the machine that stuffs the envelope with letters was at fault."