Beyond the 24 acres: Could landfill expansion be an uphill battle for developers?
Landfill battles elsewhere in Tennessee offer insight into how Scott County might win its fight against another major landfill at Bear Creek
🥜 IN A NUTSHELL: As Scott County gears up for a legal fight over the proposed Bear Creek landfill, similar battles in Nashville and Jackson suggest the local Solid Waste Board might be able to successfully block landfill expansions if they align with current waste management plans. The currently permitted 24-acre Roberta Phase II site, approved in 2010, must be re-certified under current rules before construction, with developers also pursuing a rail transfer station. While the Solid Waste Board plans to declare no need for a second landfill, the dispute is expected to ultimately end up in court.
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In March 2021, Houston-based Waste Management filed for a 17-acre expansion of its Southern Services landfill in northwestern Davidson County. Nashville’s Solid Waste Region Board said no, arguing that the expansion was inconsistent with the Solid Waste Master Plan it adopted two years earlier. When the dust settled, the solid waste board emerged victorious, and the expansion did not happen.
As the fight over a proposed landfill at Bear Creek in Scott County heats up, landfill battles in Davidson County and elsewhere in Tennessee could offer a roadmap for what the future of a second landfill in Oneida might look like.
The Southern Services landfill is located in the all-black Nashville suburb of Bordeaux, where residents had complained for decades of environmental racism. The landfill takes 90% of all construction waste from Nashville; the next-closest landfill that accepts construction waste is 40 miles away.
Following a tornado in 2020 and a Christmas Day bombing later that same year that generated significant wreckage, Waste Management argued for what it called a “modest, short-term expansion” of the 77-acre landfill. Adding 17 acres, they said, would extend the life of the landfill for 10 to 12 years.
But the Solid Waste Region Board rejected that proposal, citing its 10-year solid waste plan, which calls for Nashville to become a “zero-waste” city. The expansion plan, board members said, would “go against the priority of diverting (construction and demolition)” that was laid out in the 2019 master plan.
It seemed like an easy case for Waste Management to fight. The construction waste resulting from the tornado and the subsequent bombing was Nashville’s, after all. Is becoming a “zero-waste” city really as simple as taking your waste to some other part of the state and dumping it?
But one year later, in March 2022, Davidson County Chancery Court Chancellor Anne C. Martin ruled in favor of the Solid Waste Region Board, saying its decision was based on substantial material evidence, and that the decision was not arbitrary or capricious.
Waste Management next appealed to the Tennessee Court of Appeals. In August 2023, the higher court issued its opinion affirming the earlier Chancery Court opinion.
In Tennessee, regional solid waste boards — created in 1991 by the state’s Solid Waste Management Act — do not have the authority to stop a landfill … at least not unilaterally. The boards are tasked with reviewing landfill permit applications, and ultimately approving or rejecting those applications. But final permitting authority lies with the TN Dept. of Environment & Conservation — which hasn’t always heeded the wishes of local governments, although its guidance indicates that it will do so if the regional solid waste board’s decision isn’t “arbitrary or capricious.” Those local denials are restricted to relatively narrow reasoning: the landfill permit must run afoul of the region’s pre-established solid waste management plan.
That was the case in Davidson County. While TDEC did not get directly involved in that battle, beyond approving the Nashville Solid Waste Region Board’s management plan in 2019, the courts held that the board’s decision was supported by the pre-established management plan, and that it was not “arbitrary or capricious.”
The Southern Services case isn’t a stand-alone example. In 2011, A-1 Waste LLC applied for a permit to build a new landfill in Jackson, Tenn. The Madison County Municipal Solid Waste Planning Region Board said no, based on projections that an existing landfill nearby could last another 30 years, among other factors. TDEC sided with the local government, declining to issue the permit because it found the solid waste board’s decision to not be arbitrary or capricious. That case, too, went to court — and, as would later be the case in Nashville, both the chancery court and the Tennessee Court of Appeals upheld the original decision.
If those two cases are an indication of what is to come, a stamp of non-approval from the Scott County Solid Waste Board could have significant implications further down the road.
Mapping the Bear Creek fight
In Scott County, the initial fight over the proposed Roberta Phase II Landfill isn’t subject to the Solid Waste Board’s approval — TDEC permitted 24 acres as a Class I landfill in 2010, following public hearings and meetings that played out with the same objections from the public that are taking place in Scott County this summer.
That doesn’t mean landfill construction is ready to start. Because more than a year has elapsed since the permit was issued, current state regulations come into play — replacing the regulations that were in place in 2010. TDEC must re-certify the permit before landfill construction can proceed. Before that re-certification happens, there are issues that the developers will have to resolve — including ARAP issues involving wetland areas within the permit zone. As part of their application for re-certification of the permit, developers detailed how they plan to resolve those issues, but actually doing so will take both time and money.
Separately, developers have applied for a rail transfer station adjacent to the landfill.
Regardless of what happens with the initial fight, though, the earlier battles in Nashville, Jackson and elsewhere could offer insight into what might happen in Scott County. With nearly 700 acres of property in play, the currently-permitted 24 acres would be just a start, with proposals for future expansions of the landfill a near certainty. If and when that time comes, both the Jackson and Nashville cases offer a glimpse at what the fight might look like.
In the case of the proposed new landfill in Jackson, the local government was able to successfully argue that an existing landfill had decades of life left, negating the need for a new landfill. That is an argument that will factor heavily in Scott County’s fight, given that Volunteer Regional Landfill is literally next-door to the proposed Roberta Phase II Landfill and is usually estimated to have at least 20 to 25 years of life remaining.
The Davidson County battle could prove even more intriguing. Many of the uncertainties around local governments’ fight against the proposed new landfill at Bear Creek — such as the implementation of Jackson’s Law and overlay zoning — revolve around a central question of whether those measures could retroactively apply to a landfill that has already been permitted and a transfer station that has already been applied for. In Davidson County, however, the landfill predated the Nashville Solid Waste Region Board’s 10-year solid waste management plan by decades — yet that 2019 plan was successfully used to deny a 17-acre expansion in 2021. In other words, as it applies to Scott County, what has happened in the past may have no bearing on future expansions.
Where things currently stand
The Scott County Solid Waste Board is preparing to submit a letter to TDEC that states no need for a second landfill at Bear Creek. Whatever that letter looks like — John Beaty, the county’s attorney, is working from three proposed letters to draft a final letter that will be presented to Scott County Commission next week, and then to the Solid Waste Board the week after — it will raise some of the same points that were used by the solid waste boards in Nashville and Jackson.
The Solid Waste Board held its regularly scheduled quarterly meeting on Monday, but did not have a quorum to consider the letters. It will meet again in a special called meeting in two weeks.
Based on established protocols, that letter may have little bearing on whether TDEC chooses to re-certify the original Roberta Phase II permit from 2010.
However, Beaty raised a separate point at Monday’s meeting, saying that he and the county are prepared to argue that Scott County has been a participant in Jackson’s Law since July 1989. TDEC’s interpretation of the law is that the Jackson Law sunset in Scott County — and in any other county that did not adopt a renewed resolution in the 2000s — in 2010, just weeks before it approved the Roberta Phase II permit.
“A legal argument we are prepared to make is Scott County adopted the Jackson Law in 1989,” Beaty said. “There should have been no expiration. We are pursuing that. We feel good about our standing. We are prepared to argue that Scott County has been under the Jackson Law since July 21, 1989.”
Scott County will also likely argue that it is making strides to divert waste from landfills through recycling efforts. Tennessee law requires that each county successfully divert at least 25% of its household and business waste through recycling. According to Scott County Mayor Jerried Jeffers, Scott County is well above that, with a diversion rate of 41% last year, thanks in large part to the county-owned recycling center in Huntsville.
“As we go along, I’m optimistic that Scott County can achieve 42% or 43% next year,” he said.
Two things seem certain in the current fight: one, it’s almost certainly going to end in court. And, two, it’s a fight that’s likely to be a lengthy one. Two of the heaviest hitters in the state’s ongoing landfill drama are involved. On the side of the landfill developers is George Hyfantis, the engineer who originally designed the Roberta Phase II and carries considerable clout within the state’s solid waste management industry. And on the side of the local governments is Lisa Helton, the Middle Tennessee attorney who successfully led the city of Murfreesboro’s fight against an expansion of the Middle Point Landfill in Rutherford County. All indicators point to a prolonged battle that’s only just begun.