Environmentalist group says TDEC anti-pollution efforts ‘clearly insufficient’

By Travis Loller, Associated Press
NASHVILLE, Tenn. — State regulators issued 77 percent fewer enforcement orders against water polluters in 2014 than they did in 2008, according to the nonprofit Tennessee Clean Water Network.

The network has been tracking actions the Tennessee Department of Environment and Conservation takes against polluters since 2007, when the agency issued 219 enforcement orders. In 2008, that number rose to 231. But enforcement orders plummeted beginning in 2009, reaching just 53 in 2012; 50 in 2013; and 53 again last year, according to a Tennessee Clean Water Network report released Wednesday.

Four of those 53 orders were issued in direct response to actions by the Clean Water Network, either formal complaints or threatened lawsuits, according to the report.

More than a quarter of enforcement orders in both 2013 and 2014 were not for pollution but for paperwork problems, such as failing to submit a complete permit application, according to the report.

The permits issued by the state agency allow businesses and individuals to pollute Tennessee waterways within certain limits. There are more than 17,000 active water permits statewide. More than half of those are for construction sites.

It is not clear why the number of enforcement orders has been going down. The numbers already were declining when Gov. Bill Haslam took office in 2011, but they dropped steeply in 2012 and have stayed low.

In an emailed statement, spokeswoman Kelly Brockman said the agency works to achieve compliance with the law through various means including “inspections; clear communications; and outreach, where possible and appropriate.”

Brockman said TDEC’s Division of Water Resources completed 2,122 inspections in the second half of 2014 and found an 86 percent compliance rate. In many cases, polluters came back into compliance after receiving a notice of violation. When that doesn’t happen, she said, “we may opt to proceed with more formal enforcement.”

Tennessee Clean Water Network attorney Stephanie Durman said she does not want to speculate on why TDEC is issuing less than a quarter of the enforcement orders that it did seven years ago, but she does not think the drop means there have been fewer violations.

“There’s no evidence to support the proposition that violations declined, certainly not by 75 percent,” Durman said.

The report cites several examples of violations that have been ongoing for years with little or no action from state regulators. In the case of the Holston Army Ammunition Plant, in Kingsport, the Tennessee Clean Water Network has filed a lawsuit asking the courts to order the plant to stop violating its permit, which allows the plant to pollute the Holston River with an explosive chemical compound called RDX.

Since the river is used for drinking water, the amount of RDX allowed in the river is supposed to be within federal limits considered safe.

TDEC first issued a permit for the RDX pollution in 2007. Regulators gave the plant five years to comply with the limits, but in 2012 the plant was releasing more RDX into the river than in 2007.

After the Clean Water Network threatened to sue last year, TDEC entered into an agreement with the plant’s owners and operators that calls for them to use their best efforts to comply with the permit. The network filed a lawsuit in November that is ongoing.

Note: Here’s the full snws release from Tennessee Clean Water Network:
May 6, 2015 – A biennial report released today by the Tennessee Clean Water Network (TCWN) shows that surface water enforcement orders by the Tennessee Department of Environment and Conservation (TDEC) remain at near historic lows.

“Enforcement actions are necessary to ensure the state’s clean water laws are properly followed,” said TCWN’s Water Policy Director and the report’s author, Dana Wright. “TCWN issues this report every two years to help identify gaps in the state’s enforcement program as there is a direct correlation between TDEC enforcement and the water quality in our state.”

The “State of Tennessee Water Pollution Report – 2014-2015” documents only 53 enforcement actions in 2014, down over 75 percent from the high of 231 in 2008, the first year TCWN issued the Water Pollution Report. “While there is slight improvement from the 2013 number of 50 to 53 in 2014, there are still 13,000 stream miles and 181,000 lake acres designated as polluted in Tennessee,” Wright said. “Just 53 orders for more than 17,000 active water permits is clearly insufficient.”

“TDEC needs to be more aggressive in taking swift, effective enforcement action where necessary to protect water quality in Tennessee. The citizens of this state depend on TDEC to enforce the law, and this report shows that stronger action needs to be taken by TDEC,” Wright added.

TCWN’s General Counsel Stephanie Durman said TDEC should focus more on egregious pollution violators in Tennessee. “TDEC needs to address the worst-case pollution and compliance problems first to be effective in its role as a regulator.”

Another area of concern cited in the report is that the amount of fines to be paid is too low to deter violations. Water pollution violators are typically paying only a quarter of the total assessed fines as an upfront penalty, while the balance only becomes due if the enforcement order is violated.

“Minimizing the fines assessed for past violations is contradictory to the intent of punishing an offender for violating our water laws. The state determines the violations are worth a specific amount, which includes the need to deter future violations, but then only requires a fraction of that amount to be paid. State regulators need to use the biggest bat they have to stop pollution in our state, and forgiving fines is not going to force anyone to change behavior,” Durman said.

The report lists six locations across the state where TDEC should have taken swifter and stronger enforcement actions:

*A & E Livestock – Weakly County
*Gemstone Properties – Shelby County
*Holston Army Ammunitions Plant – Kingsport
*Hickory Corner Dairy – Claiborne County
*TVA’s Gallatin Fossil Plant – Sumner County
*Justice Mines – various locations in Tennessee

Durman noted that formal enforcement action is not the only way to promote compliance. TDEC also conducts inspections and informal enforcement through, among other means, technical assistance and notices of violation. The ultimate goal, however, is compliance, and there are literally hundreds of sites throughout Tennessee currently in violation of our water laws.

“Enforcement is not and should not be an end in itself, but instead a means to achieve compliance and environmental protection. Enforcement should not only serve to protect water quality, but also to deter future violations. TCWN urges TDEC to employ its full enforcement capabilities to provide Tennesseans with safe, clean water and to instill good business practices from the industries granted the privilege to impact our streams,” Wright said.

For the complete report, visit the TCWN website at www.tcwn.org.