TCWN Accuses State of Insufficient Enforcement of Clean-Water Regulations

When the Tennessee Clean Water Network released its annual water-enforcement report last week, something looked odd. They collected data on the number of enforcement actions taken against groups or companies that had violated the terms of their discharge permits into Tennessee surface waters and had unnecessarily polluted nearby water sources, and found that there was a sharp drop last year. In fact, the Tennessee Department of Environment and Conservation made only 53 enforcement actions in 2012—a 75 percent decrease since 2007, when there were 219.

"We were appalled then [in 2007]. We thought wow, that is like 2.3 per county. We know there's more bad stuff going on than that," says Renée Hoyos, the executive director of the Tennessee Clean Water Network.

Meanwhile, Georgia's Environmental Protection Department handed down 300 surface-water violation enforcement actions in 2007, though the number of enforcement actions declined each year until 2010. Since then, the number of surface-water enforcement actions has hovered around 160. Alabama's Department of Environmental Management consistently issues far fewer enforcement actions than Tennessee, though. In 2008, 56 enforcement actions were taken against surface water-quality violators. In 2012, there were only 28 enforcement actions.

Those comparable numbers don't make a difference to Hoyos. "People need to place a value on water quality. Just because everyone else doesn't prioritize water quality doesn't mean we have to follow the pack," she says. Hoyos says she believes the decrease is part of the state's bid to become more business-friendly and bring more jobs.

"The state wants to be friendly to industry, and they make it a jobs issue. What this report tells me is that the state is saying, ‘We want jobs, and we're going to make it very easy for you to set up here. You don't have to worry about enforcement of clean-water laws,'" she says.

"The number of enforcement cases the department pursues and the amount of the penalties assessed in each case are dependent on a great number of factors," says TDEC spokesperson Meg Lockhart.

She says the TCWN's study includes years in which there were serious disasters—including the 2008 Kingston ash spill and the 2010 floods in West and Middle Tennessee. Those incidents "had a dramatic impact on the workload and priorities of the department," Lockhart says. The floods in particular took priority over enforcement actions when drinking-water plants were flooded with rainwater. "So yes, the department redirected resources to help manage and recover from that disaster. It was a matter of protecting public health and water quality and we would do it the same way again, if a similar situation occurred."

Hoyos says that doesn't account for every other year in which the number of enforcement actions continued to fall. "That explains 2010, but it doesn't explain 2012," she says.

The state's seemingly preferential treatment of businesses seems to fly in the face of the state's selling point to a lot of people, Hoyos adds.

"I don't think that in the long run, that attitude is good for Tennessee, because a lot of industry and a lot of jobs are created around tourism. Whenever they talk about Tennessee, they say come out and see the Great Smoky Mountains. If this keeps up, the Smoky Mountains are going to be the only place where there's going to be clean water because that is a federally protected area," she says.

The problem TCWN sees with the steep decline in enforcement actions is that without enforcements, companies will continue to violate their discharge permits without fear of penalty. In fact, holders of discharge permits must fill out discharge-monitor reports and send them to TDEC as a form of self-policing. Those reports have penalties to prevent lying (a discharge-permit violation is a civil offense; lying on a discharge-monitor report is a criminal offense). Ostensibly, TDEC is supposed to use those violation reports in order to decide who should be penalized. Penalties are enforcement actions, which usually involve a fine. An assessed fine from TDEC is usually a high number. But many times, the fine is negotiated into a required fine and a contingent fine, which can be further reduced if the company in question will take steps to clean up its act. The TCWN's research shows the average fine paid by companies who've been assessed a violation fine is $2,000.

"The point of fines is to deter future bad behavior. The point is to make it pinch. When your average fine is $2k or less, they just roll that into the cost of doing business," Hoyos says.

Though TDEC does compliance checks of companies, a 1997 policy encouraging more reliance on self-policing was reissued by current TDEC Commissioner Robert Martineau in 2011. (It was previously reissued by three different TDEC commissioners.)

"TDEC's goal for all permittees is to ensure they are compliant with all regulatory standards. If they are not, our responsibility is to compel compliance—which is often done via enforcement," Lockhart says. "Should a permitted entity discover they are in non-compliance before we do, the appropriate course of action for continued environmental protection is for them to contact us for assistance in achieving compliance as quickly as possible. Commissioner Martineau re-issued TDEC's Policy Encouraging Self-Policing and Voluntary Correction in November 2011 because it furthers the goal of this department, which is environmental protection."

But Hoyos says TDEC's response to those self-policed reports is lacking. The TCWN searches through TDEC's public records of discharge-permit violations, and pursues litigation against the most egregious and ongoing violations, such as the case of Gerdau Ameristeel's steel mill in Jackson. In the five years before TCWN sent an 60-day notice of intent to sue the company in October 2012, Gerdau Ameristeel self-reported more than 1,300 days of violations of its discharge permit to allow the release of cooling waters into Dyer Creek. The violation reports showed the water released exceeded iron and pH levels allowed in its permit.

In December 2012, Gerdau Ameristeel's lawyer contacted the TCWN to inform the group that Gerdau was repiping the cooling waters so that most of it would be recycled and the rest would be directed to its sewage-treatment plant. TCWN also notes that Gerdau Ameristeel no longer needs a discharge permit because it's not discharging cooling waters into Dyer Creek. TDEC did not take any enforcement action on Gerdau Ameristeel.

"I'm not finding people polluting in the dark of night. I'm finding people polluting in the light of day, and actually telling the state agency about it. And the state agency is ignoring it," Hoyos says. In fact, she says, the TCWN is, in effect, doing TDEC's job.

"We've done 14 [lawsuits] in four years—and that's one organization with one staff attorney. In our existence, we've done a third in four years of what the state did last year. From the state's perspective, that's pathetic. I've got one staff attorney doing all this work. If we can do this many, the state can do this many. The state has a number of attorneys," Hoyos says.

But TDEC says enforcement actions are just one tool in its toolbox, and that litigation usually does more harm than good.

"The strongest tool in protecting the environment, including water quality, is preventing problems in the first place. Enforcement is a tool used to compel compliance, when that becomes necessary," Lockhart says. "In situations where companies continue to violate, our penalty matrix requires increasing penalties. In extreme cases, we have the option to pursue litigation, but often both parties lose and the environment is still not further protected."

Hoyos argues TDEC hasn't deemed enough violators worthy of enforcement, despite the TCWN's lawsuits against continually violating companies very quickly causing them to clean up their acts, such as Gerdau Ameristeel. Hoyos reads Lockhart's response and the 53 enforcement actions last year as a sign that TDEC doesn't think enforcement works.

TDEC's apparent reluctance to take enforcement action against discharge-permit violators ultimately puts into question the future health and vitality of Tennessee and everyone living in the state, Hoyos says.

"We're getting to a time in history when clean water is going to be scarcer and more expensive. And we need to be mindful of that as a state in thinking about how we're going to grow, how we're going to encourage industry, and how we want to encourage industry to invest in our community. Because we can't afford to lose the resource we need to live," she says.