2011-2012 Enforcement Report

Shamrock Fish Kill2This year’s report examines the Tennessee Department of Environment and Conservation’s (TDEC) Division of Water Resources’ enforcement information from 2011 and 2012 then looks at why we are witnessing such a drastic decline in enforcement orders. Overall, enforcement has dropped, assessment of fines has dropped and pollution continues apace.

Compared to previous years’ data, several of the same trends remain:

  • High fine forgiveness continues, meaning violators pay less.
  • There is no geographic focus for enforcement actions – only half of the counties in Tennessee had enforcement actions in 2011, this dropped to a third of them in 2012, with no indication the Department is discriminatory regarding where enforcement occurs.
  • Construction activities continue to dominate the type of violators receiving enforcement – construction and development activities made up over half of all enforcement taken in the past two years.
  • Water pollution levels are high and enforcement is low.

Fine assessment remains one the biggest problems. The process is inconsistent, resulting in low fine collection up-front, and it contradicts the Department’s written procedures. TDEC’s guidance for assessing a fine provides step-by-step instructions. However, a review of various enforcement orders indicates the Department is not applying this process. As a result, fine assessment is much lower than its guidance suggests would be appropriate. The amount of assessed fines actually collected by the state remains incredibly low, compounding the problem of the Department not having enough money to adequately fund its enforcement program and remedy negative impacts caused by violators. In 2011 only 16% of the assessed fines were actually required to be paid, up slightly in 2012 to 21%.

The Department may assess a significant penalty for violations, but only a small portion of that fine is mandatory. Of the total fines assessed in 2011 and 2012, only 18% were in the form of mandatory, up-front penalties for past violations. In 2011, 99% of all violators paid only 35% of their fine on average. In 2012 only 2 violators paid more than half of their assessed fine, paying only 41% on average. Over half of the mandatory fines paid to the Department are under $2000.
contingent noncontingent graph(1)

Institutional changes and new policies have emerged in the past two years within TDEC which likely impact how the Department now operates. There are a few possible reasons why enforcement has declined so much in the past two years:

  • Staff changes – High level managers who had worked in the Division of Water Resources for years are gone, including the manager of the enforcement section, possibly resulting in confusion about who is leading enforcement efforts.
  • Policy modifications – A new department-wide policy encourages the regulated community to self-police and report when they commit violations. Under certain conditions, TDEC’s new policy can result in the waiver of civil penalties. This policy shift may have led to the perception that enforcement is contrary to the Department’s goals.
  • Decline in violations – This seems highly unlikely because TCWN’s own work finds numerous permit and regulatory violations throughout the state.

TCWN believes this decline is problematic. Violators must be penalized to deter future violations and they must also bear the cost of clean-up and correction when their violations impact our water quality. We believe the TDEC Commissioner must reiterate to his staff and the public that the Department is still committed to effective enforcement. TCWN also encourages the Department to properly use its fine assessment tool to ensure collected fines cover the cost of enforcement and remediation so it does not continue to be the burden of the taxpayer.

Attachment Size
Enforcement Guidance 2011.pdf 864.41 KB
Minimum Penalty Guidelines.pdf 93.12 KB
2011 Self Policing Policy.pdf 101.69 KB
April Enforcement-Report.pdf 796.24 KB
2013 Update of DWR Enforcement Orders.pdf 111.92 KB