Is There Any More Room for Pollution?

This report is the second in the series on TDEC’s water pollution program. The first report concentrated on TDEC’s woeful enforcement program. To read that report, click here.

This report “Is There Any More Room For Pollution?” highlights many failures of the National Pollution Discharge Elimination Program that is administered by the state.

What we know:

  • There are around 25,000 active permits in Tennessee.
  • In 2009, TDEC permitted the loss of 10,000 feet of streams. This is equivalent to a trip up, and halfway back down Clingman’s Dome, the tallest mountain in Tennessee.
  • Of the 2,036 individual permits (general permits make up the bulk of the 25,000), the number of days between inspections ranged from no inspections to 8,908 days - which is almost 25 years!
  • 47% of individually permitted sites have NEVER been inspected.

This report centers around a case study that is illustative of problems with the program. The Horse Creek Wildlife Sanctuary in Hardin County was the passion of its owners, the realization of a dream and a gift to the surrounding community. TDEC issued a permit to a new quarry upstream and the series of events that unfolded became a nightmare for the Sanctuary.

  1. A TDEC biologist visited the stream and determined it was severely impacted and the analysis showed that the stream had unavailable conditions for more sediment.
  2. In complete contradiction to their own findings TDEC put a draft permit for the quarry on public notice.
  3. During the public comment period many people objected to the permit but to no avail as TDEC issued a final permit.
  4. Within 4 months of issuing the permit, Horse Creek was full of mud from construction at the quarry site. Horse Creek Sanctuary owners had to hire lawyers to protect their investment.

LITIGATION COSTS INCURRED BY TDEC ARE PAID BY THE PUBLIC. This is a drain on the State’s resources in a time when each penny is squeezed flat by the recession.

Why did this happen?

  • Communication between departments is lax. In this case, clearly the TDEC biologist and the permit writer did not communcate about the condition of the stream. Communication between sections of the Division of Water Pollution Control are often like ships passing in the night. Communication between Divisions are also problematic.
  • Irregular use of “di minimus” and “anti degradation” rules create confusion and lack of consistency when issuing permits. (water quality regulations attached.)
  • Too little staff to handle the workload. TDEC manages approximately 25,000 permits/year. In April 2010, there were 13 permit staff, 10 of whom wrote 228 permits in the prior year.
  • Total Maximum Daily Load (TMDL) - this federal requirement is basically a clean up plan. TDEC is required to write them for streams on the 303d list. The point is to ratchet down pollution from as many sources as possible to attempt to eliminate pollution. TDEC should be issuing permits that reflect the work put in to TMDLs, but they rarely do.
  • Numeric limits: There is no numeric limits for mud only qualitative standards such as “no objectionable color contrast”. Therefore, pollution is in the eye of the beholder. TCWN sued a Knox County developer and got him to agree to a numeric limit. If a small nonprofit can do it, so can TDEC.
  • Monitoring of water quality. In some cases TDEC will lower monitoring requirements even when they acknowledge that increased pollution is likely. Often there are no monitoring requirements in permits, especially individual construction permits. It is hard to know if streams are getting better or worse without consistent monitoring.

And finally,

  • Best Management Practices. This is a particular problem on construction sites. The photo above is taken from a permitted site in Middle Tennessee. Tattered silt fences and poorly constructed sediment retention ponds are the norm in Tennessee.

    On Wednesday, April 20, 2011, Governor Haslam announced his economic plan for Tennessee. While we have only a slide show and a press conference to indicate what the Governor had in mind, we know that Governor Haslam has instructed all departments to search and destroy regulations that are bad for business.

    In the case of TDEC:

  • There is little fat to trim.
    • TDEC does not go above and beyond the federal requirements of the US EPA. Any cuts to this program could dangerously affect the State’s federal funding. Without a state program, the US EPA would step in and run all of these programs from Atlanta.
  • Efficiencies can be gained.
    • Increasing communication between sections of the Division of Water Pollution Control as well as between Departments of TDEC would go a long way towards making TDEC more protective of our beautiful resources, fair to business and transparent to the public.
  • Not all laws and regulations are “burdensome.”
    • Many laws protect public health, public safety and the environment and must be valued for those services too.
Attachment Size
TN water quality regulations1200-04-03.pdf 118.2 KB
Permit-Report_05-3-2011.pdf 4.11 MB