STOP WATER POLLUTION!

USING THE TENNESSEE WATER QUALITY ACT SECTION 118(a)
 TO STOP WATER POLLUTION

TENNESSEE WATER QUALITY CONTROL ACT, Tenn. Code Ann. § 69-3-101 et seq:
 69-3-102. Declaration of policy and purpose.


(a) Recognizing that the waters of Tennessee are the property of the state and are held in public trust for the use of the people of the state, it is declared to be the public policy of Tennessee that the people of Tennessee, as beneficiaries of this trust, have a right to unpolluted waters. In the exercise of its public trust over the waters of the state, the government of Tennessee has an obligation to take all prudent steps to secure, protect, and preserve this right.

(b) It is further declared that the purpose of this part is to abate existing pollution of the waters of Tennessee, to reclaim polluted waters, to prevent the future pollution of the waters, and to plan for the future use of the waters so that the water resources of Tennessee might be used and enjoyed to the fullest extent consistent with the maintenance of unpolluted waters.

(c) Moreover, an additional purpose of this part is to enable the state to qualify for full participation in the national pollutant discharge elimination system established under § 402 of the Federal Water Pollution Control Act, Public Law 92-500.

(d) Additionally, it is intended that all procedures in this part shall be in conformity with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5. [Tenn. Code Ann. Section 4-5-201 and following (rulemaking) and Section 4-5-301 and following (contested cases)]

118(a) COMPLAINT - T.C.A. § 69-3-118

(a)(1) Any person may file with the commissioner a signed complaint against any person allegedly violating any provisions of this part. Unless the commissioner determines that such complaint is duplicitous or frivolous, the commissioner shall immediately serve a copy of it upon the person or persons named in the complaint, promptly investigate the allegations contained in the complaint, and notify the alleged violator of what action, if any, the commissioner will take. In all cases, the commissioner shall notify the complainant of the action or determination within ninety (90) days from the date of the commissioner's receipt of the written complaint.

(2) If either the complainant or the alleged violator believes that the commissioner's action or determination is or will be inadequate or too severe, such person may appeal to the board for a hearing, which will be conducted pursuant to § 69-3-110. The appeal must be made within thirty (30) days after receipt of the notification sent by the commissioner.

(3) If the commissioner fails to take the action stated in the notification, the complainant may make an appeal to the board within thirty (30) days from the time at which the complainant knows or has reason to know of such failure. (Underline added)

[Practice note: TDEC enforcement staff usually sends a letter or email acknowledging receipt of the complaint. This should be followed by the required statement of investigation and action required within 90 days following receipt of the complaint.]

USING SECTION 118(a) STEP BY STEP

1. Spot water pollution. Easy examples are:

(1) Muddy water flowing off a construction or logging site and toward a stream, storm drain or sinkhole;

(2) Oily water flowing from a junkyard toward a storm drain, stream or sinkhole;

(3) End of pipe discharges from Sewer Plants or industrial facilities. Seeps which may come from nearby landfills. Look for discoloration, odor, visible oil, visible or suspended solids. Grab a sample in a clean sealable container for laboratory analysis. A conductivity meter will indicate metals in solution by increased conductivity compared to waters further away from a source of metals such as a mine site or landfill.

(4) Failure to have a permit. Check the TDEC water permits mapviewer (http://tdeconline.tn.gov/tdecwaterpermits/ which should show all water related permits in the area. Zoom in and record the permit number, permit holder, and type of permit. Use the permits dataviewer for more detalis about the permit and related enforcement. http://environment-online.state.tn.us:8080/pls/enf_reports/f?p=9034:34001:535879418507:::::

Search by permit number is the easiest.

Seeing water pollution all around us – especially after a storm.

Paddlers will often see “end of pipe” discharges and other seeps. NPDES permits have standard provisions requiring signs to be placed at the ends of pipes identifying the source of discharges. The location of a pipe with no identification as to the source should be reported to TDEC as a possible permit violation. Hikers should document logging and mining site discharges. Urban folks touring after a good rain will see polluted water headed into storm drains and trace it to a source.

What the Statute says:

T.C.A. Sec. 118(a) (1)

Any person may file with the commissioner a signed complaint against any person allegedly violating any provisions of this part. Unless the commissioner determines that such complaint is duplicitous or frivolous, the commissioner shall immediately serve a copy of it upon the person or persons named in the complaint, promptly investigate the allegations contained in the complaint, and notify the alleged violator of what action, if any, the commissioner will take. In all cases, the commissioner shall notify the complainant of the action or determination within ninety (90) days from the date of the commissioner's receipt of the written complaint.

Step 2. Document and file a 118(a) complaint.

• Send TDEC a written complaint. You can write or email or use the TDEC form at http://tn.gov/environment/water/water-quality_citizen-complaints.shtml or the form for a logging complaint.

• Always state on your complaint – including a complaint on the TDEC form(s) that this is “a 118(a) complaint” so that the statutory procedure and deadlines must be applied by TDEC.

• Document your complaint with a detailed statement of time, place, and nature of the pollution. Include photos, easier now that most cell phones and tablets have cameras. Photos that are printed out should also be annotated or accompanied by the information a digital camera records of the date, etc. Provide GPS coordinates whenever possible or use the nearest cross streets and other directions.

• Be sure to sign and include your name, address, e-mail address and telephone so TDEC can acknowledge your 118(a) complaint and let you know in writing what action they have taken.

• You may and should file a complaint each and every day when a violation continues.

• TDEC may decline to enforce the daily penalties allowed by law by making the unfounded assumption that evil things stop once you stop looking. Follow up complaints may need less documentation but should still included dated photos and the statement that the pollution has not stopped and that the offender has not taken corrective action as far as you can see.

TDEC accepts anonymous complaints but. . . .

TDEC accepts anonymous complaints but the 118(a) process doesn’t work if you do not identify yourself.

There may be a good reason to call in an anonymous complaint. You might later send someone else to check the complaint files at your local TDEC office to see if an anonymous complaint was investigated and the outcome.

WHAT CAN YOU ASK TDEC TO DO?

AUTHORITY FOR TDEC ADMINISTRATIVE PENALTIES 

VIOLATIONS — PENALTIES — JUDGMENT BY CONSENT. T.C.A. § 69-3-115.

(a) (1) Any person who does any of the following acts or omissions is subject to a civil penalty of up to ten thousand dollars ($10,000) per day for each day during which the act or omission continues or occurs:

(A) Violates an effluent standard or limitation or a water quality standard established under this part;

(B) Violates the terms or conditions of a permit;

(C) Fails to complete a filing requirement or causes false information to be filed with the department;

(D) Fails to allow or perform an entry, inspection, monitoring, or reporting requirement;

(E) Violates a final determination or order of the board, panel or commissioner;

(F) In the case of an industrial user of a publicly owned treatment works, fails to pay user or cost recovery charges or violates pretreatment standards or toxic effluent limitations established as a condition in the permit of the treatment works;

. . .

(3) In assessing the civil penalty, the commissioner may consider the following factors:

(A) Whether the civil penalty imposed will be a substantial economic deterrent to the illegal activity;

(B) Damages to the state, including compensation for loss or destruction of wildlife, fish, and other aquatic life, resulting from the violation, as well as expenses involved in enforcing this section and the costs involved in rectifying any damage;

(C) Cause of the discharge or violation;

(D) The severity of the discharge and its effect upon the quality and quantity of the receiving waters;

(E) Effectiveness of action taken by the violator to cease the violation;

(F) The technical and economic reasonableness of reducing or eliminating the discharge;

(G) The social and economic value of the discharge source; and

(H) The economic benefit gained by the violator. . . .

. . .

Filing your 118(a) complaint:

If you use the TDEC form provide the requested information and e-mail the completed form to ask.tdec@tn.gov or to the nearest TDEC Environmental Field Office.

Anyone may also submit a written complaint or a completed TDEC form by mail to:

Division of Water Resources

William R. Snodgrass Tennessee Tower

312 Rosa L. Parks Avenue, 11th Floor

Nashville, Tennessee 37243

The department also accepts water quality complaints from citizens through the department's toll-free phone line at

1-888-891-8332

What TDEC & you do next. . .

• You should receive an acknowledgment of your complaint which will say that TDEC will investigate. The investigation will usually be conducted by staff from the TDEC Environmental Field Office (EFO) having jurisdiction in the county whey the incident occurred. http://www.tn.gov/environment/field-offices.shtml

• You can call the EFO and talk with the staff person assigned to investigate the complaint, provide more information, particularly about ongoing or repeated incidents of pollution at the site, and review the notes from TDEC field visits and photos and email and other communications from the EFO to the Enforcement unit at TDEC HQ in Nashville.

What the Statute says about an Appeal (to keep up pressure on TDEC and the site operator)

T.C.A. Section 118(a)(3)

If the commissioner fails to take the action stated in the notification, the complainant may make an appeal to the board within thirty (30) days from the time at which the complainant knows or has reason to know of such failure. (Underline added)

Step 3. Review the TDEC Enforcement Response and decide if you want to file an appeal the Water Quality Control Board.

You should receive a letter within 90 days telling you what TDEC thinks it has found and what it has done to end the water pollution and prevent it from happening again.

This is good time to review the TDEC file on your complaint – look for reports of site visits and details of any instructions to the site operator about what must be done to stop and prevent water pollution.

A letter or more formal petition can be used to appeal for Board review. The request for appeal must assert that the TDEC enforcement response to your complaint is “inadequate”. Only 30 days is allowed to file a petition for review by the Water Board from the notice of TDEC’s action on your complaint.

An individual can file a “pro se” petition for appeal to the Water Board without a lawyer. This is a very challenging process to navigate without a lawyer. Organizations and groups, incorporated or unincorporated, must petition and appear by counsel.

This is a full blown legal trial process so I recommend you consult an attorney as soon as you have the TDEC response which states what action it has taken on your complaint.

Thank you; now go out and stop water pollution!!

COMPLAINTS TO TDEC

Some of the complaints should be by email to the TDEC EFO cc to the Commissioner if you can find his email address.

Each written (email) complaint should say its a compliant made under Section 118(a) of the TN Water Quality Act and provide the contact information for the Complainant.

This section requires TDEC to investigate and to report what it found and what, if anything it has done about the situation.

See attached info on section 118(a) I hope someone can open a power point.

Other homework:

Look at the TDEC regulation stated in the newspaper notice. 0400-40-05-.06 (9)(a) this 400-40-05 has the rules for NPDES (discharge) permits.

Search for DWR permits in Tennessee. In the dataviewer search box put in the permit number.

When you get to the page for the permit print the all PDFs and review every word.

Note the site number that will lead you to all water related permits at the site.

If the company is extracting sandstone to crush they will have to have a blasting contractor who will be licensed and regulated by the state fire marshal.

They will also need and air quality permit to use the equipment that crushes the stone into sand.

See if you can find anything on the TDEC air quality - permits dataviewer.

If folks doing home work need to ask questions I may be able to do a zoom or conference call this Sunday.

Brian Paddock

Landline 931-858-9806 (Preferred)

Cell 931-510-7823