ADMINISTRATIVE AND CIVIL ENFORCEMENT BY THE DEPARTMENT OF
ENVIRONMENT AND CONSERVATION
Overview
The Commissioner of the Tennessee Department of Environment and Conservation (TDEC) has the
authority to enforce statutes and rules governing the operation of public water systems in Tennessee and
certification of water and wastewater system operators. This enforcement authority is placed on the
Commissioner by the state legislature as part of the statutes when they are passed by the legislature and
signed into law by the governor. The responsibility for administration of the Tennessee Safe Drinking
Water Act (public water system operation), the Water Environmental Health Act (operator certification)
and the rules and regulations promulgated under authority of these two laws is placed with the Tennessee
Division of Water Resources, a regulatory agency which is part of the Department of Environment and
Conservation. The Division monitors the operation of water systems and the performance of water system
operators to ensure that the water systems operate in compliance with the laws and rules.
Authority to enforce the provisions of these laws and rules is delegated to the Division by the
Commissioner. When a violation occurs, Division personnel take certain actions, in the appropriate
sequence, to bring the system or operator back into compliance. These actions are classified as
INFORMAL enforcement actions or FORMAL enforcement actions.
INFORMAL Enforcement Actions:
Correction Letter
Notice of Violation (NOV)
Notice of Noncompliance (NONC)
Compliance Review Meeting (CRM)
Letter of Agreement (LOA)
Compliance Schedule
FORMAL Enforcement Actions:
Enforcement Action Request (EAR)
Director's Order
(Appeal)
(OGC [Office of General Counsel] Referral)
(Agreed Order)
(Board Hearing)
Final Order
OR
Show Cause Meeting (SCM)
Commissioner's Order
(Appeal)
(Agreed Order)
Board Hearing
Final Order
AG (Attorney General's Office) Referral
Chancery Court
(Injunction)
(Judgment)
Civil penalty collection
Informal enforcement actions are normally conducted by the personnel in the field offices of the regional
Environmental Assistance Centers. The formal enforcement actions are conducted by Division and Office
of General Counsel (OGC) staff of the central office in Nashville. The Division places a priority on early
identification and correction of problems at the lowest possible level. The field staff has three major roles
and functions in the regulatory process: they act as ADVISORS, INSPECTORS, and INVESTIGATORS.
The Advisor Role
The field staff functions first and foremost as advisors to water systems and personnel in achieving
and remaining in compliance with the statutes and regulations. The staff is not system operators,
and do not operate or manipulate water treatment or distribution equipment. Since each system is
unique in its raw water characteristics, equipment function and efficiency, operations, etc., staff
will not normally provide direction to water system personnel in running the system. Rather, staff
will provide advice and guidance in complying with the statutes and regulations. The goal is to
prevent violations of these statutes and rules, and to assist the system or operator in returning to
compliance as soon as possible if violations do occur. Water system operators are encouraged to
maintain contact with the staff in the regional EAC and request assistance if needed.
The Inspector Role
The second function of the staff person is to conduct periodic formal inspections of public water
systems in order to assess the system's compliance with the statutes and rules which govern its
operation. These inspections may be in the form of routine sanitary surveys, or compliance
verification inspections done as follow-up to an identified problem. The inspection reports
prepared by staff provide a record of the system's compliance history, and identify to water system
personnel deficiencies which need correction. It is very important that system operators and
management personnel carefully review sanitary survey reports and correct any deficiencies noted
as soon and as effectively as possible. Deficiencies noted on subsequent sanitary surveys as
uncorrected from a previous survey may be cause for an enforcement action.
The Investigator Role
The third function of the staff person is to investigate and document violations of the statutes and
rules pertaining to public water systems. Whenever there is reason to believe that a violation of
those statutes or rules has occurred, and prompt, appropriate corrective action has not been taken,
staff is charged with the responsibility of determining how the violation occurred, who was
responsible, and what action is necessary to ensure that such violation does not continue or occur
again. Staff will interview water system personnel and other persons as required, review records,
and attempt to determine in as great detail as possible the circumstances which resulted in the
violation. It is at this point that informal enforcement actions begin. These may include Notices of
Violation or Noncompliance, a Compliance Review Meeting, execution of a Letter of Agreement,
or issuance of a Compliance Schedule.
If the violation is a serious one, or if the violation is not promptly corrected, the facts surrounding
the violation as determined by the investigation will be documented in an Enforcement Action
Request (EAR). This is a written request from the field staff, accompanied by appropriate
documentation, that a formal enforcement action be initiated against either the water system or the
person responsible for the violation.
The Enforcement Process
The formal enforcement process consists of a series of actions and procedures which move an enforcement
case from initial request through final conclusion and closure. Numerous participants are involved in the
process, and each participant performs a delineated task at the appropriate time and place in the process.
The Division Enforcement Officer is responsible for coordinating these actions and tracking the case
throughout the process, ensuring that required actions are performed in a timely manner and are properly
documented. The major steps in the enforcement process are as follows:
a.
b.
Enforcement Action Request (EAR)
(1)
When a regulated entity is determined to be in violation of a statute or rule, program staff
in the Environmental Assistance Center (EAC) will normally attempt to bring the violator
back into compliance through use of a Notice of Violation (NOV), Notice of
Noncompliance (NONC) or Compliance Review Meeting (CRM). These informal
enforcement actions are intended to be used to inform the violator of his noncompliant
status and secure voluntary action to return to compliance.
(2)
If informal enforcement fails to affect a return to compliance, the EAC program staff will
prepare an Enforcement Action Request (EAR), in accordance with guidance issued by
the Enforcement Section. The EAR contains a memo identifying the principal actors in
the case, summarizing the circumstances of the violation, the rules and/or statutes
violated, and the enforcement action desired. The EAR is prepared in triplicate, and one
copy is retained in the EAC. The EAR is reviewed and initialed by the EAC program
manager, and the original and one copy are forwarded to the central office.
(3)
After reviewing the Enforcement Action Request and ensuring that it is complete and
properly documented, the program manager will forward the EAR to the Division
Enforcement Officer. The Division Enforcement Officer will review the EAR to ensure
that it contains the necessary information to process the request and issue an order. The
DEO will assign a case number, enter the pertinent information regarding the case into
the Enforcement Logbook, and create an enforcement file. Any additional information
needs identified will be communicated to the originating EAC via phone or E-mail.
Draft Order
(1)
The Division Enforcement Officer will determine, with the concurrence of the Director
and the EAC staff and program manager as appropriate, the type enforcement action to be
pursued. If a Director's Order is appropriate, the DEO will prepare the draft order. When
completed, a draft Director's Order will be directed to the Surveillance and Enforcement
Section Manager for his review, and returned to the Division Enforcement Officer for any
necessary revisions and preparation of the final order on Department letterhead paper for
the Director's review and signature. The same procedure is followed for a draft
Commissioner's Order, except that the Division Director will signify his approval by
initialing the cover sheet rather than signing the Order.
(2)
If a Commissioner's Order is required, the Division Enforcement Officer will draft the
order using the electronic template (C/CO template.doc). A Commissioner's Order must
include a civil penalty matrix prepared using the electronic template (C/CIVIL
PENALTY MATRIX WORKSHEET). A separate worksheet will be prepared for each
violation charged.
c.
Order Issuance
(1)
Once signed by the Division Director, a Director's Order is sent to the violator (now
termed the "Respondent" in the order) via registered mail - return receipt requested. If
the Respondent has a registered agent, a copy of the order should also be sent to the
registered agent via registered mail. Two copies of the order are placed in the
enforcement file.
(2)
When the green registered mail receipt card is returned, it is placed in the enforcement
file and a notation made in the enforcement logbook of the date the order was served on
the Respondent. This date is the beginning of the appeal suspense period allowed by
statute.
(3)
The specified period allowed by statute for filing a petition for appeal and review of the
order is thirty (30) days. The suspense date for the appeal (date by which the appeal
petition must be filed) is therefore set at close of business (COB) on the thirty-first (31st)
calendar day following the date of delivery of the order. In the event the 31 st day falls on
a weekend or holiday, the suspense date will be set forward to COB on the next following
business day. This is also the date that the order is considered to become final in the event
no appeal petition is filed by the Respondent.
Types of Enforcement Actions
The most common types of enforcement actions are:
(a)
Director's Order – Issued by the Division Director in accordance with specific authority
delegated to the Director by the Commissioner. Director's Orders are intended to be rapidly
processed and issued, cover a short period of time and a small number of violations, and result in
relatively small civil penalties. Civil penalties will be assessed by Director's Orders in accordance
with the penalty schedule approved by the Commissioner in the Delegation of Authority. A
Director's Order may contain corrective action items corresponding to the violations which are
addressed by the Delegation of Authority, and may also assess contingent civil penalties for failure
to comply with the specified corrective actions.
(b)
Commissioner's Order – Issued by the Commissioner of the Department. A Commissioner's
Order may be required in the following circumstances:
o
One or more violations involved are not addressed in the Commissioner's Delegation of
Authority for a Director's Order;
o
the requested enforcement action includes suspension or revocation of a license or
certification issued by the Commissioner; or,
o
when the Commissioner determines that the public health, safety or welfare imperatively
requires immediate action, he/she may, without prior notice or hearing, issue an order
requiring that such action be taken. [T.C.A.68-221-712(b)(1)]
A Commissioner's Order normally takes longer to process and issue than a Director's Order,
because the draft Order is submitted to the Office of General Counsel (OGC) for review. OGC
staff will review the case and prepare the final Order for the Commissioner's signature. This may
require several days or weeks, except in the case of an emergency order (see bullet #3, above).
(c)
Litigation – In circumstances where neither a Director's Order or a Commissioner's Order is likely
to be effective in correcting a violation, the Commissioner may, through OGC and the Attorney
General's Office, file suit in the chancery court of Davidson County or the county in which the
violation occurs, seeking injunctive relief or any other appropriate legal relief. The Division will
prepare a request for such action and forward the request to OGC together with appropriate
documentation. If OGC concurs with the requested action, the case will be prepared by OGC's
legal staff and forwarded to the Attorney General's Office for filing.
The Appeals Process
In accordance with T.C.A. Sections 68-221-712, 713 AND 714 for actions under the Safe Drinking Water
Act, and T.C.A. Sections 68-221-906(b) and 915 for actions under the Water Environmental Health Act,
the person against whom an Order and Assessment is issued (the Respondent) may appeal that Order and
Assessment by filing with the Commissioner a written petition. The petition should set forth the grounds
and reasons for any objections to the Order and Assessment and ask for a hearing. Unless an appeal petition
is filed (received) within THIRTY (30) days of the date of this Order and Assessment is served, it shall
become a Final Order and Assessment, not subject to review.
Any hearing will be conducted in accordance with the Tennessee Uniform Administrative Procedures Act,
T.C.A. 4-5-301 et seq. and Rule 1360-4-1. An appeal from an Order and Assessment issued under the Safe
Drinking Water Act would be heard before the Tennessee Water Quality Board, which convenes monthly
in Nashville. An appeal from an Order and Assessment issued under the Water Environmental Health Act
would be heard before the Board of Water and Wastewater Operator Certification, which convenes
quarterly at the Fleming Training Center in Murfreesboro. These hearings are held with an Administrative
Law Judge sitting.
A Respondent appearing before either of these Boards on appeal of an Order and Assessment has the right
to be represented by counsel, to submit responsive pleadings, to discovery, to subpoena witnesses on his
behalf, and to present evidence and argument on all issues involved. Free or low-cost counsel may be
available to those unable to afford counsel. If the Respondent is an individual he or she is not required to be
represented by an attorney. If the Respondent intends to represent himself, the Office of the Secretary of
State, Administrative Procedures Division can provide the Respondent with a copy of the Rules of
Procedure for Contested cases and other procedural information which may be helpful. The Respondent
may contact that office at (615) 741-7008. Limited liability partnerships, limited liability companies and
corporations must be represented by an attorney.
Any appeal of an Order and Assessment must be addressed to the Division of Water Resources, 6th Floor,
L&C Tower, 401 Church Street, Nashville, Tennessee 37243-1539.
The Division's Enforcement Policy
The Division of Water Resources has as its primary mission the safeguarding of the health of persons who
consume water from public water Resources systems. The Division carries out this mission by monitoring
the operations of those systems and ensuring that the persons who operate those systems do so in
accordance with the rules and standards set down by the United States Environmental Protection Agency
and the State of Tennessee. The Division employs a variety of methods to carry out this responsibility.
However, the primary responsibility for the health and safety of water users must lie with the certified
operator who is in charge of the water system. This is a position of great responsibility and public trust. A
certified operator must take upon himself the determination to conduct the system's operations with the
greatest possible degree of care and skill, and must willingly hold himself to the highest standards of
diligence. The Division expects this standard of conduct of all certified operators, and is committed to
providing systems and operators with any assistance they may need in ensuring the safety of the water
Resources.
When problems occur in the course of a water system's operation, the Division expects system personnel to
notify the appropriate Division staff as soon as possible, and to maintain communication with Division staff
until the problems are solved and the system returned to compliance. The Division also expects
straightforward and truthful reporting of operating conditions, water quality parameters, equipment
malfunctions, and any other condition which may affect the quality or quantity of water served to the
public. Division staff can advise, inspect, and direct corrective action as needed, but the ultimate
responsibility for detecting and correcting violations lies with the certified operator.
The Division carries this philosophy into its enforcement procedures. Because of the great responsibility
placed on the certified operator of a public water system, the Division must hold the operator to a
correspondingly high standard. The operator is expected to take action promptly to correct any deficiency
identified in the system's operation. If the problem is beyond the effective control of the operator or
potentially affects the safety of the water Resources, the operator must notify the Division and seek help
from Division staff in correcting the problem. Failure to do so, or to accurately report data or information
concerning the system to the Division, is a very serious breach of the trust which must exist between
operators and the Division. When such incidents occur, the Division is bound by its responsibility to take
whatever action is necessary to prevent the violations from continuing to jeopardize the public's health. At
the same time, the Division must adhere to the procedures and standards of fairness established for the
conduct of administrative enforcement matters. These procedures ensure that any enforcement action
brought by the Division against a system or operator is conducted fairly and equitably, and that any
sanctions which must be imposed against a system or operator are appropriate to the seriousness of the
violation. The goal of any enforcement action is to return the system to compliance and ensure the safety of
the water served to its customers.