State Review Framework
Tennessee
Clean Water Act, Clean Air Act, and
Resource Conservation and Recovery Act
Implementation in Federal Fiscal Year 2014
U.S. Environmental Protection Agency
Region 4, Atlanta
Final Report
September 29,2016
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Executive Summary
Introduction
EPA Region 4 enforcement staff conducted a State Review Framework (SRF) enforcement
program oversight review of the Tennessee Department of Environment and Conservation
(TDEC).
EPA bases SRF findings on data and file review metrics, and conversations with program
management and staff. EPA will track recommended actions from the review in the SRF Tracker
and publish reports and recommendations on EPA's ECHO web site.
Areas of Strong Performance
CWA data entry into ICIS-NPDES was complete.
CAA, CWA and RCRA inspection reports were well written and complete.
TDEC accurately identified CAA and RCRA violations and appropriately addressed the
violations with enforcement actions that returned facilities to compliance. RCRA actions
were also timely.
TDEC documented the difference between initial and final penalty calculations in CAA
and RCRA. RCRA also documented the calculation of economic benefit in their
penalties.
Priority Issues to Address
The following are the top-priority issues affecting the state program's performance:
TDEC should document the calculation of economic benefit or the rationale for excluding
economic benefit of noncompliance in CAA and CWA penalty calculations. CWA should
also document the difference between initial and final penalty calculations.
TDEC should meet grant and inspection coverage commitments in the CWA program.
CWA enforcement responses should be timely, appropriate to the violation and promote a
return to compliance.
State Review Framework Report | Tennessee | Executive Summary | Page 1
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Most Significant CWA-NPDES Program Issues1
CWA inspection report findings and cover letters were ambiguous about compliance
determinations made during the inspection. In addition, TDEC is not appropriately
reporting Significant Non-Compliance and Single Event Violations.
TDEC should ensure that enforcement responses promote a return to compliance and
escalate to formal actions when non-compliance continues.
Most Significant CAA Stationary Source Program Issues
The accuracy of data reporting into the database of record needs improvement along with
the timeliness of data entry.
Most Significant RCRA Subtitle C Program Issues
TDEC should make timely determinations of Significant Non-Compliance.
1 EPA's "National Strategy for Improving Oversight of State Enforcement Performance" identifies the following as
significant recurrent issues: "Widespread and persistent data inaccuracy and incompleteness, which make it hard to
identify when serious problems exist or to track state actions; routine failure of states to identify and report
significant noncompliance; routine failure of states to take timely or appropriate enforcement actions to return
violating facilities to compliance, potentially allowing pollution to continue unabated; failure of states to take
appropriate penalty actions, which results in ineffective deterrence for noncompliance and an unlevel playing field
for companies that do comply; use of enforcement orders to circumvent standards or to extend permits without
appropriate notice and comment; and failure to inspect and enforce in some regulated sectors."
State Review Framework Report | Tennessee | Executive Summary | Page 2
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Table of Contents
I. Background on the State Review Framework 2
II. SRF Review Process 3
III. SRF Findings 4
Clean Air Act Findings 5
Clean Water Act Findings 17
Resource Conservation and Recovery Act Findings 39
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I. Background on the State Review Framework
The State Review Framework (SRF) is designed to ensure that EPA conducts nationally
consistent oversight. It reviews the following local, state, and EPA compliance and enforcement
programs:
Clean Water Act National Pollutant Discharge Elimination System
Clean Air Act Stationary Sources (Title V)
Resource Conservation and Recovery Act Subtitle C
Reviews cover:
Data completeness, accuracy, and timeliness of data entry into national data systems
Inspections meeting inspection and coverage commitments, inspection report quality,
and report timeliness
Violations identification of violations, determination of significant noncompliance
(SNC) for the CWA and RCRA programs and high priority violators (HPV) for the CAA
program, and accuracy of compliance determinations
Enforcement timeliness and appropriateness, returning facilities to compliance
Penalties calculation including gravity and economic benefit components, assessment,
and collection
EPA conducts SRF reviews in three phases:
Analyzing information from the national data systems in the form of data metrics
Reviewing facility files and compiling file metrics
Development of findings and recommendations
EPA builds consultation into the SRF to ensure that EPA and the state understand the causes of
issues and agree, to the degree possible, on actions needed to address them. SRF reports capture
the agreements developed during the review process in order to facilitate program improvements.
EPA also uses the information in the reports to develop a better understanding of enforcement
and compliance nationwide, and to identify issues that require a national response.
Reports provide factual information. They do not include determinations of overall program
adequacy, nor are they used to compare or rank state programs.
State Review Framework Report | Tennessee | Page 2
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Each state's programs are reviewed once every five years. The first round of SRF reviews began
in FY 2004. The third round of reviews began in FY 2013 and will continue through FY 2017.
II. SRF Review Process
Review period: FY 2014
Key dates: August 7, 2015: letter sent to the State kicking off the Round 3 review
November 2-6, 2015: onsite file reviews for CWA, RCRA and CAA programs
State and EPA key contacts for review:
Tennessee DEC
EPA Region 4
SRF Coordinator
Chris Moran, Enforcement
Coordinator
Kelly Sisario, Enforcement Coordinator
CAA
Kevin McLain, Manager
Enforcement Program
Division of Air Pollution
Control
Mark Fite, Office of Enforcement
Coordination
Chet Gala, Air, Pesticides & Toxics
Management Division
CWA
Jessica Murphy, Manager
Compliance &
Enforcement Program
Division of Water
Resources
Ronald Mikulak, Office of Enforcement
Coordination
Laurie Ireland and Pamela Myers, Water
Protection Division
RCRA
Chris Lagan, P.G.
Manager, Regulatory
Compliance and
Enforcement Program
Division of Solid Waste
Management
Shannon Maher, Office of Enforcement
Coordination
Alan Newman, Resource Conservation &
Restoration Division
State Review Framework Report | Tennessee | Page 3
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III. SRF Findings
Findings represent EPA's conclusions regarding state performance and are based on findings
made during the data and/or file reviews and may also be informed by:
Annual data metric reviews conducted since the state's last SRF review
Follow-up conversations with state agency personnel
Review of previous SRF reports, Memoranda of Agreement, or other data sources
Additional information collected to determine an issue's severity and root causes
There are three categories of findings:
Meets or Exceeds Expectations: The SRF was established to define a base level or floor for
enforcement program performance. This rating describes a situation where the base level is met
and no performance deficiency is identified, or a state performs above national program
expectations.
Area for State Attention: An activity, process, or policy that one or more SRF metrics show as
a minor problem. Where appropriate, the state should correct the issue without additional EPA
oversight. EPA may make recommendations to improve performance, but it will not monitor
these recommendations for completion between SRF reviews. These areas are not highlighted as
significant in an executive summary.
Area for State Improvement: An activity, process, or policy that one or more SRF metrics
show as a significant problem that the agency is required to address. Recommendations should
address root causes. These recommendations must have well-defined timelines and milestones
for completion, and EPA will monitor them for completion between SRF reviews in the SRF
Tracker.
Whenever a metric indicates a major performance issue, EPA will write up a finding of Area for
State Improvement, regardless of other metric values pertaining to a particular element.
The relevant SRF metrics are listed within each finding. The following information is provided
for each metric:
Metric ID Number and Description: The metric's SRF identification number and a
description of what the metric measures.
Natl Goal: The national goal, if applicable, of the metric, or the CMS commitment that
the state has made.
Natl Avg: The national average across all states, territories, and the District of Columbia.
State N: For metrics expressed as percentages, the numerator.
State D: The denominator.
State % or #: The percentage, or if the metric is expressed as a whole number, the count.
State Review Framework Report | Tennessee | Page 4
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Clean Air Act Findings
CAA Element 1
Data
Finding 1-1
Area for State Improvement
Summary
The accuracy of MDR data reported by TDEC into AFS needs
improvement. Discrepancies between the files and AFS were identified
in nearly half of the files reviewed.
Explanation Metric 2b indicated that 58.8% (20 of 34) of the files reviewed reflected
accurate entry of all MDRs into AFS. The remaining 14 files had one or
more discrepancies between information in the files and data entered into
AFS. The majority of inaccuracies related to duplicate, inaccurate or
missing activity data such as FCEs, NOVs, stack tests, etc. Beginning in
FY2015, the Agency transitioned to a new national data system known
as ICIS-Air. Historical data from AFS was migrated to the new system.
In general, incorrect data in the Agency's data system could potentially
hinder EPA's oversight and targeting efforts and/or result in inaccurate
information being released to the public.
Relevant metrics State
,, . . Tnv i- j tv -x- Natl Natl State State '
Metric ID Number and Description , . .. % or
r Goal Avg \ I)
2b Accurate MDR data in AFS 100% 2d 34 5SS"()
State response To correct data and prevent future issues, the Division of Air Pollution
Control (APC) is taking the following steps:
Corrected all 14 errors in ICIS-Air identified during the Round 3
review by February 1, 2016. Will complete review of existing
data to address the discrepancies noted by March 31, 2017 as
recommended, with the exception of discrepancies due to
migration issues that occurred between AFS and ICIS-Air as
discussed separately below.
Quarterly QA review of the data by the Environmental
Consultant 3 in APC's data entry section will begin October 1,
2016.
State Review Framework Report | Tennessee | Page 5
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Enhanced interactive reports for NOVs issued and HPV
determinations. Once an NOV or HPV determination is entered
into APC's data management system, it is immediately available
in the applicable interactive report. This will allow APC to see,
and quickly evaluate, an up-to-date summary of data needed to
be transferred to ICIS-Air.
Sought EPA guidance on ICIS-Air data entry by participating in
all webinars relating to ICIS-Air modules. APC also sought EPA
guidance when APC had questions regarding reporting processes.
APC has made a concerted effort to examine the reporting
processes for accuracy and learn and adapt to the new data
system, including working through data migration issues that
may have occurred (see example attached). APC is committed
to finding and correcting discrepancies caused by data migration
on an ongoing basis.
Recommendation By March 31, 2017, TDEC should make corrections to existing data to
address the discrepancies EPA identified and ensure that in the future,
MDRs are accurately entered into ICIS-Air. If by September 30, 2017,
EPA determines that TDEC's efforts appear to be adequate to meet the
national goal, the recommendation will be considered complete.
State Review Framework Report | Tennessee | Page 6
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CAA Element 1 Data
Finding 1-2 Area for State Improvement
Summary Whereas MDR data for stack tests were reported timely into AFS, MDR
data associated with other areas (HPVs, compliance monitoring, and
enforcement actions) were not always reported timely.
Explanation Metric 3b2 (93.5%) indicated that TDEC met the national goal in
entering MDR data for stack tests into AFS within the specified
timeframe. However, Metrics 3a2 (16), 3b 1 (81.4%), and 3b3 (77.6%)
indicated that HPVs, compliance monitoring activities, and enforcement
actions were often not entered into AFS within 60 days, as required by
the Information Collection Request (ICR).
Relevant metrics Slate
, . ttv tvt ^ j tv x- Natl Natl State State '
Metric ID Number and Description . . .. % or
r Goal Avg N D
3a2 Untimely entry of HPV ^ ^ ^
determinations
3bl Timely reporting of compliance ]00./o 83 ,)77 s| 4
monitoring MDRs
3b2 Timely reporting of stack test 1!t
dates and results
3b3 Timely reporting of enforcement 0/ () ^ y?
MDRs °
State response APC's data entry section created enhancements for the interactive
reports for NOVs issued and HPV determinations. Once an NOV or
HPV determination is entered into APC's data management system, it is
immediately available in the applicable interactive report. This will
allow APC to see, and quickly evaluate, an up-to-date summary of data
needed to be transferred to ICIS-Air.
APC's Enforcement group notifies the Environmental Specialist 5 and
the Environmental Consultant 3 in the data entry section via email of all
HPV determinations (starting approximately September 2015) and
State Review Framework Report | Tennessee | Page 7
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orders issued (starting approximately October 2015). These notifications
help ensure timely data entry into ICIS-Air.
APC is in the process of evaluating the causes of untimely MDR
reporting as well as its SOPs and other process documents for revision, if
necessary, to address identified issues. APC will provide EPA further
documentation regarding these causes and any specific revisions to SOPs
or other process documents by March 31, 2017 as recommended.
Recommendation By March 31, 2017, TDEC should provide documentation to EPA
concerning efforts to identify and address the causes of untimely MDR
reporting. If by September 30, 2017, EPA determines that TDEC's
efforts appear to be adequate to meet the national goal, the
recommendation will be considered complete.
State Review Framework Report | Tennessee | Page 8
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CAA Element 2 Inspections
Finding 2-1
Meets or Exceeds Expectations
Summary
TDEC met the negotiated frequency for inspection of sources, reviewed
Title V Annual Compliance Certifications, and included all required
elements in their Full Compliance Evaluations (FCEs) and Compliance
Monitoring Reports (CMRs).
Explanation Metrics 5a and 5b indicated that TDEC provided adequate inspection
coverage for the major and SM-80 sources during FY14 by ensuring that
each major source was inspected at least every 2 years, and each SM-80
source was inspected at least every 5 years. In addition, Metric 5e
documented that TDEC reviewed Title V annual compliance
certifications submitted by major sources. Finally, Metrics 6a and 6b
confirmed that all elements of an FCE and a CMR required by the Clean
Air Act Stationary Source Compliance Monitoring Strategy (CMS
Guidance) were addressed in most facility files reviewed.
Relevant metrics
Metric ID Number and Description
Natl Natl
Goal Avg
Stale Slate
\ 1)
Stale
% or
#
5a FCE coverage: majors and mega-
sites
100% 85.7°,.
174 17S
l)7 S'\
5b FCE coverage: SM-80s
100% 91 7°..
3 17 1 7
1 <)<)"
5e Review of Title V annual
compliance certifications
100% 78.8°,.
lir, z 11)
6a Documentation of FCE elements
100%
.id ;,2
ir, s°,
6b Compliance monitoring reports
reviewed that provide sufficient
documentation to determine facility
compliance
100%
I <)<)"
State response
Recommendation
State Review Framework Report | Tennessee | Page 9
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CAA Element 3
Violations
Finding 3-1
Meets or Exceeds Expectations
Summary
TDEC made accurate compliance determinations for both HPV and non-
HPV violations.
Explanation Metric 7a indicated that TDEC made accurate compliance
determinations in 31 of 33 files reviewed (93.9%).
Metric 8a indicated that the HPV discovery rate for majors (5.2%) was
above the national average of 3.1%.
Metric 8c confirmed that TDEC's HPV determinations were accurate for
all 23 files reviewed (100%). In one instance, the file indicates that the
state classified a stack test failure as an HPV, but this was never entered
into AFS. This is being addressed under the recommendation for Finding
1-1.
Relevant metrics
Metric ID Number and Description ^at'. ^at'
r Goal Avg
7a Accuracy of compliance j
determinations
8a HPV discovery rate at majors 3.1%
8c Accuracy of HPV determinations 100%
State response
Recommendation
Stale State
\ I)
State
% or
31 33 i)3 l)%
I ()<)"..
State Review Framework Report | Tennessee | Page 10
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CAA Element 4 Enforcement
Finding 4-1
Meets or Exceeds Expectations
Summary
Enforcement actions bring sources back into compliance within a
specified timeframe, and HPVs are addressed in an appropriate manner.
Explanation Metric 9a indicated that all formal enforcement actions (100%) reviewed
brought sources back into compliance through corrective actions in the
order, or compliance was achieved prior to issuance of the order.
Metric 10b indicated that appropriate enforcement action was taken to
address all HPVs (100%) evaluated during the file review.
Relevant metrics
Metric ID Number and Description , .
r Goal Avg
9a Formal enforcement responses that
Natl Natl Slate State
State
include required corrective action that
will return the facility to compliance
in a specified timeframe
10b Appropriate enforcement
responses for HPVs
100%
100%
14
I)
At or
I <)<)"
I ()()ğ
State response
Recommendation
State Review Framework Report | Tennessee | Page 11
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CAA Element 4 Enforcement
Finding 4-2 Area for State Attention
Summary About one-fourth of HPVs were not addressed in a timely manner.
Explanation Metric 10a indicated that 77.1% of the HPVs (54 of 70) addressed in
FY14 were addressed within 270 days, which is above the national
average of 73.2%. The length of time taken to address untimely HPV
actions ranged from 278 to 1302 days. This is a continuing issue from
the Round 2 review, although the State has reduced both the number and
percentage of overdue actions. For future HPV cases, the state is
encouraged to follow the timelines established in the new HPV policy
dated August 25, 2014. If an addressing action cannot be achieved
within 180 days of day zero, the state should advise EPA Region 4 that it
has a "case-specific development and resolution timeline" as required by
the new policy and consult at least quarterly with the region until the
HPV is addressed.
Relevant metrics Slale
,. , . Hi u j tw w Natl Natl Slate State '
Metric ID Number and Description , . .. % or
r Goal Avg N D
10a Timely action taken to address inft0. .. n -7-7.0
-r-mxr 1 (J(J /O /J.Z. O M /I' III O
HPVs
State response Although this is a continuing issue from Round 2, APC's percentage of
timely actions has improved and is above the national average. APC has
increased its staff in the Enforcement section to help resolve delays in
addressing violations.
APC has implemented the HPV timelines outlined in the 2014 HPV
policy and has provided training to all staff members Also, all
unaddressed and unresolved HPVs are discussed monthly with Region 4.
APC has changed its procedure and organizational responsibility for
making HPV determinations and processing these orders. APC is in the
process of revising the SOP to address the timely review of potential
violations, issuance of a notice of violation, and referral for enforcement
actions. The new SOP should be implemented in 2017 and additional
training for staff will be conducted.
State Review Framework Report | Tennessee | Page 12
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Recommendation
State Review Framework Report | Tennessee | Page 13
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CAA Element 5
Penalties
Finding 5-1
Meets or Exceeds Expectations
Summary
TDEC documented the differences in initial and final penalty and the
collection of penalties in their files and data system.
Explanation
Metric 12a indicated that 18 of 19 penalty calculations reviewed (94.7%)
provided documentation in the file showing the rationale for any
difference between the initial and final penalty.
Metric 12b confirmed that documentation of penalty payments made by
most sources (18 of 19) was included in the state's data system.
Relevant metrics Stale
, . ttv tvt ^ j tv x- Natl Natl Slate State '
Metric ID Number and Description , . .. .. % or
r Goal Avg N I)
12aDocumentation on difference inn0/ iv: id hi 7"
between initial and final penalty /o ' '
12b Penalties collected 100% IS I1) lM7"n
State response
Recommendation
State Review Framework Report | Tennessee | Page 14
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CAA Element 5 Penalties
Finding 5-2
Area for State Improvement
Summary
TDEC's penalty documentation does not include adequate
documentation of economic benefit calculations.
Explanation Metric 11a indicates that 11 of the 19 penalty actions reviewed (57.
provided adequate documentation of the State's consideration of gravity
and economic benefit. In some instances, EPA reviewers thought the
violations cited probably resulted in some economic benefit, but the file
did not contain any economic benefit calculation. In other instances, the
state penalty calculation merely showed "$0" or "NA" for economic
benefit, without sufficient rationale for why no economic benefit would
have been gained.
EPA's expectation that state and local enforcement agencies document
the consideration and assessment of both gravity and economic benefit is
outlined in the 1993 Steve Herman memo entitled "Oversight of State
and Local Penalty Assessments: Revisions to the Policy Framework
from State/EPA Enforcement Agreements."
Relevant metrics
Metric ID Number and Description , .
r Goal Avg
Natl Natl Slate State
I)
1 la Penalty calculations include
gravity and economic benefit
100%
State
Vn or
State response
APC proposes that the explanation text be revised to state: Metric 11a
indicates that 11 of the 19 penalty actions reviewed (57.9%) provided
adequate documentation of the State's consideration of gravity and
economic benefit. In some instances, EPA reviewers thought the
violations cited probably resulted in some minimal economic benefit, but
the file did not contain any economic benefit calculation. In other
instances, the state penalty calculation merely showed "$0" or "NA" for
economic benefit, without referencing the economic benefit checklist.
The economic benefit checklist provides rationale for why no economic
benefit would have been gained. EPA requests future economic benefit
checklists provide more detail when no economic benefit is assessed.
State Review Framework Report | Tennessee | Page 15
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EPA's expectation that state and local enforcement agencies document
the consideration and assessment of both gravity and economic benefit is
outlined in the 1993 Steve Herman memo entitled "Oversight of State
and Local Penalty Assessments: Revisions to the Policy Framework
from State/EPA Enforcement Agreements."
APC used the same economic benefit checklist in SRF Round 2, and
EPA deemed it acceptable. Round 2 CAA Element 11 Finding stated in
pertinent part, "In general, TDEC's penalty documentation includes both
gravity and economic benefit calculations." The Explanation section
stated in pertinent part, "... and 15 of the 17 (88%) provided sufficient
documentation of economic benefit. ... Therefore, the two files that did
not address economic benefit appear to be infrequent instances that do
not constitute a pattern of deficiencies or a significant problem." Of the
19 files reviewed in Round 3, all but one file included the same type of
documentation for economic benefit used in Round 2. APC proposes
that EPA change this Finding from Area for State Improvement to Area
for State Attention as the practice of APC was predominately the same
between Round 2 and 3, yet EPA findings between Round 2 and Round
3 appear inconsistent.
As APC understands the 1993 Steve Herman memo and the 1984 policy
on civil penalties referenced in the memo, states have the discretion to
not seek de minimis economic benefit (less than $10,000).
While APC is concerned with what appears to be inconsistent standards
applied by EPA staff between two different SRF rounds, APC has
revised its economic benefit checklists, starting Federal FY16-17, where
no economic benefit is assessed to include an additional detailed
explanation of APC's rationale. Additionally, the related penalty memo
will address economic benefit by specifically referring to the economic
benefit checklist.
Recommendation By March 31, 2017, TDEC should implement procedures to ensure the
appropriate documentation of both gravity and economic benefit in
penalty calculations. For verification purposes, for one year following
issuance of the final SRF report, EPA will review selected TDEC
penalty calculations. If by March 31, 2018, these reviews indicate that
the revised procedures are working and the State is documenting the
consideration of economic benefit, the recommendation will be
considered completed.
State Review Framework Report | Tennessee | Page 16
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Clean Water Act Findings
CWA Element 1 Data
Finding 1-1 Meets or Exceeds Expectations
Summary
TDEC exceeded National Goals for the entry of key data metrics for major
facilities.
Explanation Metrics lbl and lb2 measure TDEC's data entry of permit limits and
DMRs for NPDES major facilities into Integrated Compliance Information
System (ICIS), EPA's national database. TDEC exceeded National Goals
and the National Averages for the entry of permit limit data (Metric lbl)
and DMR data (Metric lb2) for major facilities into ICIS. Issues with Data
Metrics (7al) are discussed in Element 3.
Relevant metrics
Metric ID Number and Description
Natl Natl
Goal Avij
Sialc Siale Sialc
N D % or#
lb 1 Permit limit rate for major facilities
>95% 91.1"., I4S 154 'J<. I".,
lb 2 DMR entry rate for major facilities
>95% 96.6';., 4I2(> 412(, 1(H)';.,
State Response The State strives to maintain 100% correct data entry of permit limits and
DMRs for the major facility universe as well as the minor facilities and
concurs with this assessment.
Recommendation
State Review Framework Report | Tennessee | Page 17
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CWA Element 1
Data
Finding 1-2
Area for State Attention
Summary
The accuracy of data between files reviewed and data reflected in the
national data system had minor discrepancies.
Explanation
Metric 2b indicated that 75% of the files reviewed reflected accurate data
entry into ICIS. The few discrepancies observed between ICIS and the
State's files were relatively minor and were related to inspection dates,
Discharge Monitoring Report (DMR) parameters, and enforcement actions.
EPA understands that TDEC manually enters DMR and enforcement data
into ICIS. The discrepancies do not appear to reflect a systemic problem
and were promptly corrected once brought to the state's attention. Until the
flow of data from the state database into ICIS is automated, TDEC should
take steps to ensure accurate data entry into ICIS.
Relevant metrics
,. . .... , , Natl Natl Sialc Sialc Sialc
Metric ID Number and Description _ , . .
Goal Avg N D % or #
2b Files reviewed where data are accurately \oo4 - -> -v,
reflected in the national data system
State Response The State does not currently have the electronic data flows in place that
would be necessary to ensure that all the data in ICIS matches the data in
the state system. As noted above, this data is currently manually entered
into two separate databases. The State is working to upgrade our Windsor
node and the coding in our database necessary to create electronic data
flows between the two systems. During the implementation phase, the
State has instituted interim procedures to streamline the data entry process
and ensure accuracy. The State has expanded the number of ICIS users
during the past two years to include field staff in each office so that the
inspector who conducts the inspection is also the person entering the
inspection. This should help ensure that the results of the inspection are
correctly entered into the system. An additional interim measure that has
been initiated to ensure data accuracy in both systems, is a monthly
inspection report generated from the central office and sent out to the EFO
staff listing any inspections that are not in both databases or appear to be
duplicated, so that any reporting errors can be quickly identified and
corrected. Once the flows are functional for the inspection module
State Review Framework Report | Tennessee | Page 18
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duplicate entries will be eliminated. The State anticipates having the flows
for the inspection module operational by the December 21, 2016, deadline
set forth in the e-reporting rule.
Recommendation
State Review Framework Report | Tennessee | Page 19
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CWA Element 2
Inspections
Mild ill" 2-1
Area for State Improvement
Summary
TDEC did not meet a couple of its FY14 Compliance Monitoring Strategy
(CMS) Plan and CWA §106 Workplan inspection commitments.
Exceptions included CSO inspections and inspections of non-majors with
general permits.
Explanation Element 2 includes metrics that measure planned inspections completed
(Metrics 4al - 4al0) and inspection coverages (Metrics 5al, 5b 1, and 5b2)
for majors and non-majors. The National Goal for this Element is for 100%
of state specific CMS Plan commitments to be met.
Metrics 4a indicated that TDEC met seven out of eight FY14 inspection
commitments. For Metric 4a8 (Industrial Stormwater Inspections) and
Metric 4a9 (Phase I & II SW Construction Inspections), TDEC exceeded
the inspection commitments by completing 186 and 201 additional
inspections, respectively. The inspection commitment not met was Metric
4a4 (CSO Inspections). The CMS requires inspection of 100% of the TN
CSO universe (three facilities) every three years. TDEC did not conduct
any CSO inspections from FY12-FY14. In FY15, TDEC conducted one
CSO inspection.
Metric 5 indicated that TDEC met two out of three FY14 inspection
coverage commitments forNPDES majors/non-majors. The inspection
coverage not met was Metric 5b2 (Inspection coverage of non-majors with
general permits). This NPDES non-majors with general permit universe
includes municipal and industrial wastewater facilities.
Meeting inspection commitments and inspection coverages were an Area
for State Attention in Round 2 of the SRF and due to continued
commitment shortfalls, is an Area for State Improvement in Round 3.
Relevant metrics Natl
, ttv TfcT . , ^ Natl Goal , . Siale
Metric ID Number and Description Avs; Stale > Slale I)
1 " %ğr#
4al Pretreatment compliance inspections 100% of CMS PAI: 18 PAI: 18 PAI: 100%
and audits " PCI: 42 PCI: 41 PCI: 102%
State Review Framework Report | Tennessee | Page 20
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4a2 SIU inspections for SIUs discharging
to non-authorized POTWs
100% of CMS
2
2
100%
4a4 Major CSO inspections
100% of CMS --
0
0%
4a5 SSO inspections
100% of CMS -
0
-
4a7 Phase I & II MS4 audits or
inspections
100% of CMS
16
16
100%
4a8 Industrial stormwater inspections
100% of CMS -
414
228
1 80%
4a9 Phase I & II SW construction
inspections
100% of CMS
1.178
977
120%
4al0 Medium and large NPDES CAFO
inspections
100% of CMS
6
200%
5al Inspection coverage of NPDES
majors
100% of CMS
X"
X.
l<>5"
5b 1 Inspection coverage of NPDES non-
majors with individual permits
100% of CMS
l(.l)
1 V*
1 IX"
5b2 Inspection coverage of NPDES non-
majors with general permits
100% of CMS
5X
""
"5".,
State Response The State disagrees that inspection coverage is an area in need of State
Improvement. The combined sewer overflow (CSO) inspections that were
not completed are a very small subset of the universe, as there are only 3
facilities in the entire state. Additionally this item has already been
corrected as the two field offices, which have CSO facilities have been
instructed to complete at least one CSO inspection every time the facility is
inspected which will ensure that 100% of the CSO inspections are
completed according to the required time frames. Likewise, staff have been
notified and trained in the requirement to conduct SSO inspections. It is
very likely that sanitary sewer overflow inspections were conducted as part
of normal compliance evaluation inspections but not always identified as a
separate inspection. As with the CSO inspections, staff have been trained
in the need to perform SSO inspections at a minimum frequency of 10%
per year, and in meeting the non-major NPDES with general permits.
Neither CSO nor SSO inspections should be below the required frequency
going forward. The State believes that through staff training, this area of
deficiency has already been addressed. The remainder of the inspection
types all met or exceeded the minimum requirements set forth by EPA. The
State was obligated to conduct approximately 1,524 total inspections and
completed a total of approximately 1,924 inspections, or 126% of our
numerical goal. While the State did miss 22 inspections in 2 categories,
overall the State did meet its numerical inspection commitment. Therefore,
State Review Framework Report | Tennessee | Page 21
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the State requests that this item be changed to area for attention versus area
for improvement.
Recommendation By March 31, 2017, TDEC should implement procedures to ensure that
CWA 106 Workplan inspection annual commitments and CMS established
inspection frequencies are met and maintained. EPA will review the State's
procedures and monitor the State's implementation efforts through existing
oversight calls and other periodic data reviews. If by September 30, 2017,
these reviews indicate that the state is on target to meet its annual
commitments and the CMS inspection frequencies, the recommendation
will be considered completed.
State Review Framework Report | Tennessee | Page 22
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CWA Element 2 Inspections
Finding 2-2
Meets or Exceeds Expectations
Summary
TDEC's inspection reports were well written, complete and provided
sufficient documentation to determine compliance.
Explanation Metric 6a requires that inspection reports are complete and sufficient to
determine compliance at a facility. 100% of TDEC's inspection reports and
accompanying cover letter were well written, complete, sufficient and
included field observations noting compliance issues, where appropriate.
Relevant metrics
Metric ID Number and Description
Natl Natl Siale Siale Siale
Goal Avij N D % or #
6a Inspection reports complete and sufficient to
determine compliance at the facility
100%
11 )()"
State Response The State concurs with this assessment.
Recommendation
State Review Framework Report | Tennessee | Page 23
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CWA Element 2 Inspections
Finding 2-3 Area for State Attention
Summary TDEC inspection reports were not always completed in a timely manner.
Explanation File Metric 6b indicated that 7 of the 27 (26%) of TDEC's inspection
reports were not completed in a timely manner. Because TDEC's EMS
does not prescribe timeframes for inspection report completion; EPA relied
on its NPDES EMS which allows for 30 days and 45 days to complete
non-sampling inspection reports and sampling inspection reports,
respectively. The average number of days to complete an inspection report
was 25 days, with a range of 4-61 days. The seven untimely inspection
reports were completed within 41-61 days, which is an improvement from
Round 2 of the SRF when the untimely inspection reports took an average
of 84 days for completion. TDEC should reassess their practices and
procedures to ensure the timely completion of inspection reports. TDEC
also has the ability to establish their own timeframes for inspection report
completion.
Because nearly three-fourths of the reports reviewed were completed in a
timely manner pursuant to the EPA's EMS and the decrease in the number
of days needed for completion from Round 2, this does not appear to
reflect a systemic problem.
Timeliness of inspection reports is a continuing issue from Round 2 of the
SRF and remains an Area for State Attention in Round 3.
Relevant metrics . Natl Natl Siaic Siaic Siaic
Metric ID Number and Description _ , . .
Goal Avg N D % or #
6b Inspection reports completed within prescribed ,,, _
n _ 4 !
timeframe
State Response Completion of inspection reports within the required time frame is an item
that is currently included in job plans for inspectors and is also included in
our guidance documents for staff. Some of the inspection reports that
exceeded the time frame were particularly complex audits that required
additional time to complete. The State's 106 plan language also includes a
provision for the reports to be completed within 45 days. According to the
State's interpretation of that language, the State would have 85% timely
State Review Framework Report | Tennessee | Page 24
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completion of inspections instead of 74%. Additional training will be given
to staff who conduct the inspections, to stress the importance of completing
the inspection reports on time. The State will also reassess the amount of
time prescribed in our guidance documents to ensure that the time-frames
are all in agreement and meet EPA's requirements.
Recommendation
State Review Framework Report | Tennessee | Page 25
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CWA Element 3
Violations
Finding 3-1 Area for State Improvement
Summary Inspection Report findings and cover letters were unclear about the
compliance determinations made during the inspection.
Explanation Metric 7e indicated that 35% of the inspection report findings and cover
letters were ambiguous about the compliance determination made at each
facility. While the inspection reports reviewed would detail deficiencies, it
did not explicitly state that the findings were violations. For example, one
file noted that deficiencies of permit conditions were observed during the
inspection. Instead of clearly indicating the deficiencies were violations,
the report mentioned the facility should ensure compliance with their
NPDES permit. In instances where SSOs or DMR exceedances were
documented, a follow-up NOV was not issued in association with those
inspection findings.
Due to these observations, this is an Area for State Improvement.
Relevant metrics . Natl Natl Sialc Sialc Sialc
Metric ID Number and Description , . .
Goal Avg N D % or #
7e Inspection reports reviewed that led to an , . ...
F 100% - I 2(<
-------
inspection. EPA will review the State's procedures and monitor the State's
implementation efforts through existing oversight calls and other periodic
data reviews. If by September 30, 2017, these reviews indicate that
compliance determinations are clearly made and NOVs are issued when
appropriate, the recommendation will be considered completed.
State Review Framework Report | Tennessee | Page 27
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CWA Element 3
Violations
Finding 3-2 Area for State Improvement
Summary The State does not identify and properly report Single Event Violations
(SEVs) and Significant Noncompliance (SNCs) at major facilities.
Explanation SEVs are one-time or long-term violations, including unauthorized
bypasses or discharges, discovered by the permitting authority typically
during inspections and not through automated reviews of Discharge
Monitoring Reports.
Metric 7al indicated that TDEC entered only one SEV at a major facility
in FY14. One inspection report documented violations, but the file does not
indicate that the State entered them as SEVs in ICIS.
Metrics 8b 1 and 8c indicated that the State did not properly code SEVs into
ICIS as required by the ICIS SEV Entry Guidance and did not identify any
SEVs as SNC in any of the files reviewed. In each of the nine files
reviewed, numerous bypasses and SSOs were documented, but were not
identified in ICIS as SEVs or SNC, where appropriate. When SSOs are
reported on a DMR, TDEC entered them as a DMR parameter into ICIS.
In Spring 2016, EPA Region 4 gave ICIS training to TDEC and discussed
solutions for reporting bypasses and SSOs in accordance with the ICIS
SEV Entry Guidance.
Relevant metrics . Natl Natl Siaic sum- Siaic
Metric ID Number and Description
Goal Avjj N D %or#
7al Number of major facilities with single event I
violations
8b 1 Single-event violations accurately identified 1AA0/
HHJ/o " II V 0 I,
as SNC or non-SNC
8c Percentage of SEVs identified as SNC ,/
1(H)/<) -- (' *ğ ii
reported timely at major facilities
State Response The State disagrees in part with this finding. All overflows and bypasses
are currently tracked on the DMR form and self-reported by the facility.
Additional entry of these overflow and bypass events would constitute an
State Review Framework Report | Tennessee | Page 28
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unreasonable burden on the state and duplicate data already in the system.
Current language in the 106 commitment (Item 15) states: "Enter and
maintain data in ICIS-NPDES for all Single Event Violations, except those
automatically identified by the system (e.g., if DMR data entered, effluent
violations need not be identified as SEV)". Based upon TDEC's
interpretation of that language, the State was meeting this requirement for
both majors and minors in regards to capturing overflows and bypasses in
the ICIS system during this review period.
EPA provided the State training during April of 2016 on entry of SEVs.
Field office staff also attended this training as they will be doing the SEV
entry related to inspections going forward. Following the EPA training in
April, SEVs were again discussed at the quarterly May enforcement
roundtable with field office staff to ensure that everyone understands how
to enter these violations and when they should be entered. As with the
inspection report entry, a monthly report on SEVs will be sent to field
office managers until data flows are established to ensure that SEVs are
properly entered into both the state system and ICIS. Once the data flows
are in place to support e-reporting this will help field staff in reducing their
data entry burden by eliminating the need for double data entry.
Additionally, the division has held several meetings to update our overflow
and bypass language so that more information can be captured in ICIS as
well as update the coding as permits are reissued, so that self-reported
overflows and bypasses that reach waters of the state are automatically
identified as SNC in ICIS and in ECHO. The State believes that these
actions will correct any reporting deficiency that may exist.
Recommendation By March 31, 2017, TDEC should develop and implement procedures to
ensure that SEVs are identified and coded accurately into ICIS. EPA will
review the State's procedures and monitor the State's implementation
efforts through existing oversight calls and other periodic data reviews. If
by September 30, 2017, these reviews indicate that SEVs are being
identified and coded accurately, the recommendation will be considered
completed.
State Review Framework Report | Tennessee | Page 29
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CWA Element 4
Enforcement
Finding 4-1
Area for State Improvement
Summary
The State's Enforcement Responses (ERs) were not always timely or
appropriate. Additionally, the State's ERs did not always achieve a Return
to Compliance (RTC).
Explanation The State's Enforcement Responses (ERs) were not always timely or
appropriate. Additionally, the State's ERs did not always achieve a Return
to Compliance (RTC).
Metric 9a indicated that in 10 of 23 files reviewed (44%) the chosen ERs
did not return or were not expected to return a facility to compliance. In
several instances, an NOV was issued without a deadline for the facility to
respond with a corrective action plan and further noncompliance continued,
as documented by ICIS. In other files, despite the issuance of an NOV with
a deadline for a facility to respond with a corrective action plan, continued
noncompliance occurred and an apparent RTC was not achieved.
Metric lOal indicated that none of the State's 12 major facilities in SNC
had timely ERs.
Metric 10b documented that in 50% of the files reviewed, TDEC did not
consistently address violations in an appropriate manner. In those 12 files,
the ERs were not appropriate because numerous informal enforcement
actions were taken and noncompliance appeared to continue without ER
escalation to achieve compliance, or the State did not provide written
justification for why a formal action was not taken for facilities in SNC.
For example, one facility was issued five NOVs in seven months of SNC
violations without any ER escalation or documentation for why formal
enforcement action was not taken. Another file reviewed had ten months of
Category 1 effluent exceedances without a documented ER or justification
for why an enforcement action was not taken. Additionally, multiple files
documented informal actions with no apparent RTC or documentation for
why formal action was not taken. While issuance of an NOV may be the
appropriate initial response to promote compliance, ER escalation is
warranted when repeated violations occur to ensure a RTC.
State Review Framework Report | Tennessee | Page 30
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Timely and appropriate enforcement responses are a continuing issue from
Rounds 1 and 2 of the SRF and remains as an Area for State Improvement
in Round 3.
Relevant metrics . Natl Natl Sialc Sialc Sialc
Metric ID Number and Description , . .
Goal Avij N D %or#
9a Percentage of enforcement responses that
return or will return source in violation to 100% ~ In 2' 44"..
compliance
lOal Major facilities with timely action as
appropriate
10b Enforcement responses reviewed that
address violations in an appropriate manner
>98% 9% o 12 <>"
100% - 12 24 50",
State Response The facilities that were used for the review are generally large wastewater
plants or industrial plants. These facilities may continue to have violations
while under an order that continue to place them in significant non-
compliance (SNC). Corrective actions at these facilities often take several
years to complete. Overall the state's SNC compliance rates among major
facilities have improved significantly as the SRF dashboard shows. The
number of major facilities listed as being in SNC for 2012 and 2013 show
that there were 54 and 51 facilities in SNC, while 2014 and 2015 show a
dramatic improvement in SNC compliance rates with 29 facilities listed in
2014 and 26 facilities listed in 2015. Therefore the State disagrees with the
findings 9(a) and 10(b). Further, the State believes that the improvement
shown in the metrics above is attributable to the enforcement actions taken
over a period of many years which have resulted in numerous facilities
upgrading, expanding, and in some cases building new treatment facilities.
Also of note, out of the 26 shown to be in SNC during 2015, 18 of those
have either had orders, or are currently under an order. The remainder are
in development, or are in negotiations to sign a consent order. Many of the
SNC violations occurred during the time that a facility was under an order
and required no additional enforcement, as was the case with the examples
mentioned above. The facility with numerous NOVs was under an order at
the time, and completed the actions in the approved CAP in June of 2016.
In other examples where an escalated enforcement response was
recommended, the State was already working on new orders which had not
been finalized at the time of the SRF inspection. The State will work to
further document in writing our rational for enforcement responses going
forward. The 44% rating for enforcement does not reflect the improvement
State Review Framework Report | Tennessee | Page 31
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shown in major SNC compliance rates over the past few years. The phrase
"responses that returned, or will return" a facility to compliance could
allow additional consideration for those facilities that are under an order or
have an order in development. In the past EPA has taken this into
consideration. Another consideration that should be taken into account is
the fact that the State does not change permit limits while a facility is under
an order as many other states routinely do. Therefore, the compliance rate
may appear worse when compared to other states that do allow interim
enforcement limits.
The State recognizes that the orders issued have not met the timeliness
definition as set forth by EPA. However, the State would like to point out
that the overall national average of timely enforcement nationwide was
only 4% in 2012 reaching a high of only 14% in 2015, (or 9% according to
the chart above), as reported in the EPA ECHO database on the State
Review Framework.
The State is working to improve timeliness through ongoing training of
staff and streamlining of procedures to initiate enforcement actions within
the division. Some of the actions taken to date include a modified LEAN
event to identify areas where processes could be shortened and review
times decreased, as well as ongoing training initiatives to facilitate staff
understanding of enforcement procedures.
By March 31, 2017, TDEC should develop and implement procedures to
Recommendation ensure that ERs are timely and appropriate, achieve a RTC, and are
documented in the file. Should TDEC update their EMS, EPA will review
and provide comments for consideration. EPA will review these procedures
and monitor the State's implementation efforts through existing oversight
calls, review of the Quarterly Non-Compliance Report, and other periodic
data reviews. If by September 30, 2017, these reviews indicate that the
revised procedures appear to result in timely/appropriate enforcement
responses that reflect a RTC; the recommendation will be considered
completed.
State Review Framework Report | Tennessee | Page 32
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CWA Element 5 Penalties
Finding 5-1 Area for State Improvement
Summary The State does not routinely include documentation in the file that
demonstrates the consideration of economic benefit (EB).
Explanation Metric 11a indicated that two of eight (25%) files reviewed documented
the consideration of EB. In six files, TDEC did not mention EB or
document the rationale for why EB related to delayed or avoided costs
was not included in the penalty calculation worksheet. The State's
"Uniform Guidance for the Calculation of Civil Penalties" makes it clear
that to the extent practicable, the EB of noncompliance should be
calculated and recovered. TDEC's Uniform Guidance also states that "to
effectively achieve deterrence, any significant economic benefit resulting
from the failure to comply with the law should be recovered." TDEC also
developed an EB model based on EPA's BEN model.
In support of considering EB in penalty calculations, EPA guidance
(Oversight of State and Local Penalty Assessments: Revisions to the
Policy Framework from State/EPA Enforcement Agreements; 1993) notes
that to remove economic incentives for noncompliance and establish a
firm foundation for deterrence, EPA, the States, and local agencies shall
endeavor, through their civil penalty assessment practices, to recoup at
least the economic benefit the violator gained through noncompliance.
Documentation of economic benefit consideration in penalty calculations
is a continuing issue from Rounds 1 and 2 of the SRF and remains as an
Area for State Improvement in Round 3.
Relevant metrics . Natl Natl Sialc Sialc Sialc
Metric ID Number and Description , . .
Goal Avg N D % or #
11a Penalty calculations reviewed that consider -Ğ s
and include gravity and economic benefit
State Response The uniform penalty guidance that the State is using considers both
"gravity" and economic benefit in each case. This is documented in the
worksheet that the State is currently using. Some of the older worksheets
State Review Framework Report | Tennessee | Page 33
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that were reviewed during the past SRF review period did not have this
documentation, as it was still in development at the time. The current
worksheet also includes an area to document economic benefit if it is
reasonable to do so, and a checklist describing areas where an economic
benefit could be assessed as well as a space to document why an
economic benefit was not assessed. This is now mandatory for all
enforcement staff to fill out. Additional training is being provided to staff
to ensure that the economic benefit checklist is filled out appropriately for
each case and enforcement staff received training on use of the TN BEN
model during a staff meeting in June of 2016. The State will be happy to
provide EPA with any orders and penalties that are requested.
Recommendation By March 31, 2017, TDEC should consistently implement procedures
which document the consideration of EB and gravity in their penalty
calculations. EPA will monitor the State's efforts through existing
oversight calls and other periodic file reviews. For verification purposes,
EPA will review finalized TDEC orders and penalty calculations, to
assess progress in implementation of these improvements. If by
September 30, 2017, these reviews indicate that the State is documenting
the consideration of gravity and EB; the recommendation will be
considered completed.
State Review Framework Report | Tennessee | Page 34
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CWA Element 5
Penalties
Mild ill" 5-2
Area for State Improvement
Summary
The difference and/or the rationale for any differences between initial and
final penalties assessed are not consistently documented by the State.
Explanation Metric 12a indicated that six of nine (67%) files reviewed documented the
difference between the initial and final penalty and/or the rationale for the
difference.
As described in TN's "Uniform Guidance for the Calculation of Civil
Penalties," TDEC may assess a civil penalty that consists of an "upfront"
cash component and a contingent penalty component subject to injunctive
relief conditions outlined in an Order. The Uniform Guidance also states
that "the upfront civil penalty should remove any known economic
benefit" and should "encourage compliance by having non-compliance
cost more than compliance." Of the three files that did not document the
difference and/or the rationale for differences between initial and final
penalties assessed, the following observations were noted:
No documentation of rationale when the initial penalty calculation
worksheet amount does not match the final upfront/contingent
penalties documented in the Agreed Order. (3 files)
The final upfront penalty does not recover assessed economic
benefit. (2 files)
When an assessed penalty is 100% contingent, the cost of non-
compliance is not greater than compliance. (2 files)
Additionally, TDEC entered the total penalty (upfront and contingent)
assessed into ICIS, which does not accurately reflect the amount of
penalty collected. Subsequent to the file review, TDEC stated they
changed their procedures to only enter the upfront penalty amount into
ICIS.
Relevant metrics . Natl Natl Sialc Sialc Sialc
Metric ID Number and Description , . .
Goal Avg N D % or #
12a Documentation of the difference between ioo<^ ( ,, (
initial and final penalty and rationale
State Review Framework Report | Tennessee | Page 35
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State Response The example case where 100% of the penalty was contingent is unusual
and is no longer occurring. All NPDES cases that are currently issued by
the State have a percentage of the penalty as an up-front requirement,
which covers any economic benefit gained through non-compliance. In
cases where the Respondent is offered a SEP to offset a portion of the up-
front penalty, the Respondent must still pay any amount of economic
benefit in cash and our SEP policy requires the SEP to be at least twice
the cost of the offset penalty amount. Our state database also has a
separate area to track the amount of money required to be spent on a SEP
versus the total amount that was actually spent. This is currently being
documented for each order that contains a SEP.
The majority of orders that the State issues include minimum up-front
penalties of 15-25% of the total calculated penalty, and recover
substantially more than the economic benefit. This guidance will be
reiterated and clarified in ongoing training and in any updated guidance
documents.
The State was originally instructed to enter the entire amount of the
penalty into the PCS/ ICIS system many years ago. Upon learning that
EPA would prefer to have only the up-front amount of the penalty
entered, the State immediately changed entry procedures to comply with
EPA recommendations.
The total penalty amount is a reflection of the amount calculated for all of
the violations covered by the order. The up-front amount is the amount
that the State initially collects once the order is final. If the Respondent
complies with the order then the contingent penalties are not due.
However, if the Respondent fails to comply with the contingent
requirements, then the amounts automatically become due and payable to
the State without the need for additional orders or further legal action.
While this method differs from the way EPA assesses penalties, the State
has been advised by the Office of the Attorney General that we cannot
issue penalties for stipulated penalties except in an Order by Consent. The
current penalty allocation between up-front and contingent penalties
provides deterrence for failing to comply with order requirements while
still imposing a significant monetary penalty upon the Respondent.
State Review Framework Report | Tennessee | Page 36
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The State will be happy to provide EPA with any orders and penalties that
are requested.
Recommendation By March 31, 2017, TDEC should implement procedures to ensure
consistency in the use of the Uniform Guidance and that economic benefit
is recovered. The state should also ensure that only upfront penalty
amounts assessed are entered into ICIS. EPA will review the State's
procedures and monitor the State's implementation efforts through
existing oversight calls and other periodic data reviews. For verification
purposes, EPA will review finalized TDEC orders and penalty
calculations to assess progress in implementation of these improvements.
If by September 30, 2017, these reviews indicate marked improvement in
these areas, the recommendation will be considered completed.
State Review Framework Report | Tennessee | Page 37
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CWA Element 5 Penalties
Finding 5-3 Area for State Attention
Summary The State does not consistently document the collection of penalties.
Explanation Metric 12b indicated that seven of nine (78%) files reviewed documented
the collection of upfront penalties within the state database and that
contingent penalties milestones were met. Several files reviewed
contained Supplemental Environmental Projects (SEPs) that offset the
upfront penalties. Of the two files that did not document penalty
collection, one was referred to collections following the SRF and the
other file had a 100% contingent penalty, but was unclear if the facility
met the contingency milestones. Because the majority of the files
documented penalty collection, this does not appear to reflect a systemic
problem.
In instances where SEPs are used to offset a portion of the penalty or
where contingent penalties are used, TDEC should implement procedures
to ensure proper documentation that SEPs have been completed and
contingent milestones have been met.
Relevant metrics . Natl Natl Sialc Sialc Sialc
Metric ID Number and Description , . .
Goal Avg N D % or #
12b Penalties collected 100% ~ " K> ~X"
State Response The State currently uses our database to track collection of penalties. Of
the two cases in question, one is currently with collections and the other
one has been paid. The SEP documentation was in our database but not
necessarily in the paper file as the process is maintained in an electronic
format. In an effort to better document completion of items required in
orders, we have started including a final report requirement when SEPs
are used, and a final report documenting all completed requirements and
analyzing the effectiveness of those corrective actions. This will be a
standard component of orders going forward that require corrective
actions that will take multiple years to complete. See also comments in
item 5-2 above.
Recommendation
State Review Framework Report | Tennessee | Page 38
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Resource Conservation and Recovery Act Findings
RCRA Element 1 Data
Finding 1-1 Area for State Attention
Summary During the SRF evaluation, the majority of the files reviewed included
accurate data.
Explanation During the SRF file review, information in the facility files was checked
for accuracy with the information in the national RCRA database,
RCRAInfo. The data was found to be accurate in 26 of the 32 files
(81.3%). The data inaccuracies found were isolated, like incorrect dates,
missing Notices of Violation, or incorrect violation citations. Unlike
previous SRF evaluations, the problems did not appear to be systemic
and can be monitored at the state level. However, since there has been
staff turnover TDEC should consider retraining the employees on their
data SOP and RCRAInfo data entry requirements. This element
considered an Area for State Attention.
Relevant metrics . Natl Natl Siaie sum- Siaie
Metric ID Number and Description , . .
Goal Avjj N D %or#
2b Complete and accurate entry of , , ,,
. x J n/a n/a 2(> 32
mandatory data
State Response The DSWM concurs that the accuracy rate is unacceptable and that steps
need to be taken to improve it. The Division plans on having a
retraining session at the Statewide Staff meeting in October 2016 to
address the need for staff to input information accurately and completely
into RCRAInfo. This will also be addressed at the semi-annual
manager's meeting to be held in August 2016. The Enforcement and
Compliance Section will begin randomly cross-checking information in
the facility files against the information in RCRAInfo as a Quality
Assurance measure. The Division will look at the feasibility of adding a
Quality Control step to the Field Office Manager's job duties. Currently
it is difficult to add a centralized system-wide QC check due to system
configuration.
Recommendation
State Review Framework Report | Tennessee | Page 39
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RCRA Element 2
Inspections
Finding 2-1
Meets or Exceeds Expectations
Summary
Tennessee met national goals for all TSD and LQG inspections.
Explanation
Element 2 measures three types of required inspection coverage that are
outlined in the EPA RCRA Compliance Monitoring Strategy: (1) 100%
coverage of operating Treatment Storage Disposal (TSD) facilities over
a two-year period, (2) 20% coverage of Large Quantity Generators
(LQGs) every year, and (3) 100% coverage of LQGs every five years.
In FY 2014, Tennessee met expectations for all inspections in these
areas. All 21 operating TSDs were inspected over the two-year time
period. The state also had excellent annual LQG inspection coverage
(30.7%) that is well above the national goal of 20%.
For the five-year LQG inspection coverage, the initial data metric of
87.8%) was below the national goal of 100%. Upon reviewing the
facilities that were not inspected during this five-year time frame, it was
noted that 28 of the 41 facilities were not LQGs during the entire five
years and therefore are not part of the inspection universe. The
corrected universe would then be 295 of 308 LQGs that were inspected
in the five-year period, which is 95.7% coverage. This LQG inspection
coverage is proximate enough to the national goal of 100% coverage to
allow for fluctuation of LQG status over the five-year period.
Relevant metrics
Metric ID Number and Description
Natl
Goal
Natl Siale
Avji \
Slale
1)
Slale
% or #
5a Two-year inspection coverage of operating
TSDFs
100%
88.4% 21
21
Kill",,
5b Annual inspection coverage of LQGs
20%
20.1% 103
33(.
44.2%
5c Five-year inspection coverage of LQGs
100%
67.1 % 295
33(.
s^.sv
Five-year inspection 5c Corrected of LQGs
295 308 95.7%
State Response EPA's RCRA Compliance Monitoring Strategy requirement for
inspection coverage of Large Quantity Generators (LQGs) is 20%
coverage every year and 100% coverage every five years. Some
Tennessee facilities were not LQGs during the entire 5 year period and
after making corrections for this, EPA notes in the State Review
Framework (SRF) that during this five-year time frame, 295 facilities
were inspected out of a corrected universe of 308 LQG facilities, which
is 95.1% coverage. The 95.1% coverage of LQGs is below the national
goal of 100%) coverage for the five year period. EPA has considered
State Review Framework Report | Tennessee | Page 40
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this close enough to the national goal that this metric is considered to
meet expectations. That said, TDEC feels that this number is too low
and has evaluated the program and has taken steps to improve
inspection results. Upon investigation, it was determined that the
shortage of LQG inspections largely occurred in the Nashville Field
Office (NFO) and can be attributed to legacy issues that occurred over
several years. Procedural modifications in the way LQG inspections are
assigned and monitored have been developed and implemented in the
last two years by the manager of the NFO. These operational changes
will improve the metrics with the goal of achieving the national target
of 100% coverage of LQGs every five years.
Recommendation
State Review Framework Report | Tennessee | Page 41
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RCRA Element 2 Inspections
Finding 2-2
Meets or Exceeds Expectations
Summary
The RCRA inspection reports provided sufficient documentation to
determine compliance at the facility, and were completed in a timely
manner.
Explanation A total of 32 inspection reports were evaluated for completeness and
sufficiency to determine compliance with the RCRA requirements. It
was found that 100% of the inspection reports met this standard.
The Tennessee Division of Solid Waste Management Hazardous Waste
Program Enforcement Policy sets forth a 45-day deadline for RCRA
inspection report completion. Thirty-one inspections reports (96.9%)
inspection reports met this deadline with an average time for report
completion at 29 days.
The completeness, sufficiency, and timeliness of the RCRA inspection
reports meets SRF requirements. The quality of the TDEC RCRA
inspection reports reviewed were excellent, with thorough descriptions
of facility processes, waste management activities, potential violations
and supporting photo documentation.
Relevant metrics
Metric ID Number and Description
Natl
Goal
Natl
Avjj
Siale Siale Siale
N D % or#
6a Inspection reports complete and sufficient to
determine compliance
100%
n/a
32
32 lOOVi.
6b Timeliness of inspection report completion
100%
n/a
31
32 %.>%
State Response TDEC appreciates EPA's acknowledgement of the Hazardous Waste
Management Program's efforts to focus on timely and quality reporting.
Recommendation
State Review Framework Report | Tennessee | Page 42
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RCRA Element 3
Violations
Finding 3-1 Meets or Exceeds Expectations
Summary Tennessee makes accurate compliance determinations and the
appropriate identification of most SNC facilities.
Explanation File Review Metric 7a assesses whether accurate compliance
determinations were made based on a file review of inspection reports
and other compliance monitoring activity (i.e., record reviews). The file
review indicated that 96.9% of the files reviewed had accurate
compliance determinations (31 of 32 files).
The majority of SNCs (90.5%) were identified correctly by the state in
the national database and in accordance with the RCRA ERP. Of the 21
SNC-caliber facility files reviewed, there were two facilities that were
not identified as SNCs by the state, and violations were addressed
through informal rather than formal enforcement actions per the RCRA
ERP.
The accuracy of the state's RCRA compliance determinations and the
appropriateness of the SNC identifications meet SRF requirements.
Relevant metrics . Natl Natl Siaic sum- Siaic
Metric ID Number and Description _ , . .
Goal Avjj N D %or#
7a Accurate compliance determinations 100% 31 32
8c Appropriate SNC determinations 100% I') 21 9(1.5"'"
State Response As noted above, two cases were addressed through informal rather than
formal enforcement actions. TDEC believes that this course of action
was appropriate, as described below.
Vitran/Central Transport:
Vitran Memphis was not a HW transporter, but was shipped 2 trailers
of HW in November 2012 from the Missouri Vitran facility, reportedly
as a mistake, since there was no paperwork to accompany the shipment.
The trailers were stored at the Memphis facility until they could be
profiled by and shipped by Vitran to Clean Harbors and Excel in two
shipments (one in July of 2013 and the other in September of 2013).
The CEI was performed on 11-5-13 (after the waste had been disposed
of), but within days after the CEI (11-18-13), Vitran was purchased by
Central Transport. The Division decided that since the shipment of HW
originated from another state that EPA and the state of Missouri would
State Review Framework Report | Tennessee | Page 43
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be better able to address the problem at the source. Alan Newman
(EPA) was made aware at the time, and a copy of our warning letter was
sent to Missouri. In addition, the new owner (Central Transport) gave
the Division a copy of procedures that should prevent another similar
situation from ever occurring. Since Vitran-Memphis/Central was
considered to be an innocent party to Vitran-Missouri's actions, DSWM
believes that enforcement action is most appropriately taken against
Vitran-Missouri.
Excel:
Excel is a Treatment Storage and Disposal (TSD) facility that is
subject to annual inspections. A CEI was performed on March 26, 2014
which identified violations associated with secondary containment
integrity. Then on July 17, 2014 Excel notified the State of the shipment
of Hazardous Waste (HW) to a Class 1 (Subtitle D) landfill. Excel
immediately cleaned up the HW at the landfill. An NOV was issued on
September 4, 2014 for the shipment of HW to a Class 1 landfill. A show
cause meeting was held on October 8, 2014 to discuss the violations
associated with the March 26, 2014 CEI as well as the September 4,
2014 NOV. The facility submitted information (PE certification) after
the October 8, 2014 show cause meeting regarding the structural
integrity of the secondary containment and sump structure to support
their contention that they were sound and not leaking. The decision was
made by the DSWM to not pursue formal enforcement action for the
2014 inspection and September 4, 2014 NOV (for secondary
containment structural integrity and for mishandling HW). Instead a
warning letter was issued to the facility. Subsequent TDEC/EPA joint
inspections identified additional violations; EPA is taking the
enforcement lead for these issues.
Recommendation
State Review Framework Report | Tennessee | Page 44
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RCRA Element 3
Violations
Finding 3-2 Area for State Improvement
Summary The timeliness of SNC determinations continues to be an issue for the
Tennessee RCRA program.
Explanation The RCRA ERP outlines that 100% of SNC determinations should be
entered into RCRAInfo within 150 days of the first day of the inspection
(day zero). The data metric that measures this requirement indicated that
only 52.3% (11 of the 21) SNCs identified met this criterion in FY2014.
The initial metric was 47.8% (11 of 23 SNCs timely), but two of the
cases were EPA joint inspections so those SNCs were removed from the
metric.
As outlined in the Tennessee Division of Solid Waste Management
Hazardous Waste Program Enforcement Policy, the TDEC Field Office
submits an "Enforcement Action Request" (EAR) to the Division's
Enforcement Section if the potential for a formal enforcement action is
identified. Enforcement personnel then evaluate the merits of the case,
typically through a show-cause meeting with the facility representatives.
If there is a decision to pursue formal enforcement then the facility is
identified as a SNC in RCRAInfo.
In evaluating the case timelines, EPA observed that in nine of the ten
untimely SNCs (90%), the EAR was submitted to the Enforcement
Section more than 100 days after the inspection. The Division's policy
states that the field offices should submit an EAR within 75 days of first
documenting the violation (inspection reports average 29 days for
completion). The delay in EAR submittals was also identified as a factor
in late SNC determinations during the SRF Round 2 evaluation. This
issue will continue as an "Area for State Improvement" in SRF Round 3.
Relevant metrics . Natl Natl Siaic sum- Siaic
Metric ID Number and Description
Goal Avjj N D %or#
8b Timeliness of SNC determinations 100% II 23 4"\X%
8b Corrected Timeliness of SNC determinations II 21 52.3%
State Response The Division of Solid Waste Management will add a table for reporting
and tracking each Enforcement Action Request (EAR) in the Planning
and Reporting Excel spreadsheet for each Field Office. Facility name,
inspection date (day zero), NOV issuance date, and EAR submittal date
will be required to be entered for all facilities with EARs. This table will
State Review Framework Report | Tennessee | Page 45
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calculate the number of days from the inspection date (day zero) to the
NOV issuance date and the EAR submittal date. If 45 days is exceeded
from inspection date (day zero) to the NOV issuance date it will be
flagged with a NO. If 75 days is exceeded from inspection date (day
zero) to the EAR submittal date it will be flagged with a NO. This
additional reporting and tracking will reemphasize the importance of
meeting these NOV and EAR time limits and will provide management
with an easy mechanism to track compliance with the established time
limits. Non-compliance with the above timeframes will be discussed
with Field Office Managers during formal performance reviews.
Additionally, at the August 2016 meeting for all Division of Solid Waste
Management managers, a member of the Enforcement and Compliance
staff will conduct refresher training on which violations and situations
which necessitate the submittal of an EAR.
Recommendation EPA will monitor progress on meeting the timelines for SNC entry into
RCRAInfo via bimonthly conference calls and RCRAInfo data analyses.
Following the finalization of the TDEC Round 3 SRF Report, EPA will
close this recommendation after observing four consecutive quarters of
performance that meets national goals.
State Review Framework Report | Tennessee | Page 46
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RCRA Element 4 Enforcement
Finding 4-
Meets or Exceeds Expectations
Summary TDEC consistently issued timely RCRA enforcement responses that
returned violating facilities to compliance.
Explanation
A total of 29 files were reviewed that included informal or formal
enforcement actions, and of the enforcement actions returned the
facilities to compliance with the RCRA requirements.
The data metric that measures the timeliness of formal enforcement
showed that 94.7% (18 of 19) of the formal enforcement actions met the
ERP in FY 2014. The national goal is 80%. This is a significant
improvement from previous SRF reviews.
Facility noncompliance was documented in the 29 of the files reviewed.
In evaluating the enforcement responses taken, 89.7% (26 of 29) cases
were addressed with the appropriate enforcement response. The
remaining three cases, two facilities were not identified as SNCs and the
state addressed the violations through an informal action rather than an
appropriate formal enforcement action (referenced in Finding 3-1). In
the third case the state did identify the facility as a SNC, but the consent
agreement that was negotiated with the facility is not considered formal
enforcement since the action did not mandate compliance and is not
enforceable.
The state met the SRF expectations for the criteria for timely and
appropriate enforcement actions that return violators to compliance.
Relevant metrics
Metric ID Number and Description
9a Enforcement that returns violators to
compliance
Nail Nail Sialc Sialc Sialc
Goal Avg \ I) "..nr
100% n/a
10b Appropriate enforcement taken to address
violations
I ()()".,
10a Timely enforcement taken to address SNC 80% 84.3% IS I') lU
100% n/a 26 29 89.7%
State Response As noted above, two cases were not identified as SNCs and handled
through informal rather than formal enforcement action. The rationale
for these two decisions is discussed in DSWM's response in Section 3-1.
For the third case, TDEC elected to enter into a Consent Agreement
State Review Framework Report | Tennessee | Page 47
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rather than a Consent Order (while retaining the right to enter into a
separate Commissioner or Director's Order, if necessary) to maintain a
cooperative working relationship with the waste generator. The
appropriateness of this approach was validated by the completion of the
waste disposal effort significantly ahead of schedule.
Recommendation
State Review Framework Report | Tennessee | Page 48
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RCRA Element 5 Penalties
Finding 5-1 Meets or Exceeds Expectations
Summary Tennessee has may significant progress on the consideration of the
economic benefit of noncompliance into penalty assessments. There was
documentation in the files that all final penalties were collected, or that
penalty collection was being pursued.
One of the objectives of the SRF is to ensure equitable treatment of
violators through national policy and guidance, including systematic
methods of penalty calculations. As provided in the 1993 EPA
"Oversight of State and Local Penalty Assessments: Revisions to the
Policy Framework for State/EPA Enforcement Agreements" it is EPA
policy not to settle for less than the amount of the economic benefit of
noncompliance (EBN) and a gravity portion of the penalty.
Following the SRF Round 1 and 2 evaluations, Tennessee made progress
on the documentation of EBN considerations. The state incorporated an
"Economic Benefit Review Checklist" in the penalty documentation, and
if EBN was not pursued a supporting justification was included in the
penalty worksheet narrative. There were 17 penalty calculations
reviewed and 16 of the cases (94.1%) had the appropriate EBN
consideration and documentation included in the file. There was one
case where there was a clear economic benefit realized by shipping
hazardous wastes to a solid waste landfill, but there was no EBN
included in the penalty calculation. EPA encourages TDEC to continue
to emphasize the importance of EBN consideration in future penalty
assessments. EPA is available to assist in this effort.
TDEC does not typically negotiate penalties in RCRA enforcement
administrative cases, so there was no requirement for documenting
adjustments to penalty calculations in the 17 enforcement cases
reviewed.
In 94.1% of the penalty files reviewed (16 of 17), there was
documentation in the file indicating that final penalties had been
collected. There was one case where the respondent had not paid the
penalty, and the state is pursuing collection.
Relevant metrics Nail Nail Siale Siale Siale
Metric ID Number and Description ,, , . .
Gonl Avg \ I) "..nr
11a Penalty calculations include gravity and
. / _ 100% N/A l(. I I".,
economic benefit
State Review Framework Report | Tennessee | Page 49
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12a Documentation on difference between .... . , . , . ,
. 100% N/A \ \ \ \ \ \
initial and final penalty
12b Penalties collected 100% N/A l<> l(> loo",,
State Response Jackson-Madison County Hospital disposed of empty, used vials and
packaging and did not dispose of any actual pharmaceuticals. As the
estimated amount of residual waste was miniscule, the economic benefit
derived from the hospital's activities was determined to be negligible (as
documented in the penalty calculation worksheet).
Recommendation
State Review Framework Report | Tennessee | Page 50
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