§ 68-201-116 — Orders and assessments of damages and civil penalty - Appeal

(a) When the technical secretary discovers that any provision of this part or of any regulation promulgated under this part has been violated, the technical secretary may issue an order for correction to the responsible person, and this order shall be complied with within the time limit specified in the order. Such order shall be served by personal service or sent by certified mail, return receipt requested. The recipient of such an order may appeal in the same manner as with an assessment of damages or civil penalty under subsection (b). (b) (1) In addition to the criminal penalties of § 68-201-112 , any person who violates or fails to comply with any provision of this part or any rule, regulation, ordinance, or standard adopted pursuant to this part shall be subject to a civil penalty of up to twenty-five thousand dollars ($25,000) per day for each day of violation. Any person against whom an assessment in excess of ten thousand dollars ($10,000) for each violation has been issued by a local pollution control program pursuant to this section may petition the technical secretary for de novo review of the assessment under this section. The technical secretary shall render an initial determination, and that initial determination may be appealed to the board pursuant to this section. Each day such violation continues constitutes a separate punishable offense, and such person shall also be liable for any damages to the state resulting from the continued violation. (2) Any civil penalty or damages shall be assessed in the following manner: (A) The technical secretary or any municipality or county operating under a certificate of exemption pursuant to § 68-201-115 may issue an assessment against any person responsible for the violation or damages. Such person shall receive notice of such assessment by certified mail, return receipt requested; (B) Any person against whom an assessment has been issued may appeal the assessment by filing a petition for review with the technical secretary or the respective municipality or county within thirty (30) days of receipt of the assessment, setting forth the grounds and reasons for such person's objections and requesting a hearing on the matter; and (C) If a petition for review of the assessment is not filed within thirty (30) days after the date the assessment is served, the violator shall be deemed to have consented to the assessment and it shall become final. (c) In assessing such civil penalty, the factors specified in § 68-201-106 may be considered. Damages to the state or respective municipality or county may include any expenses incurred in investigating the enforcing of this part, in removing, correcting, or terminating the effects of air pollution and also compensation for any expense, loss or destruction of plant or animal life or any other actual damages or clean-up expenses caused by the pollution or by the violation. The plea of financial inability to prevent, abate or control pollution by the polluter or violator shall not be a valid defense to liability for violations of this part or of regulations or ordinances promulgated under this part. (d) The issuance of an order or assessment of civil penalty by a municipality or county operating under a certificate of exemption as provided for in this part is intended to provide additional and cumulative remedies to prevent, abate and control air pollution in this state. Nothing in this subsection (d) shall be construed to preempt, supersede, abridge or otherwise alter any rights, action or remedies of the technical secretary, board or commissioner. (e) (1) Whenever any order or assessment under this section has become final, a notarized copy of the order or assessment may be filed in the office of the clerk of: (A) The chancery court of Davidson County, if the final order or assessment is from the board, the commissioner or the technical secretary; or (B) The chancery court of the county in which all or part of the violation or failure to comply occurred, if the final order or assessment is from any municipality or county. (2) When filed in accordance with subdivision (e)(1), a final order or assessment shall be considered as a judgment by consent of the parties on the same terms and conditions as those recited in the order of assessment. Such judgment shall be promptly entered by the court. Except as otherwise provided in this section, the procedure for entry of the judgment and the effect of the judgment shall be the same as provided in title 26, chapter 6. (3) (A) A judgment under subdivision (e)(2) shall become final thirty (30) days after the date a summons has been served upon the defendant, if the final order or assessment resulting in the judgment is from the board. (B) Except as provided in subdivision (e)(3)(A), within forty-five (45) days after entry of a judgment under subdivision (e)(2), any citizen shall have the right to intervene on the ground that the penalties or remedies provided are inadequate or are based on erroneous findings of facts. Upon receipt of a timely motion to intervene, the court shall determine whether it is duplicitous or frivolous, and shall notify the movant and the parties of its determination. If the motion is determined not to be duplicitous or frivolous, all parties shall be considered to have sought review of the final order or assessment, and the court shall proceed in accordance with § 4-5-322 . If no timely motion to intervene is filed, or if any such motion is determined to be duplicitous or frivolous, the judgment shall become final forty-five (45) days after the date of entry. (4) A final judgment under this subsection (e) has the same effect, is subject to the same procedures, and may be enforced or satisfied in the same manner, as any other judgment of a court of record of this state.

Legislative History

Acts 1979, ch. 299, § 4; T.C.A., § 53-3423; Acts 1984, ch. 788, § 13; 1987, ch. 263, §§ 1-7; 1989, ch. 321, §§ 1, 2; T.C.A., § 68-25-116.