59-8-415 - Noncompliance. - Tennessee Statutes

59-8-415. Noncompliance.

(a)  (1)  If an operator violates the requirements of this part or regulations adopted pursuant thereto, or the terms of any permit or the terms of any order of the commissioner or the commissioner's designee, the commissioner or the designee shall issue a written notice of noncompliance to be delivered in accordance with the provisions of this section to the operator, fixing a reasonable time for correction.

     (2)  The total time for abatement under a notice of violation, including all extensions, shall not exceed sixty (60) days from the date of issuance, in accordance with rules promulgated pursuant to this part.

     (3)  If, upon expiration of the period of time originally fixed or subsequently extended, the commissioner or the commissioner's designee finds that the violation has not been abated, the commissioner or the designee shall immediately order a cessation of coal surface mining and reclamation operations or the portion thereof relevant to the violation.

     (4)  Such cessation order shall remain in effect until the commissioner or the commissioner's designee determines that the violation has been abated, or until modified, vacated, or terminated by the commissioner or the commissioner's designee in accordance with this section.

     (5)  In the order of cessation, the commissioner or the commissioner's designee shall determine the steps necessary to abate the violation in the most expeditious manner possible and shall include the necessary measures in the order.

     (6)  If necessary, the commissioner or the commissioner's designee shall order suspension or revocation of a permit and forfeiture of the bond according to the provisions of this part.

     (7)  The commissioner shall also issue an immediate cease order to any operator mining without a valid permit, or mining an area not covered by a valid permit.

(b)  (1)  If the commissioner determines that any condition or practice exists, or that the operator is in violation of any requirement of this part or any permit condition required by this part, which condition, practice, or violation also creates an imminent danger to the health and safety of the public, or is causing, or can reasonably be expected to cause, significant and imminent environmental harm to land, air, or water resources, the commissioner shall immediately order a cessation of coal surface mining and reclamation operations or the portion thereof relevant to the condition, practice, or violation and commence bond forfeiture proceedings.

     (2)  Such cessation order shall remain in effect until the commissioner or the commissioner's designee determines that the condition, practice, or violation has been vacated, or terminated by the commissioner pursuant to subsection (c).

     (3)  Where the commissioner finds that the ordered cessation of coal surface mining and reclamation operations, or any portion thereof, will not completely abate the imminent danger to health and safety of the public or the significant and imminent environmental harm to land, air, or water resources, the commissioner shall, in addition to the cessation order, impose affirmative obligations on the operator requiring the operator to take whatever steps the commissioner deems necessary to abate the danger or harm.

(c)  (1)  Notices and cease orders issued pursuant to this section shall set forth with reasonable specificity the nature of the noncompliance and the remedial action required, the period of time established for abatement, and a reasonable description of the portion of the coal surface mining and reclamation operation to which the notice or cease order applies.

     (2)  Each notice or cease order issued under this section shall be handed promptly to the operator and/or subcontractor in person, or served by certified mail addressed to the operator and/or subcontractor's permanent address shown on the application for a permit, or where there is no permit, to the operator's last known address, by the commissioner, and all notices or cease orders shall be in writing and shall be signed by the commissioner or the commissioner's designee.

     (3)  If such order is not complied with or the operator refuses or fails to correct the violation, the permit may be revoked and the performance bond shall then be forfeited to the commissioner or the commissioner's designee.

     (4)  Any notice or cease order issued pursuant to this section may be modified, vacated, or terminated by the commissioner.

     (5)  If, however, the operator makes no reasonable attempt to abate the violation within the prescribed abatement period, the bond shall be forfeited in accordance with the provisions of this part.

(d)  Any operator who receives any notice of noncompliance or cease order from the commissioner or the commissioner's designee may request a formal review before the board as provided in § 59-8-321 [repealed. See the Compiler's Notes] and the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, part 3. Any request for review made pursuant to this section shall be made, in writing, within thirty (30) days from receipt of the notice or order. Failure to forward such request to the commissioner or the commissioner's designee within thirty (30) days from receipt of the notice or order shall result in a waiver of all legal rights to contest such notice or order.

(e)  The court, in issuing any final order in any action brought pursuant to subsection (a), may award costs of litigation (including reasonable attorney and expert witness fees) to any party, whenever the court determines such award is appropriate. The court may, if a temporary restraining order or preliminary injunction is sought, require the filing of a bond or equivalent security in accordance with the Tennessee Rules of Civil Procedure.

(f)  Nothing in this section shall restrict any right which any person (or class of persons) may have under any statute or common law to seek enforcement of any of the provisions of this part and the regulations issued pursuant to it, or to seek any other relief.

(g)  Any person who is injured in person or property through the violation by any operator of any regulation, order, or permit issued pursuant to the provisions of this part may bring an action for damages against the operator (including reasonable attorney and expert witness fees) only in the chancery court of Davidson County, or the chancery court of the county in which the coal mining operation complained of is located. Nothing in this subsection shall affect the rights established by or limits imposed under the Workers' Compensation Law, compiled in title 50, chapter 6.

[Acts 1987, ch. 251, § 19.]