68-212-114 - Violations Civil and criminal penalties. - Tennessee Statutes

68-212-114. Violations Civil and criminal penalties.

(a)  (1)  Any person violating any provision of this part, or failing, neglecting or refusing to comply with any order, or any term or condition of any permit, issued by the commissioner or board, commits a Class A misdemeanor. Each day upon which a violation occurs constitutes a separate punishable offense.

     (2)  Any person who knowingly disposes of hazardous waste in violation of this part, rules, regulations, the terms or conditions of a permit, or orders of the commissioner or board commits a Class C felony. Each day upon which such violation occurs constitutes a separate punishable offense.

     (3)  In addition to the penalties imposed under subdivisions (a)(1) and (2), the court, department or board may suspend the permit to store, transport, treat or dispose of hazardous waste for a period of up to ten (10) years of any person who has been convicted of two (2) such felonies within a two-year period. The court, department or board shall suspend the permit to store, transport, treat or dispose of hazardous waste for a period of ten (10) years of any person who has been convicted of three (3) such felonies within a two-year period. No person who has had such person's permit suspended pursuant to this subsection shall be eligible to apply for any other permit issued pursuant to this part until the period of time for which the permit was suspended has expired. No succeeding person who has substantial factual or legal connections, continuity or identity with any person who has had such person's permit suspended pursuant to this subsection shall be eligible to apply for any permit issued pursuant to this part until the period of time for which the permit was suspended has expired, but a succeeding person who is a good faith purchaser and who does not have substantial factual or legal connections, continuity or identity, may apply for a permit. Determination of factual or legal connection, continuity or identity under this subsection shall be made by the chancellor of Davidson County upon request of the succeeding person. Nothing in this subsection precludes the suspension, revocation or denial of a permit by the department or board when such action is otherwise authorized by law.

(b)  (1)  Any person who violates or fails to comply with any provision of this part, any order of the board or commissioner, the terms or conditions of any permit issued, or any rule, regulation or standard adopted pursuant to this part shall be subject to a civil penalty of up to fifty thousand dollars ($50,000) per day for each day of violation. Each day upon which such violation occurs constitutes a separate punishable offense, and such person shall also be liable for any damages to the state resulting therefrom.

     (2)  Any civil penalty or damages shall be assessed in the following manner:

          (A)  The commissioner 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 petition the board for a review of the assessment;

          (C)  The manner of review of an assessment shall be the same as that for an order as set out in § 68-212-113;

          (D)  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; and

          (E)  The commissioner may institute proceedings for assessment in the chancery court of Davidson County or in the chancery court of the county in which all or part of the violation or failure to comply occurred.

     (3)  In assessing a civil penalty, the following factors may be considered:

          (A)  The harm done to public health or the environment;

          (B)  The economic benefit gained by the violators;

          (C)  The amount of effort put forth by the violator to attain compliance; and

          (D)  Any unusual or extraordinary enforcement costs incurred by the commissioner.

     (4)  Damages to the state may include any reasonable expenses incurred in investigating and enforcing violations of this part, and in restoring the air, water, land and other property, including animal, plant and aquatic life, of the state to their former condition.

(c)  (1)  Any person who violates or fails to comply with any provision of this part or any rule, regulation, or standard adopted pursuant to this part shall be subject to an administrative penalty not to exceed one thousand dollars ($1,000) per violation, with each day such violation continues constituting a separate punishable offense.

     (2)  The board shall promulgate and adopt rules and regulations establishing a schedule of administrative penalty amounts for certain specific non-discretion violations or categories of violations established by this part.

     (3)  The commissioner may issue an assessment of administrative penalties against any person responsible for a nondiscretionary violation. Such person shall receive notice of such assessment by certified mail, return receipt requested.

     (4)  Any person against whom an assessment of administrative penalties has been issued may petition the board for a review of the assessment. The manner of such review shall be the same as that for an order as set out in § 68-212-113. If a petition for review of an 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.

     (5)  The commissioner may issue an assessment of civil penalties pursuant to subsection (b) against any person who fails to comply with an assessment of administrative penalties lawfully issued in accordance with this subsection.

(d)  Any person qualified by law may intervene as a matter of right in any court action brought by the commissioner or board pursuant to this part.

(e)  (1)  Whenever any order or assessment under § 68-212-113 or this section has become final, a notarized copy of the order or assessment may be filed in the office of the clerk of the chancery court of Davidson 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 therein. 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 thereof shall be the same as provided in title 26, chapter 6.

     (3)  (A)  If the final order or assessment resulting in a judgment under subdivision (e)(2) is from the board, the judgment shall become final thirty (30) days after the date a summons has been served upon the defendant.

          (B)  If the final order or assessment resulting in a judgment under subdivision (e)(2) is from the commissioner, any citizen shall, within forty-five (45) days after entry of the judgment, 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 for intervention, 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 for intervention 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 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.

[Acts 1977, ch. 175, § 13; 1979, ch. 410, §§ 9, 11; T.C.A., § 53-6314; Acts 1983, ch. 317, § 4; 1984, ch. 577, § 11; 1988, ch. 559, § 4; 1989, ch. 321, §§ 3, 4; 1989, ch. 591, §§ 100, 112; 1990, ch. 757, §§ 1-7; T.C.A., § 68-46-114.]