68-215-121 - Civil penalty Assessment.
68-215-121. Civil penalty Assessment.
(a) Any person who violates or fails to comply with any provision of this chapter, any order of the commissioner or board, any rule, regulation, or standard pursuant to this chapter shall be subject to a civil penalty not to exceed ten thousand dollars ($10,000) per day for each day of violation. This civil penalty may be assessed by the commissioner, the board or the court. Each day such violation continues constitutes a separate punishable offense, and such person is also liable for any damages to the state resulting therefrom. In deciding whether to assess a civil penalty and determining the amount of such assessment, the commissioner, board, or court may consider all of the circumstances surrounding the violation, including the past compliance history of the violator, the degree of risk posed to the environment by the violation, as well as the factors enumerated in subsection (c).
(b) Any civil penalty or damages shall be assessed in the following manner:
(1) 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;
(2) Any person against whom an assessment has been issued may petition the board for a review of the assessment;
(3) The manner of review for an assessment shall be the same as that for an order as set out in § 68-215-119;
(4) 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;
(5) Whenever any assessment has become final because of a person's failure to appeal either the commissioner's assessment or the board's order, the commissioner may apply to the appropriate court for a judgment and seek execution on such judgment in a summary proceeding. The court, in such proceedings, shall treat the failure to appeal such assessment as confession of judgment in the amount of the assessment; and
(6) 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.
(c) In assessing a civil penalty, the following factors may be considered:
(1) The harm done to the public health and/or the environment;
(2) The economic benefit gained by the violator through noncompliance;
(3) The amount of effort put forth by the violator to obtain compliance; and
(4) Any unusual or extraordinary enforcement costs incurred by the commissioner, including compensation for loss or destruction of wildlife, fish, and any aquatic life resulting from the violation.
(d) Damages to the state may include any reasonable expenses incurred in investigating and enforcing violations of this chapter and in restoring the air, water, land, and other property, including the replacement of animal, plant, and aquatic life destroyed due to the violation.
(e) Any person qualified under the Tennessee Rules of Civil Procedure may intervene in any court action brought by the commissioner or board pursuant to this chapter.
[Acts 1988, ch. 984, § 23; T.C.A., § 68-53-121; Acts 2005, ch. 350, § 1.]