69-3-115 - Violations Penalties Judgment by consent.
69-3-115. Violations Penalties Judgment by consent.
(a) (1) Any person who does any of the following acts or omissions is subject to a civil penalty of up to ten thousand dollars ($10,000) per day for each day during which the act or omission continues or occurs:
(A) Violates an effluent standard or limitation or a water quality standard established under this part;
(B) Violates the terms or conditions of a permit;
(C) Fails to complete a filing requirement or causes false information to be filed with the department;
(D) Fails to allow or perform an entry, inspection, monitoring, or reporting requirement;
(E) Violates a final determination or order of the board, panel or commissioner;
(F) In the case of an industrial user of a publicly owned treatment works, fails to pay user or cost recovery charges or violates pretreatment standards or toxic effluent limitations established as a condition in the permit of the treatment works;
(G) After reasonable notice and opportunity to restore a ditch constructed pursuant to § 69-3-130, the owner of the property fails to restore the ditch to permit specifications; or
(H) Violates any other provision of this part or any rule or regulation promulgated by the board.
(2) Any civil penalty shall be assessed in the following manner:
(A) The commissioner may issue an assessment against any person responsible for the violation;
(B) Any person against whom an assessment has been issued may secure a review of such assessment by filing with the commissioner a written petition setting forth the grounds and reasons for the objections, and asking for a hearing in the matter involved before the board. 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) Whenever any assessment has become final because of a person's failure to appeal the commissioner's assessment, the commissioner may apply to the appropriate court for a judgment and seek execution of such judgment and the court, in such proceedings, shall treat a failure to appeal such assessment as a confession of judgment in the amount of the assessment; and
(D) The commissioner, through the attorney general and reporter, 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 pollution or violation occurred, in the name of the department.
(3) In assessing the civil penalty, the commissioner may consider the following factors:
(A) Whether the civil penalty imposed will be a substantial economic deterrent to the illegal activity;
(B) Damages to the state, including compensation for loss or destruction of wildlife, fish, and other aquatic life, resulting from the violation, as well as expenses involved in enforcing this section and the costs involved in rectifying any damage;
(C) Cause of the discharge or violation;
(D) The severity of the discharge and its effect upon the quality and quantity of the receiving waters;
(E) Effectiveness of action taken by the violator to cease the violation;
(F) The technical and economic reasonableness of reducing or eliminating the discharge;
(G) The social and economic value of the discharge source; and
(H) The economic benefit gained by the violator.
(4) The board may establish by regulation a schedule of the amount of civil penalty that can be assessed by the commissioner for certain specific violations or categories of violations.
(b) Any person unlawfully polluting the waters of the state or violating or failing, neglecting, or refusing to comply with any of the provisions of this part, commits a Class C misdemeanor. Each day upon which such violation occurs constitutes a separate offense.
(c) Any person who willfully and knowingly falsifies any records, information, plans, specifications, or other data required by the board or the commissioner, or who willfully and knowingly pollutes the waters of the state, or willfully fails, neglects or refuses to comply with any of the provisions of this part commits a Class E felony and shall be punished by a fine of not more than twenty-five thousand dollars ($25,000) or incarceration, or both.
(d) No warrant, presentment, or indictment arising under this part shall be issued except upon application by the board or the commissioner or upon such application authorized in writing by either of them.
(e) Whenever any order or assessment has become a final action under this section, a notarized copy of the same may be filed in the office of the clerk of the chancery court of Davidson County, and shall be considered as an agreement of the parties thereto to entry of a judgment by consent, the terms and conditions of which shall be the same as those recited in the final order or assessment. Except as otherwise provided in this section, the procedures for entry of the judgment and the effect thereof shall be the same as provided in title 26, chapter 6.
(1) If the final action is by the board, the judgment by consent shall be promptly entered by the court and shall be effective upon entry, and it shall have the same effect and be subject to the same procedures as a judgment of a court of record of this state and may be enforced or satisfied in like manner.
(2) If the final action is by the commissioner, the judgment by consent shall be promptly entered by the chancery court, but shall not become a final judgment until expiration of a period ending forty-five (45) days after the date it was filed. During this period, any citizen shall have the right to intervene in such proceeding on the grounds that the remedy or remedies provided are inadequate or are based on erroneously stated facts. If intervention occurs, the court shall determine whether it is duplicitous or frivolous and shall notify the parties and the intervenor of its determination. If determined not to be duplicitous or frivolous, review of the order or assessment shall be deemed to be sought by all parties and shall proceed in accordance with § 4-5-322. If no citizen intervenes or if any such intervention is deemed duplicitous or frivolous, upon the expiration of the forty-five-day period, the judgment by consent shall be final, and it shall have the same effect and be subject to the same procedures as a judgment of a court of record of this state and may be enforced or satisfied in like manner.
[Acts 1971, ch. 164, § 14; 1971, ch. 386, § 7; 1972, ch. 631, § 3; 1977, ch. 366, § 1; 1979, ch. 422, § 21; T.C.A., § 70-337; Acts 1985, ch. 160, § 1; 1988, ch. 688, § 1; 1989, ch. 321, § 10; 1989, ch. 591, §§ 101, 113; 1991, ch. 123, § 3; 2007, ch. 362, § 19.]