Title 68 Health, Safety and Environmental Protection

Environmental Protection
Chapter 201 Tennessee Air Quality Act
Part 1 Tennessee Air Quality Act
§ 68-201-101. Short title.
  1. This part shall be known and may be cited as the “Tennessee Air Quality Act.”
§ 68-201-102. Part definitions.
  1. As used in this part, unless the context otherwise requires:
    1. (1) “Air contaminant” means particulate matter, dust, fumes, gas, mist, smoke, or vapor, or any combinations thereof;
    2. (2) “Air contaminant source” means any and all sources of emission of air contaminants, whether privately or publicly owned or operated. Without limiting the generality of the definition of air contaminant source, air contaminant source includes all types of business, commercial and industrial plants, works, shops and stores, and heating and power plants and stations, buildings and other structures of all types, including multiple family residences, apartments, houses, office buildings, hotels, restaurants, schools, hospitals, churches and other institutional buildings, automobiles, trucks, tractors, buses and other motor vehicles, garages and vending and service locations and stations, railroad locomotives, ships, boats and other waterborne craft, portable fuel-burning equipment, incinerators of all types, indoor and outdoor, refuse dumps and piles, and all stack and other chimney outlets from any of the foregoing;
    3. (3) “Air pollution” means presence in the outdoor atmosphere of one (1) or more air contaminants in sufficient quantities and of such characteristics and duration as to be injurious to human, plant or animal life or to property, or which unreasonably interfere with the enjoyment of life and property;
    4. (4) “Board” means the air pollution control board;
    5. (5) “Commissioner” means the commissioner of environment and conservation or the commissioner's duly authorized representative or, in the event of such person's absence or a vacancy in the office of commissioner, the deputy commissioner;
    6. (6) “Department” means the department of environment and conservation;
    7. (7) “Person” means any individual, partnership, copartnership, firm, company, corporation, association, joint stock company, trust, estate, political subdivision, an agency, authority, commission or department of the United States government or of the state of Tennessee government, or any other legal entity, or their legal representative, agent, or assigns;
    8. (8) “Political subdivision” means any municipality, city, incorporated town, county, district or authority, or any portion or combination of two (2) or more thereof;
    9. (9) “Regulations” means the standards, policies, rules and regulations promulgated by the board to attain and maintain ambient air quality standards within the intent and purpose of this part; and
    10. (10) “Technical secretary” means the technical secretary of the air pollution control board.
§ 68-201-103. Intent and purpose.
  1. It is the intent and purpose of this part to maintain purity of the air resources of the state consistent with the protection of normal health, general welfare and physical property of the people, maximum employment and the full industrial development of the state. The board and department shall seek the accomplishment of these objectives through the prevention, abatement and control of air pollution by all practical and economically feasible methods. It is also the intent of this part to qualify for receipt of federal funds available for state air pollution control programs and, to that end, this part shall be construed to give the authority to so qualify and maintain such qualification.
§ 68-201-104. Creation of air pollution control board — Members — Meetings — Organization.
  1. (a) There is created an agency to be known as the air pollution control board.
  2. (b)
    1. (1) The members of the board shall be the commissioner of environment and conservation, the commissioner of economic and community development, and twelve (12) other members who shall be appointed by the governor, as follows:
      1. (A) One (1) shall be a registered professional engineer as defined in title 62, chapter 2, who shall have at least five (5) years' experience in the field of air pollution control;
      2. (B) One (1) shall be a physician, licensed in compliance with title 63, chapter 6, who shall be experienced in the health effects of air contaminants;
      3. (C) One (1) shall be engaged in a field which is directly related to agriculture or conservation;
      4. (D) One (1) shall be actively engaged in the management of and with current full-time employment in a private manufacturing concern and have a college degree and eight (8) years’ of combined technical training and experience in permit compliance for Title 5 or non-Title 5 sources for a manufacturing facility permitted in the state of Tennessee, and may be appointed from lists of qualified persons submitted by interested manufacturing groups, including, but not limited to, the Tennessee Chamber of Commerce and Industry;
      5. (E) One (1) shall be a county mayor or chief executive officer of a Tennessee county who may be appointed from lists of qualified persons submitted by interested county services groups, including, but not limited to, the Tennessee county services association;
      6. (F) One (1) shall be engaged in municipal government who may be appointed from lists of qualified persons submitted by interested municipal groups, including, but not limited to, the Tennessee Municipal League;
      7. (G) Two (2) shall be from Tennessee industry and with current full-time employment with a private manufacturing concern and have a college degree in engineering or equal and eight (8) years of combined technical training and experience in air pollution abatement for either a Title 5 permit holder or a non-Title 5 permitted source in the state of Tennessee, and may be appointed from lists of qualified persons submitted by interested manufacturing groups, including, but not limited to, the Tennessee Chamber of Commerce and Industry;
      8. (H) One (1) shall be involved in the program of an institute of higher learning in the state involved in the conducting of training in air pollution evaluation and control;
      9. (I) One (1) who may be appointed from lists of nominees submitted to the governor by interested conservation groups, including, but not limited to, the Tennessee Conservation League;
      10. (J) One (1) shall be a small generator of air pollution who may be appointed from lists of qualified persons submitted by interested automotive groups, including, but not limited to, the Tennessee Automotive Association; and
      11. (K) One (1) may be appointed from lists of qualified persons submitted by interested environmental groups, including, but not limited to, the Tennessee Environmental Council.
    2. (2) The governor shall consult with interested groups, including, but not limited to, the organizations listed in subdivision (b)(1) to determine qualified persons to fill positions on the board.
    3. (3) The twelve (12) appointed members' terms of office shall be four (4) years and until their successors are selected and qualified, except that the terms of those first appointed shall expire as follows: two (2) at the end of one (1) year after date of appointment, two (2) at the end of two (2) years after date of appointment, two (2) at the end of three (3) years after date of appointment, two (2) at the end of four (4) years after the date of appointment, and, of the two (2) appointed in 1970 pursuant to former subdivisions (b)(8) and (9), one (1) at the end of two (2) years after date of appointment and one (1) at the end of four (4) years after date of appointment as designated by the governor at the time of appointment. In making appointments to the board, the governor shall strive to ensure that at least one (1) person appointed to serve on the board is sixty (60) years of age or older and that at least one (1) person appointed to serve on the board is a member of a racial minority. If a vacancy occurs, the governor may appoint a member for the remaining portion of the unexpired term created by the vacancy. The governor may remove any appointed member for cause. Each member shall be reimbursed for travel in accordance with the comprehensive travel regulations as approved by the attorney general and reporter and the commissioner of finance and administration. A per diem allowance of fifty dollars ($50.00) shall only be paid to members for meetings at which a quorum is present.
  3. (c) The board shall hold at least two (2) regular meetings each calendar year at a place and time to be fixed by the board. The commissioner of environment and conservation shall be chair of the board and the board shall select at its first meeting one (1) of its members to serve as vice chair. At the first regular meeting in each calendar year thereafter, the vice chair for the ensuing year shall be selected from among the members of the board. The director of the air pollution control division or service of the department of environment and conservation shall be technical secretary of the board. The director shall receive no additional compensation for such services. Special meetings may be called by the chair or by three (3) members of the board upon delivery of written notice to the office of each member of the board. Eight (8) members of the board shall constitute a quorum, and a quorum may act for the board in all matters. The decision of a majority of a quorum shall be determinative of any question before the board except as otherwise specially provided in this part.
§ 68-201-105. Powers and duties of board — Notification of vacancy — Termination due to vacancy — Conflict of interest policy.
  1. (a)
    1. (1) The board has the power and duty to:
      1. (A) Promulgate rules and regulations to effect the intent and purpose of this part, pursuant to the Uniform Administrative Procedures Act, compiled in title 4, chapter 5. Such rules and regulations may include, but are not necessarily limited to, those defining: ambient air quality standards; emission standards; general policies or plans; a system of permits; and a schedule of fees for review of plans and specifications, issuance or renewal of permits or inspection of air contaminant sources. Emission standards for stationary sources adopted by the board shall include regulations based on the weight of materials entering the process causing the emission as an optional alternative to regulations previously adopted;
      2. (B) Promulgate rules that authorize the technical secretary to issue permits that contain all provisions applicable to sources that are necessary under the federal Clean Air Act (42 U.S.C. § 7401 et seq.) and the effective regulations pursuant to such act, and that are necessary under this chapter and the effective rules of the board. The issuance of a permit by the technical secretary under the rules authorized by this subsection (a) shall not repeal by implication any rules of the board. The board shall monitor regulations under the Clean Air Act that are proposed by the United States environmental protection agency. If the environmental protection agency promulgates a rule that would roll back federal requirements under the Clean Air Act, the board shall initiate rulemaking on that subject and determine whether Tennessee should have a more restrictive rule than the federal rule on that subject;
    2. (2) Hold hearings and issue such orders and determinations as may be necessary to effect the intent and purpose of this part;
    3. (3) Establish, modify, or amend, without hearing, policies, practices, rules or regulations with respect to procedural aspects of board activities; and
    4. (4) Cause legal proceedings to be instituted in a court of competent jurisdiction, to compel compliance with any order issued by the board, requirement of this part, or rule or regulation adopted pursuant to this part.
  2. (b) The department has the power and duty to:
    1. (1) Develop and recommend to the board plans for a comprehensive air pollution control program for the state, to review such plans from time to time and recommend to the board such changes as may be deemed appropriate;
    2. (2) Require that any person furnish the department information required by it in discharge of its duties under this part, if the department has reason to believe such person is, or may be about to, causing or contributing to air pollution; provided, that no such person shall be required to disclose any secret formulae, processes or methods used in any manufacturing operation carried on by such person or under such person's direction. The composition of air contaminants shall not be considered secret unless so declared by the department, and the department shall have the power to issue protection orders to prevent public dissemination;
    3. (3) Enter at all reasonable times in or upon any private or public property except private residences for the purpose of inspecting and investigating any condition which the department shall have reasonable cause to believe to be an air contaminant source;
    4. (4) Provide such technical, scientific and other services as may be required for carrying out this part. The basic personnel for such purposes shall be those employed by the department; however, the department, may, by agreement, secure these or other services from any other agency, and within budgetary limitations may arrange compensation for such services;
    5. (5) Receive, budget, receipt for and administer such moneys as are duly appropriated or granted for the purpose of this part; provided, that all such moneys shall be deposited with the state treasurer;
    6. (6) Represent the state in matters pertaining to plans, procedures or negotiations for interstate compacts relative to air pollution or in matters pertaining to air quality control regions;
    7. (7) Collect and disseminate information relative to air pollution; encourage voluntary cooperation of affected persons or groups in preserving and restoring a reasonable degree of air purity; advise, consult and cooperate with other agencies, persons or groups in matters pertaining to air pollution; and encourage authorized air pollution agencies of political subdivisions to handle air pollution problems within their respective jurisdictions to the greatest extent possible and to provide technical assistance to political subdivisions requesting same; and
    8. (8) Cause to be instituted in a court of competent jurisdiction legal proceedings to compel compliance with any order issued by the board.
  3. (c) In exercising their powers and duties relative to major energy projects, as defined in § 13-18-102, the board and the departments shall participate in the joint review process and expedited review process provided for by the Major Energy Project Act of 1981, compiled in title 13, chapter 18.
  4. (d)
    1. (1) If the board incurs a vacancy, it shall notify the appointing authority in writing within ninety (90) days after the vacancy occurs. All vacancies on the board, other than ex officio members, shall be filled by the appointing authority within ninety (90) days of receiving written notice of the vacancy and sufficient information is provided for the appointing authority to make an informed decision in regard to filling such vacancy. If sufficient information has been provided and the board has more than one (1) vacancy that is more than one hundred eighty (180) days in duration, the board shall report to the government operations committees of the house of representatives and the senate as to why such vacancies have not been filled.
    2. (2) If more than one-half (½) of the positions on the board are vacant for more than one hundred eighty (180) consecutive days, the board shall terminate; provided, that the board shall wind up its affairs pursuant to § 4-29-112. If the board is terminated pursuant to subdivision (d)(1) it shall be reviewed by the evaluation committees pursuant to the Uniform Administrative Procedures Act before ceasing all its activities. Nothing in subdivision (d)(1) shall prohibit the general assembly from continuing, restructuring, or re-establishing the board.
  5. (e) The board shall adopt and implement rules and regulations to create a conflict of interest policy for board members. The policy shall mandate annual written disclosures of financial interests, other possible conflicts of interest, and an acknowledgement by board members that they have read and understand all aspects of the policy. The policy shall also require persons who are to be appointed to the board to acknowledge, as a condition of appointment, that they are not in conflict with the conditions of the policy.
§ 68-201-106. Matters to be considered in exercising powers.
  1. Nothing in this part shall be deemed to grant the board or department any jurisdiction or authority with respect to air pollution existing solely within commercial or industrial plants, works or shops or to affect the relations between employers and employees with respect to or arising out of any condition of air pollution. In exercising powers to prevent, abate and control air pollution, the board or department shall give due consideration to all pertinent facts, including, but not necessarily limited to:
    1. (1) The character and degree of injury to, or interference with, the protection of the health, general welfare and physical property of the people;
    2. (2) The social and economic value of the air contaminant source;
    3. (3) The suitability or unsuitability of the air pollution source to the area in which it is located. In this respect it is expressly anticipated that the board may establish zones and categories of air contaminant sources in which the standards, rules and regulations may differ according to zone and category of air contaminant source;
    4. (4) The technical practicability and economic reasonableness of reducing or eliminating the emission of such air contaminants;
    5. (5) The economic benefit gained by the air contaminant source through any failure to comply with this part and regulations promulgated thereunder; and
    6. (6) The amount or degree of effort put forth by the air contaminant source to attain compliance.
§ 68-201-107. Powers and duties of technical secretary.
  1. The technical secretary or such secretary's authorized representative has the power and duty to:
    1. (1) Attend all meetings of the board, but not be entitled to a vote;
    2. (2) Exercise general supervision over all persons employed by the board and by the air pollution control division or service of the department;
    3. (3) Make or cause to be made such investigations as the board may direct or authorize, or as may be warranted due to receipt of information concerning an alleged violation of this part or of any rule, regulation or order promulgated under this part; or as the technical secretary otherwise deems advisable, and for this purpose the technical secretary shall have the right to enter at all reasonable times in or upon any private or public property except private residences;
    4. (4) Endeavor to the fullest extent possible to obtain compliance with this part and with rules and regulations promulgated pursuant to this part by conference, conciliation and persuasion;
    5. (5) Issue formal notice of complaint and prosecute such complaints before the board;
    6. (6) Handle correspondence, keep records, prepare reports and perform such other duties as the board may direct or authorize or as may ensue as an employee of the department;
    7. (7) Initiate alert, warning and emergency action in accordance with emergency episode plans and procedures promulgated as rules or regulations by the board;
    8. (8) At the technical secretary's discretion, request the presence of an alleged violator of this part or of the regulations at an informal meeting of the staff of the division of air pollution control to show cause why further enforcement action ought not be taken by the department. The proceedings of this meeting need not be recorded; and
    9. (9) Establish an expedited review process for any permit filed by a combined heat and power plant or a recoverable waste energy plant as such plant is defined under Subtitle D of the 2007 Energy Independence and Security Act, P.L. 110-140, H.R. 6.
§ 68-201-108. Hearings.
  1. (a)
    1. (1) Except as provided in subdivision (a)(2), a person aggrieved by a final action of the technical secretary on a permit, order, or assessment may request a hearing before the board pursuant to this section by filing a petition with the technical secretary within thirty (30) days of issuance of the permit or service of the order or assessment. The hearing shall be conducted as a contested case and shall be heard before an administrative judge sitting alone pursuant to §§ 4-5-301(a)(2) and 4-5-314(b), unless settled by the parties. The administrative judge to whom the case has been assigned shall convene the parties for a scheduling conference within thirty (30) days of the date the petition is filed. The scheduling order for the contested case issued by the administrative judge shall establish a schedule that results in a hearing being completed within one hundred eighty (180) days of the scheduling conference, unless the parties agree to a longer time or the administrative judge allows otherwise for good cause shown, and an initial order being issued within sixty (60) days of completion of the record of the hearing. The administrative judge's initial order, together with any earlier orders issued by the administrative judge, shall become final unless appealed to the board by the commissioner or other party within thirty (30) days of entry of the initial order or, unless the board passes a motion to review the initial order pursuant to § 4-5-315, within the longer of thirty (30) days or seven (7) days after the first board meeting to occur after entry of the initial order. Upon appeal to the board by a party, or upon passage of a motion of the board to review the administrative judge's initial order, the board shall afford each party an opportunity to present briefs, shall review the record and allow each party an opportunity to present oral argument. If appealed to the board, the review of the administrative judge's initial order shall be limited to the record, but shall be de novo with no presumption of correctness. In such appeals, the board shall thereafter render a final order, in accordance with § 4-5-314, affirming, modifying, remanding, or vacating the administrative judge's order. A final order rendered pursuant to this section is effective upon its entry, except as provided in § 4-5-320(b) unless a later effective date shall be stated therein. A petition to stay the effective date of a final order may be filed under § 4-5-316. A petition for reconsideration of a final order may be filed pursuant to § 4-5-317. Judicial review of a final order may be sought by filing a petition for review in accordance with § 4-5-322. An order of an administrative judge that becomes final in the absence of an appeal or review by the board shall be deemed to be a decision of the board in that case for purposes of the standard of review by a court; however, in other matters before the board, it may be considered but shall not be binding on the board.
    2. (2) A petition for permit appeal by an aggrieved party other than a permit applicant may only be filed pursuant to this section by an aggrieved person who participated in the public comment period or gave testimony at a formal public hearing. The appeal shall be based upon one (1) or more of the issues that were provided to the commissioner in writing during the public comment period or in testimony at a formal public hearing on the permit application. Additionally, for those permits for which the department gives public notice of a draft permit, any permit applicant or aggrieved person may base a permit appeal on any material change to conditions in the final permit from those in the draft, unless the material change has been subject to additional opportunity for public comment. A petition for permit appeal shall be filed with the technical secretary within thirty (30) days after the commissioner's final decision to issue or deny the permit is posted on the department website. Notwithstanding § 4-5-223 or any other law to the contrary, this section shall be the exclusive means for obtaining administrative review of the commissioner's issuance or denial of a permit by such an aggrieved person, and its process shall be exhausted before judicial review may be sought.
    3. (3) Hearings before the board on requests for variances and certificates of exemption may be conducted as contested case hearings in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.
  2. (b) The board or the commissioner or the commissioner's representative may hold public hearings on any matter, within their jurisdiction under this part. The board may promulgate regulations concerning subjects on which public hearings are required and the procedures for those hearings. Reasonable notice of such public hearings shall be given.
§ 68-201-109. Emergency stop orders for air contaminant sources — Hearings.
  1. Any other law to the contrary notwithstanding, if the commissioner finds that emissions from the operation of one (1) or more air contaminant sources are causing imminent danger to human health and safety, the commissioner may, with the approval of the governor, order the person or persons responsible for the operation or operations in question, or the person or persons causing or contributing to the air pollution, to reduce or discontinue immediately the emission of air contaminants, and such order shall fix a place and time, not later than twenty-four (24) hours thereafter, for a hearing to be held before the commissioner. Not more than twenty-four (24) hours after the commencement of such hearing, and without adjournment thereof, the commissioner shall affirm, modify or set aside the commissioner's previous order. The commissioner shall cause a transcript to be made of the proceedings in any such hearing, copies of which shall be made available to all parties affected, at a reasonable cost.
§ 68-201-110. Judicial review.
  1. An appeal may be taken from any final order or other final determination pursuant to this part by any party, including the department, who is or may be adversely affected by such order or determination. Such appeals shall be conducted in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, part 3; provided, that no hearing shall be allowed by the chancery court from any disposition made by the board if such disposition has become final as a result of a person's failure to appear at a hearing after having requested such hearing or after having received adequate notice.
§ 68-201-111. Right of board or commissioner to injunctive relief.
  1. The board or commissioner may cause to be instituted a civil action in any court of competent jurisdiction for injunctive relief to prevent violation of any duly promulgated rule or regulation or of any order of the board.
§ 68-201-112. Penalty for violations — Duty of district attorneys general — Abatement of public nuisance.
  1. (a) Any person who knowingly:
    1. (1) Violates or fails to comply with any provision of this part, any board or administrative order, or any duly promulgated air pollution control regulation, or any ordinance adopted pursuant to this part or permit condition;
    2. (2) Makes any false material statement, representation, or certification in any record, report, plan or other document required by permit to be either filed or maintained;
    3. (3) Falsifies, tampers with, or renders inaccurate any monitoring device or method required to be maintained or followed; or
    4. (4) Fails to pay a fee established by the air pollution control board;
    5. commits a Class C misdemeanor with the fine not to exceed ten thousand dollars ($10,000) per day per violation. For the purpose of this section, each day of continued violation constitutes a separate offense and is punishable as such.
  2. (b) No warrant, presentment or indictment arising under this part shall be issued except upon application, authorized in writing, by the board, the commissioner, or either of them, or by a local pollution control program operating under a certificate of exemption pursuant to § 68-201-115, for a violation within its jurisdiction.
  3. (c) It is the duty of the district attorneys general in the various judicial districts throughout the state to assist the board or commissioner, upon request, either by prosecuting or by assisting the board or the commissioner in prosecuting those persons the board or commissioner has reasonable cause to believe are violating any provision of this part or any rule or regulation duly promulgated in accordance with this part.
  4. (d) In addition and supplemental to any criminal action that may be prosecuted under this section, the board and commissioner have and are vested with jurisdiction and authority to determine whether or not any provision of this part, or rules or regulations adopted pursuant to this part, or any order of the board has been violated, and whether or not such violation constitutes a public nuisance. Upon such finding that a public nuisance exists, the board or commissioner has authority to abate any such public nuisance in the manner provided by the general law relating to the abatement of public nuisances.
§ 68-201-113. Existing civil or criminal remedies not impaired.
  1. No existing civil or criminal remedy for any wrongful action that is a violation of any provision of this part or that is a violation of any rule or regulation of the board promulgated under this part shall be impaired by this part.
§ 68-201-114. Intent of remedies — Rights of action unaffected.
  1. The remedies provided for in this part are intended to provide additional and cumulative remedies to prevent, abate and control air pollution in this state. Nothing in this part shall be construed to abridge or alter any rights of action, civil or criminal, arising from statute, common law or equity.
§ 68-201-115. Local pollution control programs — Exemption from state supervision — Applicability of part to air contaminant sources burning wood waste — Open burning of wood waste.
  1. (a) Any municipality or county in this state may enact, by ordinance or resolution respectively, air pollution control regulations not less stringent than the standards adopted for the state pursuant to this part, or any such municipality or county may also adopt or repeal an ordinance or resolution which incorporates by reference any or all of the regulations of the board, or any federal regulations including any changes in such regulations, when such regulations are properly identified as to date and source. Copies of air pollution regulations shall be made available to any interested party, and the city or municipality may charge reasonable compensatory fees for providing such copies. At least three (3) copies of such regulations that are incorporated by reference shall be filed in the office of the county clerk and there kept for public use, inspection and examination. The filing requirements shall not be deemed to be complied with, unless the required copies of such regulations are filed with the clerk for a period of thirty (30) days before the adoption of the ordinance or resolution which incorporated such regulations by reference. No ordinance or resolution incorporating regulations by reference shall be effective until published in a newspaper having a general circulation in the municipality or county.
  2. (b) Before such ordinances or resolutions enacting air pollution control regulations becomes effective, such municipality or county must apply for and receive from the board a certificate of exemption by the following procedure:
    1. (1) Any political subdivision desiring to be exempted from this part may file a petition for certificate of exemption with the technical secretary. The technical secretary shall promptly investigate such petition and make recommendation to the board as to its disposition;
    2. (2) Upon receiving the recommendation of the technical secretary, the board may, if such recommendation is for the granting of the petition, do so without hearing. If the recommendation of the technical secretary is against the granting of the petition or the board, in its discretion, concludes that a hearing would be advisable, then a hearing shall be held not later than sixty (60) days after receipt of recommendation of the technical secretary by the board;
    3. (3) The certificate of exemption shall be granted if the board determines that:
      1. (A) The municipality or county has enacted provisions for the control of air pollution not less stringent than this part;
      2. (B) The enactments referenced in subdivision (b)(3)(A) are being, or will be, adequately enforced; and
      3. (C) The granting of the certificate will not interfere with the state's goal of maintaining the purity of the air resources of the state;
    4. (4) The board may grant a certificate of exemption, in whole or in part, may prescribe a time schedule for various parts of an exemption to become effective, and may make a certificate of exemption conditional or provisional as is deemed appropriate;
    5. (5) In granting any certificate of exemption, there is reserved to the state the right to initiate proceedings to enforce any applicable resolution, ordinance or regulation of the municipality or county should it fail to obtain compliance with the resolution, ordinance or regulation. Such proceedings shall be the same as for enforcement of any duly promulgated rule or regulation of the board;
    6. (6) In granting any certificate of exemption, the exemption is to be strictly construed as limited to the language of the exemption. No power or authority that is not expressly stated in the certificate of exemption may be implied. The municipality or county may further petition the board for such power or authority; and
    7. (7) The department shall frequently determine whether or not any exempted municipality or county meets the terms of the exemption granted and continues to comply with this section. If a determination is made that the municipality or county does not meet the terms of the exemption granted or does not comply with this section, the department shall so notify the board, and the board, upon reasonable notice to the municipality, may suspend the exemption in whole or in part until such time as the municipality or county complies with the state standards.
  3. (c)
    1. (1) All new certificates of exemption shall be for a fixed term not to exceed two (2) years. This part does not apply to emissions from any air contaminant source, as defined in this part, which burns wood waste solely for the disposition of such wood waste; provided, however, that open burning of wood waste within two hundred feet (200′) of an occupied building by any person other than an occupant of the building shall only be conducted as follows:
      1. (A) At least one (1) person shall be constantly present at the burning during the entire time of the burn;
      2. (B) Each burn shall not exceed forty-eight (48) hours in duration;
      3. (C) Burning shall not occur more than twice in any thirty-day period; and
      4. (D) If the burning occurs within one hundred feet (100′) of an occupied building, it may only occur if an adult occupant of the building gives written authorization for the burn to occur and has not rescinded the authorization in writing.
    2. (2) Provided further, however, that, if a local government has enacted or enacts more stringent requirements concerning such open burning of wood waste, those provisions shall control over the requirements of this subsection (c).
  4. (d) Local government actions taken in accordance with this section shall be conducted in accordance with the Major Energy Project Act of 1981, compiled in title 13, chapter 18, when the action includes a major energy project, as defined in § 13-18-102.
  5. (e)
    1. (1) If a municipality or county has received a certificate of exemption pursuant to this section, then the municipality or county shall offer a process to grant waivers from its open burning regulations.
    2. (2) Open burning waivers may be approved by the director of the municipal or county air pollution program, if there is no other practical, safe, and lawful method of disposal; provided, that the burning is conducted in a manner to protect public health and the environment.
    3. (3) Nothing in this subsection (e) shall be construed as eliminating or limiting the sanctions or obligations imposed by title 39, chapter 14, part 3.
  6. (f) No municipality or county shall include land use or zoning requirements in its air pollution control regulations or the municipality's or county's certificate of exemption granting the municipality or county the authority to enact the regulations.
  7. (g) No municipality or county shall request that the board include land use or zoning requirements in the state implementation plan submitted to the United States environmental protection agency pursuant to 42 U.S.C. § 7410.
§ 68-201-116. Orders and assessments of damages and civil penalty — Appeal.
  1. (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).
  2. (b)
    1. (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. (2) Any civil penalty or damages shall be assessed in the following manner:
      1. (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;
      2. (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
      3. (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.
  3. (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.
  4. (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.
  5. (e)
    1. (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:
      1. (A) The chancery court of Davidson County, if the final order or assessment is from the board, the commissioner or the technical secretary; or
      2. (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. (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. (3)
      1. (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.
      2. (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. (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.
§ 68-201-117. Levy of noncompliance and nonpayment penalties — Suit for collection or assessment of penalty.
  1. The technical secretary, the board, and within their respective jurisdictions, the local pollution control programs operating under a certificate of exemption pursuant to § 68-201-115 are authorized to levy noncompliance and nonpayment penalties after appropriate notice and hearing, against any air contaminant source not in final compliance with the applicable Tennessee air pollution control regulations by July 1, 1979. The technical secretary, the board, and the duly exempted local pollution control programs are specifically authorized to accept enforcement responsibility for these civil penalties from the United States environmental protection agency. These penalties are to be equivalent to the economic value a person may realize by a delay in compliance beyond July 1, 1979, including the amount it would have cost the person to comply with all applicable air pollution control regulations had the person chosen to do so. The board shall promulgate regulations specifying the procedures to be used in calculating the penalty and providing for quarterly payment of annualized cost. The technical secretary, the board, and the duly exempted local pollution control programs shall consider the matters in § 120 of the federal Clean Air Act (42 U.S.C. § 7420) in their actions. The commissioner, the board, and the duly exempted local pollution control programs are also authorized to file suit for the assessment of the penalties as part of any other civil action brought under this part. The commissioner, the board, and the duly exempted local pollution control programs are authorized to file suit for collection or assessment of the civil penalty, along with other equitable relief pursuant to § 68-201-111 in the chancery courts of the county where the pollution is occurring or where the violator or polluter is doing business. The chancery court shall treat a failure to appeal a civil penalty assessment as a confession of judgment by the polluter or violator to the amount of the assessment; and the court is authorized to render judgment and provide for execution of such civil penalties. Such actions for civil penalties shall be triable without a jury.
§ 68-201-118. Variances.
  1. (a) Any person seeking a variance shall do so by filing a petition for variance with the technical secretary. The technical secretary shall promptly investigate such petition and make recommendation to the board as to its disposition.
  2. (b) Upon receiving the recommendation of the technical secretary, the board may, if such recommendation is for the granting of a variance, do so without hearing. If the recommendation of the technical secretary is against the granting of a variance, or the board, in its discretion, concludes that a hearing would be advisable, then a hearing shall be held not later than sixty (60) days after the board receives the recommendation of the technical secretary.
  3. (c) The petitioner shall be given written notice at the earliest practicable time as to the time and place of such hearing.
  4. (d) Any member of the board, or, with the approval of the governor, any person licensed to practice law in the state of Tennessee and designated by the board to act as hearing examiner, may act as hearing examiner to conduct hearings, administer oaths, subpoena witnesses, and enforce the attendance of witnesses at the hearing. Any member of the board, the hearing examiner or counsel representing the board may examine or cross-examine all witnesses. A complete record of the hearing shall be made for review by the board members.
  5. (e) All testimony shall be under oath and stenographically recorded. The transcript so recorded shall be made available to the petitioner or any party to the hearing upon payment of the usual charges for such transcript.
  6. (f) The board in considering the granting of a variance shall give due consideration to the equities of the petitioner and others who may be affected by granting or denial of the petition.
  7. (g) The board may make the granting of a petition for variance contingent upon such other requirements or restrictions on the petitioner as it may deem appropriate and reasonable.
  8. (h) Any variance granted shall be for a period not to exceed one (1) year, but may be extended from time to time but in no case for longer than one (1) year at a time upon recommendation of the technical secretary and affirmative action by the board.
  9. (i) The board shall issue, enter and mail to the petitioner in writing, by certified mail, return receipt requested, within sixty (60) days following the final argument in such hearing or within sixty (60) days following receipt of the recommendation of the technical secretary when no hearing is held, its final order or determination. Such order or determination shall be approved in writing by at least seven (7) members of the board.
  10. (j) Upon failure of the board to issue, enter and mail to the petitioner a final order or determination within sixty (60) days after the final argument in any such hearing or within sixty (60) days following receipt of the recommendation of the technical secretary when no hearing is held, the petitioner shall be entitled to treat for all purposes such failure to act as a granting of the variance requested.
  11. (k) The burden of proof in such hearings shall be upon the petitioner.
  12. (l)
    1. (1) The board may delegate the authority to approve certain types of variances to the commissioner, or the commissioner's designee, pursuant to this subsection (<em>l</em>).
    2. (2) The types of variances that may be delegated for granting by the commissioner upon recommendation by the technical secretary include, but are not limited to, the following:
      1. (A) The use of open burning, not otherwise permitted by rules or regulations, for the limited purpose of testing a fire control device or system in order to obtain insurance; and
      2. (B) The use of a variance in the case of financial hardship or other extenuating circumstances under which a vehicle that fails emissions testing required by § 55-4-130 and for which a waiver under § 55-4-128, or any rules and regulations promulgated pursuant thereto, is not permitted.
    3. (3) Any petitioner for a variance who objects to a conditional grant of a variance by the commissioner may seek a hearing before the full board as if the variance was denied. Any such hearing shall be subject to the procedural requirements for hearings conducted under subsection (b).
§ 68-201-119. Rules regarding vehicle inspection and maintenance program.
  1. (a) The Tennessee air pollution control board shall promulgate rules that:
    1. (1) Specify the type of vehicle inspection and maintenance program to be established and implemented; and
    2. (2) Establish that the inspection associated with the vehicle inspection and maintenance program will occur on an annual basis in connection with vehicle registration renewal.
  2. (b)
    1. (1) Notwithstanding subsection (a) or any other law to the contrary, no inspection and maintenance program shall be employed in this state on or after the effective date of this subsection (b) [see Compiler's Notes], except in accordance with subsection (c).
    2. (2) If at any time under the federal Clean Air Act (42 U.S.C. § 7401 et seq.) an inspection and maintenance program is mandated instead of available as a voluntary state implementation plan measure in any county of this state, then subdivision (b)(1) shall not apply in that county.
  3. (c) An inspection and maintenance program may be employed in a county that, on May 15, 2018, has a local air pollution control program and implements its own inspection and maintenance program, if the county authorizes the continuation of its own inspection and maintenance program by action of its governing body; provided, that in order to authorize the continuation of the inspection and maintenance program, the governing body must authorize the continuation within thirty (30) days of May 15, 2018, and the presiding officer of the county governing body must furnish a certified copy of the approved resolution to the technical secretary of the air pollution control board within sixty (60) days of May 15, 2018.
  4. (d) Any new contract between the department or a local government and a contractor providing inspection services, any new contract between a local government and the department relative to the inspection and maintenance program, and any renewals of such contracts occurring after May 15, 2018, shall include a provision stating that the contract must conform to any changes in state law. Any existing contracts as described in this section shall be amended to include a provision stating that the contract must conform to any changes in state law.
§ 68-201-120. Removal or rendering inoperative emission control devices from motor vehicles.
  1. It is unlawful for any person to remove or render inoperative any device or element of design installed on or in a motor vehicle or motor vehicle engine in compliance with regulations under the federal Clean Air Act (42 U.S.C. § 7401 et seq.) prior to its sale and delivery to the ultimate purchaser, or for any person knowingly to remove or render inoperative any such device or element of design after such sale and delivery to the ultimate purchaser.
§ 68-201-121. Report by TACIR concerning state plan to implement state obligations under federal emission guidelines regulating covered electric-generating units. [Contingent effective date. — See Compiler's Notes.]
  1. (a) As used in this section:
    1. (1) “Covered electric-generating unit” means an existing fossil-fuel-fired electric-generating unit located within this state that is subject to regulation under EPA emission guidelines;
    2. (2) “Environmental protection agency” or “EPA” means the United States environmental protection agency;
    3. (3) “Federal emission guidelines” means any final rules, regulations, guidelines, or other requirements that the EPA adopts for regulating carbon dioxide emissions from covered electric-generating units under Section 111(d) of the federal Clean Air Act (42 U.S.C. § 7401 et seq.);
    4. (4) “State” means the state of Tennessee;
    5. (5) “State plan” means any plan to establish and enforce carbon dioxide emission control measures adopted by the department to implement the obligations of the state under the federal emission guidelines; and
    6. (6) “TACIR” means the Tennessee Advisory Commission on Intergovernmental Relations.
  2. (b) Upon submission of the final state plan to EPA by the department, TACIR shall prepare a report as described in this subsection (b). To the extent the department can produce the information without additional expenditures and using the department's existing resources, the department shall provide available information to TACIR upon request. The report shall assess the effects of the state plan on:
    1. (1) The electric power sector, including:
      1. (A) The ability of this state to provide affordable electricity through diversified sources of electricity generation;
      2. (B) The type and amount of electric-generating capacity within this state that the electric power sector is likely to retire or replace with other energy sources;
      3. (C) Stranded investment in electric-generating capacity and other infrastructure;
      4. (D) The amount of investment necessary to offset the retirement of electric-generating capacity and maintain generation reserve margins;
      5. (E) Potential risks to reliable sources of electricity, including resource adequacy risks and transmission constraints; and
      6. (F) The amount by which retail electricity prices within this state are predicted to increase;
    2. (2) Electricity consumers within this state, including any disproportionate impacts of electricity and other energy price increases on middle-income and lower-income households;
    3. (3) Employment within this state, both directly and indirectly, including jobs lost within affected sectors of this state's economy;
    4. (4) Economic development in this state, including the effects on manufacturing, commercial, and other sectors of this state's economy;
    5. (5) The competitive position of this state relative to neighboring states and other economic competitors;
    6. (6) State and local governments, including the potential impacts resulting from changes in tax revenues; and
    7. (7) Existing state laws, and any proposed legislation that may be necessary to implement the state plan.
  3. (c) After the development of the report described in subsection (b), TACIR shall transmit a copy of the report to the chairs of the government operations committees of the senate and the house of representatives and shall present the findings of the report at the next regularly scheduled meeting of the joint government operations committee.
  4. (d) Notwithstanding subsection (b), a report does not have to be prepared by TACIR if the final federal emission guidelines approved by the EPA:
    1. (1) Do not establish carbon dioxide emission control requirements for this state that are based on the decrease in carbon dioxide emissions resulting from the operation of new nuclear-generating facilities currently under construction in this state; and
    2. (2) Authorize this state to receive full credit for the decrease in carbon dioxide emissions resulting from nuclear-generating facilities under construction as of the effective date of this act, for purposes of demonstrating compliance with carbon dioxide emission control requirements under the final EPA emission guidelines.
§ 68-201-122. Atmospheric interference by chemical means prohibited.
  1. The intentional injection, release, or dispersion, by any means, of chemicals, chemical compounds, substances, or apparatus within the borders of this state into the atmosphere with the express purpose of affecting temperature, weather, or the intensity of the sunlight is prohibited.
Part 2 Local Ordinances
§ 68-201-202. Local ordinances.
  1. (a) Any city, town or county having a population of six hundred thousand (600,000) or more, according to the federal census of 1960 or any subsequent federal census, is authorized to enact, by its chief legislative body, ordinances or regulations not less stringent than part 1 of this chapter. A violation of any of the ordinances or enactments of the chief legislative body is punishable as a Class A misdemeanor.
  2. (b) Actions taken in accordance with this section shall be conducted in accordance with the Major Energy Project Act of 1981, compiled in title 13, chapter 18, when the action involves a major energy project, as defined in § 13-18-102.
Chapter 202 Atomic Energy and Nuclear Materials
Part 1 Atomic Energy Generally
§ 68-202-101. Part definitions.
  1. As used in this part, unless the context otherwise requires:
    1. (1) “Atomic energy” means all forms of energy released in the course of nuclear fission or nuclear transformation;
    2. (2) “By-product material” means any radioactive materials, except special nuclear materials, yielded in or made radioactive by exposure to the radiation incident to the process of producing or utilizing special nuclear materials;
    3. (3) “Production facility” means:
      1. (A) Any equipment or device capable of the production of special nuclear material in such quantity as to be of significance to the common defense and security, or in such manner as to affect the health and safety of the public; or
      2. (B) Any important component part especially designed for such equipment or device.
    4. (4) “Radiation” means gamma rays and X-rays, alpha and beta particles, high-speed electrons, neutrons, protons, and other nuclear particles, but not sound or radio waves or visible, infrared, or ultraviolet light;
    5. (5) “Source material” means any material other than special nuclear material which contains by weight one-twentieth of one percent (0.05%) or more of:
      1. (A) Uranium;
      2. (B) Thorium; or
      3. (C) Any combination thereof;
    6. (6) “Special nuclear material” means:
      1. (A) Plutonium and uranium enriched in the isotope 233 or in the isotope 235, and any other material which the governor declares by order to be special nuclear material after the United States atomic energy commission has determined the material to be such; or
      2. (B) Any material artificially enriched by any of the foregoing; and
    7. (7) “Utilization facility” means:
      1. (A) Any equipment or device, except an atomic weapon, capable of making use of special nuclear materials in such quantity as to be of significance to the common defense and security, or in such manner as to affect the health and safety of the public, or peculiarly adapted for making use of atomic energy in such quantity as to be of significance to the common defense and security, or in such manner as to affect the health and safety of the public; or
      2. (B) Any important component part especially designed for such equipment or device.
§ 68-202-102. United States licenses or permits required.
  1. No person shall manufacture, construct, produce, transfer, acquire or possess any special nuclear material, by-product material, production facility, or utilization facility or act as an operator of a production or utilization facility within this state unless such person shall have first obtained a license or permit for the activity in which such person proposes to engage from the United States atomic energy commission if, pursuant to the Atomic Energy Act of 1954 (42 U.S.C. § 2011 et seq.), the commission requires a license or permit to be obtained by persons proposing to engage in such activities.
§ 68-202-103. Conduct of studies concerning changes in laws and regulations concerning atomic energy and other forms of radiation.
  1. (a) The governor may direct any or all of the departments and agencies of the state to conduct studies or otherwise obtain competent guidance as to the need, if any, for changes in the laws and regulations administered by it that would arise from the presence within the state of special nuclear by-product, and radioactive materials, from the operation therein of production or utilization facilities, and from the generation of radiation, and, on the basis of such studies or guidance, to make such recommendations for the enactment of laws or amendments to laws administered by them, and to promulgate such amendments to the regulations issued by them, as may appear necessary and appropriate.
  2. (b) The governor is authorized, at the governor's discretion, to enter into a written agreement or agreements with the atomic energy commission or other agencies of the government of the United States relating to the regulation of by-products, source materials, or special nuclear material and other material within the scope of this part.
§ 68-202-104. Monitoring radioactive truck traffic.
  1. (a) The commissioner of environment and conservation is directed to purchase and make available twelve (12) portable radiation monitoring devices to be utilized at the inspection stations in Knox, Coffee, Haywood and Robertson counties.
  2. (b) The department of safety is directed to make available sufficient manpower to utilize such equipment in a manner necessary to provide a practical monitoring program of radioactive truck traffic in this state.
  3. (c) The Tennessee emergency management agency is directed to provide a training program in the scope and frequency necessary to assure that the commission personnel are properly trained to effectively utilize the equipment in the monitoring program.
§ 68-202-105. Cooperation between agencies and groups.
  1. The heads of the appropriate agencies may cooperate with the federal government and/or appropriate regional groups in the administration of this part or any matter pertaining thereto.
Part 2 Radiological Health Service Act
§ 68-202-201. Short title.
  1. This part shall be known and may be cited as the “Radiological Health Service Act.”
§ 68-202-202. Part definitions.
  1. As used in this part, unless the context otherwise requires:
    1. (1) “By-product material” refers to any radioactive material, except special nuclear material, yielded in or made radioactive by exposure to the radiation incident to the process of producing or utilizing special nuclear material;
    2. (2) “Commissioner” means the commissioner of environment and conservation or the commissioner's designated representative;
    3. (3) “Department” refers to the department of environment and conservation;
    4. (4) “Person” means an individual, trust, firm, joint stock company, corporation (including a government corporation), partnership, association, state, municipality, commission, political subdivision of a state, any interstate body, any governmental agency of this state and any department, agency or instrumentality of the federal government;
    5. (5) “Radiation” includes all ionizing electromagnetic waves and corpuscular emissions such as, but not necessarily limited to, gamma rays and X-rays; alpha and beta particles; electrons, neutrons, and protons; and other nuclear particles, but not radio waves or visible, infrared or ultraviolet light;
    6. (6) “Radiation machine” refers to apparatus which produces or may produce when the associated controls are operated, one (1) or more forms of radiation;
    7. (7) “Radiation source” includes material which emits radiation spontaneously, or apparatus which produces, or may produce when the associated controls are operated, one (1) or more forms of radiation;
    8. (8) “Radioactive material” refers to any material, solid, liquid, or gas, which emits radiation spontaneously;
    9. (9)
      1. (A) “Source material” means:
        1. (i) Uranium or thorium, or any combination thereof, in any physical or chemical form; or
        2. (ii) Ores which contain by weight one-twentieth of one percent (0.05%) or more of:
          1. (a) Uranium;
          2. (b) Thorium; or
          3. (c) Any combinations thereof;
      2. (B) “Source material” does not include special nuclear material; and
    10. (10) “Special nuclear material” means uranium enriched in the isotope U-235 in quantities not exceeding three hundred fifty (350) grams of contained U-235, U-233 in quantities not exceeding two hundred (200) grams, plutonium in quantities not exceeding two hundred (200) grams; or any combination of them in accordance with the following formula: for each kind of special nuclear material, determine the ratio between the quantity of that special nuclear material and the quantity specified above for the same kind of special nuclear material. The sum of such ratios for all kinds of special nuclear material in combination shall not exceed “1.”
§ 68-202-203. Radiological health service — Creation — Functions.
  1. (a) The commissioner is authorized and empowered to create and maintain within the department a section to be known as the radiological health service. The functions of this service include:
    1. (1) The collection of information pertaining to radiological health and the dissemination of such to persons or groups of persons interested in radiation;
    2. (2) The encouragement, participation in, and the conducting of studies, training, research and demonstrations relating to the control of radiation hazards; the study of the effects on health of exposure to radiation and related problems as it may deem necessary or advisable for the discharge of its duties under this part;
    3. (3) The application of controls and regulations with respect to radiological safety to protect the health and well-being of people in the state;
    4. (4) The requirement of reporting of unexpected or otherwise unplanned incidents of excessive exposure as the rules and regulations may direct, and to take such immediate steps as may be necessary to cope with the resultant hazards; and
    5. (5) The measurement of radiation and the monitoring and surveillance of the environment for radioactive materials.
  2. (b) Nothing in this part or in rules promulgated pursuant hereto shall be construed to limit the kind or amount of radiation that may be intentionally applied to an individual for purposes of medical diagnosis or therapy, by or under the direction of duly licensed members of the healing arts, when practicing within the limits of their respective callings as fixed by law, but only if such users are registered under § 68-202-208 or licensed as provided for by § 68-202-206.
§ 68-202-204. Cooperation with governmental agencies authorized.
  1. Except as otherwise provided by law, the department is authorized to cooperate with municipal, state, interstate and federal agencies in the administration of this part and in the execution of programs to protect the people from unnecessary or harmful radiation and to promote the peaceful uses of atomic energy and other forms of radiation consistent with the health and well being of people.
§ 68-202-205. Expenditures.
  1. For the purpose of carrying out this part, the department is authorized to expend such funds as may be made available for this purpose through state legislative appropriation, federal grant-in-aid or gifts or donations made to the department specifically for this purpose.
§ 68-202-206. Rules and regulations — Conflicting local ordinances, resolutions or regulations.
  1. (a) The commissioner is authorized to promulgate and adopt such rules and regulations as are required elsewhere in this part or are otherwise necessary or desirable to implement this part. Such rules and regulations shall include:
    1. (1) Requirements and standards regarding the manufacture, use, receipt, possession, storage and disposal of radiation sources;
    2. (2) Licensing requirements and standards regarding the packaging or containerization, loading of transport vehicles and shipping of radioactive materials to a licensee in Tennessee;
    3. (3) Requirements and procedures governing application for and issuance, renewal, modification, suspension, revocation or denial of licenses to persons who use, receive, possess, store or dispose of by-product, source and special nuclear, and other radioactive sources; and
    4. (4) Provision for the assessment and collection of fees for processing, issuance, maintenance or modification of licenses as provided in this part.
  2. (b) No ordinance, resolution or regulation concerning control of sources of ionizing radiation adopted by any municipality, county or local board of health shall be in conflict with this part or rules or regulations adopted pursuant thereto.
§ 68-202-207. Inspection and examination of radiation sources.
  1. The commissioner is authorized to make such inspections and examinations of the manufacture, use, receipt, possession, storage and disposal of radiation sources which are subject to this part as the commissioner deems proper, and for this purpose has the right to enter at any reasonable hour upon any premises for such inspection or examination. Any person obstructing such entry is in violation of this part.
§ 68-202-208. Registration by owner or possessor of radiation machines — Exceptions.
  1. (a) Every person receiving ownership or possession of one (1) or more radiation machines shall register with the radiological health service within ten (10) days of such receipt on forms to be provided for this purpose.
  2. (b) Any change in ownership, location, or use of any radiation machine, or any extension, modification, alteration or termination of such machine for any person required to register under this part, constitutes a revocation of such existing registration. Such person will then be required to register as provided in subsection (a).
  3. (c) Persons receiving or making periodic shipments or transportation of radiation machines shall be considered as complying with the registration provisions of this part; provided, that a reasonable estimate and description of such shipments as to quantity, frequency, and location are incorporated in the registration data filed with the radiological health service; and provided further, that a complete record of the receipt and disposition of such machines is maintained at a location within this state and that such records shall be available to the commissioner for the commissioner's inspection.
§ 68-202-209. Exemptions from registration.
  1. No person shall be required to register due to the ownership or possession of the following:
    1. (1) Electrical equipment not primarily intended to produce radiation and which does not produce radiation at any point which may be occupied by a person at a rate exceeding three-fourths (¾) of one (1) milliroentgen per hour;
    2. (2) Radiation machines which are deemed to be totally unusable except for salvage parts;
    3. (3) Radiation machines being transported in conformity with regulations adopted by any federal agency having jurisdiction over safety during transportation;
    4. (4) Such other radiation machines as may be exempted by the rules and regulations promulgated under this part, if such sources are known or proven by competent scientific analysis to be without hazard; or
    5. (5) Radiation sources which may be licensed as provided for by § 68-202-206.
§ 68-202-210. Information obtained inadmissible in evidence in certain actions.
  1. Information obtained from studies made in accordance with this part shall not be admissible in evidence in any action at law to recover damages for personal injury or in any action under the Workers' Compensation Law, compiled in title 50, chapter 6.
§ 68-202-211. Provisions supplemental.
  1. This part shall not be construed as repealing any laws of this state relating to radiation sources or exposures, radiation protection or professional licenses but shall be held and construed as auxiliary and supplementary thereto.
§ 68-202-212. Civil and criminal penalties.
  1. (a) Any person violating any of this part, any order issued in accordance with this part, or any rule, regulation or standard adopted pursuant to this part, or failing to pay a lawfully levied fee, commits a Class A misdemeanor. Each day of continued violation constitutes a separate punishable offense.
  2. (b) Any person who violates or fails to comply with any provision of this part, any order issued in accordance with this part, or any rule, regulation or standard adopted pursuant to this part, or who fails to pay a lawfully levied fee is subject to a civil penalty of not less than one hundred dollars ($100) and not more than five thousand dollars ($5,000) per day for each violation. Each day such violation continues constitutes a separate violation, and such person is also liable for any damages to the state resulting from such violations.
  3. (c)
    1. (1) Any civil penalty or damages shall be assessed in the following manner:
      1. (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, or by any other method authorized by law;
      2. (B) Any person against whom an assessment has been issued may request a hearing before the commissioner for a review of the assessment;
      3. (C) If a petition for review of 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;
      4. (D) Whenever an assessment has become final because of a person's failure to appeal the assessment, the commissioner may apply to the appropriate court for a judgment and seek execution on such judgment. The court, in such proceedings, shall treat the failure to appeal such assessment as a confession of judgment in the amount of the assessment; and
      5. (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.
    2. (2) In assessing a civil penalty, the following factors may be considered:
      1. (A) The harm or potential harm done to the public or the environment;
      2. (B) The economic benefit gained by the violators;
      3. (C) The amount of effort put forth by the violator to attain compliance;
      4. (D) Any unusual or extraordinary enforcement cost incurred by the state; and
      5. (E) The need for an economic deterrent from future violations.
    3. (3) 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.
§ 68-202-213. Injunctions.
  1. In addition to the penalties provided in this part, the commissioner may cause the enforcement of any orders, rules or regulations issued by the commissioner or this part by instituting legal proceedings to enjoin the violation of this part, and the orders, rules and regulations of the commissioner in the chancery court of Davidson County or in the chancery court of the county wherein all or a part of the violation has or is about to occur, in the name of the department, by the attorney general and reporter. In such suits, the court may grant temporary or permanent injunctions or restraining orders. Such proceedings shall not be tried by jury.
§ 68-202-214. Show cause meetings — Written complaints — Emergency orders.
  1. (a) Upon receipt of information that any person is or may be in violation of any of this part or the rules and regulations adopted thereunder, the commissioner may request that such person appear informally and show cause why enforcement action should not be taken. Show cause meetings undertaken pursuant to this section are informal, voluntary and are not contested cases within the definition of the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.
  2. (b) Whenever the commissioner has reason to believe that a violation of any provision of this part or regulation promulgated thereunder or orders issued pursuant thereto has occurred, is occurring, or is about to occur, the commissioner may cause a written complaint to be served upon the alleged violator or violators. The complaint shall specify the provision or provisions of this part or regulation or order alleged to be violated or about to be violated, the facts alleged to constitute a violation thereof, may order that necessary corrective action be taken within a reasonable time to be prescribed in such order, and shall inform the violators of the opportunity for a hearing before the commissioner. Any such order shall become final and not subject to review unless the person or persons named therein request a hearing in writing no later than thirty (30) days after the date such order is served.
  3. (c) Whenever the commissioner finds that the public health, safety or welfare is threatened by radiation hazards and that immediate action is necessary to protect the public, an emergency order may be issued stating the issue of the emergency and directing immediate action as required to alleviate the situation. Immediate compliance with such order is required notwithstanding any request for a hearing.
§ 68-202-215. Operators of radiation machines.
  1. (a) This section applies to operators of radiation machines used for medical purposes on human beings (“medical radiation machines”) and is supplementary to the other provisions of this chapter.
  2. (b) During the course of conducting inspections of medical radiation machines, the department shall determine if the operator of such equipment is required by law to be certified by any of the following boards or agencies:
    1. (1) The Tennessee board of medical examiners;
    2. (2) The Tennessee board of dentistry;
    3. (3) The Tennessee board of chiropractic examiners;
    4. (4) American registry of radiologic technologists;
    5. (5) American registry of clinical radiography technologists; and
    6. (6) Any other professional licensing board of this state which obtains the authority to issue certificates.
  3. (c)
    1. (1) If any licensee of a professional board permits an employee to operate or supervise the operation of medical radiation equipment by an operator who does not possess a current certificate issued by the appropriate board or agency, then the appropriate professional licensing board shall consider such action to be grounds for a finding of unprofessional conduct and may discipline accordingly.
    2. (2) If an individual violates this section more than once, registration of the medical radiation machine will be withheld until the department is notified by the appropriate regulatory board that the operator possesses a current certificate. All regulatory boards' rules and regulations pertaining to medical radiation equipment must receive approval by the commissioner prior to promulgation.
  4. (d)
    1. (1) Any operator who has applied for and is awaiting examination by one of the boards or agencies listed in subsection (b) shall be permitted to operate medical radiation machines for a period of not to exceed one (1) year.
    2. (2) Students enrolled in radiography training courses offered in accredited hospitals and institutions of higher education or programs acceptable to one of the boards or agencies listed in subsection (b) shall be permitted to operate medical radiation machines only as required by such training and while supervised by instructors.
§ 68-202-217. Confidentiality of proprietary information.
  1. The commissioner shall establish procedures to ensure that information supplied to the department, as provided by this part, and defined as proprietary by regulation, is kept confidential and is not revealed to any person without the consent of the person supplying such information; except that such information may be utilized by the commissioner, the department, the United States nuclear regulatory commission, other appropriate federal agencies, or as necessary to comply with applicable federal law. The commissioner shall establish procedures that proprietary information will be maintained in a manner consistent with applicable federal law. Proprietary information shall not include the name and address of license applicants.
Part 3 Radiation Source Inspection
§ 68-202-301. Part definitions.
  1. The following definitions apply in the interpretation and enforcement of this part:
    1. (1) “Commissioner” refers to the commissioner of environment and conservation or the commissioner's designated representative;
    2. (2) “Department” refers to the department of environment and conservation;
    3. (3) “Person” means an individual, trust, firm, joint stock company, corporation (including a government corporation), partnership, association, state, municipality, commission, political subdivision of a state, any interstate body, any governmental agency of this state and any department, agency or instrumentality of the federal government;
    4. (4) “Radiation” includes all ionizing electromagnetic waves and corpuscular emissions such as, but not necessarily limited to, gamma rays and x-rays; alpha and beta particles; electrons, neutrons and protons; and other nuclear particles but not radio waves or visible, infrared or ultraviolet light; and
    5. (5) “Radiation source” includes material which emits radiation spontaneously, or apparatus which produces, or may produce when the associated controls are operated, one (1) or more forms of radiation.
§ 68-202-302. Inspection for dangerous radiation sources.
  1. The commissioner may, upon the commissioner's own initiative or upon the complaint in writing of any citizen, inspect any property within the commissioner's jurisdiction for the presence of dangerous and improperly safeguarded radiation sources.
§ 68-202-303. Order for removal or remedy.
  1. If the inspection reveals the presence of such dangerous and improperly safeguarded radiation sources, the commissioner shall issue an emergency order demanding the same be removed and properly disposed of or the situation otherwise remedied and such order shall be complied with immediately.
§ 68-202-304. Failure to comply with order.
  1. If any person fails to comply with the order and within the time affixed by the order, then the commissioner shall cause such radiation sources to be removed and properly disposed of or the dangerous situation otherwise remedied at the expense of such person.
§ 68-202-305. Payment of expense of removal or correction.
  1. If such person within thirty (30) days thereafter fails, neglects or refuses to pay the department the expense thereby incurred by it, the commissioner shall certify the expense to the commissioner of finance and administration for payment.
§ 68-202-306. Unpaid expense as lien on property — Filing and registration of lien.
  1. (a) The expense so paid, together with twenty-five percent (25%) penalty thereon, shall be a lien on the property, including the real estate on which the property is located, and except the lien for taxes assessed and due the state, county and city wherein the property is located.
  2. (b) In order to make the lien against the property valid and binding, the commissioner shall, immediately upon serving the order, file a copy in the register's office of the county where the property is located and cause the same to be registered. The order so registered shall be notice to all parties.
§ 68-202-307. Legal proceedings to enforce lien.
  1. The commissioner is authorized to institute legal proceedings, within thirty (30) days after such nonpayment, to enforce the lien in any court of record, and the commissioner may join one (1) or more parties occupying the same or different premises in the same action.
§ 68-202-308. Other radiation laws not repealed.
  1. This part shall not be construed as repealing any laws of this state relating to radiation sources or radiation protection.
§ 68-202-309. Civil and criminal penalties.
  1. (a) Any person violating any of this part, any order issued in accordance with this part or any rule, regulation or standard adopted pursuant to this part commits a Class A misdemeanor. Each day of continued violation constitutes a separate punishable offense.
  2. (b) Any person who violates or fails to comply with any provision of this part, any order issued in accordance with this part, or any rule, regulation, or standard adopted pursuant to this part shall be subject to a civil penalty of not less than one hundred dollars ($100) and not more than five thousand dollars ($5,000) per day for each violation. Each day such violation continues constitutes a separate violation, and such person shall also be liable for any damages to the state resulting from such violation.
    1. (1) Any civil penalty or damages shall be assessed in the following manner:
      1. (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, or by any other method authorized by law;
      2. (B) Any person against whom an assessment has been issued may request a hearing before the commissioner for a review of the assessment;
      3. (C) If a petition for review of 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;
      4. (D) Whenever an assessment has become final because of a person's failure to appeal the assessment, the commissioner may apply to the appropriate court for a judgment and seek execution on such judgment. The court, in such proceedings, shall treat the failure to appeal such assessment as a confession of judgment in the amount of the assessment; and
      5. (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.
    2. (2) In assessing a civil penalty, the following factors may be considered:
      1. (A) The harm or potential harm done to the public or the environment;
      2. (B) The economic benefit gained by the violators;
      3. (C) The amount of effort put forth by the violator to attain compliance;
      4. (D) Any unusual or extraordinary enforcement cost incurred by the state; and
      5. (E) The need for an economic deterrent from future violations.
    3. (3) 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.
§ 68-202-310. Injunctions.
  1. In addition to the penalties provided in this part, the commissioner may cause the enforcement of any orders, rules or regulations issued by the commissioner or the provisions of this part by instituting legal proceedings to enjoin the violation of this part, and the orders, rules and regulations of the commissioner in the chancery court of Davidson County or in the chancery court of the county wherein all or a part of the violation has or is about to occur, in the name of the department, by the attorney general and reporter. In such suits, the court may grant temporary or permanent injunctions or restraining orders. Such proceedings shall not be tried by jury.
§ 68-202-311. Show cause meetings — Written complaints — Emergency orders.
  1. (a) Upon receipt of information that any person is or may be in violation of any of the provisions of this part or the rules and regulations adopted thereunder, the commissioner may request that such person appear informally and show cause why enforcement action should not be taken. Show cause meetings undertaken pursuant to this section are informal, voluntary and are not contested cases within the definition of the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.
  2. (b) Whenever the commissioner has reason to believe that a violation of any provision of this part or regulation promulgated thereunder or orders issued pursuant thereto has occurred, is occurring, or is about to occur, the commissioner may cause a written complaint to be served upon the alleged violator or violators. The complaint shall specify the provision or provisions of this part or regulation or order alleged to be violated or about to be violated, the facts alleged to constitute a violation thereof, may order that necessary corrective action be taken within a reasonable time to be prescribed in such order, and shall inform the violators of the opportunity for a hearing before the commissioner. Any such order shall become final and not subject to review unless the person or persons named therein request a hearing in writing, no later than thirty (30) days after the date such order is served.
  3. (c) Whenever the commissioner finds that the public health, safety or welfare is threatened by radiation hazards and that immediate action is necessary to protect the public, an emergency order may be issued stating the issue of the emergency and directing immediate action as required to alleviate the situation. Immediate compliance with such order is required notwithstanding any request for a hearing.
Part 4 Restoration of Facilities
§ 68-202-401. Part definitions.
  1. As used in this part, unless the context otherwise requires:
    1. (1) “By-product material” means any radioactive material, except special nuclear material, yielded in or made radioactive by exposure to the radiation incident to the process of producing or utilizing special nuclear material;
    2. (2) “Commissioner” means the commissioner of environment and conservation or the commissioner's designated representative;
    3. (3) “Department” means the department of environment and conservation;
    4. (4) “Person” means an individual, trust, firm, joint stock company, corporation (including a government corporation), partnership, association, state, municipality, commission, political subdivision of a state, any interstate body, any governmental agency of this state and any department, agency or instrumentality of the federal government;
    5. (5) “Radiation” includes all ionizing electromagnetic waves and corpuscular emissions such as, but not necessarily limited to, gamma rays and X-rays; alpha and beta particles; electrons, neutrons and protons; and other nuclear particles but not radio waves or visible, infrared or ultraviolet light;
    6. (6) “Radiation machine” means an apparatus which produces or may produce when the associated controls are operated, one (1) or more forms of radiation;
    7. (7) “Radiation source” includes material which emits radiation spontaneously, or apparatus which produces, or may produce when the associated controls are operated, one (1) or more forms of radiation;
    8. (8) “Radioactive material” refers to any material, solid, liquid or gas, which emits radiation spontaneously;
    9. (9)
      1. (A) “Source material” means:
        1. (i) Uranium or thorium, or any combination thereof, in any physical or chemical form; or
        2. (ii) Ores which contain by weight one-twentieth of one percent (0.05%) or more of:
          1. (a) Uranium;
          2. (b) Thorium; or
          3. (c) Any combinations thereof;
      2. (B) “Source material” does not include special nuclear material;
    10. (10) “Special nuclear material in quantities not sufficient to form a critical mass” means uranium enriched in the isotope U-235 in quantities not exceeding three hundred fifty (350) grams of contained U-235; U-233 in quantities not exceeding two hundred (200) grams; plutonium in quantities not exceeding two hundred (200) grams; or any combination of them in accordance with the following formula: for each kind of special nuclear material, determine the ratio between the quantity of that special nuclear material and the quantity specified above for the same kind of special nuclear material. The sum of such ratios for all kinds of special nuclear material in combination shall not exceed one (1) (i.e., unity);
    11. (11) “Specific license” means a license issued by the department which allows the use, storage, handling, and possession of radioactive sources under specified conditions of the license; and
    12. (12) “Specific licensee” means a holder of a specific license issued by the department.
§ 68-202-402. Specific licensee bond — Additional requirements — Private ownership or operation.
  1. (a) The commissioner may require the posting of a bond by an existing specific licensee by amendment to an existing license or by a person making application for a new specific license to assure the availability of funds to the state in the event of abandonment, insolvency or other inability of the specific licensee to meet the requirements of the commissioner regarding a public health hazard created by the presence of radioactive sources at a site occupied by the licensee or formerly under its possession, ownership or control. The commissioner is authorized to establish by rule or regulation, or order based upon such rule or regulation, the bonding requirements by classes of specific licensees and by range of monetary amounts. In establishing such requirements, the commissioner shall give due consideration to the probable extent of contamination, the amount of possible property damage, the costs of removal and disposal of sources of radiation used by the specific licensee, the costs of reclamation of the property in the event of abandonment, insolvency, or other inability of the specific licensee to perform such services to the satisfaction of the commissioner.
  2. (b) In the event it is determined that there is a reasonable probability that a licensed facility will eventually cease to operate while containing, storing, or otherwise possessing radioactive sources on the premises which will require continuing and perpetual care or surveillance over the facility to protect the public health, safety, or welfare, the commissioner may require a specific licensee to deposit sums, in addition to posting bond, in such amounts and under such circumstances as the commissioner shall determine as necessary by rule, regulation, or order based upon such rule or regulation, in a trust fund maintained as the perpetual care trust fund in the name of the state. In establishing such additional requirements, the commissioner shall give due consideration to the nature of the licensed radioactive material, the size and type of facility to be decommissioned, and the anticipated expenses of perpetual care and surveillance.
  3. (c) No private person shall be precluded by reason of criteria established under subsections (a) and (b) from ownership or operation of facilities containing, storing or otherwise possessing radioactive sources where such person can provide assurance of financial responsibility and continuity of operation consistent with the degree and duration of risks associated with the possession of radioactive sources. The commissioner is authorized to promulgate rules and regulations to establish criteria for determining adequacy of assurance of financial responsibility and continuity of operation.
§ 68-202-403. Sufficiency of bond.
  1. An acceptable bond shall be a bond issued by a fidelity or surety company authorized to do business in this state, a personal bond supported by such collateral as the commissioner shall deem to be satisfactory, or a cash bond in an amount to be determined by the commissioner.
§ 68-202-404. Payment and life of bond.
  1. (a) The bonds obtained by specific licensees shall be payable to the state of Tennessee and shall remain effective for a reasonable period of time, to be determined by the commissioner, following the expiration of the license covered by the bond.
  2. (b) The commissioner may revoke any existing specific license or withhold the issuance of a new specific license pending the furnishing by the applicant of an acceptable bond.
§ 68-202-405. Forfeiture and disposition of bond — Trust fund.
  1. (a) At any time during the life of a bond, the commissioner may order forfeiture of the bond based upon the commissioner's determination of abandonment, insolvency, or other inability of the specific licensee to perform to the satisfaction of the commissioner.
  2. (b) All forfeited bonds shall be deposited in a special account in the name of the state entitled “the radiation reclamation trust fund.”
  3. (c) All moneys deposited in such fund may be expended by the commissioner as the commissioner considers necessary to assure the protection of the public health, safety or welfare.
  4. (d) Following the decontamination, removal and disposal of radioactive sources, and the reclamation of the premises, any funds remaining from the forfeited bond shall accrue to the state and shall not be refundable to the specific licensee.
  5. (e) The moneys which are deposited in the radiation reclamation trust fund and the perpetual care trust fund shall not be used for normal operating expenses of the department but shall be expended only for the decontamination, the removal and disposal of radioactive materials, the reclamation of sites or facilities, and the perpetual care and surveillance of sites or facilities where the specific licensee has abandoned, defaulted, or otherwise refused to perform the above services to the satisfaction of the commissioner.
  6. (f) Moneys accumulated in the radiation reclamation trust fund or the perpetual care trust fund may be transferred by the commissioner whenever it is determined by the commissioner that the transfer of such funds is required to provide services at abandoned, inoperative, decommissioned facilities, or at contaminated sites to protect the public health, safety or welfare.
§ 68-202-406. Notice of hearing and procedure.
  1. The commissioner shall inform a specific licensee in writing delivered by certified mail of the commissioner's determination pursuant to § 68-202-402 or § 68-202-405 and the reasons therefor, including references to any radiological surveys which may have been conducted by the department. If the licensee objects to the determination made by the commissioner pursuant to § 68-202-405, the licensee may, within thirty (30) days, file a written request for a hearing before the commissioner, which shall be held in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.
§ 68-202-407. Donations.
  1. (a) In addition, the state may acquire voluntary contributions, donations, or other transfers from the specific licensee, or third persons, including other governmental agencies, in order to provide the necessary services to protect the public health, safety or welfare at contaminated sites or at abandoned, inoperative, or decommissioned facilities owning, storing, or otherwise possessing radioactive materials. Any such transfer of cash, land, or other assets is subject to the approval and acceptance of the donation by the commissioner.
  2. (b) In the event that a person or entity licensed by a governmental agency, other than the state of Tennessee, should ever attempt to transfer an abandoned, inoperative, or decommissioned facility owning, storing, or otherwise possessing radioactive materials to the custody of the state of Tennessee, the commissioner shall require that the person transferring the facility make a lump sum contribution to the radiation reclamation trust fund or the perpetual care trust fund pursuant to § 68-202-402 in an amount to be determined by the commissioner by rule, regulation, or order based upon the rule or regulation.
§ 68-202-408. Accrual of trust funds.
  1. The funds deposited in the radiation reclamation trust fund and the perpetual care trust fund shall accrue at the best possible rate of interest so as to defray the anticipated expenses of providing the necessary services to protect the public health, safety or welfare.
§ 68-202-409. Commissioner's authority.
  1. The commissioner may enter into leases, licenses, or contracts with any person to furnish the requisite services and products for decontamination, reclamation, source removal and disposal, surveillance, and perpetual care over an abandoned, inoperative, or decommissioned facility in order to protect the public health, safety or welfare. Any lessee, licensee, or contractor operating under this section may be required to post a bond in an amount to be determined by the commissioner under this part.
§ 68-202-410. Ownership of facilities and radioactive sources.
  1. (a) Recognizing the uncertainty of the existence of a person or corporation in perpetuity and further recognizing the obligation of the state to protect the public health, safety and welfare, all lands, buildings, and assets acquired by the state under this part shall be held in fee simple absolute by the state and dedicated in perpetuity to the maintenance of the public health, safety or welfare.
  2. (b) All radioactive sources stored, possessed, or located on the facility at the time of acquisition of ownership by the state shall become the property of the state.
§ 68-202-411. Power to sue.
  1. The forfeiture of a bond under § 68-202-405 is not the exclusive remedy of the state and proceedings may be instituted to recover expenditures made by the department which were in excess of the forfeited bond and other deposits made by the specific licensee. Upon approval by the attorney general and reporter, the staff attorneys of the department may, under supervision of the attorney general and reporter, represent the department in any such action.
§ 68-202-412. Exemptions.
  1. All state agencies and practitioners of the healing arts, except those holding radium 226 therapeutic licenses, are exempt from the requirements of this part. The commissioner is authorized to exempt by rule, regulation, or order based upon such rule or regulation, other classes of specific licensees from the requirements of this part upon the commissioner's determination that such exemption will not result in a risk to the public health, safety or welfare.
§ 68-202-413. Rules and regulations.
  1. The commissioner shall adopt, promulgate, and enforce such rules and regulations as necessary to implement and enforce this part in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.
§ 68-202-414. Provisions supplemental.
  1. This part is declared to be cumulative and is intended to supplement existing laws, and shall not be construed to repeal any existing law specifically enacted for the protection of the public health, safety or welfare.
§ 68-202-415. Civil and criminal penalties.
  1. (a) Any person violating any of this part, any order issued in accordance with this part or any rule, regulation or standard adopted pursuant to this part commits a Class A misdemeanor. Each day of continued violation constitutes a separate punishable offense.
  2. (b) Any person who violates or fails to comply with any provision of this part, any order issued in accordance with this part, or any rule, regulation, or standard adopted pursuant to this part shall be subject to a civil penalty of not less than one hundred dollars ($100) and not more than five thousand dollars ($5,000) per day for each violation. Each day such violation continues constitutes a separate violation, and such person shall also be liable for any damages to the state resulting from such violation.
    1. (1) Any civil penalty or damages shall be assessed in the following manner:
      1. (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, or by any other method authorized by law;
      2. (B) Any person against whom an assessment has been issued may request a hearing before the commissioner for a review of the assessment;
      3. (C) If a petition for review of 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;
      4. (D) Whenever an assessment has become final because of a person's failure to appeal the assessment, the commissioner may apply to the appropriate court for a judgment and seek execution on such judgment. The court, in such proceedings, shall treat the failure to appeal such assessment as a confession of judgment in the amount of the assessment; and
      5. (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.
    2. (2) In assessing a civil penalty, the following factors may be considered:
      1. (A) The harm or potential harm done to the public or the environment;
      2. (B) The economic benefit gained by the violators;
      3. (C) The amount of effort put forth by the violator to attain compliance;
      4. (D) Any unusual or extraordinary enforcement cost incurred by the state; and
      5. (E) The need for an economic deterrent from future violations.
    3. (3) 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.
§ 68-202-416. Injunctions.
  1. In addition to the penalties provided in this part, the commissioner may cause the enforcement of any orders, rules or regulations issued by the commissioner or the provisions of this part by instituting legal proceedings to enjoin the violation of this part, and the orders, rules and regulations of the commissioner in the chancery court of Davidson County or in the chancery court of the county wherein all or a part of the violation has or is about to occur, in the name of the department, by the attorney general and reporter.
    1. (1) In such suits, the court may grant temporary or permanent injunctions or restraining orders.
    2. (2) Such proceedings shall not be tried by jury.
§ 68-202-417. Show cause meetings — Written complaints — Emergency orders.
  1. (a) Upon receipt of information that any person is or may be in violation of any of the provisions of this part or the rules and regulations adopted thereunder, the commissioner may request that such person appear informally and show cause why enforcement action should not be taken. Show cause meetings undertaken pursuant to this section are informal, voluntary and are not contested cases within the definition of the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.
  2. (b) Whenever the commissioner has reason to believe that a violation of any provision of this part or regulation promulgated thereunder or orders issued pursuant thereto has occurred, is occurring, or is about to occur, the commissioner may cause a written complaint to be served upon the alleged violator or violators. The complaint shall specify the provision or provisions of this part or regulation or order alleged to be violated or about to be violated, the facts alleged to constitute a violation thereof, may order that necessary corrective action be taken within a reasonable time to be prescribed in such order, and shall inform the violators of the opportunity for a hearing before the commissioner. Any such order shall become final and not subject to review unless the person or persons named therein request a hearing in writing, no later than thirty (30) days after the date such order is served.
  3. (c) Whenever the commissioner finds that the public health, safety or welfare is threatened by radiation hazards and that immediate action is necessary to protect the public, an emergency order may be issued stating the issue of the emergency and directing immediate action as required to alleviate the situation. Immediate compliance with such order is required notwithstanding any request for a hearing.
Part 5 Medical Radiation Inspection Safety Act
§ 68-202-501. Short title.
  1. This part shall be known and may be cited as the “Medical Radiation Inspection Safety Act.”
§ 68-202-503. Inspection of machines.
  1. (a) All radiation machines required to be registered as provided in this part shall be inspected on the following basis:
    1. CLASS I — Once every four (4) years
    2. CLASS II and V — Once every two (2) years
    3. CLASS III, IV, VI, and VII — Annually.
  2. (b) Registrants obtaining the services of a qualified individual for inspections pursuant to this part shall pay a fee of eighteen percent (18%) of the fee established pursuant to chapter 203 of this title; provided, that an inspection is performed by a qualified individual and the inspection and the inspection report meet the requirements of the department's rules and the report is filed within sixty (60) days of the inspection. Such reduction shall not apply to any initial certified registration review fee. Such inspections by a qualified individual may be accepted by the department as the required inspection; however, such inspection shall be subject to a random survey inspection by the department for maintaining quality assurance or enforcement action. The department will develop a protocol for Class II inspections performed by the department to take into consideration requested or restricted hours for such inspection when such information is provided in writing to the department at the time of annual registration.
  3. (c) For the purposes of this part, a “qualified individual” is one who has demonstrated to the satisfaction of the department that such individual possesses the knowledge and training to measure ionizing radiation, to evaluate safety techniques, and to advise regarding radiation protection needs.
  4. (d) X-ray machines owned and used by public safety agencies of any county, city, municipality or any area operating under a metropolitan form of government shall be registered and inspected by the department according to this part, but shall not be required to pay any fee.
§ 68-202-504. Annual registration.
  1. Every qualified individual and every person who assembles, installs, or services radiation machines shall register annually with the department.
§ 68-202-506. Civil and criminal penalties.
  1. (a) Any person violating any of this part, any order issued in accordance with this part, or any rule, regulation or standard adopted pursuant to this part, commits a Class C misdemeanor. Each day of continued violation constitutes a separate punishable offense.
  2. (b) Any person who violates or fails to comply with any provision of this part, any order issued in accordance with this part, or any rule, regulation, or standard adopted pursuant to this part, shall be subject to a civil penalty of not less than one hundred dollars ($100) and not more than five thousand dollars ($5,000) per day for each violation. Each day such violation continues constitutes a separate violation, and such person shall also be liable for any damages to the state resulting from such violation.
    1. (1) Any civil penalty or damages shall be assessed in the following manner:
      1. (A) The commissioner of environment and conservation or the commissioner's designee 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, or by any other method authorized by law;
      2. (B) Any person against whom an assessment has been issued may request a hearing before the commissioner or the commissioner's designee for a review of the assessment;
      3. (C) If a petition for review of 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;
      4. (D) Whenever an assessment has become final because of a person's failure to appeal the assessment, the commissioner may apply to the appropriate court for a judgment and seek execution on such judgment. The court, in such proceedings, shall treat the failure to appeal such assessment as a confession of judgment in the amount of the assessment; and
      5. (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.
    2. (2) In assessing a civil penalty, the following factors may be considered:
      1. (A) The harm or potential harm done to the public or the environment;
      2. (B) The economic benefit gained by the violators;
      3. (C) The amount of effort put forth by the violator to attain compliance;
      4. (D) Any unusual or extraordinary enforcement cost incurred by the state; and
      5. (E) The need for an economic deterrent from future violations.
    3. (3) 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.
  3. (c) Notwithstanding this or any other law to the contrary, a dentist who fails to timely register or reregister a Class I dental radiation machine, or a physician who fails to timely register a Class II medical radiation machine, and pay the required inspection/certification fee, shall not be fined in excess of an amount which equals five (5) times the inspection/certification fee owed, unless the circumstances of the case indicate that the failure was:
    1. (1) Willful and knowing;
    2. (2) Grossly negligent; or
    3. (3) A continuation of an established pattern of failure to timely register or reregister dental radiation machines.
§ 68-202-507. Injunctions.
  1. In addition to the penalties provided in this part, the commissioner may cause the enforcement of any orders, rules or regulations issued by the commissioner or the provisions of this part by instituting legal proceedings to enjoin the violation of this part, and the orders, rules and regulations of the commissioner in the chancery court of Davidson County or in the chancery court of the county wherein all or a part of the violation has or is about to occur, in the name of the department of environment and conservation, by the attorney general and reporter. In such suits, the court may grant temporary or permanent injunctions or restraining orders. Such proceedings shall not be tried by jury.
§ 68-202-508. Show cause meetings — Written complaints — Emergency orders.
  1. (a) Upon receipt of information that any person is or may be in violation of any of the provisions of this part or the rules and regulations adopted thereunder, the commissioner or the commissioner's designee may request that such person appear informally and show cause why enforcement action should not be taken. Show cause meetings undertaken pursuant to this section are informal, voluntary and are not contested cases within the definition of the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.
  2. (b) Whenever the commissioner has reason to believe that a violation of any provision of this part or regulation promulgated thereunder or orders issued pursuant thereto has occurred, is occurring, or is about to occur, the commissioner may cause a written complaint to be served upon the alleged violator or violators. The complaint shall specify the provision or provisions of this part or regulation or order alleged to be violated or about to be violated, the facts alleged to constitute a violation thereof, may order that necessary corrective action be taken within a reasonable time to be prescribed in such order, and shall inform the violators of the opportunity for a hearing before the commissioner or the commissioner's designee. Any such order shall become final and not subject to review unless the person or persons named therein request a hearing in writing, no later than thirty (30) days after the date such order is served.
  3. (c) Whenever the commissioner finds that the public health, safety or welfare is threatened by radiation hazards and that immediate action is necessary to protect the public, an emergency order may be issued stating the issue of the emergency and directing immediate action as required to alleviate the situation. Immediate compliance with such order is required notwithstanding any request for a hearing.
Part 6 Southern States Nuclear Compact
§ 68-202-601. Definitions — Text of compact.
  1. By this part, Tennessee shall become a party to the southern states nuclear compact in accordance with the terms of the compact. “Compact” means the southern states nuclear compact. “Board” means the southern states energy board. The compact is as follows:
    1. Article I. Policy and Purpose
      1. The party states recognize that the proper employment and conservation of energy, and employment of energy-related facilities, materials, and products, within the context of a responsible regard for the environment, can assist substantially in the industrialization of the South and the development of a balanced economy for the region. They also recognize that the optimum benefit from the acquisition of energy resources and facilities requires systematic encouragement, guidance, and assistance from the party states on a cooperative basis. It is the policy of the party states to undertake such cooperation on a continuing basis; it is the purpose of this compact to provide the instruments and framework for such a cooperative effort to improve the economy of the South and contribute to the individual and community well-being of the region's people.
    2. Article II. The Board
      1. (a) There is hereby created an agency of the party states to be known as the “southern states energy board”, hereinafter called the board. The board shall be composed of three (3) members from each party state, one (1) of whom shall be appointed or designated in each state to represent the governor, the state senate, and the state house of representatives respectively. Each member shall be designated or appointed in accordance with the law of the state which the member represents and serves and subject to removal in accordance with such law. Any member of the board may provide for the discharge of such member's duties and the performance of such member's functions thereon (either for the duration of such person's membership or for any lesser period of time) by a deputy or assistant, if the laws of such member's state make specific provision therefor. The federal government may be represented without vote if provision is made by federal law for such representation.
      2. (b) Each party state shall be entitled to one (1) vote on the board, to be determined by majority vote of each member or member's representatives from the party state present and voting on any question. No action of the board shall be binding unless taken at a meeting at which a majority of all party states are represented and unless a majority of the total number of votes on the board are cast in favor thereof.
      3. (c) The board shall have a seal.
      4. (d) The board shall elect annually, from among its members, a chair, a vice chair, and a treasurer. The board shall appoint an executive director who shall serve at its pleasure and who shall also act as secretary, and who, together with the treasurer, shall be bonded in such amounts as the board may require.
      5. (e) The executive director, with the approval of the board, shall appoint and remove or discharge such personnel as may be necessary for the performance of the board's functions irrespective of the civil service, personnel or other merit system laws of any of the party states.
      6. (f) The board may establish and maintain, independently or in conjunction with any one (1) or more of the party states, a suitable retirement system for its full-time employees. Employees of the board shall be eligible for social security coverage in respect of old age and survivors insurance; provided, that the board takes such steps as may be necessary pursuant to federal law to participate in such program of insurance as a governmental agency or unit. The board may establish and maintain or participate in such additional programs of employee benefits as may be appropriate.
      7. (g) The board may borrow, accept, or contract for the services of personnel from any state or the United States or any subdivision or agency thereof, from any interstate agency, or from any institution, person, firm or corporation.
      8. (h) The board may accept for any of its purposes and functions under this compact any and all donations, and grants of money, equipment, supplies, materials, and services (conditional or otherwise) from any state or the United States or any subdivision or agency thereof, or interstate agency, or from any institution, person, firm or corporation, and may receive, utilize and dispose of the same.
      9. (i) The board may establish and maintain such facilities as may be necessary for the transacting of its business. The board may acquire, hold, and convey real and personal property and any interest therein.
      10. (j) The board shall adopt bylaws, rules, and regulations for the conduct of its business, and shall have the power to amend and rescind these bylaws, rules, and regulations. The board shall publish its bylaws, rules and regulations in convenient form and shall also file a copy of any amendment thereto, with the appropriate agency or officer in each of the party states.
      11. (k) The board annually shall make to the governor of each party state, a report covering the activities of the board for the preceding year, and embodying such recommendations as may have been adopted by the board, which report shall be transmitted to the legislature of the state. The board may issue such additional reports as it may deem desirable.
    3. Article III. Finances
      1. (a) The board shall submit to the executive head or designated officer or officers of each state a budget of its estimated expenditures for such period as may be required by the laws of that jurisdiction for presentation to the legislature thereof.
      2. (b) Each of the board's budgets of estimated expenditures shall contain specific recommendations of the amount or amounts to be appropriated by each of the party states. One half (½) of the total amount of each budget of estimated expenditures shall be apportioned among the party states in equal shares; one-quarter (¼) of each such budget shall be apportioned among the party states in accordance with the ratio of their populations to the total population of the entire group of party states based on the last decennial federal census; and one-quarter (¼) of each such budget shall be apportioned among the party states on the basis of the relative average per capita income of the inhabitants in each of the party states based on the latest computations published by the federal census-taking agency. Subject to appropriation by their respective legislatures, the board shall be provided with such funds by each of the party states as are necessary to provide the means of establishing and maintaining facilities, a staff of personnel, and such activities as may be necessary to fulfill the powers and duties imposed upon and entrusted to the board.
      3. (c) The board may meet any of its obligations in whole or in part with funds available to it under Article II (h) of this compact; provided, that the board takes specific action setting aside such funds prior to the incurring of any obligation to be met in whole or in part in this manner. Except where the board makes use of funds available to it under Article II (h), the board shall not incur any obligation prior to the allotment of funds by the party jurisdictions adequate to meet the same.
      4. (d) The board shall keep accurate accounts of all receipts and disbursements. The receipts and disbursements of the board shall be subject to the audit and accounting procedures established under its bylaws. However, all receipts and disbursements of funds handled by the board shall be audited yearly by a qualified public accountant, and the report of the audit shall be included in and become part of the annual report of the board.
      5. (e) The accounts of the board shall be open at any reasonable time for inspection.
    4. Article IV. Advisory Committees
      1. The board may establish such advisory and technical committees as it may deem necessary, membership on which to include, but not to be limited to, private citizens, expert and lay personnel, representatives of industry, labor, commerce, agriculture, civic associations, medicine, education, voluntary health agencies, and officials of local, state and federal government, and may cooperate with and use the services of any such committees and the organization which they represent in furthering any of its activities under this compact.
    5. Article V. Powers
      1. The board has power to:
        1. (a) Ascertain and analyze on a continuing basis the position of the South with respect to energy, energy-related industries, and environmental concerns.
        2. (b) Encourage the development, conservation, and responsible use of energy and energy-related facilities, installations, and products as a part of a balanced economy and healthy environment.
        3. (c) Collect, correlate and disseminate information relating to civilian uses of energy and energy-related materials and products.
        4. (d) Conduct, or cooperate in conducting, programs of training for state and local personnel engaged in any aspects of:
          1. (1) Energy, environment, and application of energy, environmental and related concerns to industry, medicine, or education or the promotion or regulation thereof.
          2. (2) The formulation or administration of measures designed to promote safety in any matter related to the development, use or disposal of energy and energy-related materials, products, installations, or wastes.
        5. (e) Organize and conduct, or assist and cooperate in organizing and conducting, demonstrations of energy product, material, or equipment use and disposal and of proper techniques or processes for the application of energy resources to the civilian economy or general welfare.
        6. (f) Undertake such nonregulatory functions with respect to sources of radiation as may promote the economic development and general welfare of the region.
        7. (g) Study industrial, health, safety, and other standards, laws, codes, rules, regulations, and administrative practices in or related to energy and environmental fields.
        8. (h) Recommend such changes in, or amendments or additions to the laws, codes, rules, regulations, administrative procedures and practices or ordinances of the party states in any of the fields of its interest and competence as in its judgment may be appropriate. Any such recommendation shall be made through the appropriate state agency with due consideration of the desirability of uniformity but shall also give appropriate weight to any special circumstances which may justify variations to meet local conditions.
        9. (i) Prepare, publish and distribute (with or without charge), such reports, bulletins, newsletters or other material as it deems appropriate.
        10. (j) Cooperate with the United States department of energy or any agency successor thereto, any other officer or agency of the United States, and any other governmental unit or agency or officer thereof, and with any private persons or agencies in any of the fields of its interests.
        11. (k) Act as licensee of the United States government or any party state with respect to the conduct of any research activity requiring such license and operate such research facility or undertake any program pursuant thereto.
        12. (l) Ascertain from time to time such methods, practices, circumstances, and conditions as may bring about the prevention and control of energy and environmental incidents in the area comprising the party states, to coordinate the nuclear, environmental and other energy-related incident prevention and control plans and the work relating thereto of the appropriate agencies of the party states and to facilitate the rendering of aid by the party states to each other in coping with energy and environmental incidents. The board may formulate and, in accordance with need from time to time, revise a regional plan or regional plans for coping with energy and environmental incidents within the territory of the party states as a whole or within any subregion or subregions of the geographic area covered by this compact.
    6. Article VI. Supplemental Agreements
      1. (a) To the extent that the board has not undertaken an activity or project which would be within its power under the provisions of Article V of this compact, any two (2) or more of the party states (acting by their duly constituted administrative officials) may enter into supplementary agreements for the undertaking and continuance of such an activity or project. Any such agreement shall specify its purpose or purposes; its duration and the procedure for termination thereof or withdrawal therefrom; the method of financing and allocating the costs of the activity or project; and such other matters as may be necessary or appropriate. No such supplementary agreement entered into pursuant to this article shall become effective prior to its submission to and approval by the board. The board shall give such approval unless it finds that the supplementary agreement or the activity or project contemplated thereby is inconsistent with the provisions of this compact or a program or activity conducted by or participated in by the board.
      2. (b) Unless all of the party states participate in a supplementary agreement, any cost or costs thereof shall be borne separately by the states party thereto. However, the board may administer or otherwise assist in the operation of any supplementary agreement.
      3. (c) No party to a supplementary agreement entered into pursuant to this article shall be relieved thereby of any obligation or duty assumed by such party state under or pursuant to this compact, except that timely and proper performance of such obligation or duty by means of the supplementary agreement may be offered as performance pursuant to the compact.
    7. Article VII. Other Laws and Relationships
      1. Nothing in this compact shall be construed to:
        1. (a) Permit or require any person or other entity to avoid or refuse compliance with any law, rule, regulation, order or ordinance of a party state or subdivision thereof now or hereafter made, enacted or in force.
        2. (b) Limit, diminish, or otherwise impair jurisdiction exercised by the United States department of energy, any agency successor thereto, or any other federal department, agency or officer pursuant to and in conformity with any valid and operative act of congress.
        3. (c) Alter the relations between the respective internal responsibilities of the government of a party state and its subdivisions.
        4. (d) Permit or authorize the board to exercise any regulatory authority or to own or operate any nuclear reactor for the generation of electric energy; nor shall the board own or operate any facility or installation for industrial or commercial purposes.
    8. Article VIII. Eligible Parties, Entry into Force and Withdrawal
      1. (a) Any or all of the states of Alabama, Arkansas, Delaware, Florida, Georgia, Kentucky, Louisiana, Maryland, Mississippi, Missouri, North Carolina, Oklahoma, South Carolina, Tennessee, Texas, Virginia, West Virginia, the Commonwealth of Puerto Rico, and the United States Virgin Islands shall be eligible to become party to this compact.
      2. (b) As to any eligible party state, this compact shall become effective when its legislature shall have enacted the same into law: provided, that it shall not become initially effective until enacted into law by seven (7) states.
      3. (c) Any party state may withdraw from this compact by enacting a statute repealing the same, but no such withdrawal shall become effective until the governor of the withdrawing state shall have sent formal notice in writing to the governor of each other party state informing such governors of the action of the legislature in repealing the compact and declaring an intention to withdraw.
      4. (d) The 1980 amendments to this compact shall take effect at such a time as nine (9) of the party states to the southern interstate nuclear compact approve substantially the same changes in such compact by their respective state legislatures and at such a time as the congress of the United States consents to the compact as amended. The secretary of state shall request the Southern Legislative Conference of the Council of State Governments to communicate to the secretary of state at such a time as the nine (9) party states and the congress of the United States approve and consent to the amendments to such compact.
    9. Article IX. Severability and Construction
      1. The provisions of this compact and of any supplementary agreement entered into hereunder shall be severable and if any phrase, clause, sentence or provision of this compact or such supplementary agreement is declared to be contrary to the constitution of any participating state or of the United States, or the applicability thereof to any government, agency, person, or circumstance is held invalid, the validity of the remainder of this compact or such supplementary agreement and the applicability thereof to any government, agency, person, or circumstance shall not be affected thereby. If this compact or any supplementary agreement entered into hereunder shall be held contrary to the constitution of any state participating therein, the compact or such supplementary agreement shall remain in full force and effect as to the remaining states and in full force and effect as to the state affected as to all severable matters. The provisions of this compact and of any supplementary agreement entered into pursuant hereto shall be liberally construed to effectuate the purposes thereof.
§ 68-202-602. Governor to appoint board member — Travel expenses.
  1. (a) The board member from Tennessee shall be appointed by the governor and shall serve until such board member's successor is duly appointed. The member may name the director of the industrial development division of the department of economic and community development or another person as the board member's deputy or assistant.
  2. (b) All reimbursement for travel expenses by Tennessee board members shall be in accordance with the comprehensive travel regulations as promulgated by the department of finance and administration and approved by the attorney general and reporter.
§ 68-202-603. Governor to provide funds before expenditure.
  1. Any supplementary agreement entered into under Article VI of the compact requiring the expenditure of funds shall not become effective as to the state until the required funds are provided for by the governor.
§ 68-202-604. Cooperation of state with board.
  1. The departments, agencies and officers of this state and its subdivisions are authorized to cooperate with the board in the furtherance of any of its activities pursuant to the compact.
Part 7 Southeast Interstate Low-Level Radioactive Waste Compact
§ 68-202-701. Text of compact.
  1. By this part, Tennessee shall become a party to the southeast interstate low-level radioactive waste compact in accordance with the terms of the compact. “Compact” means the southeast interstate low-level radioactive waste compact. The compact is as follows:
    1. Article I. Policy and Purpose
      1. There is hereby created the southeast interstate low-level radioactive waste compact.
      2. The party states recognize and declare that each state is responsible for providing for the availability of capacity either within or outside the state for the disposal of low-level radioactive waste generated within its borders, except for waste generated as a result of defense activities of the federal government or federal research and development activities. They also recognize that the management of low-level radioactive waste is handled most efficiently on a regional basis. The party states further recognize that the congress of the United States, by enacting the Low-Level Radioactive Waste Policy Act, P.L. 96-573, compiled in 42 U.S.C. §§ 2021b-2021d, has provided for and encouraged the development of low-level radioactive waste compacts as a tool for disposal of such waste. The party states recognize that the safe and efficient management of low-level radioactive waste generated within the region requires that sufficient capacity to dispose of such waste be properly provided.
      3. It is the policy of the party states to: enter into a regional low-level radioactive waste management compact for the purpose of providing the instrument and framework for a cooperative effort, provide sufficient facilities for the proper management of low-level radioactive waste generated in the region, promote the health and safety of the region, limit the number of facilities required to effectively and efficiently manage low-level radioactive waste generated in the region, encourage the reduction of the amounts of low-level waste generated in the region, distribute the costs, benefits and obligations of successful low-level radioactive waste management equitably among the party states, and ensure the ecological and economical management of low-level radioactive wastes.
      4. Implicit in the congressional consent to this compact is the expectation by the congress and the party states that the appropriate federal agencies will actively assist the compact commission and the individual party states to this compact by:
        1. (1) Expeditious enforcement of federal rules, regulations and laws;
        2. (2) Imposing sanctions against those found to be in violation of federal rules, regulations and laws;
        3. (3) Timely inspection of their licenses to determine their capability to adhere to such rules, regulations and laws; and
        4. (4) Timely provision of technical assistance to this compact in carrying out their obligations under the Low-Level Radioactive Waste Policy Act, P.L. 96-573; 42 U.S.C. §§ 2021b-2021d.
    2. Article II. Definitions
      1. As used in this compact, unless the context clearly requires a different construction:
        1. (a) “Commission” or “compact commission” means the southeast interstate low-level radioactive waste management commission;
        2. (b) “Facility” means a parcel of land, together with the structures, equipment and improvements thereon or appurtenant thereto, which is used or is being developed for the treatment, storage, or disposal of low-level radioactive waste;
        3. (c) “Generator” means any person who produces or possesses low-level radioactive waste in the course of or as an incident to manufacturing, power generation, processing, medical diagnosis and treatment, research, or other industrial or commercial activity. This does not include persons who provide a service to generators by arranging for the collection, transportation, storage or disposal of wastes with respect to such waste generated outside the region;
        4. (d) “High-level waste” means irradiated reactor fuel, liquid wastes from reprocessing irradiated reactor fuel and solids into which such liquid wastes have been converted, and other high-level radioactive waste as defined by the United States nuclear regulatory commission;
        5. (e) “Host state” means any state in which a regional facility is situated or is being developed;
        6. (f) “Low-level radioactive waste” or “waste” means radioactive waste not classified as high-level radioactive waste, transuranic waste, spent nuclear fuel or by-product material as defined in § 11e(2) of the Atomic Energy Act of 1954, or as may be further defined by federal law or regulation;
        7. (g) “Party state” means any state which is a signatory party to this compact;
        8. (h) “Person” means any individual, corporation, business enterprise or other legal entity (either public or private);
        9. (i) “Region” means the collective party states;
        10. (j) “Regional facility” means:
          1. (1) A facility as defined in this section which has been designated, authorized, accepted or approved by the commission to receive waste; or
          2. (2) The disposal facility in Barnwell County, South Carolina, owned by the state of South Carolina and as licensed for the burial of low-level radioactive waste on July 1, 1982, but in no event shall this disposal facility serve as a regional facility beyond December 31, 1992;
        11. (k) “State” means a state of the United States, the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands or any other territorial possession of the United States;
        12. (l) “Transuranic waste” means waste material containing transuranic elements with contamination levels as determined by the regulations of (1) the United States Nuclear Regulatory Commission or (2) any host state, if it is an agreement state under § 274 of the Atomic Energy Act of 1954; and
        13. (m) “Waste management” means the storage, treatment or disposal of waste.
    3. Article III. Rights and Obligations
      1. The rights granted to the party states by this compact are additional to the rights enjoyed by sovereign states, and nothing in this compact shall be construed to infringe upon, limit or abridge those rights.
        1. (a) Subject to any license issued by the United States nuclear regulatory commission or a host state, each party state shall have the right to have all wastes generated within its borders stored, treated, or disposed of, as applicable, at regional facilities, and additionally shall have the right of access to facilities made available to the region through agreements entered into by the commission pursuant to Article IV(e)(9). The right of access by a generator within a party state to any regional facility is limited by its adherence to applicable state and federal law and regulation.
        2. (b) If no operating regional facility is located within the borders of a party state and the wastes generated within its borders must therefore be stored, treated, or disposed of, as applicable, at a regional facility in another party state, the party state without such facilities may be required by the host state or states to establish a mechanism which provides compensation for access to the regional facility according to terms and conditions established by the host state or states and approved by a two-thirds (⅔) vote of the commission.
        3. (c) Each party state must establish the capability to regulate, license and ensure the maintenance and extended care of any facility within its borders. Host states are responsible for the availability, the subsequent post-closure observation and maintenance, and the extended institutional control of their regional facilities, in accordance with the provisions of Article V(b).
        4. (d) Each party state must establish the capability to enforce any applicable federal or state laws and regulations pertaining to the packaging and transportation of waste generated within or passing through its borders.
        5. (e) Each party state must provide to the commission on an annual basis, any data and information necessary to the implementation of the commission's responsibilities. Each party state must establish the capability to obtain any data and information necessary to meet its obligation herein defined.
        6. (f) Each party state must, to the extent authorized by federal law, require generators within its borders to use the best available waste management technologies and practices to minimize the volumes of wastes requiring disposal.
    4. Article IV. The Commission
      1. (a) There is hereby created the southeast interstate low-level radioactive waste management commission, (the “commission” or “compact commission”). The commission shall consist of two (2) voting members from each party state to be appointed according to the laws of each state. The appointing authorities of each state must notify the commission in writing of the identity of its members and any alternates. An alternate may act on behalf of the member only in the member's absence.
      2. (b) Each commission member is entitled to one (1) vote. No action of the commission shall be binding unless a majority of the total membership casts its vote in the affirmative, or unless a greater than majority vote is specifically required by any other provision of this compact.
      3. (c) The commission must elect from among its members a presiding officer. The commission shall adopt and publish, in convenient form, bylaws which are consistent with this compact.
      4. (d) The commission must meet at least once a year and shall also meet upon the call of the presiding officer, by petition of a majority of the party states, or upon the call of a host state. All meetings of the commission must be open to the public.
      5. (e) The commission has the following powers, to:
        1. (1) Receive and approve the application of a non-party state to become an eligible state in accordance with Article VII(b);
        2. (2) Receive and approve the application of an eligible state to become a party state in accordance with Article VII(c);
        3. (3) Submit an annual report and other communications to the governors and to the presiding officer of each body of the legislature of the party states regarding the activities of the commission;
        4. (4) Develop and use procedures for determining, consistent with considerations for public health and safety, the type and number of regional facilities which are presently necessary and which are projected to be necessary to manage waste generated within the region;
        5. (5) Provide the party states with reference guidelines for establishing the criteria and procedures for evaluating alternative locations for emergency or permanent regional facilities;
        6. (6)
          1. (A) Develop and adopt within one (1) year after the commission is constituted as provided for in Article VII(d), procedures and criteria for identifying a party state as a host state for a regional facility as determined pursuant to the requirements of this article. In accordance with these procedures and criteria, the commission shall identify a host state for the development of a second regional disposal facility within three (3) years after the commission is constituted as provided for in Article VII(d), and shall seek to ensure that such facility is licensed and ready to operate as soon as required, but in no event later than 1991.
          2. (B) In developing criteria, the commission must consider the following: the health, safety, and welfare of the citizens of the party states; the existence of regional facilities within each party state; the minimization of waste transportation; the volumes and types of wastes generated within each party state; and the environmental, economic, and ecological impacts on the air, land and water resources of the party states.
          3. (C) The commission shall conduct such hearings; require such reports, studies, evidence and testimony; and do what is required by its approved procedures in order to identify a party state as a host state for a needed regional facility;
        7. (7) In accordance with the procedures and criteria developed pursuant to subdivision (e)(6), designate, by a two-thirds (⅔) vote, a host state for the establishment of a needed regional facility. The commission shall not exercise this authority unless the party states have failed to voluntarily pursue the development of such facility. The commission shall have the authority to revoke the membership of a party state that willfully creates barriers to the siting of a needed regional facility;
        8. (8) Require of and obtain from party states, eligible states seeking to become party states, and non-party states seeking to become eligible states, data and information necessary to the implementation of commission responsibilities;
        9. (9) Notwithstanding any other provision of this compact, enter into agreements with any person, state, or similar regional body or group of states for the importation of waste into the region and for the right of access to facilities outside the region for waste generated within the region. The authorization to import requires a two-thirds (⅔) majority vote of the commission, including an affirmative vote of both representatives of a host state in which any affected regional facility is located. This shall be done only after an assessment of the affected facility's capability to handle such wastes;
        10. (10) Act or appear on behalf of any party state or states, only upon written request of both members of the commission for such state or states, as an intervenor or party in interest before congress, state legislatures, any court of law, or any federal, state or local agency, board or commission which has jurisdiction over the management of wastes. The authority to act, intervene or otherwise appear shall be exercised by the commission only after approval by a majority vote of the commission; and
        11. (11) Revoke the membership of a party state in accordance with Article VII(f).
      6. (f) The commission may establish any advisory committees as it deems necessary for the purpose of advising the commission on any matters pertaining to the management of low-level radioactive waste.
      7. (g) The commission may appoint or contract for and compensate a limited staff necessary to carry out its duties and functions. The staff shall serve at the commission's pleasure irrespective of the civil service, personnel or other merit laws of any of the party states or the federal government and shall be compensated from funds of the commission. In selecting any staff, the commission shall assure that the staff has adequate experience and formal training to carry out such functions as may be assigned to it by the commission. If the commission has a headquarters it shall be in a party state.
      8. (h) Funding for the commission shall be provided as follows:
        1. (1) Each eligible state, upon becoming a party state, shall pay twenty-five thousand dollars ($25,000) to the commission which shall be used for costs of the commission's services;
        2. (2) Each state hosting a regional disposal facility shall annually levy special fees or surcharges on all users of such facility, based upon the volume of wastes disposed of at such facilities, the total of which:
          1. (a) Must be sufficient to cover the annual budget of the commission;
          2. (b) Must represent the financial commitments of all party states to the commission; and
          3. (c) Must be paid to the commission;
          4. provided, that each host state collecting such fees or surcharges may retain a portion of the collection sufficient to cover its administrative costs of collection, and that the remainder be sufficient only to cover the approved annual budgets of the commission;
        3. (3) The commission must set and approve its first annual budget as soon as practicable after its initial meeting. Host states for disposal facilities must begin imposition of the special fees and surcharges provided for in this section as soon as practicable after becoming party states, and must remit to the commission funds resulting from collection of such special fees and surcharges within sixty (60) days of their receipt.
      9. (i) The commission must keep accurate accounts of all receipts and disbursements. An independent certified public accountant shall annually audit all receipts and disbursements of commission funds, and submit an audit report to the commission. Such audit report shall be made a part of the annual report of the commission required by Article IV(e)(3).
      10. (j) The commission may accept for any of its purposes and functions any and all donations, grants of money, equipment, supplies, materials and services (conditional or otherwise) from any state or the United States or any subdivision or agency thereof, or interstate agency, or from any institution, person, firm or corporation, and may receive, utilize and dispose of the same. The nature, amount and condition, if any, attendant upon any donation or grant accepted pursuant to this paragraph, together with the identity of the donor, grantor or lendor, shall be detailed in the annual report of the commission.
      11. (k) The commission is not responsible for any costs associated with:
        1. (1) The creation of the facility;
        2. (2) The operation of any facility;
        3. (3) The stabilization and closure of any facility;
        4. (4) The post-closure observation and maintenance of any facility; or
        5. (5) The extended institutional control, after post-closure observation and maintenance of any facility.
      12. (l) As of January 1, 1986, the management of wastes at regional facilities is restricted to wastes generated within the region, and to wastes generated within non-party states when authorized by the commission pursuant to the provisions of this compact. After January 1, 1986, the commission may prohibit the exportation of waste from the region for the purposes of management.
      13. (m)
        1. (1) The commission herein established is a legal entity separate and distinct from the party states, capable of acting in its own behalf, and is liable for its actions. Liabilities of the commission shall not be deemed liabilities of the party states. Members of the commission shall not be personally liable for action taken by them in their official capacity.
        2. (2) Except as specifically provided in this compact, nothing in this compact shall be construed to alter the incidence of liability of any kind for any act, omission, course of conduct, or on account of any casual or other relationships. Generators, transporters of wastes, owners and operators of sites shall be liable for their acts, omissions, conduct, or relationships in accordance with all laws relating thereto.
    5. Article V. Development and Operation of Facilities
      1. (a) Any party state which becomes a host state in which a regional facility is operated shall not be designated by the compact commission as a host state for an additional regional facility until each party state has fulfilled its obligation, as determined by the commission, to have a regional facility operated within its borders.
      2. (b) A host state desiring to close a regional facility located within its borders may do so only after notifying the commission in writing of its intention to do so and the reasons therefor. Such notification shall be given to the commission at least four (4) years prior to the intended date of closure. Notwithstanding the four-year notice requirement herein provided, a host state is not prevented from closing its facility or establishing conditions of its use and operations as necessary for the protection of the health and safety of its citizens. A host state may terminate or limit access to its regional facility if it determines that congress has materially altered the conditions of this compact.
      3. (c) Each party state designated as a host for a regional facility shall take appropriate steps to ensure that an application for a license to construct and operate a facility of the designated type is filed with and issued by the appropriate authority.
      4. (d) No party state shall have any form of arbitrary prohibition on the treatment, storage or disposal of low-level radioactive waste within its borders.
      5. (e) No party state shall be required to operate a regional facility for longer than a twenty-year period, or to dispose of more than thirty-two million (32,000,000) cubic feet of low-level radioactive waste, whichever first occurs.
    6. Article VI. Other Laws and Regulations
      1. (a) Nothing in this compact shall be construed to:
        1. (1) Abrogate or limit the applicability of any act of congress or diminish or otherwise impair the jurisdiction of any federal agency expressly conferred thereon by the congress;
        2. (2) Abrogate or limit the regulatory responsibility and authority of the United States nuclear regulatory commission or of an agreement state under § 274 of the Atomic Energy Act of 1954 in which a regional facility is located;
        3. (3) Make inapplicable to any person or circumstance any other law of a party state which is not inconsistent with this compact;
        4. (4) Make unlawful the continued development and operation of any facility already licensed for development or operation on the date this compact becomes effective, except that any such facility shall comply with Article III, IV and V and shall be subject to any action lawfully taken pursuant thereto;
        5. (5) Prohibit any storage or treatment of waste by the generator on its own premises;
        6. (6) Affect any judicial or administrative proceeding pending on the effective date of this compact;
        7. (7) Alter the relations between, and the respective internal responsibilities of, the government of a party state and its subdivisions;
        8. (8) Affect the generation, treatment, storage or disposal of waste generated by the atomic energy defense activities of the secretary of the United States department of energy or federal research and development activities as defined in P.L. 96-573, compiled in 42 U.S.C. §§ 2021b-2021d; and
        9. (9) Affect the rights and powers of any party state and its political subdivisions to regulate and license any facility within its borders or to affect the rights and powers of any party state and its political subdivisions to tax or impose fees on the waste managed at any facility within its borders.
      2. (b) No party state shall pass any law or adopt any regulation which is inconsistent with this compact. To do so may jeopardize the membership status of the party state.
      3. (c) Upon formation of the compact, no law or regulation of a party state or of any subdivision or instrumentality thereof may be applied so as to restrict or make more inconvenient access to any regional facility by the generators of another party state than for the generators of the state where the facility is situated.
      4. (d) Restrictions of waste management of regional facilities pursuant to Article IV(<em>l</em>) shall be enforceable as a matter of state law.
    7. Article VII. Eligible Parties, Withdrawal, Revocation, Entry into Force, Termination
      1. (a) This compact shall have as initially eligible parties the states of Alabama, Florida, Georgia, Mississippi, North Carolina, South Carolina, Tennessee and Virginia.
      2. (b) Any state not expressly declared eligible to become a party state to this compact in section (a) of this article may petition the commission, once constituted, to be declared eligible. The commission may establish such conditions as it deems necessary and appropriate to be met by a state wishing to become eligible to become a party state to this compact pursuant to the provisions of this section. Upon satisfactorily meeting such conditions and upon the affirmative vote of two thirds (⅔) of the commission, including the affirmative vote of both representatives of a host state in which any affected regional facility is located, the petitioning state shall be eligible to become a party state to this compact and may become a party state in the same manner as those states declared eligible in section (a) of this article.
      3. (c) Each state eligible to become a party state to this compact shall be declared a party state upon enactment of this compact into law by the state and upon payment of the fees required by Article IV(h)(1). The commission shall be the judge of the qualifications of the party states and of its members and of their compliance with the conditions and requirements of this compact and the laws of the party states relating to the enactment of this compact.
      4. (d)
        1. (1) The first three (3) states eligible to become party states to this compact which enact this compact into law and appropriate the fees required by Article IV(h)(1) shall immediately, upon the appointment of their commission members, constitute themselves as the southeast low-level radioactive waste management commission, shall cause legislation to be introduced in the congress which grants the consent of the congress to this compact, and shall do those things necessary to organize the commission and implement the provisions of this compact.
        2. (2) All succeeding states eligible to become party states to this compact shall be declared party states pursuant to the provisions of section (c) of this article.
        3. (3) The consent of the congress shall be required for full implementation of this compact. The provisions of Article V(d) shall not become effective until the effective date of the import ban authorized by Article IV(<em>l</em>) as approved by congress. The congress may by law withdraw its consent only every five (5) years.
      5. (e) No state which holds membership in any other regional compact for the management of low-level radioactive waste may be considered by the compact commission for eligible state status or party state status.
      6. (f)
        1. (1) Any party state which fails to comply with the provisions of this compact or to fulfill the obligations incurred by becoming a party state to this compact may be subject to sanctions by the commission, including suspension of its rights under this compact, and revocation of its status as a party state. Any sanction shall be imposed only upon the affirmative vote of at least two thirds (⅔) of the commission members. Revocation of party state status takes effect on the date of the meeting at which the commission approves the resolution imposing such sanction, but in no event shall revocation take effect later than ninety (90) days from the date of such meeting. Rights and obligations incurred by being declared a party state to this compact shall continue until the effective date of the sanction imposed or as provided in the resolution of the commission imposing the sanction.
        2. (2) The commission must, as soon as practicable after the meeting at which a resolution revoking status as a party state is approved, provide written notice of the action along with a copy of the resolution to the governors, the presiding officers of the senates, and the speakers of the houses of representatives of the party states, as well as chairs of the appropriate committees of the congress.
      7. (g) Subject to the provisions of Article VII(h), any party state may withdraw from this compact by enacting a law repealing the compact; provided, that if a regional facility is located within such state, such regional facility shall remain available to the region for four (4) years after the date the commission receives notification in writing from the governor of such party state of the rescission of the compact. The commission, upon receipt of the notification, shall, as soon as practicable, provide copies of such notification to the governors, the presiding officers of the senates, and the speakers of the houses of representatives of the party states, as well as the chairs of the appropriate committees of the congress.
      8. (h) The right of a party state to withdraw pursuant to Article VII(g) shall terminate thirty (30) days following the commencement of operation of the second host state disposal facility. Thereafter, a party state may withdraw only with the unanimous approval of the commission and with the consent of congress. For purposes of this section, the low-level radioactive waste disposal facility located in Barnwell County, South Carolina, shall be considered the first host state disposal facility.
      9. (i) This compact may be terminated only by the affirmative action of the congress or by the rescission of all laws enacting the compact in each of the party states.
    8. Article VIII. Penalties
      1. (a) Each party state, consistently with its own law, shall prescribe and enforce penalties against any person not an official of another state for violation of any provision of this compact.
      2. (b) Each party state acknowledges that the receipt by a host state of waste packaged or transported in violation of applicable laws and regulations can result in imposition of sanctions by the host state which may include suspension or revocation of the violator's right of access to the facility in the host state.
    9. Article IX. Severability and Construction
      1. The provisions of this compact shall be severable and if any phrase, clause, sentence or provision of this compact is declared to be contrary to the constitution of any participating state or of the United States or the applicability thereof to any government, agency, person or circumstance is held invalid, the validity of the remainder of this compact and the applicability thereof to any government, agency, person or circumstance shall not be affected thereby. If any provision of this compact shall be held contrary to the constitution of any state participating therein, the compact shall remain in full force and effect as to the state affected as to all severable matters. The provisions of this compact shall be liberally construed to give effect to the purposes thereof.
§ 68-202-702. Appointment of commission members.
  1. The commission members from Tennessee shall be appointed by the governor and shall serve until their successors are duly appointed.
§ 68-202-703. Reimbursement for travel expenses.
  1. All reimbursement for travel expenses shall be in accordance with the comprehensive travel regulations as promulgated by the department of finance and administration and approved by the attorney general and reporter.
§ 68-202-704. Cooperation of state with compact commission.
  1. The departments, agencies and officers of this state and its subdivisions are authorized to cooperate with the compact commission in the furtherance of any of its activities pursuant to the compact.
§ 68-202-705. Commissioner's authority — Rules and regulations.
  1. The commissioner is authorized to promulgate rules and regulations as are necessary to effectuate the policies of the commission or this part. Rules and regulations shall include, but are not limited to, requirements and standards regarding the generation, processing, packaging, storage and transportation of low-level radioactive waste.
§ 68-202-706. Inspections and examinations.
  1. The commissioner or the commissioner's duly authorized representative is authorized to make inspections and examinations of the radiation sources which are subject to this part as the commissioner may deem proper, and for this purpose shall have the right to enter, at any reasonable hour, upon any premises for inspection or examination. Any person obstructing entry is in violation of this part.
§ 68-202-707. Violation — Penalty.
  1. (a) Any person who violates or fails to comply with any provision of this part, any order issued in accordance with this part, or any rule, regulation, or standard adopted pursuant to this part, or who fails to pay a lawfully levied fee, is subject to a civil penalty of not less than one hundred dollars ($100) and not more than five thousand dollars ($5,000) per day for each violation. Each day the violation continues constitutes a separate violation, and the person is also liable for any damages to the state resulting therefrom.
  2. (b) Any civil penalty or damages shall be assessed in the following manner:
    1. (1) The commissioner or the commissioner's designee may issue an assessment against any person responsible for the violation or damages. This person shall receive notice of the assessment by certified mail, return receipt requested, or by any other method authorized by law;
    2. (2) Any person against whom an assessment has been issued may request a hearing before the commissioner, or the commissioner's designee, for a review of the assessment;
    3. (3) If a petition for review of assessment is not filed within thirty (30) days after the date the assessment is served, the violator is deemed to have consented to the assessment, and it becomes final;
    4. (4) Whenever an assessment has become final because of a person's failure to appeal the assessment, the commissioner may apply to the appropriate court for a judgment and seek execution on the judgment. The court, in the proceeding, shall treat the failure to appeal the assessment as a confession of judgment in the amount of the assessment; and
    5. (5) The commissioner may institute a proceeding 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. (c) In assessing a civil penalty, the following factors may be considered:
    1. (1) The harm or potential harm done to the public or the environment;
    2. (2) The economic benefit gained by the violators;
    3. (3) The amount of effort put forth by the violator to attain compliance;
    4. (4) Any unusual or extraordinary enforcement cost incurred by the state; and
    5. (5) The need for an economic deterrent from future violations.
  4. (d) 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.
§ 68-202-708. Injunctions — Restraining orders.
  1. In addition to the penalties provided in this part, the commissioner may cause the enforcement of any orders, rules or regulations issued by the commissioner or the provisions of this part by instituting legal proceedings to enjoin the violation of this part, and the orders, rules and regulations of the commissioner in the chancery court of Davidson County or in the chancery court of the county wherein all or a part of the violation has occurred, or is about to occur, in the name of the department by the attorney general and reporter. In these suits, the court may grant temporary or permanent injunctions or restraining orders. Such proceedings shall be tried by jury.
§ 68-202-709. Show cause meetings — Complaint — Emergency orders.
  1. (a) Upon receipt of information that any person is or may be in violation of any of the provisions of this part or the rules and regulations adopted thereunder, the commissioner or the commissioner's designee may request that the person appear informally and show cause why enforcement action should not be taken. Show cause meetings undertaken pursuant to this section are informal, voluntary and are not contested cases within the definition of the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.
  2. (b) Whenever the commissioner has reason to believe that a violation of any provision of this part or regulation promulgated thereunder or orders issued pursuant thereto has occurred, is occurring, or is about to occur, the commissioner may cause a written complaint to be served upon the alleged violator or violators. The complaint shall specify the provisions or provision of this part or regulations or order alleged to be violated or about to be violated, the facts alleged to constitute a violation thereof, may order that necessary corrective action be taken within a reasonable time to be prescribed in the order and shall inform the violators of the opportunity for a hearing before the commissioner or the commissioner's designee. Any order shall become final and not subject to review unless the person or persons named therein request a hearing in writing, no later than thirty (30) days after the date the order is served.
  3. (c) Whenever the commissioner finds that the public health, safety or welfare is threatened by radiation hazards and that immediate action is necessary to protect the public, an emergency order may be issued stating the issue of the emergency and directing immediate action as required to alleviate the situation. Immediate compliance with the order is required, notwithstanding any request for a hearing.
Chapter 203 Tennessee Environmental Protection Fund
§ 68-203-101. Establishment of fund — Sources of deposits — Accounting — Interest — Investment — Appropriations.
  1. (a) There is established within the general fund a special agency account to be known as the Tennessee environmental protection fund, hereinafter referred to in this chapter as the “fund.”
  2. (b)
    1. (1) Notwithstanding any law to the contrary, there shall be deposited in the fund all fees, civil penalties and damages collected pursuant to the following statutes:
      1. (A) Chapter 221, part 4 of this title, relative to subsurface sewage disposal;
      2. (B) The Tennessee Safe Drinking Water Act of 1983, compiled in chapter 221, part 7 of this title;
      3. (C) The Water Environmental Health Act, compiled in chapter 221, part 9 of this title;
      4. (D) The Wastewater Facilities Act of 1987, compiled in chapter 221, part 10 of this title;
      5. (E) The Radiological Health Service Act, compiled in chapter 202, part 2 of this title;
      6. (F) The Medical Radiation Inspection Safety Act, compiled in chapter 202, part 5 of this title;
      7. (G) The Tennessee Air Quality Act, compiled in chapter 201, part 1 of this title;
      8. (H) The Tennessee Solid Waste Disposal Act, compiled in chapter 211, part 1 of this title;
      9. (I) The Tennessee Hazardous Waste Management Act, compiled in chapter 212, part 1 of this title;
      10. (J) The Water Quality Control Act of 1977, compiled in title 69, chapter 3;
      11. (K) Title 69, chapter 10, relative to water wells;
      12. (L) The Safe Dams Act of 1973, compiled in title 69, chapter 11;
      13. (M) Production of oil and gas, title 60, chapter 1, parts 1, 2, and 5; and
      14. (N) Section 11-1-101 relative to those fees charged by the commissioner other than ones related to parks.
    2. (2) The commissioner of environment and conservation shall maintain separate accounts for moneys collected and expended by each division of the department of environment and conservation in administering the statutes listed in subdivision (b)(1).
  3. (c) Any unencumbered moneys and any unexpended balance of the fund remaining at the end of any fiscal year shall not revert to the general fund, but shall be carried forward and maintained in separate accounts until expended in accordance with this part.
  4. (d) Interest accruing on investments and deposits of the fund shall be returned to the fund and remain a part of the fund, allocated proportionately to each separate account.
  5. (e) Moneys in the fund shall be invested by the state treasurer for the benefit of the fund pursuant to § 9-4-603. The fund shall be administered by the commissioner.
  6. (f) Moneys in the fund may be expended only in accordance with annual appropriations approved by the general assembly.
§ 68-203-102. Use of funds.
  1. The fund shall be available to the department of environment and conservation to help defray the costs of administering the regulatory programs under each statute listed in § 68-203-101(b). The moneys shall be used for improved performance in permitting, monitoring, investigation, enforcement, and administration of the department's functions under each statute listed in § 68-203-101(b), including the payment of salaries and benefits to employees administering the regulatory programs under each statute listed in § 68-203-101(b).
§ 68-203-103. Fees.
  1. (a)
    1. (1) In order to facilitate the proper administration of each statute listed in § 68-203-101(b), the department of environment and conservation shall charge fees for the various services and functions it performs under each of those statutes, including, but not limited to, permit processing fees, permit maintenance fees, license fees, registration fees, plans review fees, facility inspection fees and emission fees.
    2. (2) The level of these fees shall be determined after careful consideration of the direct and indirect costs incurred by the department in performing its various functions and services under each of the statutes listed in § 68-203-101(b).
    3. (3) It is the intention of the general assembly that the fees shall provide funding for additional staff of the environmental regulatory programs and an improvement of the salaries and benefits of the existing staff of the environmental regulatory programs, to continue to improve performance in carrying out its duties. Prior to promulgating any fee increase, the authorities listed in subsection (b) shall review the basis for the fee increase and make a determination that the fee increase is warranted. The factors in the determinations shall include, if relevant: staffing needs, ability to attract and retain quality staff, feasible cost containment measures, comparisons with salaries paid by other governments and the private sector, levels of federal grants and state appropriations, and the ability of the program to maintain or improve its performance in carrying out its duties.
  2. (b) The fees shall be adopted by regulations by the following authorities:
    1. (1) The fees under the Tennessee Safe Drinking Water Act of 1983, compiled in chapter 221, part 7 of this title, and the Water Quality Control Act of 1977, compiled in title 69, chapter 3, shall be set by the Tennessee board of water quality, oil and gas;
    2. (2) The fees under the Tennessee Air Quality Act shall be set by the air pollution control board;
    3. (3) The fees under the Tennessee Solid Waste Disposal Act, compiled in chapter 211, part 1 of this title, and the Tennessee Hazardous Waste Management Act, compiled in chapter 212, part 1 of this title, shall be set by the underground storage tanks and solid waste disposal control board;
    4. (4) The fees under the Water Environmental Health Act, compiled in chapter 221, part 9 of this title, shall be set by the board of certification created by § 68-221-905; and
    5. (5) The fees under chapter 221, part 4 of this title, relative to subsurface sewage disposal; the Wastewater Facilities Act of 1987, compiled in chapter 221, part 10 of this title; the Radiological Health Service Act, compiled in chapter 202, part 2 of this title; the Medical Radiation Inspection Safety Act; title 69, chapter 10, relative to water wells; and the Safe Dams Act of 1973, compiled in title 69, chapter 11, shall be set by the commissioner of environment and conservation.
  3. (c) All fees in existence prior to January 1, 1992, under the statutes identified in § 68-203-101(b), shall be continued and shall be calculated and maintained with any such additional fees authorized herein; provided, that such existing fees may be used in any manner consistent with the commissioner's authority, notwithstanding this chapter.
  4. (d) No permit or renewal of a permit shall be issued to an applicant for a permit under the foregoing authorities until all fees required by this chapter are paid in full.
  5. (e)
    1. (1) If any part of any fee imposed under this chapter is not paid within fifteen (15) days of the due date, a penalty of five percent (5%) of the amount due shall at once accrue and be added thereto. Thereafter, on the first day of each month during which any part of any fee or any prior accrued penalty remains unpaid, an additional penalty of five percent (5%) of the then unpaid balance shall accrue and be added thereto. In addition, the fees not paid within fifteen (15) days after the due date shall bear interest at the maximum lawful rate from the due date to the date paid; however, the total of the penalties and interest that accrue pursuant to this section shall not exceed three (3) times the amount of the original fee.
    2. (2) If any maintenance fee is not paid in full, including any interest and penalty within sixty (60) days of the due date, the commissioner may suspend the permit pending the opportunity for hearing until the amount due is paid in full.
    3. (3) In addition to other powers and authority provided in this chapter, the commissioner is authorized to seek injunctive relief in the chancery court of Davidson County or any court of competent jurisdiction for a judgment in the amount owed the state under this chapter.
    4. (4)
      1. (A) Any person required to pay the fees set forth under this chapter who disagrees with the calculation or applicability of the fee may petition the appropriate entity identified in subsection (b) for a hearing.
      2. (B) In order to perfect a hearing, a petition for a hearing, together with the total amount of the fee due, must be received by the commissioner not later than fifteen (15) days after the due date.
      3. (C) Such hearing shall be in accordance with contested case provisions set forth in the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.
      4. (D) If it is finally determined that the amount in dispute was improperly assessed, the commissioner shall return the amount determined to be improperly assessed with interest.
  6. (f) No permit maintenance fees shall be levied under the subsurface sewage disposal law on homeowners or other persons who have subsurface sewage disposal systems on their property.
  7. (g)
    1. (1) Under each program for which a permit processing fee is established pursuant to this chapter, the promulgating authority shall also establish by regulation a schedule for timely action by the department on permit applications under that program.
    2. (2) Such schedules shall set forth the maximum length of time which is necessary and appropriate for a thorough and prompt review of each category of permit applications, and shall take into account the nature and complexity of permit application review required by the statute under which the permit is sought.
    3. (3) Should the department fail to grant or deny the permit within the time frame established by regulation, the department shall refund the permit processing fee to the permit applicant.
    4. (4) Each promulgating authority shall at least quarterly be provided an update of information on the timeliness of permit processing. In the event the commissioner is the promulgating authority, such information shall be published in the Tennessee Administrative Register at least quarterly.
  8. (h) For the following categories, the fees shall not exceed the following maximum amounts; however, the promulgating authorities are encouraged to use graduated fees to reflect the volume of waste, population served, or other factors determined necessary to fairly apportion the fees:
    1. (1) Filing/processing fee for state water quality permit: five thousand dollars ($5,000);
    2. (2) Annual maintenance fee for NPDES permit or state water quality permit: fifteen thousand dollars ($15,000);
    3. (3) Inspection fee for a major public water or wastewater treatment system: two thousand five hundred dollars ($2,500);
    4. (4) Engineering plans review for water or wastewater systems: one thousand five hundred dollars ($1,500);
    5. (5) Filing/processing fee for construction permit for a new air emission source or the increased emissions to a source: seven thousand five hundred dollars ($7,500);
    6. (6) Filing/processing fee for permit modification for an air emission source: seven hundred fifty dollars ($750);
    7. (7) Air contaminant emissions fee: eighteen dollars and seventy-five cents ($18.75) per ton per year, based on the air contaminant sources allowable emissions level; provided, that emissions subject to this fee are capped at four thousand (4,000) tons per pollutant, such as TSP, VOC, SO2, NOx, and other pollutants, excluding CO, per facility;
    8. (8) Filing/processing fee for solid waste processing facility: two thousand five hundred dollars ($2,500);
    9. (9) Filing/processing fee for solid waste landfill permit: ten thousand dollars ($10,000);
    10. (10) Annual maintenance fee for a solid waste processing facility: five thousand dollars ($5,000);
    11. (11) Annual maintenance fee for a solid waste landfill: fifteen thousand dollars ($15,000);
    12. (12) Filing/processing fee for a commercial hazardous waste storage or treatment facility: thirty-seven thousand five hundred dollars ($37,500);
    13. (13) Filing/processing fee for a commercial hazardous waste disposal facility or landfill site: seventy-five thousand dollars ($75,000);
    14. (14) Annual maintenance fee for a commercial hazardous waste storage or treatment facility: thirty-seven thousand five hundred dollars ($37,500);
    15. (15) Annual maintenance fee for a commercial hazardous waste disposal facility or landfill site: seventy-five thousand dollars ($75,000);
    16. (16) Filing/processing fee for an on-site hazardous waste storage or treatment facility: fifteen thousand dollars ($15,000);
    17. (17) Filing/processing fee for an on-site hazardous waste disposal facility or landfill site: thirty thousand dollars ($30,000);
    18. (18) Annual maintenance fee for an on-site hazardous waste storage or treatment facility: eighteen thousand seven hundred fifty dollars ($18,750);
    19. (19) Annual maintenance fee for an on-site hazardous waste disposal facility or landfill site: twenty-two thousand five hundred dollars ($22,500);
    20. (20)
      1. (A) Class I. Dental radiation machines: all diagnostic equipment used exclusively for dental diagnostic procedures: ninety-eight dollars ($98.00);
      2. (B) Class II. Priority two medical radiation machines: all diagnostic equipment, not in Class III, used exclusively for medical and veterinary diagnostic procedures: two hundred twenty-five dollars ($225);
      3. (C) Class III. Priority one medical radiation machines: all diagnostic X-ray equipment used in radiologists' offices, orthopedic surgeons' offices or hospitals exclusively for medical diagnostic procedures: three hundred dollars ($300); and
      4. (D) Class IV. Therapy medical radiation machines: all X-ray equipment with energies less than nine-tenths megaelectron volts (0.9 MeV) used for the purpose of medical and veterinary radiation therapy: four hundred fifty dollars ($450);
    21. (21) Well driller annual license fee: two hundred fifty dollars ($250);
    22. (22) Well pump and treatment device installer annual license fees: one hundred fifty dollars ($150);
    23. (23) Safe dams plans review fee: five thousand dollars ($5,000);
    24. (24) Safe dams safety inspection fee: one thousand dollars ($1,000);
    25. (25) Permit application fee for oil or gas well: one thousand two hundred dollars ($1,200); and
    26. (26) Mineral test hole permit application fee: one hundred dollars ($100).
§ 68-203-104. Fee schedules.
  1. (a)
    1. (1) Notwithstanding any law to the contrary, upon receiving from the commissioner of finance and administration the approved work program allotments, as provided in § 9-4-5110, for the department of environment and conservation, the commissioner of environment and conservation shall certify to the commissioner of finance and administration and to the promulgating authorities the amount of fees required by each program for the current fiscal year, based on the approved work program. Upon receipt of such certification, all such fee schedules shall be reviewed by the promulgating authority.
    2. (2) All fees and procedures for collecting fees shall be adopted pursuant to rulemaking procedures set forth in the Uniform Administrative Procedures Act, compiled in title 4, chapter 5. In adopting such rules, the promulgating authority shall consider detailed information regarding salary and staffing improvements and other costs to be funded by the proposed fee schedule or fee increases, as well as the current and proposed average response time to permit applications under that program.
    3. (3) After July 1, 2012, authorities responsible for setting fees shall not increase fees in any year general state revenues appropriated to the program have decreased from the previous year.
    4. (4) Pursuant to recommendations of the promulgating authority, and within sixty (60) days after receiving the certification of the amount of fees required by each program, the commissioner of environment and conservation shall submit to the commissioner of finance and administration an official estimate of fees to be collected by each program for the fiscal year. To the extent the estimate of fees for an individual program is less than the certified amount, the appropriation of fees for the program shall be reduced in the amount of the deficiency and the commissioner of finance and administration is directed to reduce the budget of the program accordingly.
    5. (5) It is the intention of the general assembly, for the purposes of this chapter, that any fees promulgated by rules and regulations authorized under this chapter be effective July 1, 1991.
  2. (b) In the third and all subsequent years, the fee schedule promulgated by each of the authorities listed in § 68-203-103(b) shall not, when added to their individual program fund balance from prior years, exceed one hundred fifty percent (150%) of the fees collected in the previous year by that authority.
  3. (c) The total of fees assessed and to be paid by any single permittee under each of the statutes listed under § 68-203-101(b) shall not exceed five percent (5%) of the total of all fees assessed under each of the statutes listed.
  4. (d) For each division of the department that administers one (1) or more of the statutes listed in § 68-203-101(b), no promulgating authority shall establish a fee schedule that results in a ratio between state appropriations and environmental protection fees, exclusive of penalties and damages, in which the environmental protection fees constitute a higher percentage of the total funds expended by the division than the following ratios, which represents an approximation of the time spent by the divisions in activity that protects the public and the environment generally to that spent addressing a particular entity such as in technical assistance, permitting, inspection or enforcement:
    1. (1) For the divisions of air pollution control, radiological health and solid waste management: the percentage of environmental protection fees shall not constitute a higher percentage of the total fees and appropriations than they did in the fiscal year 1994-1995, as follows:
      1. (A) For the division of air pollution control: environmental protection fees, eighty-nine and nine-tenths percent (89.9%); state appropriations, ten and one-tenth percent (10.1%);
      2. (B) For the division of radiological health: environmental protection fees, ninety-one and five-tenths percent (91.5%); state appropriations, eight and five-tenths percent (8.5%);
      3. (C) For the division of solid waste management: environmental protection fees, seventy-seven and one-tenth percent (77.1%); state appropriations, twenty-two and nine-tenths percent (22.9%); and
    2. (2) For the division of water resources: environmental protection fees, fifty-eight percent (58%); state appropriations, forty-two percent (42%).
§ 68-203-105. Federal requirements.
  1. In the event that the requirements of this chapter conflict with applicable federal requirements pertaining to the establishment and collection of permit application or compliance fees by the department, such federal requirements shall take precedence over the conflicting requirements of this chapter, and the promulgating authority shall have the authority to establish by regulations in its respective program areas identified in § 68-203-101(b) and to collect such fees in accordance with the applicable federal requirements.
Chapter 204 State Energy Policy Council
§ 68-204-101. State energy policy council created.
  1. There is created the state energy policy council, to be administratively attached to the office of the comptroller of the treasury.
§ 68-204-102. “Council” defined.
  1. For the purposes of this chapter, “council” means the state energy policy council.
§ 68-204-103. Duties and responsibilities of council.
  1. (a) The council is created to advise and make recommendations to the governor and to the general assembly on how to:
    1. (1) Identify all state energy resources to ensure a secure, stable, and more predictable energy supply;
    2. (2) Manage the use of energy resources; and
    3. (3) Increase domestic energy exploration, development, and production within the state and region, with the goal of promoting economic growth and job creation while ensuring the protection and preservation of the state's natural resources, cultural heritage, and quality of life.
  2. (b) The council shall have the following general duties and responsibilities:
    1. (1) Compile an annual report assessing the energy sector in this state, including the opportunities and the constraints presented by various uses of energy, to facilitate the expansion of the domestic energy supply, and to encourage the efficient use of all such energy forms in a manner consistent with state energy policy;
    2. (2) Develop an ongoing comprehensive state energy policy plan to achieve maximum effective management and use of present and future sources of energy. The policy plan may include energy efficiency, renewable and alternative sources of energy, research and development into alternative energy technologies, and improvements to the state's energy infrastructure and energy economy, including smart grid and domestic energy resources, including, but not limited to, natural gas, coal, hydroelectric power, solar, wind, nuclear, and biomass;
    3. (3) Create an annual energy policy plan that recommends:
      1. (A) Necessary energy legislation to the governor and to the general assembly;
      2. (B) The promulgation of necessary rules to regulatory boards charged with administering this title; and
      3. (C) The implementation and modification of energy policy, plans, and programs as the council considers necessary and desirable;
    4. (4) Continually review and coordinate all state government research, education, and management programs relating to energy matters;
    5. (5) Educate and inform the general public regarding any energy matters; and
    6. (6) Actively engage in discussions with federal government agencies and leaders to identify opportunities to increase domestic energy supply within this state.
  3. (c) The council shall serve as the central energy policy planning body of the state and shall communicate and cooperate with federal, state, regional, and local bodies and agencies for the purpose of affecting a coordinated energy policy.
§ 68-204-104. Members of council.
  1. (a) The council is composed of twenty-two (22) members as follows:
    1. (1) The governor shall appoint:
      1. (A) One (1) representative of energy resource extraction or energy production industries, excluding the Tennessee Valley authority, who may be appointed from lists of qualified persons submitted by interested energy resource extraction or energy production industries, including, but not limited to, the biofuel, oil and gas, wind, coal, solar energy, geothermal energy, hydropower, and nuclear energy industries. The governor shall consult with the industries listed in this subdivision (a)(1)(A) to determine qualified persons to fill the position on the council;
      2. (B) One (1) representative of the department of environment and conservation;
      3. (C) One (1) representative of the department of economic and community development;
      4. (D) One (1) representative of a public college or university in this state who has academic expertise in energy production or distribution;
      5. (E) One (1) representative of the Tennessee public utilities commission;
      6. (F) One (1) representative of the Tennessee Valley authority;
      7. (G) One (1) representative of the United States department of energy or another partner in the Oak Ridge Reservation, who is a non-voting member; and
      8. (H) One (1) citizen to represent residential energy users;
    2. (2) The speaker of the house of representatives shall appoint:
      1. (A) One (1) representative of a natural gas distributor or from the natural gas pipeline industry;
      2. (B) One (1) representative with expertise in radiological control or nuclear criticality safety or nuclear wastes;
      3. (C) One (1) representative of the crude oil processing or pipeline industry;
      4. (D) One (1) representative of the nuclear manufacturing industry;
      5. (E) One (1) representative who is involved in innovative energy production;
      6. (F) One (1) member of the house of representatives; and
      7. (G) One (1) citizen to represent farmers or other agricultural enterprises;
    3. (3) The speaker of the senate shall appoint:
      1. (A) One (1) representative of an electric cooperative;
      2. (B) One (1) representative of Oak Ridge National Laboratory;
      3. (C) One (1) representative of a municipal electric provider;
      4. (D) One (1) representative of the local government of the city of Oak Ridge;
      5. (E) One (1) representative of the local government of either Hamilton County, Rhea County, Unicoi County, Anderson County, or Roane County;
      6. (F) One (1) member of the senate; and
      7. (G) One (1) citizen to represent small business owners.
  2. (b) In addition to any other requirements for membership on the council, all persons appointed or otherwise named to serve as members of the council shall be bona fide residents of this state, and shall continue to reside in this state during their tenure on the council.
  3. (c)
    1. (1) The entire membership of the council as comprised on June 30, 2024, shall be vacated on July 1, 2024, and new members shall be appointed in accordance with subsection (a). All appointments to the council must be made by July 1, 2024.
    2. (2) In order to stagger the terms of the newly appointed council members, initial appointments must be made as follows:
      1. (A) The members described in subdivision (a)(1) shall serve an initial term of one (1) year, which expires on June 30, 2025;
      2. (B) The members described in subdivision (a)(2) shall serve an initial term of two (2) years, which expires on June 30, 2026; and
      3. (C) The members described in subdivision (a)(3) shall serve an initial term of three (3) years, which expires on June 30, 2027.
  4. (d)
    1. (1) Following the expiration of members' initial terms as prescribed in subdivision (c)(2), all three-year terms shall begin on July 1 and terminate on June 30, three (3) years thereafter.
    2. (2) All members shall serve until the expiration of the term to which they were appointed and until their successors are appointed and qualified.
    3. (3) In case of a vacancy in the membership on the council prior to the expiration of a member's term, a successor shall be appointed within thirty (30) days of the vacancy for the remainder of the unexpired term by the appropriate appointing authority and in the same manner as the original appointment.
  5. (e) The appointing authorities may remove any member of the council for misconduct, incompetency, willful neglect of duty, or other just cause.
  6. (f) Prior to beginning their duties, each member of the council shall take and subscribe to the oath of office provided for state officers.
  7. (g) In making appointments to the council, the appointing authorities shall strive to ensure that the council is composed of persons who are diverse in professional or educational background, ethnicity, race, sex, geographic residency, heritage, perspective, and experience.
§ 68-204-105. Chair — Quorum — Reimbursement of expenses — Conflict of interest policy.
  1. (a) The chair of the council shall be appointed by the governor from among the council's membership and shall call the first meeting of the council. The chair shall serve in that capacity for one (1) year and shall be eligible for reappointment. The chair shall preside at all meetings and shall have all the powers and privileges of the other members.
  2. (b) Each member, upon expiration of the member's term, shall continue to hold office until a successor is appointed.
  3. (c) A majority of those members serving on the council shall constitute a quorum.
  4. (d) Members appointed pursuant to § 68-204-104(a)(2)-(4) shall be eligible for reappointment to the council following the expiration of their terms, but shall serve no more than two (2) consecutive three-year terms.
  5. (e) Members shall receive no compensation for their service on the council, but shall be reimbursed for travel and other necessary expenses incurred in the performance of official duties in accordance with the state comprehensive travel regulations as promulgated by the commissioner of finance and administration and approved by the attorney general and reporter.
  6. (f) The council shall adopt and implement a conflict of interest policy for its members. The policy shall mandate annual written disclosures of financial interests, other possible conflicts of interest, and an acknowledgement by council members that they have read and understand all aspects of the policy. The policy shall also require persons who are to be appointed to the council to acknowledge, as a condition of appointment, that they are not in conflict with the conditions of the policy.
§ 68-204-106. Organization of work of council — Rules of procedure — Meetings.
  1. (a) To facilitate the work of the council and for administrative purposes, the chair of the council, with the consent and approval of the members, shall organize the work of the council to carry out the requirements of this chapter and to ensure the efficient operation of the council.
  2. (b) The council shall:
    1. (1) Adopt its own rules of procedure;
    2. (2) Meet quarterly, with members to be physically present at a minimum of two (2) quarterly meetings each calendar year. Members may also participate by teleconference call, provided that all other requirements of this subdivision (b)(2) are met. Emergency meetings may be called by the chair or upon petition by a majority of the council, with written notice being given to all members; and
    3. (3) Make nonsubstantive policy relating to the administrative operation of the council.
§ 68-204-107. Request for information — Request for reports and forecasts — Request for funds — Attachment to office of comptroller.
  1. (a) The council may request information from any state officer, office, department, commission, board, bureau, institution, or other agency of the state and its political subdivisions that is deemed necessary to carry out the requirements of this chapter. All officers and agencies shall cooperate with the council and, to the extent permitted by law, furnish any information to the council that it may request.
  2. (b) To assure the adequate development of relevant energy information, the council may request energy producers and major energy consumers, as determined by the council, to file any reports and forecasts; however, the council may request only specific energy-related information that it deems necessary to carry out its duties.
  3. (c) The council is authorized to apply for and utilize grants, contributions, appropriations, and any other sources of revenue which shall be deposited in the energy policy development resources fund created under § 68-204-109, in order to carry out its duties; however, all applications and requests for grants and other revenues shall be made through and administered by the office of the comptroller of the treasury.
  4. (d) The council may request the office of the comptroller of the treasury to allocate and dispense any funds made available to the council for energy research and related work efforts in such a manner as the council determines; provided, that the funds shall be used in furtherance of the purposes of this chapter.
  5. (e) The council shall be attached to the office of the comptroller of the treasury for administrative matters relating to budgeting, audit, and other related items only. The autonomy and authority of the council are not affected by such attachment, and the office of the comptroller of the treasury shall have no administrative or supervisory control over the council.
  6. (f) All administrative costs of the council, including, but not limited to, the cost of the annual reports required pursuant to § 68-204-108, shall be payable out of any funds allocated to and received by the council.
§ 68-204-108. Comprehensive reports.
  1. (a) The council shall compile, compose, and publish, and transmit to the governor, the speaker of the senate, and the speaker of the house of representatives, two (2) annual comprehensive reports as follows:
    1. (1) An annual assessment of the state's energy sector as prescribed in § 68-204-103(b)(1), to be facilitated by the Howard H. Baker Jr. Center for Public Policy at the University of Tennessee; and
    2. (2) A report to create a comprehensive state energy policy plan as prescribed in § 68-204-103(b)(2).
  2. (b) The annual assessment of the state's energy sector, as prescribed in subdivision (a)(1), shall include, but not be limited to, the following:
    1. (1) The statewide projected growth and development as it relates to future requirements for energy, including patterns of urban and metropolitan expansion, shifts in transportation modes, modifications in building types and design, and other trends and factors which, as determined by the council, will significantly affect energy needs; and
    2. (2) An assessment of growth trends in energy consumption and production, and an identification of potential adverse social, economic, or environmental impacts which may be imposed by a continuation of the present trends, including a rise in energy costs to consumers, significant increases in air, water, and other forms of pollution, threats to public health and safety, and a loss of scenic and natural areas.
  3. (c) The comprehensive state energy policy plan, as prescribed in subdivision (a)(2) shall include, but not be limited to, the following:
    1. (1) Recommendations to the governor and the general assembly for additional administrative and legislative actions on energy matters in the context of the current energy sector in this state; and
    2. (2) A summary of the council's activities since the last filing of the energy policy plan, a description of major plans developed by the council, an assessment of plan implementation, and a review of council plans and programs for the coming biennium.
§ 68-204-109. Energy resources fund.
  1. (a) There is created a special account in the state treasury to be administered by the office of the comptroller of the treasury and to be known as the energy policy development resources fund, referred to in this section as the “energy resources fund.”
  2. (b) The comptroller may disburse moneys in the energy resources fund to the council for the following purposes:
    1. (1) Developing the comprehensive state energy policy plan, as prescribed in § 68-204-103;
    2. (2) In furtherance of the purposes of this chapter; and
    3. (3) To offset the cost of administering this chapter.
  3. (c) A grant from the energy resources fund shall be disbursed in an annual amount of fifty thousand dollars ($50,000). It is the legislative intent that the annual amount be appropriated each fiscal year in the general appropriations act for awarding a grant.
§ 68-204-110. Relation to Energy Efficient Schools lnitiative (EESI) of 2008.
  1. (a) Nothing in this chapter amends or repeals in any manner the Energy Efficient Schools Initiative (EESI) of 2008, compiled in title 49, chapter 17, or other provisions of law relating to the energy efficient schools council and its powers, duties, and functions.
  2. (b) Nothing in this chapter applies to the powers, duties, and functions undertaken pursuant to the authority of the Energy Efficient Schools Initiative (EESI) of 2008.
Chapter 205 Commercial Property Assessed Clean Energy and Resilience Act
§ 68-205-101. Short title — Legislative intent.
  1. (a) This chapter is known and may be cited as the “Commercial Property Assessed Clean Energy and Resilience Act.”
  2. (b) It is the intent of the general assembly to authorize the establishment of a commercial property assessed clean energy and storm resiliency (C-PACER) program that jurisdictions may voluntarily implement to ensure that free and willing owners of agricultural, commercial, industrial, and multifamily residential properties can obtain low-cost, long-term financing for qualifying improvements. By authorizing local governments to adopt C-PACER programs, the general assembly finds that a valid public purpose exists because the use of C-PACER will increase economic development, lower insurance costs, and lower disaster and emergency response and aid costs to local governments. C-PACER programs will also decrease energy and water costs and encourage energy and water sustainability.
§ 68-205-102. Chapter definitions.
  1. As used in this chapter:
    1. (1) “Capital provider” means a private third-party entity, including its designee, successor, and assigns, that makes or funds C-PACER financing, including refinancing, under this chapter;
    2. (2) “Commercial property” means:
      1. (A) Privately owned commercial, industrial, or agricultural real property;
      2. (B) Privately owned residential real property consisting of five (5) or more dwelling units, including property owned by nonprofit, charitable, or religious organizations; and
      3. (C) Property owned by this state or a local government entity, but leased to a privately owned entity, including:
        1. (i) Industrial development corporations;
        2. (ii) Housing authorities; or
        3. (iii) Health, educational and housing facility boards;
    3. (3) “C-PACER program” or “program” means a commercial property assessed clean energy program established under this chapter;
    4. (4) “Financing” means financing and refinancing for qualified projects under this chapter;
    5. (5) “Financing agreement” means the contract under which a property owner agrees to repay a capital provider for the C-PACER financing, including, but not limited to, details of finance charges, fees, debt servicing, accrual of interest and penalties, and terms relating to treatment of prepayment and partial payment, billing, collection, and enforcement of the C-PACER financing;
    6. (6) “Local government” means a county, metropolitan government, municipality, or other political subdivision of this state;
    7. (7) “Program administrator” means the entity designated by a local government to administer a C-PACER program, including:
      1. (A) A department or individual within a local government;
      2. (B) A quasi-governmental organization such as an industrial development corporation, housing authority, or health, educational, and housing facility board;
      3. (C) A capital provider; or
      4. (D) Another private and independent third party designated by the local government;
    8. (8) “Program guidebook” means a comprehensive document that illustrates the applicable program and establishes appropriate guidelines, specifications, underwriting and approval criteria, and standard application forms consistent with the administration of a program and not detailed in this chapter, including:
      1. (A) A form assessment contract between the local government and the property owner specifying the terms of assessment under the program, financing provided by a third party, and remedies for default or foreclosure;
      2. (B) A form local government Notice of Assessment and C-PACER lien; or
      3. (C) A form Notice of Assignment of Assessment and C-PACER lien between a local government and a capital provider;
    9. (9) “Project application” means an application submitted for a program to demonstrate that a proposed project qualifies for C-PACER financing and for a C-PACER assessment and lien;
    10. (10) “Property owner” means the owner or owners on title, duly recorded, of a commercial property;
    11. (11) “Qualified improvement” means a permanent improvement installed and affixed to commercial property and intended to:
      1. (A) Decrease energy consumption or demand through the use of efficiency technologies, products, or activities that reduce or support the reduction of energy consumption;
      2. (B) Support the production of clean, renewable energy, including through the use of a product, device, or interacting group of products or devices on the customer's side of the meter that generates electricity, provides thermal energy, or regulates temperature;
      3. (C) Decrease water consumption or demand and address safe drinking water through the use of efficiency technologies, products, or activities that reduce or support the reduction of water consumption;
      4. (D) Allow for the reduction or elimination of lead from water that may be used for drinking or cooking; or
      5. (E) Increase water or waste water resilience, including through storm retrofits, flood mitigation, and stormwater management, or wind resistance, energy storage, microgrids, and other resilience projects approved by the local government;
    12. (12) “Qualified project” means a project approved by the program administrator, involving the installation or modification of a qualified improvement, including new construction or the adaptive reuse of eligible property with a qualified improvement, and including qualified improvements installed no more than two (2) years prior to the date of application;
    13. (13) “Record owner” means the owner listed on the property's legal documents on file or the owner of an estate for years created pursuant to a written ground lease agreement or similar agreement; and
    14. (14) “Region” means a geographical area as determined by a local government pursuant to § 68-205-104.
§ 68-205-103. Imposition of voluntary special assessment to repay financing of qualified projects on commercial property.
  1. (a) A local government may impose a voluntary special assessment to repay the financing of qualified projects on commercial property located in a region.
  2. (b) A local government shall not impose an assessment to repay the financing of the purchase or installation of products or devices not permanently affixed to commercial property.
  3. (c) A local government may impose a voluntary special assessment only after a project application is approved. The special assessment must be created through a written contract between the local government and the record owner of the property to be assessed.
  4. (d) Prior to entering into the written assessment contract, the record owner shall obtain and furnish to the local government a written statement, executed by each holder of a mortgage or deed of trust on the property securing indebtedness, in the sole and absolute discretion of each holder of a mortgage or deed of trust on the property, that consents to the assessment and indicates that the assessment does not constitute an event of default under the mortgage or deed of trust.
§ 68-205-104. C-PACER program — Designation of region — Administration of program — Financing for assessments.
  1. (a) A local government may establish a C-PACER program and exercise all powers granted under this chapter.
  2. (b)
    1. (1) The local government shall designate a region within its boundaries as an area in which C-PACER activities are eligible.
    2. (2) If the local government is a county, then the region designated may encompass the whole of the unincorporated and incorporated areas inside the county's boundaries.
  3. (c) Except as otherwise provided in subsection (g), a local government that establishes a program, or establishes a program through its designee, including the program administrator, may enter into a written assessment contract with a property owner to establish a voluntary assessment to repay the owner's financing of a qualified project on the owner's property as long as the conditions set forth in § 68-205-103 are met.
  4. (d) A local government may administer a program, delegate administration pursuant to § 68-205-107, delegate administration to the program administrator, or delegate administration to a single, independent, and qualified third party for all C-PACER assessments within the region as identified in subsection (b).
  5. (e) If the program provides for third-party administration, then the local government official authorized to enter into a written contract with a property owner pursuant to subsection (c) shall also enter into a written contract with the program administrator. The contract must require the third party to reimburse the local government for costs associated with monitoring the program, imposing the assessment, and billing and collecting payments on behalf of the third party.
  6. (f) The financing for assessments imposed may include, but is not limited to:
    1. (1) The cost of materials and labor necessary for the installation or modification of a qualified improvement;
    2. (2) Permit fees;
    3. (3) Inspection fees;
    4. (4) Lender fees;
    5. (5) Program application and administrative fees;
    6. (6) Project development and engineering fees;
    7. (7) Interest reserves;
    8. (8) Capitalized interest, in an amount determined by the owner of the commercial property and the third party providing financing under this section; and
    9. (9) Other fees or costs incurred by the property owner incident to the installation, modification, or improvement on a specific or pro rata basis, as determined by the local government.
  7. (g) Prior to entering into the written assessment contract, the local government shall require each record owner to consent to the assessment, which may be executed in the owner's sole and absolute discretion, and acknowledge in writing that the owner may be responsible for the payment of any remaining principal balance of the assessment upon the sale of the property unless the remaining balance is assumed by the acquiring property owner.
§ 68-205-105. Establishment of C-PACER program — Amendment — Fees to offset costs of administering program.
  1. (a) To establish a C-PACER program under this chapter, the local government must act in the following order:
    1. (1) Adopt a resolution of intent that includes:
      1. (A) A finding that the financing of qualified projects through special assessments is a valid public purpose;
      2. (B) A statement that the local government intends to authorize direct financing between property owners and capital providers as the means to finance qualified projects;
      3. (C) A statement that the local government intends to authorize special assessments, entered into voluntarily by a property owner with the local government by means of the written assessment contract, as the means to repay the financing for qualified projects available to property owners;
      4. (D) A description of the types of qualified projects that may be subject to special assessments;
      5. (E) A description of the boundaries of the region;
      6. (F) A description of any proposed arrangements for administration of the program, including administration pursuant to this chapter, to be available;
      7. (G) A description of local government debt-servicing procedures if a third party is responsible for servicing the installment payments on the C-PACER financing, unless delegated pursuant to § 68-205-107(b);
      8. (H) A statement of the time and place for a public hearing on the proposed program as required in subdivision (a)(2); and
      9. (I) A statement identifying the appropriate local official and the county tax collector for consulting about the collection of proposed special assessments with property taxes imposed on the assessed property;
    2. (2) Hold a hearing for the public to comment on the proposed program; and
    3. (3) Adopt a resolution establishing the program and its terms.
  2. (b) Subject to the terms of the resolution establishing the program as provided in subdivision (a)(3), the local government may amend a program by resolution.
  3. (c) A local government or its designee, including the program administrator, is authorized to impose fees to offset the actual and reasonable costs of administering a program. The fees may be assessed as part of the program application, to be paid by the property owner requesting to participate in the program. Service fees of approved applications must be calculated as one percent (1%) of the total amount financed, not to exceed fifty thousand dollars ($50,000). Service fees retained by a local government or its designee must be placed into a reserve account and utilized for the local government and assessor-related costs if the local government chooses to exercise its authority under § 68-205-107(d). If the local government does not choose to exercise its authority under § 68-205-107(d), then the funds must be placed into an account designated by the local government or its designee.
§ 68-205-106. Terms of C-PACER program established by resolution.
  1. The terms of a program established pursuant to § 68-205-105(a)(3) must include:
    1. (1) Appropriate eligibility factors, including certification by the property owner that:
      1. (A) The property owner requesting to participate in the program:
        1. (i) Is the legal owner of the benefited property;
        2. (ii) Is current on mortgage and property tax payments; and
        3. (iii) Is not insolvent or in bankruptcy proceedings; and
      2. (B) The title of the benefited property is not in dispute;
    2. (2) A requirement that:
      1. (A) The amount of the assessment, plus existing indebtedness on the property, does not exceed ninety percent (90%) of the fair market value of the property as determined by a qualified appraiser, with the exception that properties qualified under the federal low-income housing tax credit program set forth in 26 U.S.C. § 42 are exempt from this requirement; and
      2. (B) The amount of the assessment does not exceed twenty-five percent (25%) of the fair market value of the property as determined by a qualified appraiser;
    3. (3) A description of the types of qualified projects that may be subject to special assessments;
    4. (4) A statement identifying the local government official authorized to enter into and execute written contracts on behalf of the local government;
    5. (5) A statement that the period of the special assessment must not exceed the weighted average of the useful life of the qualified project that is the basis for the assessment; and
    6. (6) A statement explaining the procedures for imposing voluntary special assessments, the billing and collecting of the voluntary special assessments, and remedies for enforcement of delinquent special assessments, unless the local government delegates these duties pursuant to § 68-205-107(d)(2).
§ 68-205-107. C-PACER application and review process — Guidelines to bill, collect, and enforce C-PACER assessment and lien — Audit.
  1. (a) A program must establish a C-PACER application and review process to evaluate project applications for C-PACER financing. The program must prescribe the form and manner of the application. At a minimum:
    1. (1) An applicant must demonstrate that the project provides a benefit to the public, in the form of energy or water resource conservation, reduced public health costs or risk, or reduced public emergency response cost or risk;
    2. (2) For an existing building:
      1. (A) Where energy or water usage improvements are proposed, an applicant must provide:
        1. (i) An energy analysis by a licensed engineering firm, engineer, or other qualified professional listed in the program guidebook; and
        2. (ii) A statement by the author of the analysis that the proposed qualified improvements will either result in more efficient use or conservation of energy or water, the reduction of greenhouse gas emissions, or the addition of renewable sources of energy or water; or
      2. (B) Where resilience improvements are proposed, an applicant must provide certification by a licensed professional engineer stating that the qualified improvements will result in improved resilience;
    3. (3) For new construction, an applicant must provide certification by a licensed professional engineer or engineering firm stating that the proposed qualified improvements will enable the project to exceed the current building code's requirements for:
      1. (i) Energy efficiency;
      2. (ii) Water efficiency;
      3. (iii) Renewable energy;
      4. (iv) Renewable water; or
      5. (v) Resilience; and
    4. (4) The applicant must include a certification by a licensed professional engineer or professional firm in the appropriate area of expertise that the economic benefits of the improvements exceed the costs of the assessment.
  2. (b) A local government shall establish a process for reviewing and approving applications for C-PACER financing. The local government may require a qualified capital provider to certify to the local government, in accordance with a process approved by the local government, that the property owner and the project qualify for financing within this chapter and complies with this chapter and the program guidebook.
  3. (c) The local government's duties also include:
    1. (1) Execution and recording of the written assessment contract between the property owner and the local government, by a duly authorized official, as well as execution and recording of the local government Notice of Assessment and C-PACER lien; and
    2. (2) Execution and recording of the assignment of the assessment agreement, the Notice of Assessment and C-PACER lien, and Notice of Assignment of Assessment and C-PACER lien to the capital provider.
  4. (d) A local government may choose to bill, collect, and enforce the C-PACER assessment and lien, subject to the following guidelines:
    1. (1) The local government may enforce the assessment lien in the same manner that a property tax lien against commercial property is enforced by the local government as follows:
      1. (A) Delinquent installments of the assessment incur interest and penalties in the same manner as delinquent property taxes;
      2. (B) In an enforcement or foreclosure action, assessments not yet due must not be accelerated or eliminated by foreclosure, including the foreclosure of a property tax. However, delinquent interest in accordance with the financing agreement must be included in the enforcement or foreclosure action; and
      3. (C) The local government may apply the proceeds of an enforcement action in the same manner as it applies the proceeds from enforcement actions for delinquent property taxes, including the local government's right to apply the proceeds to the payment of the actual costs of the enforcement action as provided in § 67-5-2501;
    2. (2) The local government may delegate these responsibilities to the capital provider if the capital provider is solely responsible for billing, collection, and enforcement of the special assessment and lien. Under this subsection (d), delinquent installments incur interest and penalties as specified in the financing agreement between the property owner and capital provider. Enforcement of a delinquent installment must be in the same manner as that of a deed of trust, except that assessments not yet due may not be accelerated or eliminated by foreclosure of the past due amount of the lien. Outstanding and delinquent property taxes at the time of the enforcement action must be satisfied along with the delinquent amounts of the special assessment, subject to § 68-205-110; and
    3. (3) The local government, its officers, and employees, are not liable at law or equity for actions taken pursuant to this section, except in cases of gross negligence, recklessness, or willful misconduct.
  5. (e) After an approved project is completed, an applicant shall provide to the local government written verification provided by a licensed professional engineer or engineering firm, as defined in the program guidebook, stating that the qualified project was properly completed and is operating as intended.
  6. (f) For an improved project, the capital provider may be subject to an audit regarding the assignment of the C-PACER assessment and lien from the local government or program administrator.
§ 68-205-108. Authorization of direct purchase of equipment and materials.
  1. The proposed financing agreement for financing a qualified project may authorize the property owner to directly purchase the related equipment and materials for the installation or modification of a qualified improvement.
§ 68-205-109. Filing and recording of notice of assessment, C-PACER lien, and assignments — Segregation of funds.
  1. (a) A local government that authorizes financing through special assessments under this chapter shall:
    1. (1) File a written Notice of Assessment and C-PACER lien in the records of the office of the county register of deeds of the county in which the property is located. The notice must contain:
      1. (A) The amount of the assessment;
      2. (B) The legal description of the property;
      3. (C) The name of each property owner;
      4. (D) A copy of the written assessment contract; and
      5. (E) A reference to this section authorizing the placement of the assessment and C-PACER lien on the property;
    2. (2) File and record each C-PACER lien in the real property records of the county in which the property is located. The recording must contain:
      1. (A) The legal description of the eligible property;
      2. (B) The name of each property owner;
      3. (C) The date on which the lien was created;
      4. (D) The principal amount of the lien; and
      5. (E) The term of the lien; and
    3. (3) Record the executed assignment of the assessment agreement, notice of assignment of assessment, and C-PACER lien, or may delegate the recording to the capital provider receiving the assignment.
  2. (b) The amount of funds allotted through a program must be segregated from the calculation of the undisputed portions necessary for property tax appeals under title 67, chapter 5.
§ 68-205-110. Special assessment lien.
  1. (a) Except as otherwise provided in subsection (e), a special assessment that complies with § 68-205-103, and any interest or penalties on the assessment:
    1. (1) Is a first and prior lien against the commercial property on which the assessment is imposed, from the date on which the notice of special assessment is recorded pursuant to § 68-205-109, until the assessment, interest, or penalty is paid; and
    2. (2) Has the same priority status as a lien for any other ad valorem tax.
  2. (b) The lien runs with the land, and that portion of the assessment under the assessment contract that is not yet due must not be accelerated or eliminated by foreclosure of a property tax lien.
  3. (c) A provision of a deed of trust, mortgage, or other agreement between a lienholder and a property owner providing for the acceleration of any payment under the deed of trust, mortgage, or agreement solely as the result of entering into an agreement to finance an assessment is unenforceable; provided, that the conditions set forth under § 68-205-103 are satisfied.
§ 68-205-111. Contract to perform duties of local government relating to special assessments.
  1. The local government may contract with another local governmental entity, including a county assessor of property, to perform the duties of the local government relating to the billing, collection, enforcement, and remittance of special assessments imposed pursuant to this chapter.
§ 68-205-112. Joint implementation or administration of C-PACER program.
  1. (a) A combination of local governments may agree to jointly implement or administer a program under this chapter.
  2. (b) If two (2) or more local governments implement a program jointly, then a single public hearing held jointly by the cooperating local governments is sufficient to satisfy § 68-205-105(a)(2).
§ 68-205-113. Requirement of written contract to repay financing of qualified project through special assessments prohibited.
  1. A local government that establishes a region shall not:
    1. (1) Make the issuance of a permit, license, or other authorization from the local government to a person who owns property in the region contingent on the person entering into a written contract to repay the financing of a qualified project through special assessments under this chapter; or
    2. (2) Otherwise compel a person who owns property in the region to enter into a written contract to repay the financing of a qualified project through special assessments.
§ 68-205-114. Residential property consisting of four or fewer dwelling units not qualified for financing.
  1. Residential property consisting of four (4) or fewer dwelling units does not qualify for financing under the C-PACER program.
§ 68-205-115. Use of public funds to fund or repay loan prohibited — Full faith and credit of local government not pledged, offered, or encumbered.
  1. The state, a county, or local government shall not use public funds to fund or repay a loan between a capital provider and property owner. This chapter does not pledge, offer, or encumber the full faith and credit of a local government. A local government shall not pledge, offer, or encumber its full faith and credit for a lien amount through a C-PACER program.
§ 68-205-116. Consent of state or local government prior to approval of financing on leasehold — Approval of change to leasehold.
  1. Notwithstanding this chapter to the contrary, prior to approval of financing on a leasehold owned by this state or a local government, but leased to a privately owned entity as described in § 68-205-102(2)(C), the consent of this state or the local government must be obtained. A change to the leasehold must be approved by this state or the local government, as applicable. This state or a local government must be held harmless if the privately owned entity to which the leasehold is leased defaults on a financing agreement for a leasehold changed in accordance with this section.
Chapter 211 Solid Waste Disposal
Part 1 Tennessee Solid Waste Disposal Act
§ 68-211-101. Short title.
  1. This part shall be known and may be cited as the “Tennessee Solid Waste Disposal Act.”
§ 68-211-102. Public policy.
  1. (a) In order to protect the public health, safety and welfare, prevent the spread of disease and creation of nuisances, conserve our natural resources, enhance the beauty and quality of our environment and provide a coordinated statewide solid waste disposal program, it is declared to be the public policy of the state of Tennessee to regulate solid waste disposal to:
    1. (1) Provide for safe and sanitary processing and disposal of solid wastes;
    2. (2) Develop long-range plans for adequate solid waste disposal systems to meet future demands;
    3. (3) Provide a coordinated statewide program of control of solid waste processing and disposal in cooperation with federal, state, and local agencies responsible for the prevention, control, or abatement of air, water, and land pollution; and
    4. (4) Encourage efficient and economical solid waste disposal systems.
  2. (b) The general assembly declares that it is the policy of this state to ensure that no hazardous waste, as regulated under chapter 212 of this title, is disposed of in a solid waste disposal facility. Therefore, subject to the appropriation of funds in the general appropriations act for such purposes, the department shall develop an inspection program for all permitted facilities, including landfills and processing facilities, that provides for frequent, thorough and regular inspections. Further, subject to the appropriation of funds in the general appropriations act for such purposes, the department shall inspect waste streams, baled waste and special waste generators and transporters to prevent the introduction of hazardous waste into solid waste disposal facilities.
§ 68-211-103. Part definitions.
  1. As used in this part, unless the context otherwise requires:
    1. (1) “Baled waste” means all waste that has been mechanically compacted to achieve high density per unit volume and strapped to retain its form as a bale. Not included is compaction which has occurred only in collection vehicles as an incidental part of the wastes collected from individual generators and stationary or self-contained compactors which compact waste but do not produce a strapped bale unit;
    2. (2) “Board” means, unless otherwise indicated, the underground storage tanks and solid waste disposal control board created in § 68-211-111;
    3. (3) “Commissioner” means the commissioner of environment and conservation or the commissioner's authorized representative;
    4. (4) “Department” means the department of environment and conservation;
    5. (5) “Health officer” means the director of a city, county, or district health department having jurisdiction over the community health in a specific area, or the director's authorized representative;
    6. (6) “Person” means any and all persons, natural or artificial, including any individual, firm or association, and municipal or private corporation organized or existing under the laws of this state or any other state, and any governmental agency or county of this state and any department, agency, or instrumentality of the executive, legislative, and judicial branches of the federal government;
    7. (7) “Registration” means a process by which a solid waste disposal or processing operation is granted a permit to operate. In this part, the words “registration” and “permit” are synonymous and may be used interchangeably;
    8. (8)
      1. (A) “Solid waste” means garbage, trash, refuse, abandoned material, spent material, byproducts, scrap, ash, sludge, and all discarded material including solid, liquid, semisolid, or contained gaseous material resulting from industrial, commercial, and agricultural operations, and from community activities. Solid waste includes, without limitation, recyclable material when it is discarded or when it is used in a manner constituting disposal;
      2. (B) “Solid waste” does not include:
        1. (i) Solid or dissolved material in domestic sewage, or solid or dissolved materials in irrigation return flows, or industrial discharges that are point sources subject to permits under § 402 of the Federal Water Pollution Control Act (33 U.S.C. § 1342);
        2. (ii) Steel slag or mill scale that is an intended output or intended result of the use of an electric arc furnace to make steel; provided, that such steel slag or mill scale is sold and distributed in the stream of commerce for consumption, use, or further processing into another desired commodity and is managed as an item of commercial value in a controlled manner and not as a discarded material or in a manner constituting disposal; or
        3. (iii) Except to the extent inconsistent with applicable federal law, soil is not discarded material constituting waste as long as the soil is intended for use or reuse as soil;
    9. (9) “Solid waste disposal” means the process of permanently or indefinitely placing, confining, compacting, or covering solid waste; and
    10. (10) “Solid waste processing” means any process that modifies the characteristics or properties of solid waste, including, but not limited to, treatment, incineration, composting, separation, grinding, shredding, and volume reduction; provided, that it does not include the grinding or shredding of landscaping or land clearing wastes or unpainted, unstained, and untreated wood into mulch or other useful products.
§ 68-211-104. Unlawful methods of disposal.
  1. It is unlawful to:
    1. (1) Place or deposit any solid waste into the waters of the state except in a manner approved by the department or the Tennessee board of water quality, oil and gas;
    2. (2) Burn solid wastes except in a manner and under conditions prescribed by the department and the Tennessee air pollution control board;
    3. (3) Construct, alter, or operate a solid waste processing or disposal facility or site in violation of the rules, regulations, or orders of the commissioner or in such a manner as to create a public nuisance; or
    4. (4) Transport, process or dispose of solid waste in violation of this chapter, the rules and regulations established under this chapter or in violation of the orders of the commissioner or board.
§ 68-211-105. Supervision over construction of disposal facilities.
  1. (a) The department shall exercise general supervision over the construction of solid waste processing facilities and disposal facilities or sites throughout the state. Such general supervision shall apply to all features of construction of solid waste processing facilities and disposal facilities or sites which do or may affect the public health and safety or the quality of the environment, and which do or may affect the proper processing or disposal of solid wastes.
  2. (b) No new construction shall be initiated nor shall any change be made in any solid waste processing facility or disposal facility or site until the plans for such new construction or change have been submitted to and approved by the department. Records of construction or plans for existing facilities or sites shall be made available to the department upon request of the commissioner. In granting approval of such plans, the department may specify such modifications, conditions, and regulations as may be required to fulfill the purposes of this part.
  3. (c) The board is empowered to adopt and enforce rules and regulations for the construction of new facilities and sites and the alteration of existing facilities and sites.
  4. (d) The commissioner is authorized to investigate solid waste processing facilities and disposal facilities or sites throughout the state as often as the commissioner deems necessary.
  5. (e) When the commissioner disapproves plans for the construction of, or change in, any solid waste processing facility or disposal facility or site, the commissioner shall notify in writing the person having submitted such plans, and state the grounds for the commissioner's disapproval.
  6. (f) Actions taken by the department, commissioner, or board in accordance with this part shall be conducted in accordance with title 13, chapter 18 when the action involves a major energy project, as defined in § 13-18-102.
  7. (g) The commissioner shall not approve any plans submitted in accordance with subsection (b), unless the applicant has submitted:
    1. (1) A comprehensive environmental site assessment that includes an evaluation of the quality of groundwater beneath the proposed facility. At a minimum, the applicant shall provide analytical information for all constituents specified in regulations adopted by the board. The requirement for a comprehensive environmental site assessment shall apply only to new sites for proposed solid waste disposal facilities and does not include expansions, modifications, or new units for existing permitted facilities or sites; and
    2. (2) Proof satisfactory to the commissioner that the geological formation of the proposed site and the design of the proposed facility are capable of containing the disposed wastes, so that ground water protection standards are not exceeded.
  8. (h) The commissioner shall not review or approve any construction for any new landfill for solid waste disposal or for solid waste processing in any county or municipality which has adopted §§ 68-211-701 — 68-211-704 and § 68-211-707 until such construction has been approved in accordance with such sections.
§ 68-211-106. Registration — Variances, waivers, and exemptions — Permits-by-rule — Public notice — Denial of permit — Liability or obligation for cleanup or remediation.
  1. (a)
    1. (1) No solid waste processing facility or disposal facility or site in any political subdivision of the state shall be operated or maintained by any person unless such person has registered with the commissioner in the name of such person for the specified facility or site. All registrations, including those of persons who dispose of only their own wastes on their own land, except as set out in § 68-211-110, shall be with the commissioner. The board is authorized to specify procedures for registration by means of rules and regulations duly promulgated under the authority of this part. Such rules and regulations shall include provisions for public notice and an opportunity for a public hearing on permit applications.
    2. (2) After public notice and an opportunity for comment, the commissioner may, to the extent allowed in regulations adopted by the board, grant variances and waivers for persons; and the board may, through the rulemaking process, establish exemptions from the requirements of this part and permits-by-rule for classes of activities subject to the requirements of this part; provided, that it is demonstrated to a reasonable degree of certainty that design or operating practices will prevent degradation of the environment and will adequately protect the public health, safety and environment.
  2. (b) Disposal or processing facilities or sites currently registered with the department shall not need a new permit unless and until their current registration must be amended to encompass any process modifications or expansions of operations currently allowed.
  3. (c) Other program approval, prior to the issuance of a solid waste permit, may be fulfilled by a certification from the applicable program stating the extent of application to that program or that an application for a permit has been submitted to the applicable program. The division of solid and hazardous waste management using technical support and advice, to the extent available, from the bureau of environment shall evaluate the proposed application in order to determine that water quality standards have been adequately addressed to prevent pollution of the waters of the state.
  4. (d) The commissioner may deny or revoke any registration if the commissioner finds that the applicant or registrant has failed to comply with this part or the rules promulgated pursuant hereto.
  5. (e) Actions taken by the department, commissioner or board in accordance with this section shall be conducted in accordance with title 13, chapter 18, when the action involves a major energy project, as defined in § 13-18-102.
  6. (f)
    1. (1) In order to inform interested persons in the area of solid waste disposal of the proposed facility and its tentative approval, public notice shall be circulated within the geographical area of the proposed facility by any of the following means:
      1. (A) Posting in the post office and public places of the municipality nearest the site under consideration; or
      2. (B) Publishing in local newspapers and periodicals, or, if appropriate, in a daily newspaper of general circulation.
    2. (2) Public notice of a proposed site approval shall include the following:
      1. (A) Name, address, and telephone number of the solid waste management division;
      2. (B) Name and address of the site owner and/or operator;
      3. (C) Location and size of the proposed site;
      4. (D) Brief description of the type of operation to be operated at the site and the type of waste that will be accepted;
      5. (E) A description of the time frame and procedures for making a final determination on the facility application approval or disapproval; and
      6. (F) Address and telephone number of the premises at which persons may obtain further information, request copies of data on the site, and inspect this data.
    3. (3) A copy of the public notice and fact sheet shall be sent to any person who specifically requests one. The commissioner shall send a copy of each notice of application and fact sheet within the state or a certain geographical area thereof to those persons who have requested the addition of their names to a mailing list. The commissioner may annually purge the mailing list of those persons who do not renew their request.
    4. (4) Interested persons may submit written comments on the tentative determinations within thirty (30) days of the public notice or such greater period as the commissioner allows. All written comments submitted shall be retained and made available to the board in its final determination of registration of the proposed site.
    5. (5) Interested persons may request in writing that the commissioner hold a public hearing on any proposed solid waste management facility registration. The request must be filed within the period allowed for public comment and must indicate the interest of the party filing it and the reason why a hearing is warranted. If there is a significant public interest in having a hearing, the commissioner shall hold one in the geographical area of the proposed site. Instances of doubt should be resolved in favor of holding a hearing. The commissioner shall transcribe or record the comments made at the hearing to assist the commissioner in the commissioner's final determination of registration of the proposed site.
    6. (6) No less than fifteen (15) days in advance of the hearing, public notice of it shall be circulated at least as widely as was the notice of the proposed site approval and registration. Procedure for circulation of public notice for the hearing shall include the following:
      1. (A) Publication in a newspaper of general circulation within the geographical area of the site; and
      2. (B) Sending notice to all persons who received a copy of the notice or fact sheet for the site registration and any person who specifically requests a copy of the notice of the hearing.
    7. (7) Each notice of a public hearing shall include at least the following contents:
      1. (A) Name, address and telephone number of the solid waste management division;
      2. (B) Name and address of each site and site owner or operator that will be heard at the hearing;
      3. (C) A description of the type of facility that will be located on the site;
      4. (D) A brief reference to the public notice issued for each proposed site;
      5. (E) Information regarding the time and location for the hearing;
      6. (F) The purpose of the hearing;
      7. (G) A concise statement of the issues raised by the persons requesting the hearing;
      8. (H) Address and telephone number of the premises at which interested persons may obtain further information, request a copy of each draft permit, request a copy of each fact sheet, and inspect and copy forms and related documents; and
      9. (I) A brief description of the nature of the hearing, including the rules and procedures to be followed.
  7. (g)
    1. (1) Any person applying for a registration for a solid waste processing facility or disposal facility or site for which a core drilling is required shall notify the department at least forty-five (45) days in advance of the time, date and location at which such drilling is to be conducted. At least thirty (30) days in advance of such drilling, the applicant shall give public notice of such drilling. Such notice shall include the time, date and location at which the drilling is to be conducted, the name and address of the applicant, the name and address of the owner of the property on which the drilling is to be conducted, and a brief description of the type of operation to be operated at the proposed site and the type of waste that will be accepted. Such notice shall be published in a daily newspaper of general circulation in the area in which the drilling is to occur.
    2. (2) The person applying for a registration shall include a copy of the newspaper notice required pursuant to subdivision (g)(1), if core drilling is required as part of the application. The application of any person who fails to meet the requirements of this subsection (g) shall be denied.
    3. (3) This subsection (g) only applies in counties having a population of not less than nine thousand six hundred fifty (9,650) nor more than nine thousand seven hundred fifty (9,750) and not less than thirty-four thousand seventy-five (34,075) nor more than thirty-four thousand one hundred seventy-five (34,175), according to the 1980 federal census or any subsequent federal census.
  8. (h)
    1. (1) As used in this subsection (h), unless the context otherwise requires:
      1. (A) “Applicant” means any person, as defined in § 68-211-103 of the Tennessee Solid Waste Disposal Act, making application for the approval of a permit pursuant to the Solid Waste Disposal Act;
      2. (B) “Compliance history” means a record of operation or ownership of a facility subject to the Tennessee Solid Waste Disposal Act, compiled in this chapter, or the Tennessee Hazardous Waste Management Act, compiled in chapter 212 of this title;
      3. (C) “Responsible party” means:
        1. (i) Any individual who is an applicant, an officer or director of a corporation, partnership, or business association that is an applicant, or person with overall responsibility for operations of the site of a waste management unit subject to the Solid Waste Disposal Act; or
        2. (ii) Any official or management committee member of the state or political subdivision thereof that is an applicant;
      4. (D) “Solid Waste Disposal Act” means this chapter; and
      5. (E) “Tennessee Hazardous Waste Management Act” means chapter 212 of this title.
    2. (2) Subject to the requirements of subdivision (h)(3), the commissioner may refuse to issue or renew a permit issued pursuant to the Solid Waste Disposal Act if the commissioner finds that the applicant or a responsible party has:
      1. (A) Intentionally misrepresented or concealed any material fact which would have resulted in the denial of the application submitted to the department;
      2. (B) Obtained a permit from the department by intentional misrepresentation or concealment of a material fact which would have resulted in the permit being denied;
      3. (C) Been convicted of, or incarcerated for, a felony environmental criminal offense within three (3) years preceding the application for a permit for any violation of the Solid Waste Disposal Act, the Hazardous Waste Management Act or § 39-14-408; or, in the case of an applicant with less than three (3) years of compliance history in Tennessee, has been convicted of, or incarcerated for, a felony environmental criminal offense in another jurisdiction;
      4. (D) Been adjudicated in contempt of any order of any court of this state enforcing the Solid Waste Disposal Act or the Hazardous Waste Management Act or has been incarcerated for such contempt within the three (3) years preceding the application for a permit or, in the case of an applicant with less than three (3) years of compliance history in Tennessee, has been adjudicated in contempt of any order of any court enforcing a federal or state solid or hazardous waste management law; or
      5. (E) Been convicted of a violation of either state or federal racketeer influenced and corrupt organization (RICO) statutes;
    3. (3)
      1. (A) An applicant that has three (3) or more years of compliance history in Tennessee shall submit, at the time of application, a statement to the effect that neither the applicant nor any responsible party has been convicted of a felony, been incarcerated or been adjudicated in contempt of court as described in subdivision (h)(2)(C), or (h)(2)(D), (h)(2)(E) or alternatively list any applicable conviction, term or incarceration, or adjudication of contempt. The applicant may submit information or documentation related to such convictions, incarcerations, or adjudications, including evidence regarding one (1) or more of the facts enumerated in subdivision (h)(4).
      2. (B) An applicant with less than three (3) years of compliance history in Tennessee shall submit, at the time of application, a compliance history disclosure form prepared by the commissioner. The form shall include the information required for applicants with three (3) or more years of compliance history in Tennessee, and additionally require a listing of the names, social security numbers, taxpayer identification numbers and business addresses of the responsible parties for the regulated activities of the applicant, along with a description of any offenses identified in subdivisions (h)(2)(C), (D) and (E).
    4. (4) In making the decision to issue, renew or deny any such permit, the commissioner shall determine pursuant to subdivisions (h)(2) and (3), as applicable, whether any such material misrepresentation, concealment, conviction or adjudication demonstrates a disregard for environmental regulations or a pattern of prohibited conduct. In making any finding under this subdivision (h)(4), the commissioner shall consider the following factors and the applicant may submit information or documentation related to the following:
      1. (A) The nature and seriousness of the offense;
      2. (B) The circumstances in which the offense occurred;
      3. (C) The date of the offense;
      4. (D) Whether the offense was an isolated offense or part of a series of related incidents;
      5. (E) The applicant's environmental record and history of compliance regarding waste management in this state;
      6. (F) The number and types of facilities operated by the applicant;
      7. (G) Any evidence that the applicant reported or investigated the offense itself and took action to halt or mitigate the offense;
      8. (H) Disassociation from any persons convicted of felony environmental criminal activity;
      9. (I) The payment by a party convicted of felony environmental criminal activity of restitution to any victims of such criminal activity, remediation of any damages to natural resources and the payment of any fines or penalties imposed for such conduct;
      10. (J) Other corrective actions the applicant has undertaken to prevent a recurrence of the offense, including, but not limited to, the establishment and implementation of internal management controls; and
      11. (K) The need for the permit in advancing the state's welfare, health, and safety, including, but not limited to, the role of the facility in any solid waste region's approved plan.
    5. (5) This subsection (h) shall not apply to permits-by-rule that are issued pursuant to rules adopted by the board in accordance with subdivision (a)(2).
  9. (i) Nothing in this chapter shall be construed as imposing liability or any obligation for cleanup or remediation of any solid waste, as defined in § 68-211-103, or baled waste as defined in § 68-211-103, or any solid waste or baled waste facility or site as defined by rules promulgated by the department of environment and conservation, on any person who, without participating in the management of the solid waste facility or site, holds indicia of ownership in such facility or site primarily to protect a security interest in the facility or site.
  10. (j) The commissioner shall not issue a permit under this section for the disposal of coal ash or for the expansion of an existing coal ash disposal facility unless the plans for the disposal facility include a liner and a final cap; however, this subsection (j) shall not apply to the use of coal ash for fill, to any agricultural use, to any engineered uses as a feedstock for the production of a product, to wastewater treatment units or to the disposal of coal ash in connection with any of these uses, as authorized by the department pursuant to this part.
§ 68-211-107. Supervision of operation — Rules and regulations.
  1. (a) The department shall exercise general supervision over the operation and maintenance of solid waste processing facilities and disposal facilities or sites. Such general supervision shall apply to all the features of operation and maintenance which do or may affect the public health and safety or the quality of the environment and which do or may affect the proper processing and disposal of solid wastes. The board is empowered to adopt and enforce rules and regulations governing the operation and maintenance of such facilities, operations, and sites. Municipalities, cities, towns, and local boards of health may adopt and enforce such rules, ordinances and regulations equal to or exceeding those adopted by the commissioner, and consistent with the purposes of this part. For exercising such general supervision, the commissioner is authorized to investigate such facilities, operations and sites as often as the commissioner deems necessary.
  2. (b) Actions taken by the department, commissioner or board in accordance with this section shall be conducted in accordance with title 13, chapter 18, when the action involves a major energy project, as defined in § 13-18-102.
  3. (c) The department shall require all solid waste disposal facilities to have a groundwater monitoring program and report sampling results to the department at least once each year. If sampling results indicate that ground water protection standards are exceeded, the owner or operator of the facility shall commence an assessment monitoring program, in accordance with regulations adopted by the board and carry out all corrective measures specified by the commissioner.
§ 68-211-108. Delegation of duties to local health officers.
  1. The commissioner and board are authorized to delegate the duties and responsibilities granted to them by this part to local health officers to the extent deemed necessary by the commissioner and board to implement this part.
§ 68-211-109. Federal grants to counties and municipalities — Review and approval.
  1. The department is authorized to review and approve grants and loans from the federal government and other sources to counties, cities, towns, municipalities, or any combination thereof, to assist them in designing, acquiring, constructing, altering, or operating solid waste processing facilities and disposal facilities or sites. The department is authorized further to accept and consider only those applications for grants from counties, cities, towns and municipalities which have officially adopted a plan for a solid waste disposal system or which are included in an officially adopted plan for a solid waste disposal system which covers two (2) or more such jurisdictions. The department is authorized to approve or disapprove such plans in accordance with the purposes of this part.
§ 68-211-110. Disposal on own land.
  1. This part does not apply to any private, natural person disposing waste generated in such natural person's own household upon land owned by such natural person; provided, that such disposal does not create a public nuisance or a hazard to the public health; however, further provided, that after January 1, 2005, this section shall not exempt a private natural person from this part if that person deposits such household waste in a sinkhole.
§ 68-211-111. Underground storage tanks and solid waste disposal control board — Members and terms — Vacancies — Termination due to vacancy — Notice of hearings — Public comment — Rules and regulations — Meetings — Compensation.
  1. (a)
    1. (1)
      1. (A) There is created an underground storage tanks and solid waste disposal control board that shall be composed of fourteen (14) members appointed by the governor as follows:
        1. (i) One (1) person engaged in a field directly related to agriculture, who may be appointed from lists of qualified persons submitted by interested farm business groups including, but not limited to, the Tennessee Farm Bureau;
        2. (ii) One (1) person who is employed by, or is the owner of, a private petroleum concern, with at least ten (10) years of experience owning or operating a wholesale or retail gasoline business with management responsibility for at least fifteen (15) underground storage tanks, who may be appointed from a list of qualified persons submitted by interested wholesale or retail gasoline business groups including, but not limited to, the Tennessee Fuel and Convenience Store Association. Such person shall have demonstrated leadership in the industry by membership and involvement in a trade association representing fuel distributors and convenience store owners;
        3. (iii) One (1) person who is employed by a private manufacturing concern in Tennessee, who shall have a college degree in engineering or the equivalent and at least eight (8) years of combined technical training and experience in permit compliance and management of solid wastes or hazardous waste, who may be appointed from a list of qualified persons submitted by interested business groups including, but not limited to, the Tennessee Chamber of Commerce and Industry;
        4. (iv) One (1) person employed by a private manufacturing concern in Tennessee, who shall have a college degree in engineering or the equivalent and at least eight (8) years of combined technical training and experience in the management of petroleum underground storage tanks and hazardous materials. This person may be appointed from a list of qualified persons submitted by business groups including, but not limited to, the Tennessee Chamber of Commerce and Industry;
        5. (v) One (1) person who is a registered engineer or geologist or qualified land surveyor with knowledge of management of solid wastes or hazardous materials or the management of underground storage tanks from the faculty of an institution of higher learning, who may be appointed from a list of four (4) persons, two (2) of whom may be nominated by the board of trustees of the University of Tennessee system and two (2) of whom may be nominated by the board of regents of the state university and community college system;
        6. (vi) One (1) person with knowledge of management of solid wastes, hazardous materials, or underground storage tanks to represent environmental interests, who may be appointed from a list of qualified persons submitted by environmental groups including, but not limited to, the Tennessee Environmental Council;
        7. (vii) One (1) representative of county governments, who may be appointed from lists of qualified persons submitted by interested county services groups including, but not limited to, the County Services Association;
        8. (viii) One (1) representative of municipal governments, who may be appointed from lists of qualified persons submitted by interested municipal groups including, but not limited to, the Tennessee Municipal League;
        9. (ix) One (1) person shall be a small generator of solid wastes or hazardous materials, who may be appointed from lists of qualified persons submitted by interested automotive groups including, but not limited to, a list of three (3) persons that shall be submitted by the Tennessee Automotive Association;
        10. (x) One (1) person employed by a private petroleum concern with experience in the management of petroleum, who may be appointed from lists of qualified persons submitted by interested petroleum groups including, but not limited to, the Tennessee Petroleum Council;
        11. (xi) One (1) person engaged in the business of management of solid wastes or hazardous materials;
        12. (xii) One (1) person who is employed by, or is the owner of, a private petroleum concern, with at least five (5) years of experience owning or operating a wholesale or retail gasoline business with management responsibility for no more than five (5) underground storage tanks; and
        13. (xiii) The commissioner of economic and community development or the commissioner's designee, and the commissioner of environment and conservation or the commissioner's designee, who shall be ex officio voting members.
      2. (B) The governor shall consult with the interested groups described in subdivision (a)(1)(A) to determine qualified persons to fill the positions on the board.
    2. (2) The director of the division of solid and hazardous waste management or the director's designee shall serve as the technical secretary of the board but shall have no vote at board meetings.
  2. (b) In making the initial appointments to the board, three (3) members shall be appointed for a term of one (1) year, three (3) members shall be appointed for a term of two (2) years, three (3) members shall be appointed for a term of three (3) years, and three (3) members shall be appointed for a term of four (4) years. Upon expiration of these terms, members shall be appointed by the governor for a term of four (4) years. Vacancies resulting for reasons other than the expiration of the term shall be filled by the governor for the remainder of the term. In making appointments to the board, the governor shall strive to ensure that at least one (1) person appointed to serve on the board is at least sixty (60) years of age and that at least one (1) person appointed to serve on the board is a member of a racial minority.
  3. (c)
    1. (1) All vacancies in appointed positions shall be filled by the original appointing authority to serve the remainder of the unexpired term.
    2. (2) If the board incurs a vacancy, it shall notify the appointing authority in writing within ninety (90) days after the vacancy occurs. All vacancies on the board, other than ex officio members, shall be filled by the appointing authority within ninety (90) days of receiving written notice of the vacancy and sufficient information is provided for the appointing authority to make an informed decision in regard to filling such vacancy. If such sufficient information has been provided and the board has more than one (1) vacancy that is more than one hundred eighty (180) days in duration such board shall report to government operations committees of the senate and the house of representatives why such vacancies have not been filled.
    3. (3) If more than one-half (½) of the positions on the board are vacant for more than one hundred eighty (180) consecutive days, the board shall terminate; provided, that such board shall wind up its affairs pursuant to § 4-29-112. A board that is terminated pursuant to this subsection (c) shall be reviewed by the evaluation committees pursuant to the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, before ceasing all its activities. Nothing in this section shall prohibit the general assembly from continuing, restructuring, or re-establishing the board.
  4. (d)
    1. (1) It is the duty of the board to adopt, modify, repeal, promulgate after due notice and enforce rules and regulations which the board deems necessary for the proper administration of this part. Prior to promulgating, adopting, modifying or repealing rules and regulations, the board shall conduct, or cause to be conducted, public hearings in connection therewith. All such acts relative to rules and regulations shall be in accordance with the Uniform Administrative Procedures Act.
    2. (2) The board is authorized to promulgate rules and regulations to effectuate the purposes of parts 8 and 9 of this chapter. All such rules and regulations shall be promulgated in accordance with the Uniform Administrative Procedures Act.
  5. (e) Notice of any hearing shall be given not less than thirty (30) days before the date of such hearing and shall state the date, time, and place of hearing, and the subject of the hearing. Any person who desires to be heard relative to petroleum underground storage tank or solid waste matters at any such public hearing shall give written notice thereof to the board on or before the first date set for the hearing. The board is authorized to set reasonable time limits for the oral presentation of views by any person at any such public hearing.
  6. (f) It is the duty of the board to act as a board of appeals as provided in § 68-211-113 and title 68, chapter 215.
  7. (g)
    1. (1) The board shall hold at least four (4) regular meetings each calendar year at a place and time to be fixed by the board. The board has the authority of the municipal solid waste advisory committee. The board shall also meet at the request of the commissioner of environment and conservation, the chair of the board, or three (3) members of the board. Eight (8) members shall constitute a quorum, and a quorum may act for the board in all matters. The board shall select a chair from its members annually. The department of environment and conservation shall provide all necessary staff for the board.
    2. (2)
      1. (A) Any voting member who misses more than fifty percent (50%) of the scheduled meetings in a calendar year is removed as a member of the board.
      2. (B) The presiding officer of the board shall promptly notify, or cause to be notified, the appointing authority of any voting member who fails to satisfy the attendance requirement as prescribed in subdivision (g)(2)(A).
  8. (h) Each member of the board other than the ex officio members shall be entitled to be paid fifty dollars ($50.00) for each day actually and necessarily employed in the discharge of official duties, and each member shall be entitled to receive the amount of the member's traveling and other necessary expenses actually incurred while engaged in the performance of any official duties when so authorized by the board, but such expenses shall be reimbursed in accordance with the comprehensive state travel regulations promulgated by the commissioner of finance and administration and approved by the attorney general and reporter.
  9. (i) No member of the board shall participate in making any decision of a permit or upon a case in which the municipality, firm, or organization which the member represents, or by which the member is employed, or in which the member has a direct substantial financial interest, is involved.
§ 68-211-112. Orders for correction — Preliminary conference with alleged violator.
  1. When the commissioner finds, upon investigation, that any provisions of this part are not being carried out, and that effective measures are not being taken to comply with this part, the commissioner 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 made by personal service or shall be sent by registered mail. Investigations made in accordance with this section may be made on the initiative of the commissioner. Prior to the issuance of any order or the execution of any other enforcement action, the commissioner may request the presence of an alleged violator of this part at a meeting of the staff of the division of solid waste management to show cause why enforcement action ought not to be taken by the department.
§ 68-211-113. Review of correction order or plan disapproval — Hearing — Appeal.
  1. (a)
    1. (1) Any person whose plans for the construction of, or change in, any solid waste processing facility or disposal facility are disapproved by the commissioner may secure a review of the commissioner's disapproval by filing with the commissioner a written petition setting forth the grounds and reasons for such person's objections to the commissioner's disapproval, and asking for a hearing before the board. Any disapproval of such plans shall become final and not subject to review unless such petition for a hearing before the board is filed no later than thirty (30) days after the notice of disapproval is served.
    2. (2) Any person against whom an order for correction is issued may secure a review of such order by filing with the commissioner a written petition setting forth the grounds and reasons for any objection to the order and asking for a hearing before the board. The order shall become final and not subject to review unless the person named in the order files a petition under this section no later than thirty (30) days after the date the order is served.
  2. (b) The hearing before the board on any petition filed under subsection (a) shall be conducted as a contested case and shall be heard before an administrative judge sitting alone pursuant to §§ 4-5-301(a)(2) and 4-5-314(b), unless settled by the parties. The administrative judge to whom the case has been assigned shall convene the parties for a scheduling conference within thirty (30) days of the date the petition is filed. The scheduling order for the contested case issued by the administrative judge shall establish a schedule that results in a hearing being completed within one hundred eighty (180) days of the scheduling conference, unless the parties agree to a longer time or the administrative judge allows otherwise for good cause shown, and an initial order being issued within sixty (60) days of completion of the record of the hearing. The administrative judge's initial order, together with any earlier orders issued by the administrative judge, shall become final unless appealed to the board by the commissioner or other party within thirty (30) days of entry of the initial order or, unless the board passes a motion to review the initial order pursuant to § 4-5-315, within the longer of thirty (30) days or seven (7) days after the first board meeting to occur after entry of the initial order. Upon appeal to the board by a party, or upon passage of a motion of the board to review the administrative judge's initial order, the board shall afford each party an opportunity to present briefs, shall review the record and allow each party an opportunity to present oral argument. If appealed to the board, the review of the administrative judge's initial order shall be limited to the record, but shall be de novo with no presumption of correctness. In such appeals, the board shall thereafter render a final order, in accordance with § 4-5-314, affirming, modifying, remanding, or vacating the administrative judge's order. A final order rendered pursuant to this section is effective upon its entry, except as provided in § 4-5-320(b) unless a later effective date is stated therein. A petition to stay the effective date of a final order may be filed under § 4-5-316. A petition for reconsideration of a final order may be filed pursuant to § 4-5-317. Judicial review of a final order may be sought by filing a petition for review in accordance with § 4-5-322. An order of an administrative judge that becomes final in the absence of an appeal or review by the board shall be deemed to be a decision of the board in that case for purposes of the standard of review by a court; however, in other matters before the board, it may be considered but shall not be binding on the board.
  3. (c) In the event the commissioner fails to take any action on plans for the construction of, or change in, a solid waste processing facility or disposal facility or site within forty-five (45) days after they are submitted to such commissioner, the person having submitted such plans may appeal to the board as though notice of disapproval were received at the expiration of such period; provided, that in lieu of setting forth the objections to the grounds for the commissioner's disapproval, the petition shall recite the failure of the commissioner to act on the plans.
  4. (d) A petition for permit appeal may be filed, pursuant to this subsection (d), by an aggrieved person who participated in the public comment period or gave testimony at a formal public hearing. The appeal shall be based upon one (1) or more of the issues that were provided to the commissioner in writing during the public comment period or in testimony at a formal public hearing on the permit application. Additionally, for those permits for which the department gives public notice of a draft permit, any permit applicant or aggrieved person may base a permit appeal on any material change to conditions in the final permit from those in the draft, unless the material change has been subject to additional opportunity for public comment. Any petition for permit appeal under this subsection (d) shall be filed with the commissioner within thirty (30) days after public notice of the commissioner's decision to issue or deny the final permit. Notwithstanding § 4-5-223 or any other law to the contrary, this subsection (d) shall be the exclusive means for obtaining administrative review of the commissioner's issuance or denial of a permit by such an aggrieved person, and its process shall be exhausted before judicial review may be sought.
  5. (e) The chancery court of Davidson County has exclusive original jurisdiction of all review proceedings instituted under the authority and provisions of this part. Appeals from orders and decrees of the chancery court and proceedings brought under this part shall lie to the court of appeals despite the fact that controverted questions of fact may be involved therein.
  6. (f) Any person may file with the commissioner a signed complaint against any person allegedly violating any provisions of this part. Unless the commissioner determines that such complaint is duplicitous or frivolous, the commissioner shall immediately serve a copy of it upon the person or persons named therein, promptly investigate the allegations contained therein, and notify the alleged violator of what action, if any, the commissioner will take. In all cases, the commissioner shall notify the complainant of such commissioner's action or determination within ninety (90) days from the date of such commissioner's receipt of the written complaint. If either the complainant or the alleged violator believes that the commissioner's action or determination is or will be inadequate or too severe, such complainant or alleged violator may appeal to the board for a hearing. Such appeal must be made within thirty (30) days after receipt of the notification sent by the commissioner. If the commissioner fails to take the action stated in such commissioner's notification, the complainant may make an appeal to the board within thirty (30) days from the time at which the complainant knows or has reason to know of such failure. The department shall not be obligated to assist a complainant in gathering information or making investigations or to provide counsel for the purpose of preparing such complainant's complaint. When such an appeal is timely filed, the procedure for conducting the contested case shall be in accordance with subsection (b).
§ 68-211-114. Criminal penalties.
  1. Any person willfully violating any of this part, or failing, neglecting or refusing to comply with any order of the commissioner or board lawfully issued, or who accepts solid waste for disposal in a landfill which does not have a permit pursuant to this part, except as provided in § 68-211-110, commits a Class B misdemeanor. Each day of continued violation is a separate offense.
§ 68-211-115. Injunctions restraining violations.
  1. In addition to the penalties herein provided, the commissioner may cause the enforcement of any orders, rules or regulations issued by such commissioner or orders issued by the board to carry out this part by instituting legal proceedings to enjoin the violation of this part, and the orders, rules or regulations of the commissioner or orders of the board in any court of competent jurisdiction, and such court may grant a temporary or permanent injunction restraining the violation thereof. The district attorney general in whose jurisdiction a violation of this part occurs or the attorney general and reporter shall institute and prosecute such suits when necessity therefor has been shown by those herein clothed with the power of investigation.
§ 68-211-116. Performance bond — Solid waste disposal site restoration fund — Contract of obligation.
  1. (a) To ensure the proper operation and closure of solid waste disposal and processing facilities, except as allowed in subsection (c), there shall be posted with the commissioner a performance bond. All funds from the forfeiture of bonds or other instruments required pursuant to this section shall be placed in a special departmental account that shall not revert to the general fund. Interest accruing on investments and deposits of the fund shall be returned to the fund and remain a part of the fund. Such account shall be known as the “solid waste disposal site restoration fund.” Moneys placed in the fund shall be used for the proper closure of solid waste disposal and processing facilities and, insofar as practicable, shall first be used to correct the problems at the facility for which the bond or other instrument was originally provided.
  2. (b) The performance bond required by this section shall be in the form and upon the terms specified by the board in regulations. Upon agreement of the parties, the terms may, in lieu of any specified forfeiture procedure, include a requirement for immediate payment to the department. At a minimum, the regulations shall provide for the following:
    1. (1) A bond issued by a fidelity or surety company authorized to do business in this state;
    2. (2) A corporate guarantee provided that the corporation passes any financial test specified by the board in regulations; and
    3. (3) A personal bond supported by cash, securities, insurance policies, letters of credit or other collateral specified by the board in regulations.
  3. (c) A municipality or county may, in lieu of a performance bond, execute a contract of obligation with the commissioner. Such contract of obligation will be a binding agreement on the municipality or county, allowing the commissioner to collect not less than one thousand dollars ($1,000) for each estimated acre or fraction thereof affected by the disposal operation from any funds being disbursed or to be disbursed from the state to the municipality or county on failure of the municipality or county to operate or to close the registered solid waste disposal operation properly. The amount of the contract of obligation shall be set by the commissioner. The contract shall be filed with the commissioner of finance and administration, who shall act on the terms of the contract on notice from the commissioner of environment and conservation of failure to operate or to close the disposal operation, after notice to the operator, as set out below.
  4. (d) The amount of the bond or contract of obligation shall be increased or decreased to take account of any change in the acreage covered by the registration, as set out in § 68-211-106. If any of the requirements of this part or rules and regulations adopted pursuant thereto or the orders of the commissioner have not been complied with within the time limits set by the commissioner or by this part, the commissioner shall cause a notice of noncompliance to be served upon the operator, or where found necessary, the commissioner shall order suspension of registration. Such notice or order shall be handed to the operator in person or served by certified mail addressed to the permanent address shown on the application for registration. The notice of noncompliance or order of suspension shall specify in what respects the operator has failed to comply with this part or the regulations or orders of the commissioner. If the operator has not reached an agreement with the commissioner or has not complied with the requirements set forth in the notice of noncompliance or order of suspension within time limits set therein, the registration may be revoked by order of the commissioner and the performance bond shall then be forfeited to the commissioner. When a bond is forfeited pursuant to this part, the commissioner shall give notice to the attorney general and reporter who shall collect the forfeiture.
§ 68-211-117. Civil penalties.
  1. (a)
    1. (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 a civil penalty of not less than one hundred dollars ($100) nor more than five thousand dollars ($5,000) per day for each day of violation; provided, however, that if the violation involves the disposal of solid waste in a sinkhole, it shall be subject to a civil penalty of not less than seven hundred dollars ($700) nor more than seven thousand dollars ($7,000) per day for each day of violation because of the increased likelihood of harm to the environment and the public.
    2. (2) Each day such violation continues constitutes a separate violation. In addition, such person shall also be liable for any damages to the state resulting therefrom, without regard to whether any civil penalty is assessed.
  2. (b) Any civil penalty or damages shall be assessed in the following manner:
    1. (1) The commissioner may issue an assessment against any person responsible for the violation or damages. Such person shall receive notice of the assessment by certified mail, return receipt requested;
    2. (2) Any person against whom an assessment has been issued may secure a review of the assessment by filing with the commissioner a written petition setting forth the grounds and reasons for such person's objections and asking for a hearing in the matter involved before the board. When such a petition is timely filed, the procedure for conducting the contested case shall be in accordance with § 68-211-113(b);
    3. (3) If a petition for review of the assessment is not filed within thirty (30) days after the date the assessment is served, the violator is deemed to have consented to the assessment and it shall become final;
    4. (4) 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. The court, in such proceedings, shall treat the failure to appeal such assessment as a confession of judgment in the amount of the assessment; and
    5. (5) 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. Such court shall have venue over such actions, notwithstanding § 20-4-101 to the contrary.
  3. (c) In assessing a civil penalty, the following factors may be considered:
    1. (1) The harm done to public health or the environment;
    2. (2) The economic benefit gained by the violators;
    3. (3) The amount of effort put forth by the violator to attain compliance; and
    4. (4) Any unusual or extraordinary enforcement costs incurred by the commissioner.
  4. (d) 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.
§ 68-211-118. No permits for landfills violating § 11-13-111 — Exemptions.
  1. (a) No permit to construct or operate a landfill for the disposal of solid or hazardous waste shall be granted if the location of such landfill would violate § 11-13-111.
  2. (b) Section 11-13-111 and this section do not apply to the expansion of any landfill for the disposal of solid wastes currently owned and operated by a county which holds a permit issued prior to May 1, 1990, and which is operating with a valid permit on May 22, 1991.
§ 68-211-119. Baled waste — Disposal in landfills with permits — Exceptions.
  1. (a) Baled waste may only be disposed of in a landfill that has received a permit pursuant to § 68-212-108, unless:
    1. (1) The waste was baled at a location subject to inspection by the commissioner in accordance with a permit issued pursuant to regulations adopted by the board, specifying terms and conditions required for the issuance of all such permits, and the operator of the baling facility certifies on a form supplied by the commissioner that:
      1. (A) The waste was visually inspected before baling;
      2. (B) All waste which could not visually be determined to be of a type that may lawfully be accepted at the disposal or processing facility to which the waste will be transported was either:
        1. (i) Sampled in accordance with a plan approved by the commissioner and determined to be lawfully acceptable under the destined facility's permit, this part and rules promulgated pursuant to this part; or
        2. (ii) Returned to the transporter as unacceptable;
      3. (C) The baling facility, by processing such waste, did not violate this part; and
      4. (D) The waste was properly manifested; or
    2. (2) Such bales are verified to contain only waste of the type that the receiving landfill is permitted to receive. If the waste is not baled in accordance with a permit issued pursuant to this part, such verification shall be made by the permittee of the receiving landfill on a form supplied by the commissioner and shall contain at least the following certifications:
      1. (A) The department was orally notified by the permittee of the receiving landfill of the intended disposal of baled waste at least twenty-four (24) hours prior to the landfill's receipt of such waste, so that the commissioner has an opportunity to inspect or supervise inspection of the waste by the permittee so as to comply with subdivisions (a)(2)(B) and (C);
      2. (B) Each bale was physically opened, visually inspected and rebaled;
      3. (C) All waste which could not visually be determined to be of a type which the facility is permitted to receive was either:
        1. (i) Sampled in accordance with a plan approved by the commissioner and determined to be acceptable under the facility's permit and rules promulgated pursuant to this part; or
        2. (ii) Returned to the transporter as unacceptable;
      4. (D) The landfill, by accepting such waste, did not violate this part; and
      5. (E) The waste was properly manifested.
  2. (b) The certifications required by subdivision (a)(1) shall be submitted to the department within thirty (30) days after the waste is baled. The certifications required by subdivision (a)(2) shall be submitted to the department within thirty (30) days after the disposal of the baled waste.
§ 68-211-120. Manifest.
  1. (a) Persons who transport, treat, store and/or dispose of baled waste, except for those who bale waste at the site of disposal, shall utilize a manifest for such waste that contains all the following information:
    1. (1) Names and addresses of the transporter;
    2. (2) Name and address of the facility at which the waste was baled;
    3. (3) A description of the waste;
    4. (4) The name and address of the destination of the waste; and
    5. (5) Such other information specified in regulations promulgated by the board.
  2. (b) The manifest required by this section shall at all times accompany baled waste while it is in transit and shall be maintained at any facility that treats or disposes of such waste for a period of at least thirty (30) years.
§ 68-211-121. Landfills and processing facilities — Inspection of waste.
  1. To ensure that landfills and processing facilities receive only lawfully acceptable waste, the operator of each facility shall inspect waste received at the facility in accordance with a plan approved by the commissioner. Such plan shall provide for a level of inspection that is equivalent to that which is required for baled waste in § 68-211-119.
§ 68-211-122. Approval for establishment of landfill through eminent domain.
  1. Notwithstanding any other law to the contrary, a municipality may exercise the power of eminent domain to establish a landfill for solid waste disposal outside its corporate boundaries only if the governing body of the area in which the landfill is to be located approves such action by a majority vote at two (2) consecutive, regularly scheduled meetings.
§ 68-211-123. No permits by rule for certain sites for sewage sludge composting.
  1. The department of environment and conservation shall not issue a permit by rule for sewage sludge composting for a site that is greater than one (1) acre in size.
§ 68-211-124. Use of treated ash aggregate as a building material.
  1. (a) The department may issue permits authorizing the use of treated ash aggregate as a building material in construction or site preparation applications in commercial and industrial settings.
  2. (b) “Treated ash aggregate” as used in this section means bottom ash or fly ash resulting from incineration of municipal solid waste as defined in § 68-211-802 that has been treated to assure that it is not a hazardous waste as defined in § 68-212-104, and rules thereunder.
Part 2 Mercury Product Disposal Control Act
§ 68-211-201. Short title.
  1. This part shall be known and may be cited as the “Mercury Product Disposal Control Act.”
§ 68-211-202. Purpose.
  1. The general assembly finds and declares that:
    1. (1) Mercury is a persistent and toxic pollutant that bioaccumulates in the environment;
    2. (2) According to recent studies, mercury deposition is a significant problem in the southeast; and
    3. (3) The removal of mercury-containing products from solid wastes that are collected and disposed of in landfills or through incineration is a means of reducing the deposition of mercury into the environment and mercury's threat to public health and the environment.
§ 68-211-203. Part definitions.
  1. As used in this part, unless the context otherwise requires:
    1. (1) “Biological product” means a virus, therapeutic serum, toxin, antitoxin, vaccine, blood, blood component or derivative, allergenic product or an analogous product, or arsphenamine or any other trivalent organic arsenic compound used for the prevention or treatment of a disease or condition of human beings or animals;
    2. (2) “Board” means, unless otherwise indicated, the underground storage tanks and solid waste disposal control board established by § 68-211-111;
    3. (3) “Commissioner” means the commissioner of environment and conservation or the commissioner's authorized representative;
    4. (4) “Covered generator” means any generator that:
      1. (A) Employs ten (10) or more employees;
      2. (B) Owns or maintains a building, excluding private residences, of at least three thousand square feet (3,000 sq. ft.);
      3. (C) Owns or maintains electrical distribution systems;
      4. (D) Owns or operates a business that demolishes buildings, excluding private residences; or
      5. (E) Owns or operates a tanning bed salon business;
    5. (5) “Department” means the department of environment and conservation;
    6. (6) “Discarded mercury-added consumer product” means a mercury-added consumer product that can, or will, no longer be used for its intended purpose as determined by its generator;
    7. (7) “Disposed of” means originally placed in a solid waste container whose contents are destined for delivery to a solid waste landfill for disposal or to an incinerator, boiler, or industrial furnace for burning;
    8. (8) “Generator” means the person who owns or otherwise controls the fate of a discarded mercury-added consumer product;
    9. (9) “Hazardous waste” shall have the same meaning as provided in by Tenn. Comp. R. & Regs. 0400-12-01-.02(1)(c);
    10. (10) “Hazardous waste management facility” means: