Title 68 Health, Safety and Environmental Protection
Health (Chapters 1-60)
Chapter 1 Department of Health
Part 1 General Provisions
§ 68-1-101. Department organized into divisions — Expedited issuance of license.
- (a)
The department of health shall be organized into the following divisions:
- (1)
The division of sanitary engineering, the head of which shall be the sanitary engineer;
- (2)
The division of laboratories, the head of which shall be the bacteriologist;
- (3)
The division of tuberculosis control, the head of which shall be the commissioner of health;
- (4)
The division of preventable diseases, the head of which shall be the director of preventable diseases;
- (5)
The division of children's special services, the head of which shall be the director of crippled children's service;
- (6)
The division of medical care, the head of which shall be the director of medical care, who shall be appointed by the governor;
- (7)
The division of rabies control, the head of which shall be the director of rabies control; and
- (8)
The division of health related boards for all administrative, fiscal, inspectional, clerical and secretarial functions of the following boards, agencies and commissions:
- (A)
Board of alcohol and drug abuse counselors;
- (B)
Board of athletic trainers;
- (C)
Board for professional counselors, marital and family therapists and clinical pastoral therapists;
- (D)
Board of chiropractic examiners;
- (E)
Board of communication disorders and sciences;
- (F)
Board of communication disorders and sciences' council for hearing instrument specialists;
- (G)
Board of dentistry;
- (H)
Board of dietitians/nutritionists examiners;
- (I)
Board of dispensing opticians;
- (J)
Board of electrolysis examiners;
- (K)
Board of examiners for nursing home administrators;
- (L)
Board of examiners in psychology;
- (M)
Board of medical examiners;
- (N)
Board of medical examiners' committee for clinical perfusion;
- (O)
Board of physician assistants;
- (P)
Board of medical examiners' Tennessee advisory committee for acupuncture;
- (Q)
Board of nursing;
- (R)
Board of occupational therapy;
- (S)
Board of optometry;
- (T)
Board of osteopathic examination;
- (U)
Board of osteopathic examination's council of certified professional midwifery;
- (V)
Board of pharmacy;
- (W)
Board of physical therapy;
- (X)
Board of podiatric medical examiners;
- (Y)
Reflexology practitioners' registration;
- (Z)
Board of respiratory care;
- (AA)
Board of social worker licensure;
- (BB)
Tennessee massage licensure board;
- (CC)
Tennessee medical laboratory board; and
- (DD)
Board of veterinary medical examiners.
- (b)
- (1)
Notwithstanding any other law to the contrary, each health related board and the emergency medical services board shall establish a procedure to expedite the issuance of a license, certification or permit to perform professional services regulated by each such board to a person:
- (A)
- (i)
Who is certified or licensed in another state to perform professional services in a state other than Tennessee;
- (ii)
Whose spouse is a member of the armed forces of the United States; and
- (iii)
Whose spouse is the subject of a military transfer to this state; or
- (B)
- (i)
Who, as a member of the armed forces of the United States, carries a current license or certification in another state to perform substantially similar professional services in a state other than Tennessee; and
- (ii)
Who applies for a license in Tennessee within one hundred eighty (180) days of:
- (a)
Retiring from the armed forces of the United States;
- (b)
Receiving any discharge other than a dishonorable discharge from the armed forces of the United States; or
- (c)
Being released from active duty into a reserve component of the armed forces of the United States.
- (2)
The procedure shall include:
- (A)
Issuing the person a license, certificate or permit, if, in the opinion of the board, the requirements for certification or licensure of such other state are substantially equivalent to that required in this state; or
- (B)
Developing a method to authorize the person to perform professional services regulated by the board in this state by issuing the person a temporary permit for a limited period of time in accordance with § 63-1-142.
- (c)
The commissioner, each health related board and the emergency medical services board shall, upon application for certification or licensure, accept military education, training or experience completed by a person described in subdivisions (b)(1)(B)(ii)(a)-(c) toward the qualifications to receive the license or certification if such education, training or experience is determined by the commissioner or board to be substantially equivalent to the standards of this state.
- (d)
- (1)
Notwithstanding any other law to the contrary, any member of the national guard or a reserve component of the armed forces of the United States called to active duty, and who, at the time of activation, was duly licensed or certified to perform professional services by a health related board of this state or by the emergency services board of this state, shall be kept in good standing by the board during the period of activation.
- (2)
A license, certification or permit issued by a health related board of this state or by the emergency services board of this state for a person described in subdivision (d)(1) shall be temporarily renewed pursuant to subdivision (d)(3) without:
- (A)
Payment of dues or fees;
- (B)
Obtaining continuing education credits when:
- (i)
Circumstances associated with the person's military duty prevent the obtaining of continuing education credits and a waiver request has been submitted to the appropriate health related board or to the emergency medical services board; or
- (ii)
The person performs the licensed or certified occupation as part of such person's military duties and provides documentation to the appropriate health related board or to the emergency medical services board; or
- (C)
Performing any other act typically required for the renewal of the license or certification.
- (3)
The license, certification or permit issued under this subsection (d) shall be continued or renewed while the person described in subdivision (d)(1) is on active duty until no later than six (6) months from the person's release from active duty.
§ 68-1-102. Commissioner — Deputies — Chief medical officer.
- (a)
The department of health shall be under the charge and general supervision of the commissioner of health, who shall be appointed by the governor in the same manner as other commissioners and who shall have the same official status as other commissioners. The commissioner shall hold office at the pleasure of the governor. The compensation of the commissioner shall not exceed that of a Class 1 official, as established in § 8-23-101.
- (b)
- (1)
The commissioner may appoint a deputy commissioner, who, in the event of absence or incapacity of the commissioner or in the event of a vacancy in the office of commissioner, may be authorized in accordance with § 4-4-115 to exercise any and all of the powers of the commissioner until such time as the duly appointed commissioner can fulfill the commissioner's responsibilities.
- (2)
The commissioner is also authorized to delegate any of the powers, duties, responsibilities or authority vested in the commissioner by the laws of the state of Tennessee. This delegation shall be made in writing to any appropriate official of the department.
- (c)
- (1)
The commissioner shall appoint a state health officer to be called the chief medical officer for the state who shall, at the direction of the commissioner, be responsible for and advise the commissioner and the department on all matters of health policy in all state services and programs, including, but not limited to, medicaid, public health, and environmental health.
- (2)
The chief medical officer shall be:
- (A)
A physician licensed to practice medicine in Tennessee; and
- (B)
Appointed from a list of nominees containing at least three (3) names for consideration by the commissioner to be submitted by the Tennessee Medical Association board of trustees.
- (3)
Any of the powers, duties, responsibilities, or authorities vested in the commissioner that require or imply that the commissioner is a licensed physician may be delegated by the commissioner to the chief medical officer. Any such delegation shall be made in writing and shall be filed with the secretary of state. The salary for the chief medical officer shall be paid consistent with the January 1, 1983, physician 959 classification or the highest paid physician in subsequent classification/compensation plans.
§ 68-1-103. Rules and regulations — Fees and charges.
- (a)
The commissioner of health may adopt rules and regulations subject to this chapter.
- (b)
The commissioner is empowered to adopt, promulgate and enforce, with the concurrence of the comptroller of the treasury and the commissioner of finance and administration, rules and regulations establishing fees and charges for any public health service, including, but not limited to, licenses, permits, or authorizations rendered pursuant to, or required by, any statute administered by the department of health. Any and all recipients of public health services shall be responsible for payment of same. The commissioner is empowered to promulgate regulations to reduce or eliminate fees for any classification or classifications of services, based upon recipients' condition or ability to pay. All fees received for the performance of services shall be retained by the district, municipal or county health department rendering the service, subject to the prior approval of the commissioner. Any fees received by the state department of health, and any fees not retained by the district, municipal or county health department, shall be deposited with the state treasurer in accordance with the provisions set forth in § 9-2-127. Any fees retained by district, municipal or county public health departments are to be applied toward the cost of providing or expanding the service or evaluating and processing the license, permit or other authorization, and the district, municipal or county department shall provide an accounting to the state of all such fees retained by that department, in such manner as shall be determined by the commissioner. With the approval of the commissioner, district, municipal and county public health departments may establish fees and charges in excess of, or less than, fees and charges set by the commissioner. Any fee for services performed by the municipal, county or district public health departments not included on the fee schedule prepared by the commissioner shall be established by the district, municipal or county public health department. The amount of any fee established by the commissioner or by a district, municipal or county public health department under this section shall not exceed the cost of providing the service.
- (c)
Rules and regulations establishing fees shall be in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.
§ 68-1-104. Duties of commissioner.
-
The department of health shall have the general supervision of the interests of health and life of the citizens of this state. The commissioner shall:
- (1)
Especially study the vital statistics of this state, and endeavor to make intelligent and profitable use of the records of sickness and death among the people;
- (2)
Make sanitary investigations and inquiries respecting the causes of disease, especially epidemics, the causes of death, effects of employment, habits, localities and circumstances, upon the health of the people;
- (3)
Advise, when the commissioner deems it necessary, in reference to location, water supply, drainage, and ventilation of any public institutions;
- (4)
From time to time, recommend works upon the subject of hygiene for the use of the schools of this state;
- (5)
Have the authority to petition the chancery court of Davidson County for judicial review, pursuant to § 4-5-322, of any final order of any board or similar multi-member agency administered by or administratively assigned to the department. This subdivision (5) shall not apply to the boards created by title 59, chapter 8; chapter 201 or chapter 211 of this title; or title 69, chapter 3;
- (6)
Have the authority to appoint administrative judges from the administrative procedures division of the office of the secretary of state, pursuant to § 4-5-301, to hear contested cases before the department, and contested cases before any board or similar multi-member agency administered by or administratively assigned to the department, upon the request of such board or agency. These boards and agencies are authorized to utilize such administrative judges; and
- (7)
- (A)
Develop a grant program for research and development in the area of solid waste disposal technologies to include, but not be limited to, the following options:
- (i)
Reducing the use of landfills;
- (ii)
Source separation;
- (iii)
Recycling;
- (iv)
Retrieval;
- (v)
Mass burn;
- (vi)
Private sector involvement; and
- (vii)
Educating the public on the importance of separation; and
- (B)
Develop standards and guidelines for the submission of proposals for grant applications under the program established by this subdivision (7) and for the manner in which such grant applications will be selected and approved. The amount of the grant shall be as provided in the general appropriations act each fiscal year.
§ 68-1-105. Appropriations for health demonstration work.
- (a)
The county legislative bodies are empowered to appropriate such sums of money as may be necessary or expedient to be used in cooperating with the department of health in carrying on health demonstration work in the counties.
- (b)
The state treasurer is authorized and directed to receive and disburse money provided by any agency for the purpose of enabling the department to engage in health demonstration work. When such money is received by the state treasurer, it shall be placed to the credit of the department, and shall be disbursed by the state treasurer as are other funds provided for the department.
§ 68-1-106. Acceptance of benefits of acts of congress.
- (a)
The state of Tennessee does hereby accept the benefits of any acts now passed or hereafter to be passed by the senate and house of representatives of the United States to provide for cooperation with the states in the protection of mothers and infants and promotion of a public health program. The state treasurer is empowered to receive grants of money appropriated under any act of congress and in accordance with any act of congress.
- (b)
The department of health is required to carry on work in accordance with the terms and conditions of the acts of congress, and shall have necessary authority to cooperate with the federal authorities administering the acts, the department to be deemed the administering agency under the federal acts.
§ 68-1-107. Indemnity insurance for health officials.
-
The commissioner of finance and administration, on approval of the fiscal review committee, may procure indemnity insurance, indemnifying the heads of departments of health for the state, counties and cities throughout the state against actions claimed to arise out of acts of omission or commission of such personnel performed in the course of their official duties.
§ 68-1-108. Reports of claims data by licensed hospitals — Penalties — Waiver — Licensure — Civil liability — Annual report.
- (a)
Each hospital licensed under this title or title 33, or the hospital's designated entity, shall report all claims data found on the UB-92 form or a successor form on every inpatient and outpatient discharge to the commissioner of health. A hospital shall report the claims data to the commissioner at least quarterly. After receiving the claims data, the commissioner shall promptly make the data available for review and copying by the Tennessee Hospital Association (THA) who shall use the data strictly for its own internal purposes and for internal purposes of its members. No information shall be made available to the public by either the commissioner or the THA that reasonably could be expected to reveal the identity of any patient. The claims data reported to the commissioner under this section are confidential and not available to the public until the commissioner processes and verifies the data. The commissioner shall prescribe conditions under which the processed and verified data are available to the public and shall establish policies for the release of HIPAA compliant limited use data sets.
- (b)
A licensed hospital shall pay to the commissioner a civil penalty of five cents (5¢) for each day the claims data discharge report is delinquent. A claims data report is delinquent if the commissioner does not receive it before sixty (60) days after the end of the quarter. If the commissioner receives the report in incomplete form, the commissioner shall notify the hospital and provide fifteen (15) additional days to correct the error. The notice shall provide the hospital an additional fifteen (15) days to complete the form and return it to the commissioner prior to the imposition of any civil penalty. The maximum civil penalty for a delinquent report is ten dollars ($10.00) for each discharge record. The commissioner shall issue an assessment of the civil penalty to the hospital. The hospital has a right to an informal conference with the commissioner, if the hospital requests such conference within thirty (30) days of receipt of the assessment. After the informal conference or, if no conference is requested, after the time for requesting the informal conference has expired, the commissioner may proceed to collect the penalty by setting the penalty off against funds owed to the hospital or by instituting litigation.
- (c)
In its request for an informal conference, the hospital may request the commissioner to waive the penalty. The commissioner may waive the penalty in cases of an act of God or other acts beyond the control of the hospital. Waiver of the penalty is in the sole discretion of the commissioner. None of these proceedings is subject to the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.
- (d)
A hospital licensed pursuant to chapter 11, part 2 of this title shall, as a condition of licensure, continue to complete and submit annually the report of hospital statistics required by § 68-11-310 and regulations promulgated pursuant to that section.
- (e)
No person or entity, including the THA, may be held liable in any civil action with respect to any report or disclosure of information made under this section, unless the person or entity has knowledge of any falsity of the information reported or disclosed.
- (f)
On or before March 1 of each year, the department of health shall submit to the governor, the speaker of the senate, the speaker of the house of representatives, the health and welfare committee of the senate, and the health committee of the house of representatives a report with de-identified aggregate claims data on every inpatient and outpatient discharge that includes coded drug poisonings as reported for the calendar year two (2) years prior to the current year by licensed hospitals to the commissioner of health pursuant to this chapter. The department shall also publish the data submitted under this subsection (f) on the department's internet website.
§ 68-1-109. Uncompensated care.
- (a)
Each hospital shall apply and use the definitions in subsections (b) and (c) when reporting on the joint annual reports to the department of health, center for health statistics. The center for health statistics and comptroller of the treasury's office shall use and apply the definitions when auditing or compiling statistics based on the reports or for any related reports or statistics:
- (b)
- (1)
“Bad debts” means amounts considered to be uncollectible from accounts and notes receivable that are created or acquired in providing services. “Accounts receivable” and “notes receivable” are designations for claims arising from rendering services and are collectible in money in the relatively near future.
- (2)
A debt must meet these criteria:
- (A)
The provider must be able to establish that reasonable collection efforts were made;
- (B)
The debt was actually uncollectible when claimed as worthless;
- (C)
Sound business judgment established that there was no likelihood of recovery at any time in the future; and
- (D)
Accounts turned over to a collection agency should be classified as bad debt.
- (3)
- (A)
If after reasonable and customary attempts to collect a bill, the debt remains unpaid more than one hundred twenty (120) days from the date the first bill is mailed to the patient, the debt may be deemed uncollectible.
- (B)
Bankrupt accounts shall be considered bad debts, unless there is documented evidence that the medical bill caused bankruptcy. Such accounts would then be counted as charity.
- (c)
- (1)
“Charity care” means reductions in charges made by the provider of services because of the indigence or medical indigence of the patient.
- (2)
The provider should apply the following guidelines for making a determination of indigence or medical indigence:
- (A)
The patient's indigence must be determined by the provider, not by the patient; i.e., a patient's signed declaration of the patient's inability to pay the patient's medical bills cannot be considered proof of indigence;
- (B)
The provider should take into account a patient's total resources, which include, but are not limited to, an analysis of assets, only those convertible to cash and unnecessary for the patient's daily living, liabilities, and income and expenses. Indigence income is determined by the provider's posted charity care policy as required by § 68-11-268. Medical indigence is a status reached when a person uses or commits all available current and expected resources to pay for medical bills and is not limited to a defined percent of the federal poverty guidelines. In making this analysis, the provider should take into account any extenuating circumstances that would affect the determination of the patient's indigence;
- (C)
The provider shall determine that no source other than the patient is legally responsible for the patient's medical bill; e.g., Title XIX, local welfare agency or guardian; and
- (D)
The patient's file should contain documentation of the method by which indigence was determined, in addition to all backup information to substantiate the determination.
- (3)
If indigence is determined and the provider concludes that there had been no improvement in the beneficiary's financial condition, then the hospital may deem uncollectible the debt, or the portion of the debt, determined to be charity care without having to apply the bad debt collection criteria.
§ 68-1-110. Annual list of medicaid and temporary assistance for needy families (TANF) options.
-
The departments of health and human services shall jointly provide to the health and welfare committee of the senate and the health committee of the house of representatives, on or before December 31 each year, a written list of the options available to the state, and the extent of federal financial participation for each option, under medicaid and temporary assistance for needy families (TANF).
§ 68-1-111. Record retention requirement.
-
Notwithstanding any rule, regulation or law to the contrary, home health care agencies shall keep records dating back five (5) years from the date information is obtained by the agency.
§ 68-1-112. Unauthorized revealing of information.
- (a)
It is prohibited conduct for any department of health employee to knowingly reveal, or cause to be revealed, any information to a person not authorized by the authority of the commissioner to receive or have knowledge of the information that can reasonably be expected to provide the person with advance notification of the date, time or place that an inspection to be conducted by the department will occur.
- (b)
If the commissioner finds that any department employee has revealed information in violation of subsection (a), then the commissioner has the authority to terminate the employee from state employment, in accordance with the same procedures, safeguards and rights of appeal as are generally provided by law or regulation for the discipline or termination of state employees.
- (c)
The commissioner shall publish a memorandum to employees explaining subsections (a) and (b) and shall post appropriate notices of this law.
§ 68-1-113. Office on civil rights compliance — Sanctions.
- (a)
- (1)
There is established, as an extension of the office of Title VI compliance within the department of health, an office on civil rights compliance by health care facilities.
- (2)
The office shall monitor, and upon receiving a complaint shall investigate, health care facilities licensed by the state, to determine whether any facility is denying any individual the full and equal enjoyment of the services, privileges, advantages and accommodations offered within the facility on the grounds of race, color or national origin.
- (3)
Following an investigation, if a determination is made by the office that any such discriminatory practice has occurred or is occurring, the office shall inform the health care facility of its findings and shall work with the facility to take affirmative action to ensure compliance with this section, and to ensure the health care facility shall cease and desist from the discriminatory practice.
- (4)
The office on civil rights compliance shall report and document any such discriminatory practice to the commissioner, the Tennessee human rights commission, and the board for licensing health care facilities.
- (b)
If complaints of discriminatory practices continue to be received by the office during the time the office is monitoring previously investigated complaints or during follow-up investigations, and if the office determines that the facility has continued to engage in the discriminatory practices, the office shall forward its findings to the board for licensing health care facilities for appropriate disciplinary action. The board shall have the authority to impose sanctions as provided in subsection (c) for violations of this section.
- (c)
The board for licensing health care facilities may deny, suspend or revoke the license issued to the health care facility for a violation of this section.
- (d)
In addition to the action pursuant to subsection (c) by the board, the commissioner may impose a civil penalty in an amount not to exceed five thousand dollars ($5,000) for violation of this section.
- (e)
Any sanction imposed upon a health care facility by the board or the commissioner pursuant to this section shall be imposed in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.
- (f)
Implementation of this section shall be subject to funding being provided in the general appropriations act.
§ 68-1-114. Release of disciplinary reports.
- (a)
The division of health related boards shall issue monthly a press release containing a disciplinary report, which shall list all disciplinary actions taken by each board during the prior month. The report shall list, by board, the following:
- (1)
Name and professional address of any person disciplined the prior month;
- (2)
Disciplinary action taken; and
- (3)
Any civil penalty imposed.
- (b)
The disciplinary report for the prior month shall be made available to newspapers of general circulation in each of the state's metropolitan areas, Nashville, Memphis, Knoxville, Chattanooga and the tri-cities area composed of Bristol, Johnson City and Kingsport, by the fifteenth of each following month.
§ 68-1-115. Regulations — Tennessee family insurance assistance program.
-
The commissioner of health shall promulgate regulations regarding the issuance of information concerning the availability of financial assistance through the state medical assistance program for beneficiaries of group health plans, pursuant to the Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA) (29 U.S.C. §§ 1161 — 1168 and 42 U.S.C. §§ 300bb-1 — 300bb-8), § 56-7-2312, and related laws and regulations.
§ 68-1-116. Licenses and renewals for registered professional environmentalists.
- (a)
Notwithstanding any provision of this chapter to the contrary, all persons who wish to obtain a license as a registered professional environmentalist must, by August 31, 1994, submit an application to the board, accompanied by a nonrefundable fee as set by the state board of examiners for registered professional environmentalists. In addition, an applicant shall successfully pass an examination approved by the board by September 30, 1994.
- (b)
After August 31, 1994, all persons who wish to renew a license as a registered professional environmentalist shall submit an application for renewal to the department of health. The department may set fees for the renewal of licenses pursuant to this section.
§ 68-1-117. Program for health care professional development for underserved and disadvantaged populations in Tennessee.
- (a)
There is established a program for health care professional development for underserved and disadvantaged populations in Tennessee at Meharry Medical College School of Medicine. The program shall develop resources for recruiting, training and deploying physicians for service in areas of Tennessee with disadvantaged and medically underserved populations.
- (b)
The program shall:
- (1)
Develop programs in undergraduate medical education with positions for qualified Tennessee residents, especially for residents from disadvantaged and medically underserved areas (MUAs);
- (2)
Expand specialty training in family medicine, preventive medicine, and enhance generalist physician training in the disciplines of internal medicine, pediatrics, and obstetrics/gynecology;
- (3)
Increase recruitment of students from disadvantaged communities and health resource shortage areas (HRSAs) of the state;
- (4)
Deploy physicians into disadvantaged communities in service to local health departments and counties demonstrating need; and
- (5)
Expand academic and student support services as required for enrolled Meharry students from disadvantaged communities and HRSAs of the state.
§ 68-1-118. Specific authorization required for release of information.
-
The department of health or any employee of the department of health shall not release information that is not specifically authorized by state or federal law to any insurance company, agency, company or firm, pertaining to the health of any person without the patient's consent, or, if a minor, the consent of the minor's parent, guardian or legal custodian, or pursuant to an appropriate court order.
§ 68-1-119. Claims data discharge reports by ambulatory surgical treatment centers (ASTCs) — Penalties — Waiver — Civil liability — Exceptions.
- (a)
Each licensed ambulatory surgical treatment center (ASTC) and each licensed outpatient diagnostic center (ODC) shall report all claims data found on the appropriate form on every discharge to the executive director of the health facilities commission. ASTCs and ODCs shall file joint annual reports as required by the health facilities commission. ASTCs and ODCs shall submit the data through third party entities approved by the health facilities commission for the purpose of editing the data according to rules and regulations established by the executive director. The ASTCs and ODCs shall be responsible for the costs associated with processing of the data by the approved vendors. An ASTC and an ODC shall report the claims data at least quarterly to the executive director. No information shall be made available to the public by the executive director that reasonably could be expected to reveal the identity of any patient. The claims data reported to the executive director under this section are confidential and not available to the public until the executive director processes and verifies the data. The executive director shall prescribe conditions under which the processed and verified data are available to the public and shall establish policies for the release of HIPAA compliant limited use data sets.
- (b)
A licensed ASTC and ODC shall pay to the executive director a civil penalty of five cents (5¢) for each day the claims data discharge report is delinquent. A claims data report is delinquent if the executive director does not receive it before sixty (60) days after the end of the quarter. If the executive director receives the report in incomplete form, the executive director shall notify the ASTC and ODC and provide fifteen (15) additional days to correct the error. The notice shall provide the ASTC and ODC an additional fifteen (15) days to complete the form and return it to the executive director prior to the imposition of any civil penalty. The maximum civil penalty for a delinquent report is ten dollars ($10.00) for each discharge record. The executive director shall issue an assessment of the civil penalty to the ASTC and ODC. The ASTC and ODC has a right to an informal conference with the executive director, if the ASTC and ODC requests the conference within thirty (30) days of receipt of the assessment. After the informal conference or, if no conference is requested, after the time for requesting the informal conference has expired, the executive director may proceed to collect the penalty by setting the penalty off against funds owed to the ASTC and ODC or by instituting litigation.
- (c)
In its request for an informal conference, the ASTC and ODC may request the executive director to waive the penalty. The executive director may waive the penalty in cases of an act of God or other acts beyond the control of the ASTC and ODC. Waiver of the penalty is in the sole discretion of the executive director. None of these proceedings are subject to the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.
- (d)
No person or entity may be held liable in any civil action with respect to any report or disclosure of information made under this section, unless the person or entity has knowledge of any falsity of the information reported or disclosed.
- (e)
This section shall not affect or replace any other reporting responsibility placed upon ASTCs. The report filed pursuant to this section shall not be required for discharges reported by ASTCs under § 68-3-505.
- (f)
The claims data required to be reported by this section shall be collected and reported only to the extent it is collected and reported in the normal billing process, unless other claims data is deemed by the executive director to be essential to the development or use of the ASTC claims data reporting system, in which case the identified data that is outside the normal billing process must be collected and reported; provided, however, that other claims data that may be required to be collected and reported shall be consistent with data required to be collected and reported by other healthcare providers. Any data that is submitted to the executive director pursuant to this section shall be made available to the public no more frequently and no sooner after the data is submitted than the data collected and reported by licensed hospitals pursuant to § 68-1-108.
§ 68-1-121. Waiver of foreign residence requirement.
- (a)
The commissioner of health is empowered to promulgate emergency rules and regulations pursuant to a waiver of the foreign residence requirement with respect to an alien who agrees to practice medicine in a federally-designated underserved area of the state of Tennessee, in accordance with the requirements of the Immigration and Nationality Technical Corrections Act of 1994 (Pub. L. No. 103-416).
- (b)
- (1)
Primary care physicians, including primary care physicians who have subspecialty training, shall be placed in health care practice sites that are located in counties containing federally designated health professional shortage areas (HPSAs) or medically underserved areas (MUAs), or both, either of which must also be located within the top thirty (30) state designated health resource shortage areas (HRSAs) for TennCare, primary care, obstetrics or pediatrics.
- (2)
- (A)
No more than thirty percent (30%) of the slots permitted by federal law shall be allocated to physician specialists between October 1 and June 30 of each federal fiscal year. To be considered, physician specialists shall be affiliated with a hospital that meets one (1) of the following criteria:
- (i)
Within the twenty (20) nonpsychiatric hospitals with the highest percentage of total adjusted patient days for TennCare patients;
- (ii)
A rural referral center hospital;
- (iii)
A sole community hospital;
- (iv)
A Medicare dependent hospital; or
- (v)
A rural hospital meeting the guidelines for placement of a primary care physician.
- (B)
Applications for a physician specialist will be accepted from critical access hospitals after March 31. Physician specialists shall agree to practice their specialty with the affiliated hospital for a minimum of forty (40) hours per week and for a minimum of three (3) years. Physician specialists delineated in rules and regulations, as well as general surgeons, may be placed at any eligible hospital.
- (c)
Additionally, no more than one-third (⅓) of the specialty physicians granted slots between October 1 and June 30 of each year may serve in urban HPSAs. A hospital that has received a physician specialist slot between October 1 and March 31 may only have its application for a second specialist accepted if additional slots permitted by federal law are available and the thirty percent (30%) of specialty slots have not been committed by April 1. If the full complement of slots permitted by federal law has not been committed by June 30, the percentage limitations on the number of slots allocated to specialty physicians and on the placement of specialty physicians, as set forth in this subsection (c), shall no longer be applicable. After June 30, specialist slots shall be opened to all eligible hospitals, urban and rural, for the final quarter of the year. During the final quarter, priority for the specialist slots is given to specialists but primary care provider applications will be accepted if specialist slots are available and no other specialist provider application has been received and deemed eligible.
§ 68-1-122. Memorandum of understanding regarding annual health professional shortage area designation process.
- (a)
The department of health shall enter into a memorandum of understanding (MOU) with the Tennessee Primary Care Association, the Tennessee Hospital Association, and the Tennessee Rural Health Recruitment and Retention Center to work cooperatively with respect to the annual health professional shortage area (HPSA) designation process.
- (b)
The MOU shall include, but not be limited to, the following:
- (1)
A communication plan including each of the parties during the annual HPSA designation process;
- (2)
A plan to ensure that the information and methodology utilized to determine the HPSA designation is adequate and accurate; and
- (3)
A period for comment to the department by the other three (3) MOU parties prior to the submission of the recommendations to the federal government for approval.
§ 68-1-123. Report on access to care and safety net adequacy.
-
On or before January 15 of each year, the commissioner of health, in consultation with the department of finance and administration and any other state agency involved in the administration of the safety net program, shall report to the general assembly on data relating to access to care and safety net adequacy related issues. The data shall address adequacy of access and the array of services to which access is available. The report shall also seek to address the allocation of scarce health care resources in the safety net, with attention to developing a rational health care system that does not duplicate services. The report shall specifically assess access to care in rural and underserved areas across the state. The comptroller of the treasury shall also comment on the report. The commissioner shall present the findings of the report to the health and welfare committee of the senate and the health committee of the house of representatives.
§ 68-1-124. Coordination of programs to prevent and treat diabetes — Central data repository.
-
The commissioner is authorized to appoint an individual within the department to coordinate with other state government departments and agencies to ensure that all programs that impact the prevention and treatment of diabetes are coordinated, that duplication of efforts are minimized, and that the impact of the programs is maximized in an attempt to reduce the health consequences and complications of diabetes in this state. The department of health shall serve as the central repository for this state for data related to the prevention and treatment of diabetes.
§ 68-1-125. Funds for in-home visitation programs — Emphasis on evidence-based programs — Report on findings.
- (a)
As used in this section, unless the context otherwise requires:
- (1)
“Evidence-based” means a program or practice that meets the following requirements:
- (A)
The program or practice is governed by a program manual or protocol that specifies the nature, quality, and amount of service that constitutes the program; and
- (B)
Scientific research using methods that meet high scientific standards, evaluated using either randomized controlled research designs, or quasi-experimental research designs with equivalent comparison groups. The effects of such programs must have demonstrated using two (2) or more separate client samples that the program improves client outcomes central to the purpose of the program;
- (2)
“In-home visitation” means a service delivery strategy that is carried out in the homes of families of children from conception to school age that provides culturally sensitive face-to-face visits by nurses, other professionals, or trained and supervised lay workers to promote positive parenting practices, enhance the socioemotional and cognitive development of children, improve the health of the family, and empower families to be self-sufficient. “In-home visitation” does not include any medicaid funded disease management or case management services or programs which may include home visits;
- (3)
“Pilot program” means a temporary research-based or theory-based program or project that is eligible for funding from any source to determine whether or not evidence supports its continuation beyond the fixed evaluation period. A pilot program must provide for and include:
- (A)
Development of a program manual or protocol that specifies the nature, quality, and amount of service that constitutes the program; and
- (B)
Scientific research using methods that meet high scientific standards for evaluating the effects of such programs must demonstrate on at least an annual basis whether or not the program improves client outcomes central to the purpose of the program;
- (4)
“Research-based” means a program or practice that has some research demonstrating effectiveness, but that does not yet meet the standard of evidence-based; and
- (5)
“Theory-based” means a program or practice that has general support among treatment providers and experts, based on experience or professional literature, may have anecdotal or case-study support, and has potential for becoming a research-based program or practice.
- (b)
- (1)
With the long-term emphasis on procuring services whose methods have been measured, tested, and demonstrated to improve client outcomes, the department of health, and any other state agency that administers funds related to in-home visitation programs shall ensure that fifty percent (50%) of state-appropriated funds expended for in-home visitation services are used for evidence-based models during fiscal year 2012-2013 and that seventy-five percent (75%) of such funds are used for evidence-based programs during fiscal year 2013-2014 and each subsequent fiscal year thereafter.
- (2)
With the goal of identifying and expanding the number and type of available evidence-based programs, the department shall continue the ongoing research and evaluation of sound, theory-based and research-based programs and to that end the department may engage in and fund pilot programs as defined in this section.
- (c)
The department shall include in any contract with a provider of services related to in-home visitation programs a provision requiring that the provider shall set forth a means to measure the outcome of the services. The measures must include, but not be limited to, the number of people served, the type of services provided, and the estimated rate of success of the population served.
- (d)
The department of health, in conjunction with a representative of the Tennessee commission on children and youth, and with ongoing consultation of appropriate experts and representatives of relevant providers who are appointed by the commissioner of health to provide such consultation, shall determine which of its current programs are evidence-based, research-based and theory-based, and shall provide a report of those findings, including an explanation of the support of those findings, to the governor, the health and welfare committee of the senate, the civil justice committee of the house of representatives and the judiciary committee of the senate by no later than January 1 of each year. The department of health shall also provide in its report the measurements of the individual programs, as set forth in subsection (c).
§ 68-1-126. Plan to establish demonstration sites.
-
Notwithstanding any law to the contrary, the department of health shall assist the council on children's mental health care in developing a plan that will establish demonstration sites in certain geographic areas where children's mental health care is child-centered, family-driven, and culturally and linguistically competent and that provides a coordinated system of care for children's mental health needs in this state.
§ 68-1-127. Health advisory for MRSA infections.
- (a)
No later than July 15 of each year, the department of health shall issue an advisory to the department of education which shall be distributed to schools serving students in grades kindergarten through twelve (K-12) and in early childhood programs explaining the risks of community-associated methicillin resistant staphylococcus aureus (MRSA) infections and providing guidance on the most current methods on recognizing and preventing these infections.
- (b)
The departments of health and education shall also prominently display on their websites links to this information.
§ 68-1-128. High volume prescribers of controlled substances — High-risk prescribers based on clinical outcomes.
- (a)
No later than July 31, 2013, and at least annually thereafter but more often at the discretion of the commissioner, the department of health shall:
- (1)
- (A)
Identify the top fifty (50) prescribers who have unique DEA numbers of controlled substances, other than buprenorphine formulations that have not received approval for pain applications from the federal food and drug administration, in the previous calendar year, or if implemented more frequently for the relevant time period as determined by the department, from the data available in the controlled substances database established pursuant to the Tennessee Prescription Safety Act of 2016, compiled in title 53, chapter 10, part 3;
- (B)
Identify the top twenty (20) prescribers who have unique DEA numbers of buprenorphine products or equivalent products in the previous calendar year, or if implemented more frequently for the relevant time period as determined by the department, from the data available in the controlled substances database established pursuant to the Tennessee Prescription Safety Act of 2016. The department may organize the list of prescribers required by this subdivision (a)(1)(B) in any manner as may be appropriate to reflect levels of service, training, or other relevant factors by a healthcare provider. These factors may include, but not be limited to, whether the provider is board-certified;
- (2)
Send a letter through registered mail to each prescriber identified in subdivision (a)(1), and to the collaborating physician as found on the provider's profile established in title 63, chapter 32 of each advanced practice registered nurse and each physician assistant identified in subdivision (a)(1) that notifies the prescribers and, where appropriate, the collaborating physician that the prescriber has been identified pursuant to subdivision (a)(1) and includes the following information:
- (A)
The significant controlled substances prescribed by the prescriber;
- (B)
The number of patients prescribed these controlled substances by the prescriber;
- (C)
The total milligrams in morphine equivalents of controlled substances prescribed during the relevant period of time; and
- (D)
Any other relevant information sought by the department; and
- (3)
If there is an active investigation against the prescriber or, where appropriate the collaborating physician on the lists of prescribers identified in subdivision (a)(1), the department is authorized to withhold any communication required under this section until such time as charges are brought or the investigation is closed.
- (b)
- (1)
- (A)
At the discretion of the department, each prescriber and each collaborating physician of an advanced practice registered nurse and physician assistant who appear on the lists of the top twenty (20) prescribers of buprenorphine products, the top fifty (50) prescribers of controlled substances in the state, and the top ten (10) prescribers of controlled substances in all of the counties combined having a population of less than fifty thousand (50,000), according to the 2010 federal census or any subsequent federal census in the relevant period of time shall submit to the department within fifteen (15) business days through registered mail or electronic mail an explanation justifying the amounts of controlled substances prescribed in the relevant period of time by the prescriber demonstrating that these amounts were medically necessary for the patients treated and that, for advanced practice registered nurses and physician assistants, the collaborating physician had reviewed and approved the prescribing amounts. The department shall consider the prescriber's specialty and the patients' ages to make a determination as to whether the explanation of the prescriber and, where appropriate the collaborating physician for the prescribing habits of the prescriber of controlled substances is justifiable.
- (B)
The department is authorized to develop a model form to assist the prescriber and where appropriate the collaborating physician in completing the explanation required by this subsection (b).
- (C)
The department is authorized to contract with an expert reviewer to determine if the explanation is acceptable. Should charges ultimately be filed against the prescriber or, where appropriate the collaborating physician any report of the expert reviewer shall be discoverable by the licensee.
- (2)
If the department is not satisfied with any explanation by the prescriber or where appropriate a collaborating physician it shall communicate via registered mail such concerns to the prescriber and, if appropriate, the collaborating physician. The prescriber and, if appropriate, the collaborating physician shall have fifteen (15) business days to attempt to rectify the department's stated concerns.
- (3)
If the department remains unsatisfied after receiving a justification pursuant to subdivision (b)(2), the department may submit its concerns to the member of the controlled substance database committee who represents the board which has licensed the individual. This member shall have access to all of the documents pertaining to the concerns of the department and the expert reviewer. If that member also believes that the explanations which have been provided are not sufficient to justify the prescribing pattern of the prescriber, the concerns may be forwarded to the department's office of investigations. Investigations are conducted by the entity responsible for licensure of that prescriber.
- (c)
- (1)
In addition to identifying prescribers pursuant to subsections (a) and (b), beginning July 1, 2017, and annually thereafter, the department shall identify high-risk prescribers based on clinical outcomes, including patient overdoses. The determination of which providers are high-risk prescribers, including the criteria to make such determination, shall be made by the department. Providers determined to be high-risk prescribers pursuant to this subdivision (c)(1) shall be subject to selected chart review and investigation by the department.
- (2)
If a prescriber is identified as a high-risk prescriber pursuant to subdivision (c)(1), the department shall submit the high-risk prescriber's information to the board that issued the prescriber's license for appropriate action.
- (3)
Upon receiving information pursuant to subdivision (c)(2), the licensing board shall notify the prescriber and, if applicable, the prescriber's collaborating physician of the prescriber's identification as a high-risk prescriber and, as applicable, require the prescriber to:
- (A)
Participate in continuing education that is designed to inform providers about the risks, complications, and consequences of opioid addiction. The specific continuing education courses and number of hours to be completed by the prescriber shall be determined by the licensing board;
- (B)
Make available, in the prescriber's waiting room and clinic areas where the prescriber's patient can view, educational literature that warns persons of risks, complications, and consequences of opioid addiction. The specific literature to be made available pursuant to this subdivision (c)(3)(B) shall be determined by the department and made available on the department's website;
- (C)
Obtain written consent on a form that explains the risks of, complications of, medical and physical alternatives to, and consequences of opioid therapy and addiction to any patient who will receive opioid therapy for more than three (3) weeks with daily dosages of sixty (60) morphine milligram equivalents (MME) or higher. The consent shall include a certification from the patient that the patient understands the information. In order to continue to treat the patient, the provider must assure that the consent is signed by the patient and made part of the patient's health record; and
- (D)
Renew the consent described in subdivision (c)(3)(C) at four-week intervals for patients who continue to receive opioid therapy. In order to continue to treat the patient, the provider must assure that the consent is signed by the patient and made part of the patient's health record.
- (4)
An identified high-risk prescriber must comply with the requirements set out in subdivision (c)(3) for a period of one (1) year from the time the provider was notified of the provider's identification as a high-risk prescriber of opioids. Failure of a prescriber to comply with the requirements set out in subdivision (c)(3) shall be treated as an act constituting unprofessional conduct for which disciplinary action may be instituted under the authority of the board that issued the prescriber's license.
- (5)
All costs associated with this subsection (c) shall be paid by the identified provider.
- (6)
If the provider disputes the identification of the provider as a high-risk prescriber of opioids, the provider may request the department conduct an internal review of the identification, which shall be done by the commissioner or the commissioner's designee. Any such internal review is not subject to title 4, chapter 5, part 3.
- (d)
All data, reports and correspondence under this section shall be confidential and shall not be considered to be a public record for purposes of title 10, chapter 7.
- (e)
All correspondence and reports can be used by the department's office of investigations and/or the respective entity responsible for licensure to develop a disciplinary case against the prescriber and, where appropriate, the collaborating physician of an advanced practice registered nurse or physician assistant.
- (f)
The failure of a prescriber or, where appropriate, a collaborating physician to respond to the department's request for information in a timely fashion may be a cause for disciplinary action by the prescriber's, or where appropriate the collaborating physician's licensing board, and may include a penalty of up to one thousand dollars ($1,000) per day for failure to respond or failure to respond in a timely manner.
- (g)
All correspondence shall be maintained for five (5) years and kept organized by prescriber so that information on a prescriber who appears on multiple lists compiled pursuant to subsection (a) may be aggregated.
- (h)
- (1)
After the completion of the study provided for in subdivision (i)(1), and no later than July 31 of each subsequent year, in consultation with the controlled substance database, the department of health shall identify licensed prescribers whose prescribing patterns of controlled substances represent statistical outliers in addition to top prescribers and high-risk prescribers identified pursuant to this section.
- (2)
The department of health shall inquire of the appropriate licensing board concerning any action taken against a prescriber identified by the department pursuant to subdivision (h)(1). Each board shall respond within thirty (30) days concerning the status of any action or lack of action against an identified prescriber.
- (3)
Each board shall also report on the total numbers of prescribers disciplined each year and the general categories of discipline imposed on the prescribers, including consent agreements, as well as reasons for declining to exercise discipline.
- (4)
The commissioner of health shall report a summary of the data concerning prescribers identified under this subsection (h), including a summary of any disciplinary action taken or pending by a licensing board against a prescriber, to the chairs of the health and welfare committee of the senate and the health committee of the house of representatives.
- (i)
- (1)
On or before January 1, 2020, the comptroller of the treasury shall complete a study of the incidence of significantly statistically abnormal prescribing patterns by prescribers licensed under title 63 and the disciplinary response of the licensing boards to those prescribers. The comptroller shall report findings and recommendations of the study to the chairs of the health and welfare committee of the senate and the health committee of the house of representatives.
- (2)
Notwithstanding any other state law, the department of health, the controlled substance database, and a licensing board of any prescriber of opioids shall disclose to the comptroller of the treasury any relevant information in order for the comptroller to complete this study from July 1, 2018, through June 30, 2020. Any record that personally identifies a patient or a healthcare practitioner that is disclosed to the comptroller shall be confidential and shall not be disclosed as a public record at any time and shall not be subject to a subpoena.
§ 68-1-129. Optical examination waiver form for Alzheimer's and dementia patients.
- (a)
The department shall develop an optical examination waiver form to permit any patient diagnosed with Alzheimer's disease, Alzheimer's related dementia, or vascular dementia, to obtain lenses, spectacles, eye glasses, or optical devices using an expired prescription when such patient's disease or dementia would preclude the patient from undergoing an optical examination. The department shall make such forms available on its website.
- (b)
Such optical examination waiver form shall be signed by a licensed physician who has determined:
- (1)
The patient has Alzheimer's disease, Alzheimer's related dementia, or vascular dementia;
- (2)
The symptoms of the disease or dementia significantly affect the patient's ability to sit for an optical examination to obtain a new optical prescription;
- (3)
The patient's lenses, spectacles, eye glasses, or optical devices are lost, broken, or damaged to a degree that renders them unusable; and
- (4)
The patient would derive significant benefit from replacement.
- (c)
It is lawful for any optician, optometrist, or ophthalmologist licensed in this state to fill the most recent expired prescription for any lenses, spectacles, eye glasses, or optical devices for a patient; provided, that the prescription is filled once pursuant to an optical examination waiver form described in subsection (b).
§ 68-1-130. Development of plan to create apprentice program for use by licensing boards and commissions.
- (a)
The boards and commissions created in title 63, in consultation with the division of health related boards, shall develop a plan to create an apprentice program for use by such boards and commissions.
- (b)
The plan developed pursuant to subsection (a) shall include, but not be limited to, the subjects of:
- (1)
Apprenticeship training;
- (2)
Supervisory standards;
- (3)
Occupational instruction;
- (4)
Wages and benefits;
- (5)
Licensure; and
- (6)
The role of the division of health related boards in implementing and maintaining the program.
- (c)
The apprentice plan shall be submitted to the speaker of the senate, the speaker of the house of representatives, the government operations committees of the senate and house of representatives, the commissioner of commerce and insurance, the commissioner of health, and the commissioner of labor and workforce development on or before December 31, 2014.
§ 68-1-131. Reports on existing apprenticeship programs of boards and commissions.
-
Each of the boards and commissions created in title 63 that have statutorily created apprenticeship programs in effect as of July 1, 2014, or that previously had such programs in effect, shall submit a report to the persons and entities listed in § 68-1-130(c) on or before December 31, 2014, that includes:
- (1)
- (A)
The reason the apprentice program was created; and
- (B)
The reason the apprentice program is no longer in effect, if applicable;
- (2)
Historical data on the apprentice program since its creation, including:
- (A)
The number of persons participating in the program each year; and
- (B)
Program outcomes, including the percentage of program participants who have continued in their chosen fields;
- (3)
A description of the apprentice program and its objectives; and
- (4)
- (A)
The number of persons licensed in each profession regulated by such boards and commissions from July 1, 2009, to July 1, 2014; and
- (B)
The number of persons employed in each profession regulated by such boards and commissions from July 1, 2009, to July 1, 2014.
§ 68-1-132. Development of tobacco prevention programs.
-
Using a science and experience-based approach, the department of health shall develop and implement comprehensive tobacco prevention programs for this state. These programs shall include, when available, peer-reviewed and science-based educational materials on tobacco harm reduction and the comparative risks of alternative nicotine products, vapor products, smokeless tobacco products, cigarettes, and other combustible tobacco products.
§ 68-1-133. Department of health website — Links to asthma prevention protocols.
- (a)
The commissioner of health shall encourage public health organizations, the medical community, the department of education, the department of labor and workforce development, the department of general services, and other relevant stakeholders to examine the asthma prevention protocols posted on the website of the National Heart, Lung and Blood Institute of the National Institutes of Health (NIH) and related information to assist the medical profession, schools, public venues, workplaces, and other relevant stakeholders, in making appropriate responses to assist in:
- (1)
Diagnosing environmentally associated exacerbation of asthma in people with asthma;
- (2)
Avoiding new asthma cases;
- (3)
Better identifying and avoiding potential triggers so as to protect persons with these conditions; and
- (4)
Reducing medical costs and lost work or school time.
- (b)
On or before December 31, 2016, the commissioner shall include on the department of health website the internet links to the protocols identified in subsection (a), as existing asthma prevention protocols are helpful tools to better assist people affected by environmental illnesses and multiple chemical sensitivities.
§ 68-1-135. Performance of health maintenance tasks by paid personal aide.
- (a)
For purposes of this section:
- (1)
“Caregiver” means a person who is:
- (A)
Directly and personally involved in providing care for a minor child or incompetent adult; and
- (B)
The parent, foster parent, family member, friend, or legal guardian of such minor child or incompetent adult;
- (2)
“Competent adult” means a person eighteen (18) years of age or older who has the capability and capacity to evaluate knowledgeably the options available and the risks attendant upon each and to make an informed decision, acting in accordance with the person's own preferences and values. A person is presumed competent unless a determination to the contrary is made;
- (3)
“Health maintenance task” means a healthcare task that:
- (A)
A person without a functional disability or a caregiver would customarily and personally perform without the assistance of a licensed healthcare provider;
- (B)
The person is unable to perform for the person's own self due to a functional or cognitive limitation;
- (C)
The licensed healthcare provider determines can be safely performed in the home for the person by a paid personal aide acting under the direction of a competent adult with a functional disability or caregiver;
- (D)
Enables the person to maintain independence, personal hygiene, and safety in the person's own home; and
- (E)
Includes, but is not limited to, as determined by rule, administration of glucometer tests, administration of eye or ear drops, nebulizer treatment, and ostomy care, including skin care and changing appliance;
- (4)
“Home” means the dwelling in which the person resides, whether the person owns, leases, or rents such residence or whether the person resides in a dwelling owned, leased, or rented by someone else;
- (5)
“Licensed healthcare provider” means the treating physician licensed under title 63, chapter 6 or 9, or a registered nurse; and
- (6)
“Paid personal aide” is any person providing paid home care services, such as personal care or homemaker services, that enable the person receiving care to remain at home whether a paid personal aide is employed by the person receiving care, a caregiver, or by a contracted provider agency that has been authorized to provide home care services to that person.
- (b)
Notwithstanding any law or rule to the contrary, a competent adult with a functional disability living in the adult's own home or a caregiver acting on behalf of a minor child or incompetent adult living in the minor child's or the incompetent adult's own home may choose to direct and supervise a paid personal aide in the performance of a health maintenance task subject to the aide having been taught as required by subsection (d).
- (c)
A paid personal aide may perform health maintenance tasks required by an individual receiving long-term supports and services and be paid to provide those tasks while performing services constituting home and community based long-term care, as defined in § 71-2-103, or under a private pay arrangement. Self-direction of healthcare tasks by an individual receiving medicaid-reimbursed home and community based long-term care services shall be provided pursuant to the Long-Term Care Community Choices Act of 2008, compiled in title 71, chapter 5, part 14.
- (d)
If a licensed healthcare provider, after completing an assessment of an individual's healthcare needs, determines health maintenance tasks can be performed by paid personal aides, the licensed healthcare provider shall evaluate the ability of the paid personal aide to perform the health maintenance task, teach the health maintenance task to the paid personal aide, ensure supervision of the paid personal aide, and re-evaluate the health maintenance task performed by the paid personal aide at regular intervals. The requirements for documentation of the training required by this subsection (d) are to be determined by rule.
- (e)
A licensed healthcare provider acting with ordinary and reasonable care under the circumstances and within the protocols of the provider's authority who has ordered treatment to be provided by a paid personal aide, shall not be individually liable for the negligence or intentional acts of such paid personal aide when such negligence or intentional acts are outside the scope of the health maintenance tasks to be performed.
§ 68-1-136. Needle and hypodermic syringe exchange program.
- (a)
If approved by the department of health, a county or district health department pursuant to subsection (i) or any nongovernmental organization, including an organization that promotes scientifically proven ways of mitigating health risks associated with drug use and other high-risk behaviors, may establish and operate a needle and hypodermic syringe exchange program. The objectives of the program shall be to do all of the following:
- (1)
Reduce the spread of human immunodeficiency virus (HIV), acquired immunodeficiency syndrome (AIDS), viral hepatitis, and other bloodborne diseases in this state;
- (2)
Reduce needle stick injuries to law enforcement officers and other emergency personnel; and
- (3)
Encourage individuals who inject drugs to enroll in evidence-based treatment.
- (b)
Programs established pursuant to this section shall offer all of the following:
- (1)
Disposal of used needles and hypodermic syringes;
- (2)
Needles, hypodermic syringes, and other injection supplies at no cost and in quantities sufficient to ensure that needles, hypodermic syringes, and other injection supplies are not shared or reused. A program shall strive for one-to-one syringe exchanges. No public funds may be used by a nongovernmental organization to purchase needles, hypodermic syringes, or other injection supplies;
- (3)
Reasonable and adequate security of program sites, equipment, and personnel. Written plans for security shall be provided to the law enforcement offices with jurisdiction in the program location and shall be updated annually;
- (4)
Educational materials on all of the following:
- (A)
Overdose prevention;
- (B)
The prevention of HIV, AIDS, and viral hepatitis transmission;
- (C)
Drug abuse prevention;
- (D)
Treatment for mental illness, including treatment referrals; and
- (E)
Treatment for substance abuse, including referrals for medication assisted treatment;
- (5)
Access to naloxone for the treatment of a drug overdose, or referrals to programs that provide access to naloxone for the treatment of a drug overdose; and
- (6)
Personal consultations from a program employee or volunteer concerning mental health or addiction treatment as appropriate for each individual requesting services.
- (c)
- (1)
It is an exception to the application of title 39, chapter 17, part 4, if an employee, volunteer, or participant of a program established pursuant to this section possesses any of the following:
- (A)
Needles, hypodermic syringes, or other injection supplies obtained from or returned to a program established pursuant to this section; or
- (B)
Residual amounts of a controlled substance contained in a used needle, used hypodermic syringe, or used injection supplies obtained from or returned to a program established pursuant to this section.
- (2)
- (A)
The exception provided in this subsection (c) shall apply only if the person claiming the exception provides written verification that a needle, syringe, or other injection supplies were obtained from a needle and hypodermic syringe exchange program established pursuant to this section. For a participant in the program, this exception shall only apply to possession when the participant is engaged in the exchange or in transit to or from the exchange.
- (B)
In addition to any other applicable immunity or limitation on civil liability, a law enforcement officer who, acting on good faith, arrests or charges a person who is thereafter determined to be entitled to immunity from prosecution under this section shall not be subject to civil liability for the arrest or filing of charges.
- (3)
In addition to any other applicable immunity or limitation on civil liability, a nongovernmental organization and an employee or volunteer of that organization are not subject to civil liability for establishing, operating, or participating in a program established pursuant to this section in the absence of gross negligence or willful, intentional, or malicious conduct.
- (d)
Prior to commencing operations of a program established pursuant to this section and obtaining approval from the department of health as required by subsection (a), the county or district health department pursuant to subsection (i) or the nongovernmental organization shall report to the department of health all of the following information:
- (1)
The legal name of the organization or agency operating the program;
- (2)
The areas and populations to be served by the program; and
- (3)
The methods by which the program will meet the requirements of subsection (b).
- (e)
Not later than one (1) year after commencing operations of a program established pursuant to this section, and every twelve (12) months thereafter, each county or district health department pursuant to subsection (i) or organization operating such a program shall report the following information to the department of health:
- (1)
The number of individuals served by the program;
- (2)
The number of needles, hypodermic syringes, and needle injection supplies dispensed by the program and returned to the program;
- (3)
The number of naloxone kits distributed by the program; and
- (4)
The number and type of treatment referrals provided to individuals served by the program, including a separate report of the number of individuals referred to programs that provide access to naloxone that is approved by the federal food and drug administration for the treatment of a drug overdose.
- (f)
The department of health shall annually compile a report containing the information submitted to the department pursuant to subsection (e) and submit the report to the members of the general assembly.
- (g)
- (1)
Except as otherwise provided in subdivision (g)(2), a program established pursuant to this section shall not conduct an exchange within one thousand feet (1,000′) of a school or public park.
- (2)
A program established pursuant to this section in a municipality having a population of not less than fifty-five thousand four hundred forty (55,440) nor more than fifty-five thousand four hundred fifty (55,450), according to the 2020 federal census or a subsequent federal census, shall not conduct an exchange within two thousand feet (2,000′) of a school or public park.
- (h)
The commissioner of health is authorized to promulgate rules to effectuate the purposes of this section. The rules shall be promulgated in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.
- (i)
On a petition to a county health department under chapter 2, part 6 of this title, or a district health department under chapter 2, part 7 of this title, by a county legislative body for the establishing and operating of a needle and hypodermic syringe exchange program in the petitioning county, the county or district health department may subsequently seek approval of the department of health under subsection (a) to establish and operate a needle and hypodermic syringe exchange program in the petitioning county.
- (j)
Needle and hypodermic syringe exchange programs established under subsection (i) shall be funded entirely by the county legislative body making petition to the county or district health department.
§ 68-1-137. Program established to provide access to voluntary reversible long-acting contraception.
-
- (a)
As used in this section:
- (1)
“Family planning centers” means health clinics that receive funding under the Title X program overseen by the United States department of health and human services (Pub. L. No. 91-572), as well as other health clinics that the commissioner of health finds are qualified and willing to perform comprehensive family planning services; and
- (2)
“Voluntary reversible long-acting contraception” or “VRLACs,” also known as “long-acting reversible contraceptives” or “LARCs,” means highly effective methods of contraception that last for several years and are easy to use. VRLACs include, but are not limited to, intrauterine contraceptives and birth control implants.
- (b)
- (1)
The department of health shall administer a program to improve access to VRLACs for women.
- (2)
The program shall include:
- (A)
Training for family planning centers regarding contraceptive methods, including VRLACs, client-centered and non-coercive counseling strategies, and managing side effects;
- (B)
Training for all public health facilities to ensure that they are qualified and able to provide forms of contraception, including VRLACs;
- (C)
Assistance to family planning centers regarding administrative or technical issues such as coding, billing, pharmacy rules, and clinic management related to the provision of forms of contraception, including VRLACs and other methods;
- (D)
General financial support to expand the capacity of family planning centers to provide VRLACs, to train and staff providers, and to keep supplies in stock and available for same-day access by patients;
- (E)
Education and outreach to the public about the availability, effectiveness, and safety of contraception including VRLAC;
- (F)
Education and outreach to the public to inform women about alternatives to abortion, including adoption services, and the numerous public and private agencies and services that are available to assist women during pregnancy and after the birth of the child;
- (G)
Compiling a list of the contraceptive methods available for both over-the-counter and directly through pharmacies, as California and Oregon have done; and
- (H)
Other services the commissioner of health deems necessary to improve access to comprehensive family planning options.
- (c)
Implementation and the continuation of the program established in this section is subject to the availability of federal funds made available to the state for that purpose.
§ 68-1-138. Prohibited offer or payment, or offer or solicitation, of commission for referral of patient or patronage with respect to alcohol or drug services.
- (a)
A healthcare facility or provider licensed under this title, with respect to alcohol and drug services, as defined in § 33-2-402, shall not knowingly:
- (1)
Offer or pay a commission, benefit, rebate, kickback, or bribe, directly or indirectly, in cash or in kind, or engage in any split-fee arrangement, in any form whatsoever, to induce the referral of a patient or patronage to or from:
- (A)
A licensee or facility licensed under title 33, chapter 2, part 4; or
- (B)
A recovery residence, an employee of a recovery residence, a nationally recognized recovery residence standards organization or its affiliate, or an employee of a nationally recognized recovery residence standards organization or an employee of its affiliate under title 33, chapter 2, part 14;
- (2)
Solicit or receive a commission, benefit, rebate, kickback, or bribe, directly or indirectly, in cash or in kind, or engage in any split-fee arrangement, in any form whatsoever, in return for referring a patient or patronage to or from:
- (A)
A licensee or facility licensed under title 33, chapter 2, part 4; or
- (B)
A recovery residence, an employee of a recovery residence, a nationally recognized recovery residence standards organization or its affiliate, or an employee of a nationally recognized recovery residence standards organization or an employee of its affiliate under title 33, chapter 2, part 14;
- (3)
Solicit or receive a commission, benefit, rebate, kickback, or bribe, directly or indirectly, in cash or in kind, or engage in any split-fee arrangement, in any form whatsoever, in return for the acceptance or acknowledgment of treatment from:
- (A)
A licensee or facility licensed under title 33, chapter 2, part 4; or
- (B)
A recovery residence, an employee of a recovery residence, a nationally recognized recovery residence standards organization or its affiliate, or an employee of a nationally recognized recovery residence standards organization or an employee of its affiliate under title 33, chapter 2, part 14; or
- (4)
Aid, abet, advise, or otherwise participate in the conduct prohibited under subdivision (a)(1), (a)(2), or (a)(3).
- (b)
Any healthcare facility or provider licensed under this title, with respect to alcohol and drug services, that violates this section is subject to suspension or revocation of the healthcare facility's or provider's license by the appropriate licensing board and the imposition of civil penalties as authorized under this title.
§ 68-1-139. Training program for certified nurse practitioners in treating and processing minor who is victim of sexual offense.
- (a)
As used in this section, “minor” means any person who has not attained eighteen (18) years of age.
- (b)
The department of health may seek a federal grant from the federal department of health and human services' health resources and services administration, or any other applicable entity, for the purpose of developing a training program for certified nurse practitioners in treating and processing a minor who is a victim of an offense described in § 39-13-504, § 39-13-505, § 39-13-506, § 39-13-509, § 39-13-518, § 39-13-522, § 39-13-527, § 39-13-531, or § 39-13-532. Participation in the training program must be free of charge for the certified nurse practitioner participants.
§ 68-1-141. Dementia education.
- (a)
By January 1, 2022, the department of health, in collaboration with the bureau of TennCare, shall, as a part of its existing public health programs and services, educate healthcare professionals and public health practitioners on:
- (1)
The importance of risk reduction, early detection, and timely diagnosis of cognitive impairment and dementia;
- (2)
The use of validated cognitive assessment tools; and
- (3)
Provision of effective care planning, including treatment options, support and services, long-term care options, advanced directives, and care coordination at all stages of dementia, including appropriate counseling and referral.
- (b)
Using the State and Local Public Health Partnerships to Address Dementia Roadmap from the centers for disease control and prevention's Healthy Brain Initiative, the department of health, in partnership with the commission on aging and disability, members of the state Alzheimer's disease and related dementia advisory council, and the Tennessee Dementia Friendly Communities, shall in its existing relevant public health programs, including the Tennessee Dementia Friendly Communities initiative, continue to incorporate information on:
- (1)
Increasing understanding and awareness of Alzheimer's disease and other dementias, including its links to chronic disease, such as vascular risk factors;
- (2)
Early signs of Alzheimer's disease and other dementias that should be discussed with healthcare professionals and the value of early detection and timely diagnosis; and
- (3)
Increasing data and surveillance, encouraging additional data analysis, and encouraging accurate reporting on death certificates.
- (c)
The department shall strive to provide uniform, consistent guidance in nonclinical terms, with an emphasis on cultural relevancy and health literacy, specifically targeting populations at higher risk for developing dementia in its public awareness and educational outreach programs.
§ 68-1-142. Dissemination of information concerning health effects and dangers of using vapor products to students.
- (a)
As used in this section:
- (1)
“Junior high school” means a school in which any combination of grades corresponding to grade seven through grade ten (7-10) are taught; however, the school must include grade nine (9);
- (2)
“Middle school” means a school designed to serve grades five through eight (5-8) only, or any combination of grades five through eight (5-8);
- (3)
“Senior high school” means a school in which any combination of grades corresponding to grade nine through grade twelve (9-12) are taught; however, the school must include grade twelve (12); and
- (4)
“Vapor product”:
- (A)
Means a noncombustible product containing nicotine or another substance that employs a mechanical heating element, battery, electronic circuit, or other mechanism, regardless of shape or size, that can be used to produce or emit vapor;
- (B)
Includes an electronic cigarette, electronic cigar, electronic cigarillo, electronic pipe, or similar product, and a vapor cartridge or other container of a solution containing nicotine or another substance that is intended to be used with or in an electronic cigarette, electronic cigar, electronic cigarillo, electronic pipe, or similar product; and
- (C)
Does not include a product regulated under Chapter V of the federal Food, Drug, and Cosmetic Act (21 U.S.C. § 351 et seq.).
- (b)
The department of health, in coordination with the department of education, shall disseminate information from the centers for disease control and prevention concerning the health effects and dangers of using vapor products to students in public middle schools, public junior high schools, and public senior high schools in this state.
§ 68-1-143. Implementation of measures if healthcare staffing crisis exists.
- (a)
As used in this section, “healthcare staffing crisis” means:
- (1)
There is a shortage of qualified staff for healthcare facilities in this state as a result of an infectious disease or a catastrophic event; and
- (2)
The shortage described in subdivision (a)(1) has the potential to compromise the health, safety, or welfare of the citizens of this state.
- (b)
- (1)
Notwithstanding a law to the contrary, the commissioner of health may implement the following measures if the commissioner determines a healthcare staffing crisis exists:
- (A)
Allow a healthcare professional, who is licensed in another state, does not hold a valid license in this state, and who would otherwise be subject to the licensing requirements under title 63 or this title, to temporarily engage in the practice of the professional's profession in this state while employed by a facility licensed under title 33 or this title. If the commissioner implements this subdivision (b)(1)(A), then the commissioner must establish by rule a process for professionals to practice under this subdivision (b)(1)(A). The process must be published on the department of health's health professional boards' website. A healthcare professional practicing in this state pursuant to this subdivision (b)(1)(A) is subject to the licensing fees, rules, scope of practice, and disciplinary actions applicable to licensed healthcare professionals in this state that are not contrary to this subdivision (b)(1)(A);
- (B)
- (i)
Allow a healthcare professional licensed under title 63 or this title to perform tasks outside of the professional's scope of practice, if the tasks are performed in a hospital licensed under this title or in a psychiatric hospital, in a behavioral health residential facility, or by a behavioral health crises services provider licensed under title 33. The commissioner shall approve a professional pursuant to this subdivision (b)(1)(B) pursuant to a facility- or provider-specific plan of delegation, as follows:
- (a)
In the case of a hospital licensed under this title, the plan has been submitted by the facility's chief medical officer and approved by the commissioner of health; or
- (b)
In the case of a facility or provider licensed under title 33, the plan has been submitted by the facility's or provider's chief medical or chief executive officer and jointly approved by the commissioner of mental health and substance abuse services, and the commissioner of health;
- (ii)
The plan of delegation must include the specific types of licensees covered, the specific tasks outside of the professional's licensed scope of practice that are permitted, and the specific circumstances and directives under which the tasks are permitted;
- (iii)
The approval of the plan is subject to conditions set by the commissioner in rules promulgated by the department in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5; and
- (iv)
A professional performing tasks pursuant to this subdivision (b)(1)(B):
- (a)
If licensed, remains subject to rules and disciplinary action as if the professional were acting within the professional's licensed scope of practice; and
- (b)
If unlicensed, may be prohibited from obtaining a license in the future if found to be in violation of the plan of delegation or any related rules;
- (C)
- (i)
Allow a student actively enrolled in a graduate school program or an undergraduate respiratory care program, the educational standards of which meet the training requirements for a license under title 63 or this title, to perform supervised tasks within the licensed scope of practice of that license, if the tasks are performed in a hospital licensed under this title or in a psychiatric hospital, in a behavioral health residential facility, in a nursing facility licensed under this title that provides enhanced respiratory care reimbursed by TennCare, or by a behavioral health crises services provider licensed under title 33, pursuant to a facility- or provider-specific plan of delegation, as follows:
- (a)
In the case of a hospital licensed under this title, the plan has been submitted by the facility's chief medical officer and approved by the commissioner of health;
- (b)
In the case of a facility or provider licensed under title 33, the plan has been submitted by the facility's or provider's chief medical or chief executive officer and jointly approved by the commissioner of mental health and substance abuse services, and the commissioner of health; or
- (c)
In the case of a nursing facility licensed under this title and providing enhanced respiratory care reimbursed by TennCare, the plan has been submitted by the facility's administrator and the medical director of either the facility or the facility's respiratory program, and approved by the commissioner of health;
- (ii)
The plan of delegation pursuant to this subdivision (b)(1)(C) must include the specific types of programs in which a student must be enrolled to perform tasks in accordance with the plan, the specific tasks within the relevant scope of practice that the student is permitted to perform, and the specific circumstances and directives under which the tasks are permitted;
- (iii)
The commissioner approving the plan may include conditions and may rescind approval in that person's sole discretion; and
- (iv)
A student performing tasks pursuant to this subdivision (b)(1)(C) may be subject to disciplinary action upon applying for a license described in subdivision (b)(1)(C)(i) for actions inconsistent with the scope of practice for that license; and
- (D)
Temporarily suspend the effectiveness of a rule applicable to facilities or providers licensed under title 33, title 63, or this title; provided:
- (i)
The temporary suspension is consistent with regulations, or the waiver of regulations, issued by the federal centers for medicare and medicaid services;
- (ii)
In the case of a facility or provider licensed under title 33 for the provision of mental health services or alcohol and drug abuse prevention or treatment, the temporary suspension is effective only to the extent that the commissioner of mental health and substance abuse services has concurred in the temporary suspension of the rule; and
- (iii)
In the case of a facility or provider licensed under title 33 for the provision of services for intellectual and developmental disabilities and for personal support services, the temporary suspension is effective only to the extent that the commissioner of intellectual and developmental disabilities has concurred in the temporary suspension of the rule.
- (2)
It is within the commissioner of health's sole discretion to determine whether a healthcare staffing crisis exists pursuant to this section. However, if the commissioner makes that determination and implements the measures described in subdivision (b)(1), then the commissioner must provide the governor, the speaker of the senate, and the speaker of the house of representatives written notice of the healthcare staffing crisis and the intended measures prior to implementation of those measures.
- (c)
The commissioner may impose geographic and time limitations on the measures authorized by this section for no more than one hundred twenty (120) days. The commissioner may extend the measures for up to an additional one hundred twenty (120) days if the commissioner makes a determination that a healthcare staffing crisis still exists.
§ 68-1-144. Remote use of special supplemental food program for women, infants, and children.
- (a)
As allowed via federal department of agriculture waiver of the physical presence requirement in 42 U.S.C. § 1786(d)(3)(C), the department of health may utilize remote use of the special supplemental food program for women, infants, and children at a substantially similar level as has been available during calendar years 2020, 2021, and 2022. The department may promote remote use options and educate eligible recipients about remote use.
- (b)
The department of health shall conduct a review of remote use of the special supplemental food program for women, infants, and children and deliver a report to the chairs of the health and welfare committee of the senate and the health committee of the house of representatives no later than December 15, 2022. The report must include information on best practices, resources, and communications utilized during the remote use period.
- (c)
As used in this section, “remote use” means effectuating the requirements of the special supplemental nutrition program for women, infants, and children via telephone, audio video equipment, or similar technology.
Part 2 Quarantine
§ 68-1-201. Power to quarantine.
- (a)
The commissioner has the power to:
- (1)
Declare quarantine whenever, in the commissioner's judgment, the welfare of the public requires it; and
- (2)
Prescribe such rules and regulations as may be deemed proper for the prevention of the introduction of yellow fever, cholera and other epidemic diseases into the state.
- (b)
- (1)
Whenever yellow fever, cholera, smallpox or other epidemic diseases appear in any locality within the state, and information thereof is brought to the knowledge of the department, the commissioner shall prepare and carry into effect such rules and regulations as, in the commissioner's judgment, will, with the least inconvenience to commerce and travel, prevent the spread of the disease.
- (2)
Whenever the commissioner determines that an influenza outbreak may pose a threat of an epidemic, the commissioner shall prepare and carry into effect rules and regulations that, in the commissioner's judgment, will, with the least inconvenience to commerce and travel, prevent the spread of the disease.
- (c)
As used in this part, “quarantine” means the limitation of a person's freedom of movement, isolation of a person, or preventing or restricting access to premises upon which the person or the cause or source of a disease may be found, for a period of time as may be necessary to confirm or establish a diagnosis, to determine the cause or source of a disease, or to prevent the spread of a disease.
§ 68-1-202. Quarantine stations.
- (a)
The commissioner shall select suitable localities for establishing quarantine stations, and may erect necessary temporary buildings for the disinfection of passengers, baggage, cargo and other matter believed to convey the contagious principle of cholera, yellow fever, smallpox and other epidemic diseases, and may enforce the transshipment of passengers as the commissioner may deem necessary.
- (b)
The commissioner shall assign to the charge of each station a competent physician and necessary assistants, who shall receive such compensation as the commissioner may deem reasonable and just.
§ 68-1-203. Violating quarantine a misdemeanor.
-
Any person who willfully disregards or evades quarantine, or violates any rule or regulation made in attempting to prevent the spread of any epidemic disease, commits a Class B misdemeanor.
Part 3 Dental Hygiene
§ 68-1-301. Special care of mouth and teeth — Development of statewide strategy — Report.
-
The commissioner of health has general supervision of the interests of health and life of the citizens of this state, with special reference to the care and preservation of the mouth and teeth. With an understanding of the need to address the lack of resources available for the treatment of adult emergency dental situations, the commissioner will, in conjunction with professional organizations comprised of dental and related health care providers, organizations representing dental health recipients and other key stakeholders, develop a statewide strategy for the provision of adult emergency oral health care, utilizing public and private sector resources. The commissioner will report to the legislature on the progress of this strategy no later than January 15, 2009.
§ 68-1-304. County mouth hygienists.
- (a)
To assist the commissioner in carrying out the duties of the commissioner's office, the commissioner is authorized to appoint a reputable dentist in each county seat, who shall serve without compensation and shall be known as county mouth hygienist.
- (b)
County health departments, both rural and metro, with existing dental staff and facilities receiving state or federal funds, shall, as a high priority to the extent possible within budgetary limitations, provide indigent children with comprehensive dental services and indigent adults with emergency dental services for the relief of pain and infections. The language “to the extent possible within budget limitations” as used in this section does not relieve metropolitan health departments with dental staffs and clinical facilities from occasionally providing emergency services to adult patients who present for relief of pain and infection. Subject to and within current or existing budget limitations, metropolitan health departments are to see adult emergency patients during cancelled or open appointments in their schedule. Nothing in this section precludes the health departments from charging a fee for those services. The commissioner has authority to monitor compliance and may request corrective actions if necessary.
§ 68-1-305. Comprehensive state oral health plan.
- (a)
The commissioner of health is authorized to develop a comprehensive state oral health plan. The plan may be used to direct skilled personnel and funding decisions in order to reduce the prevalence of oral disease. The plan may enable the state to compete more effectively for funding resources and opportunities.
- (b)
The commissioner may develop the plan in consultation with public and private agencies, partners, and stakeholders, including the state oral health coalition and members of the public health, dental, and medical communities.
- (c)
The plan may:
- (1)
Include state-specific data;
- (2)
Be maintained in a current and relevant form with updates every five (5) years;
- (3)
Be distributed broadly to public partners and policymakers; and
- (4)
Provide specific, measurable, achievable, relevant, and time-framed (S.M.A.R.T.) objectives.
- (d)
The plan may also include:
- (1)
A logic model;
- (2)
A strong infrastructure;
- (3)
Accessibility to current resources;
- (4)
Identified knowledge gaps in resources and recommendations for eliminating those gaps;
- (5)
Healthy People 2020 oral health objectives;
- (6)
Identified priority populations and the burdens of oral disease;
- (7)
Identified partners with the ability to leverage resources;
- (8)
A communication plan for addressing new or emerging oral health knowledge specifically for:
- (A)
Dental caries;
- (B)
Water fluoridation; and
- (C)
School-based or school-linked dental sealant programs;
- (9)
Programs to address oral cancer and periodontal diseases;
- (10)
Efforts to address infection control in dental settings;
- (11)
Evaluation activities at the initiation of the planning process that involve recommendations for types of evaluation and plans for monitoring outcomes related to plan implementation;
- (12)
Identified best practices for replication of program implementation; and
- (13)
A proposal that identifies the process for updating the plan as required by this section.
Part 4 Vaccines
§ 68-1-401. Production and distribution by department — Charge — Regulations.
- (a)
It is the duty of the department of health to manufacture and distribute throughout the state of Tennessee such vaccines and other biological products as the division of laboratories is equipped to produce.
- (b)
The commissioner of health, with the approval of the governor, shall adopt rules and regulations governing the manufacture and distribution of vaccines and biological products.
- (c)
Subject to the rules and regulations prescribed by subsection (b), health officers and health departments of this state and the heads of state institutions may from time to time make requisitions for vaccines and other products, which requisitions shall, if deemed reasonable and necessary, be honored in the order in which the requisitions are presented to the commissioner.
- (d)
A reasonable charge may be made to cover the cost of manufacture, distribution and essential overhead expenses, funds as received to be deposited with the state treasurer and disbursed in the same manner as are any state appropriations for the department.
- (e)
All receipts from the sale of the products provided for in this section shall continue as a manufacturing account of the department for the continuance of the service by the division of laboratories and shall not revert to the general fund.
§ 68-1-402. Hepatitis vaccinations.
- (a)
When hepatitis A outbreaks in communities are of such a nature and proportion that the centers for disease control or the commissioner of health deems it appropriate to do targeted or widespread vaccination for hepatitis A, then vaccine shall be made available to that community through state funds, if no federal vaccine program covers the cost of any or all of the vaccine necessary to carry out the vaccination program.
- (b)
For the purpose of funding the cost of the vaccine required by this section during outbreaks, it is the legislative intent to provide a sum-sufficient appropriation in each fiscal year's annual appropriation bill, which will be subject to approval of the commissioner of finance and administration.
§ 68-1-403. Declaration of epidemic — Statewide collaborative pharmacy practice agreement.
- (a)
As used in this section:
- (1)
“Chief medical officer” means the chief medical officer for the department of health;
- (2)
“COVID-19” means the novel coronavirus, SARS-CoV-2, and coronavirus disease 2019, commonly referred to as COVID-19, including a mutation of SARS-CoV-2 or COVID-19;
- (3)
“Vaccine” means a substance used to stimulate the production of antibodies and provide immunity against COVID-19, prepared from the causative agent of a disease, its products, or a synthetic substitute, treated to act as an antigen without inducing the disease, that is authorized or approved by the United States food and drug administration; and
- (4)
“Vaccine administration training program” means a training program:
- (A)
Approved by the Accreditation Council for Pharmacy Education (ACPE) related to vaccine administration; and
- (B)
Includes hands-on injection technique, clinical evaluation of indications and contraindications of vaccines, and the recognition and treatment of emergency reactions to vaccines.
- (b)
- (1)
The commissioner has the power to declare an epidemic exists in this state. The declaration of an epidemic authorizes the chief medical officer to implement a statewide collaborative pharmacy practice agreement specific to vaccine dispensing and administration with a pharmacist licensed, and practicing, in this state for purposes of dispensing and administering a vaccine to this state's vulnerable population.
- (2)
A pharmacist licensed, and practicing, in this state is authorized to dispense and administer a vaccine pursuant to a statewide collaborative pharmacy practice agreement executed by the chief medical officer.
- (3)
The statewide collaborative pharmacy practice agreement authorized by the chief medical officer must include, but is not limited to, the following requirements:
- (A)
The vaccine or vaccines the agreement covers;
- (B)
The identification of a required vaccine administration training program that the pharmacist must complete before administering a vaccine pursuant to the agreement;
- (C)
Protocols for vaccine dispensation and administration;
- (D)
A requirement that a pharmacist dispensing or administering a vaccine pursuant to the agreement hold a current certificate in basic cardiopulmonary resuscitation;
- (E)
A requirement that a pharmacist dispensing or administering a vaccine pursuant to the agreement complete a minimum of two (2) hours of ACPE-approved, immunization-related continuing pharmacy education during each license renewal period while authorized to dispense and administer a vaccine under the agreement; and
- (F)
A requirement that a pharmacist dispensing or administering a vaccine pursuant to the agreement comply with recordkeeping and reporting requirements, including, but not limited to:
- (i)
Informing the patient's primary care provider if the patient identifies a primary care provider;
- (ii)
Submitting the required immunization information to Tennessee's vaccine registry;
- (iii)
Complying with requirements related to reporting adverse events; and
- (iv)
Reviewing the patient's vaccine history, if any, through Tennessee's vaccine registry or other vaccination records prior to administering a vaccine.
- (4)
Before a pharmacist may enter into a statewide collaborative pharmacy practice agreement with the chief medical officer for the administration of a vaccine, the pharmacist must have documentation of completing a vaccine administration training program required pursuant to subdivision (b)(3)(B).
- (5)
Upon entering a statewide collaborative pharmacy practice agreement pursuant to this section, a pharmacist must maintain a copy of the agreement and documentation of completion of the vaccine administration training program on file at the pharmacist's place of practice. The pharmacist must make these documents available to the department of health upon request.
Part 5 Control and Prevention of Diabetes
§ 68-1-502. Reports.
-
The bureau of TennCare and the department of health shall jointly submit a report to the health committee of the house of representatives and the health and welfare committee of the senate by February 1 of each odd-numbered year on the following:
- (1)
The financial impact and reach diabetes of all types is having on the agency, the state, and localities. Items included in this assessment shall include the number of lives with diabetes impacted or covered by the entity, the number of lives with diabetes and family members impacted by prevention and diabetes control programs implemented by the entity, the financial toll or impact diabetes and its complications places on the program, and the financial toll or impact diabetes and its complications places on the program in comparison to other chronic diseases and conditions;
- (2)
An assessment of the benefits of implemented programs and activities aimed at controlling diabetes and preventing the disease. This assessment shall also document the amount and source for any funding directed to such agency from the general assembly for programs and activities aimed at reaching those with diabetes;
- (3)
A description of the level of coordination existing between the agencies on activities, programmatic activities, and messaging on managing, treating, or preventing all forms of diabetes and its complications; and
- (4)
The development or revision of detailed action plans for battling diabetes with a range of actionable items for consideration by the general assembly. The plans shall identify proposed action steps to reduce the impact of diabetes, prediabetes, and related diabetes complications. The plan shall also identify expected outcomes of the action steps proposed in the following biennium while also establishing benchmarks for controlling and preventing relevant forms of diabetes. The role of the department of health in developing these plans shall be limited to primary prevention.
§ 68-1-503. Applicability of requirements of part.
-
The requirements of this part shall be limited to the diabetes information, data, initiatives, and programs within each agency prior to July 1, 2015, unless there is unobligated funding for diabetes in each agency that may be used for new research, data collection, reporting, or other requirements of this part.
Part 7 Primary Health Care Centers
§ 68-1-701. Establishment of centers.
- (a)
The department of health is authorized to establish one (1) or more primary health care centers in Tennessee.
- (b)
It is the intent of the general assembly that the establishment of these centers will demonstrate new and more effective ways of providing health care in communities of the state, and will assist in achieving a better distribution of health care personnel into areas of Tennessee where a shortage of such personnel currently exists, and that these centers will provide primary health care services to patients and will enhance the delivery of health care in communities.
§ 68-1-702. Participation of public and private agencies and individuals — Rules and regulations.
- (a)
The commissioner of health is authorized to contract with and otherwise seek participation from appropriate public and private agencies and institutions and individuals, as the commissioner may deem necessary, to accomplish the purposes of this part. Particular attention will be given to educational functions to improve health care manpower distribution.
- (b)
The commissioner is authorized to adopt, promulgate and enforce rules and regulations under which primary care centers shall be operated, and to effectuate the purposes and provisions of this part.
§ 68-1-703. Approval by state and local agencies required.
-
In order to ensure cooperation and acceptance of the purposes of this part by the community to be served, the sponsor of any new primary health care center shall, prior to the establishment of a new primary health care center in a community, obtain the approval of the appropriate health systems agency and the [former] primary care advisory board [repealed], including those centers that utilize, or plan to utilize, federal funds, either as grants, or as fees receivable as reimbursements for services delivered for medicare or medicaid patients.
Part 8 Perinatal and Neonatal Care
§ 68-1-801. Part definitions.
-
As used in this part, unless the context otherwise requires:
- (1)
“Commissioner” means the commissioner of health or the commissioner's designated representative;
- (2)
“Committee” means the perinatal advisory committee;
- (3)
“Department” means the department of health; and
- (4)
“Perinatal” means the period from time of conception through the first year of life of the infant and sixty (60) days post partum for the mother.
§ 68-1-802. Development of plan for perinatal care.
- (a)
The department is directed to develop a plan to establish a program for the diagnosis and treatment of certain life-threatening conditions present in the perinatal period.
- (b)
The program shall assist pregnant women and their fetuses and newborn infants by developing a regionalized system of care, including highly specialized personnel, equipment, and techniques, that will decrease the existing high mortality rate, neonatal death rate, pre-term birth rate, and the lifelong disabilities that currently prevail in surviving newborn infants.
- (c)
No programs shall be planned except those that are specifically funded by appropriations in the annual budget.
§ 68-1-803. Appointment of advisory committee — Terms — Travel expenses.
- (a)
The commissioner shall appoint a perinatal advisory committee to consult with the department in the administration of this part.
- (b)
The committee shall be composed of the director, or the director's designee, of each obstetrical and each newborn unit of each regional perinatal center within the state, as designated by the commissioner, in addition to at least one (1) representative from each of the following categories:
- (1)
Medical schools;
- (2)
Health and environment agencies;
- (3)
Hospital administrators;
- (4)
Medical specialists in obstetrical and newborn conditions;
- (5)
Family physicians;
- (6)
Obstetrical and neonatal intensive care nurses; and
- (7)
The general public.
- (c)
Total membership of the committee shall not exceed twenty-one (21).
- (d)
Each member shall hold office for a term of four (4) years and until the member's successor is appointed and qualified.
- (e)
Any person appointed to fill a vacancy occurring prior to the expiration of the term for which the person's predecessor was appointed shall be appointed for the remainder of the term.
- (f)
The committee shall meet as frequently as the commissioner deems necessary, but not less than once each year.
- (g)
The committee members shall receive no compensation, but shall be reimbursed for travel expenses, in accordance with the comprehensive travel regulations as promulgated by the department of finance and administration and approved by the attorney general and reporter.
§ 68-1-804. Items to be considered for inclusion in program.
-
The department, with the advice of the committee, shall, in developing the plan for this program, consider the feasibility of designing this program so as to:
- (1)
Develop standards for determining eligibility for diagnosis and treatment under this program;
- (2)
Assist in the regional development, expansion and maintenance of newborn centers, including purchase of equipment, for the diagnosis and treatment of high-risk pregnant women and their fetuses and newborn infants;
- (3)
Extend financial assistance in order to provide diagnosis of and treatment for pregnant women and their fetuses and newborn infants, by providing necessary medical, surgical, hospital, outpatient clinic and ambulatory services;
- (4)
Develop a regional system or systems of rapid transportation and referral to the obstetrical and newborn centers from throughout the state for pregnant women and their fetuses and newborns who require life-sustaining care;
- (5)
Develop or expand regional education and training activities to further facilitate meeting the intent of this part;
- (6)
Employ all necessary administrative personnel as may be provided in the budget to carry out this part;
- (7)
Promulgate all rules and regulations necessary to effectuate the purposes of this part;
- (8)
Develop or expand a communication/consultation system or systems;
- (9)
In consultation with organizations representing state pediatric physicians, develop appropriate standards for the dissemination of information and educational material about conditions and diseases that commonly affect newborn infants, such as respiratory syncytial virus; and
- (10)
Assist in the regional development, expansion, and maintenance of specialty level II birthing centers in every health region with certified obstetricians and pediatricians available who are trained in the prevention, early diagnoses, treatment, and stabilization of complications of pregnancy and childbirth.
§ 68-1-805. Report regarding births involving neonatal abstinence syndrome and opioid use by women of childbearing age.
-
On or before January 15, 2018, the commissioner of health, in consultation with the perinatal advisory committee and with the assistance of relevant state agencies, shall report to the health committee of the house of representatives and the health and welfare committee of the senate concerning the following aspects of births involving neonatal abstinence syndrome and opioid use by women of childbearing age for the last two (2) available fiscal years or calendar years, as may be available:
- (1)
From data available to the bureau of TennCare, the number of births involving neonatal abstinence syndrome to enrollees in the TennCare program, the lengths of stay in a hospital for infants born with neonatal abstinence syndrome to enrollees in the TennCare program, and the costs to the program of those births;
- (2)
From information available to managed care organizations participating in the TennCare program, a description of any initiatives by the managed care organizations to address health outcomes, costs, and other issues raised by births involving neonatal abstinence syndrome and opioid use by women of childbearing age;
- (3)
From data available to the department of health, and district and county health departments, the number of women with a substance abuse diagnosis involving opioid use who received family planning services and the number of those women who received long acting reversible contraceptives;
- (4)
From data available to the department of children's services, the number of cases involving investigations that included an infant born with neonatal abstinence syndrome, the number of such infants in custody of the department, and the number of visits made by the department to families with an infant born with neonatal abstinence syndrome; and
- (5)
From data available to the bureau of TennCare and the department of health, the number of cases in which the source of opiates in the mother of an infant born with neonatal abstinence syndrome can be reasonably associated with a substance prescribed to the mother.
§ 68-1-806. Report on quality and outcomes in perinatal care.
-
On or before March 1 of each year the bureau of TennCare, in consultation with the perinatal advisory committee and with the assistance of relevant state agencies, shall report to the health committee of the house of representatives and the health and welfare committee of the senate concerning the following aspects of quality and outcomes in perinatal care for the last two (2) available fiscal years or calendar years, as may be available:
- (1)
From information available to managed care organizations participating in the TennCare program, a description of any initiatives by the managed care organizations to improve key performance indicators of perinatal care outcomes such as maternal deaths, neonatal and fetal perinatal deaths, and pre-term births; and
- (2)
From vital statistical data available to the bureau of TennCare and the department, a determination of the effectiveness of managed care organizations' initiatives toward improving perinatal care outcomes to residents in each health region.
Part 9 Medical Care Division
§ 68-1-901. Director of division — Assistants and employees.
- (a)
The director of the medical care division shall be duly licensed in accordance with the laws of Tennessee to practice medicine in Tennessee, and shall have been engaged in the active practice of the director's profession for not less than five (5) years immediately preceding the director's appointment.
- (b)
It is the duty of the commissioner of health, in conjunction with the director of the medical care division, and after consultation with the [former] public health council [repealed] of the department of health, to appoint such assistants and employees as may be necessary to carry on the work of the medical care division, and all the assistants and employees shall hold office and receive compensation in accordance with provisions of title 4, chapter 4, governing the tenure and compensation of like employees in other departments.
§ 68-1-902. Administration and disbursement of funds — Medical care fund established.
- (a)
The medical care division, subject to supervision by the department of health, as provided in this part, shall administer and expend all funds appropriated by the general assembly or made available by allotment by the federal government to the state, or from contributions from counties, cities or other local units of government, or from other sources, appropriated, allotted or contributed for medical care in accordance with any future act of the general assembly or the congress of the United States, having as its object the inauguration of a state or national program of medical care.
- (b)
It is the duty of the state treasurer, whenever funds are available for carrying out this part, to set up in the state treasury a separate fund to be known as the “medical care fund,” and credit to the fund all appropriations, allotments or contributions, from whatever source specially designated and identified as funds for medical care or medical service, in accordance with the purpose specified in this part, and to preserve this separate fund for disbursement and expenditure solely and alone at the discretion of the commissioner of health, medical care division, in the manner provided by law.
- (c)
This section shall not apply to funds allocated for medical care where federal laws or regulations require administration by another state administrative unit.
§ 68-1-903. Application of part.
- (a)
The enforcement of this part shall in no way interfere with or supersede any existing law or cooperative federal, state or local program carried on under the Social Security Act (42 U.S.C. § 301 et seq.), or other federal acts, or any other state, federal or local law.
- (b)
Nothing in this part shall apply to or affect medical care or medical service furnished wards of the state, who are inmates of any state institution, such as state prisons, mental health institutes, developmental centers, home for the blind, homes for the deaf, or juvenile correction institutions, but this part shall apply with respect to medical care or medical service furnished at public expense to any other person not an inmate of a state institution having an established and organized medical staff in regular attendance upon the inmates of the institution; it being the purpose of this part to coordinate, improve and better supervise the expenditure of public funds appropriated and designed for medical care and medical service to citizens of the state generally, who under future laws shall become entitled to receive medical care or medical service at public expense under the proposed national program of medical care; and is not intended to interfere with or interrupt the established and organized routine or special medical care and medical service rendered by the state to its wards regularly residing in any sort of state institution.
§ 68-1-904. “Medical care” and “medical service” defined and limited — Unlicensed individuals administering medication.
- (a)
“Medical care” and “medical service,” as used in this part, are intended to describe and define care or services rendered an individual for the relief of some disease or abnormality, and are intended to be distinguished from the services customarily rendered by health departments.
- (b)
“Medical service” includes all legally authorized branches of healing as exist by any statute of Tennessee.
- (c)
- (1)
The department of intellectual and developmental disabilities, may, based upon its determination of available resources and need, provide training for unlicensed individuals who administer medications to individuals incapable of self-administration. The training shall be provided only to unlicensed individuals who are employed by agencies that are both licensed under title 33 and under contract to provide residential or adult day programs for persons with intellectual disability, and to unlicensed individuals employed by community-based licensed intermediate care facilities for persons who have intellectual disability who will administer medication only at a location other than the community-based facility. The employees of the community-based licensed intermediate care facilities for persons who have intellectual disability may additionally receive medication administration training specific to the person served. For the purposes of this subsection (c), when administered by employees of intermediate care facilities, medications shall be packaged in individual doses labeled with the name of the individual patient, the time of administration and the drug name and dosage.
- (2)
The department of children's services may, based on its determination of available resources and need, provide training for unlicensed individuals who assist children and youth with the self-administration of medication in group home settings. The training shall be provided only to those unlicensed individuals who are employed by agencies that are both licensed under title 37 and under contract to provide services to children in the department's custody in a group home setting.
- (3)
The unlicensed personnel referenced in subdivision (c)(1) shall not administer intravenous, intramuscular, and certain subcutaneous injectable medications, as defined by rule. The unlicensed personnel referenced in subdivision (c)(2) shall not assist with the self administration of vaginal medications, rectal medications, intravenous, intramuscular, and certain subcutaneous injectable medications, as defined by rule. The department of intellectual and developmental disabilities, in consultation with the board of nursing, shall promulgate rules, including emergency rules, to provide for competency-based training, education, and appropriate monitoring of the unlicensed personnel covered by this subsection (c) who shall have the authority to perform the services provided for in this subsection (c), notwithstanding any other statute or rule. The unlicensed personnel shall be exempt from the licensing requirements contained in and rules promulgated pursuant to title 63, chapter 7, part 1.
Part 10 Tennessee Cancer Reporting System Act of 1983
§ 68-1-1002. Part definitions.
-
As used in this part, unless the context otherwise requires:
- (1)
“Cancer” means and includes, but is not limited to:
- (A)
A large group of diseases characterized by uncontrolled growth and spread of abnormal cells;
- (B)
Any condition of tumors having the properties of anaplasia, invasion, and metastasis;
- (C)
A cellular tumor, the natural course of which is fatal;
- (D)
Malignant neoplasm; and
- (E)
In-situ cancer.
- (2)
“Commissioner” means the commissioner of health;
- (3)
“Department” means the department of health;
- (4)
“Facility” means a health care facility in which diagnosis or treatment services are provided to patients with cancer, including, but not limited to, an ambulatory surgical treatment center (ASTC), a freestanding cancer treatment center, a radiation therapy center, a chemotherapy treatment center, a nursing home, an oncology or dermatology clinic, a laboratory, or any other facility that provides screening, detection, diagnostic or therapeutic services to patients with cancer;
- (5)
“Health care practitioner” means a physician, surgeon, or other health care professional licensed under title 63 who is engaged in diagnosing and treating patients who have cancer;
- (6)
“Hospital” means an institution as defined by § 68-11-201;
- (7)
“In-situ cancer” means an abnormality of development and organization of cells. It is a condition of early cancer, without the invasion of neighboring tissue;
- (8)
“Laboratory” means a facility where tests are performed identifying anatomical and cytological changes, and where specimens are interpreted and pathological diagnoses are made; and
- (9)
“Medical, scientific and academic research communities” means those institutions that devote a substantial part of their activity to research and that have internal procedures providing for the collection, study and protection of data.
§ 68-1-1003. Purpose of chapter — Reports to department — Format and contents of reports — Persons authorized to have access to patients medical records — Reimbursement — Failure to report or give access to records.
- (a)
The purpose of this part is to ensure an accurate and continuing source of data concerning cancer and to provide appropriate data to members of the medical, scientific, and academic research communities for purposes of authorized institutional research, approved by the appropriate research committee of the applying institution, into the causes, types and demography of cancer, including, but not limited to, the occupation, family history, and personal habits of persons diagnosed with cancer.
- (b)
In order to accomplish the purpose described in (a), all hospitals, laboratories, facilities, and health care practitioners shall report to the department, within six (6) months after the date of diagnosis of cancer in a patient, information contained in the medical records of patients who have cancer; provided, that health care practitioners are not required to report information on patients with cancer who are directly referred to or have been previously admitted to a hospital or a facility for cancer diagnosis or treatment.
- (c)
The reports required by this section shall be made in the format and shall contain the information required by the department. The department shall make available the necessary information regarding format and data to enable hospitals, laboratories, facilities, and health care practitioners to make accurate reports to the department.
- (d)
The commissioner or the commissioner's authorized representative may take the steps necessary to avoid duplicate reporting of information on the same patients, including, but not limited to, waiving the requirement for a health care practitioner to report information on cancer patients who are hospitalized or confined to a nursing home, where information on those patients has been reported by the hospital, nursing home, or other reporting source.
- (e)
The commissioner or the commissioner's authorized representative shall be permitted to have access to the medical records of cancer patients that are maintained by hospitals, laboratories, facilities, and health care practitioners where necessary, to identify cases of cancer and to establish the characteristics of the cancer, the treatment of the cancer, or the medical status of an identified cancer patient.
- (f)
If a hospital, laboratory, facility, or health care practitioner fails to report the required information to the department in an acceptable format by the required deadline, the commissioner or the commissioner's authorized representative may obtain the information by a direct examination of those patients' medical records. In those cases, the hospital, laboratory, facility, or health care practitioner shall reimburse the department for the department's reasonable expenses incurred in obtaining the information in this manner. The commissioner shall establish, by rule, the maximum amount of reimbursement that may be sought. A hospital, laboratory, facility, or health care practitioner from whom reimbursement is sought may appeal the assessment of expenses under the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.
- (g)
A hospital, laboratory, facility, or health care practitioner that fails to report information or allow access to records, as required by this section, shall be informed by the department that compliance with the requirements of this part is mandatory.
§ 68-1-1004. Reports to department — Rules and regulations.
- (a)
The department shall require the reporting of cancer and the submission of such specified additional information on reported cases as the commissioner deems necessary and appropriate.
- (b)
The commissioner shall promulgate rules and regulations, including emergency rules, that are necessary for carrying out the duties and responsibilities of the department under this part. The promulgation of rules and regulations shall be in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.
§ 68-1-1006. Confidentiality of data.
- (a)
- (1)
All data obtained from the reports required by this part are for the confidential use of the department and persons that the commissioner determines are necessary to carry out the intent of this part.
- (2)
Information that could possibly identify individuals whose medical records have been used for collecting data may not be included in materials available to the public.
- (b)
In order to carry out the legislative intent set out in § 68-1-1003, that the data obtained from the reports required by this part are also to be made available for valid research projects, the commissioner, with the advice of the [former] advisory committee [repealed] established by this chapter, is authorized to make available to members of the research community, pursuant to § 68-1-1003, specific and personally identifiable portions of the data collected; provided, that the following guidelines are observed:
- (1)
The researcher sets out clearly the uses for which the data are desired;
- (2)
The researcher clearly states the reasons for which confidential and personally identifiable portions of the data are necessary;
- (3)
The researcher assures that the data received from the department will be maintained by the researcher with the same level of confidentiality as that maintained by the department; and
- (4)
Upon completion of the research project, all data provided by the department and all copies of the data shall be destroyed.
- (c)
Guidelines for such research applications shall be set out by departmental regulations. For the purposes of this part, those approved to obtain data for research shall not be considered agents of the commissioner.
§ 68-1-1007. Liability for release of information — Compliance not violative of confidentiality.
-
A hospital, laboratory, facility, or health care practitioner that reports information to the department or allows the commissioner or the commissioner's authorized representative access to the medical records of cancer patients, as required by this part, shall not be held liable to any person for the release of the information to the department, nor shall the release of the information to the department be construed as a violation of any requirement of law or professional obligation to maintain the confidentiality of patient information.
§ 68-1-1008. Tests and supervision of patients prohibited.
-
No patient whose medical records are the subject of data collected in the reports required by this part shall be subjected to any medical examination or case supervision by the commissioner or the commissioner's agents for the purposes of this part.
§ 68-1-1009. Violations — Penalties — Enforcement.
- (a)
Any person receiving information containing the personal identity of any patient, who willfully divulges that identity, except as lawfully provided for in this chapter, commits a Class C misdemeanor.
- (b)
It is the duty of the district attorney general to prosecute a suit, based on subsection (a), when requested by the commissioner, the county health officer or local board of health.
§ 68-1-1010. Interstate sharing of information — Confidentiality.
- (a)
In order to obtain complete information on Tennessee cancer patients who have been diagnosed or treated in other states, and in order to provide information to other states regarding their residents who have been diagnosed or treated for cancer in Tennessee, the commissioner or the commissioner's authorized representative is authorized to enter into appropriate written agreements with other states that maintain statewide cancer registries, allowing the exchange of information on cancer patients.
- (b)
Each state with which the commissioner agrees to exchange information must agree in writing to keep all patient-specific information confidential and to require any research personnel to whom the information is made available to keep it confidential.
§ 68-1-1011. Annual publishing of reports.
-
The department shall annually compile and publish reports utilizing the data collected pursuant to this part and shall make these reports available to the governor, the general assembly, and the public.
Part 11 Sudden, Unexplained Child Death Act
§ 68-1-1101. Short title — Legislative findings — Definitions.
- (a)
This part shall be known and may be cited as the “Sudden, Unexplained Child Death Act.”
- (b)
The legislature finds and declares that:
- (1)
Protection of the health and welfare of the children of this state is a goal of its people and the unexpected death of a child is an important public health concern that requires legislative action;
- (2)
The parents, guardians, and other persons legally responsible for the care of a child who dies unexpectedly have a need to know the cause of death;
- (3)
Collecting accurate data on the cause and manner of unexpected deaths will better enable the state to protect children from preventable deaths, and thus will help reduce the incidence of such deaths; and
- (4)
Identifying persons responsible for abuse or neglect resulting in unexpected death will better enable the state to protect other children who may be under the care of the same persons, and thus will help reduce the incidence of such deaths.
- (c)
As used in this part and in § 68-3-502, unless the context otherwise requires:
- (1)
“Certified child death pathologist” means a pathologist who is board certified or board eligible in forensic pathology, and who has received training in, and agrees to follow, the autopsy protocol, policies and guidelines for child death investigation, as prescribed by the chief medical examiner for the state of Tennessee;
- (2)
“Chief medical examiner” means the individual appointed pursuant to title 38, chapter 7; and
- (3)
“Sudden infant death syndrome” means the sudden death of an infant under one (1) year of age that remains unexplained after a thorough case investigation, including performance of a complete autopsy, examination of the death scene, and review of the clinical history.
§ 68-1-1102. Purpose — Training — Notice and investigation — Autopsy.
- (a)
The purpose of this part is to help reduce the incidence of injury and death to infants by accurately identifying the cause and manner of death of infants under one (1) year of age. This shall be accomplished by requiring that a death investigation be performed in all cases of all sudden, unexplained deaths of infants under one (1) year of age.
- (b)
The chief medical examiner shall develop and implement a program for training of child death pathologists. The protocol and policies shall be based on nationally recognized standards.
- (c)
All emergency medical technicians and professional firefighters shall receive training on the handling of cases of sudden, unexplained child death as a part of their basic and continuing training requirements. The training, which shall be developed jointly by the departments of health and children's services, shall include the importance of being sensitive to the grief of family members.
- (d)
All law enforcement officers shall receive training on the investigation and handling of cases of sudden, unexplained child death as part of their basic training requirements. The training, which shall be developed jointly by the departments of health and children's services, shall include the importance of being sensitive to the grief of family members and shall be consistent with the death scene investigation protocol approved by the chief medical examiner. Additionally, whenever changes occur in policies or procedures pertaining to sudden infant death syndrome investigations, the department of health shall promptly notify the various law enforcement associations within the state. Such changes shall then be communicated in a timely manner to the respective law enforcement agencies for dissemination to their enforcement personnel.
- (e)
In the case of every sudden, unexplained death of an infant under one (1) year of age, the attending physician or coroner shall notify the county medical examiner, who shall coordinate the death investigation.
- (f)
The county medical examiner shall inform the parent or parents or legal guardian of the child, if an autopsy is authorized.
- (g)
The county medical examiner shall ensure that the body is sent for autopsy to a child death pathologist as defined in this part. Parents or legal guardians who refuse to allow an autopsy based on the grounds of religious exemption shall personally file a petition for an emergency court hearing in the general sessions court for the county in which the death occurred.
- (h)
The county medical examiner shall contact the appropriate local law enforcement personnel to conduct a death scene investigation according to the protocol developed by the chief medical examiner. The investigation shall be initiated within twenty-four (24) hours of the time the local law enforcement personnel are contacted by the county medical examiner.
- (i)
The county medical examiner shall send a copy of the death scene investigation and the medical history of the child to the pathologist conducting the autopsy.
- (j)
A copy of the completed autopsy, medical history, and death scene investigation shall be forwarded to the chief medical examiner.
- (k)
The cause of death, as determined by the certified child death pathologist, may be reported to the parents or legal guardians of the child. A copy of the autopsy results, when available, may be furnished to the parent or parents or legal guardian of the child, upon request, within forty-eight (48) hours of the request, except where the cause of death may reasonably be attributed to child abuse or neglect, in the judgment of the certified child death pathologist.
- (l)
Sudden infant death syndrome shall not be listed as the cause of death of a child, unless the death involves an infant under one (1) year of age that remains unexplained after a thorough case investigation, including performance of a complete autopsy, examination of the death scene, and review of the child's clinical history.
- (m)
Any individual or entity providing information pertinent to the investigation and related autopsy in a suspected case of sudden, unexplained infant death syndrome shall not be civilly liable for breach of confidentiality concerning the release of the information.
§ 68-1-1103. Implementation.
-
In order to implement this part, the commissioner of health shall:
- (1)
Promulgate rules and regulations in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, as may be necessary to obtain in proper form all information relating to the occurrence of a sudden, unexplained child death that is relevant and appropriate for the establishment of a reliable statistical index of the incidence, distribution and characteristics of cases of sudden, unexplained child death;
- (2)
Promulgate rules and regulations in accordance with the Uniform Administrative Procedures Act that establish minimum standards for conducting and completing an investigation, including an autopsy if deemed necessary, into the sudden, unexplained death of any child from birth to age seventeen (17). Initial rules promulgated pursuant to this subdivision (2) are authorized to be promulgated as emergency rules, pursuant to § 4-5-208. In promulgating the rules, the commissioner may rely, in whole or in part, on any nationally recognized standards regarding such investigations. Compliance with the rules shall make county governments eligible for reimbursement, to the extent authorized by those rules, of the costs of any autopsy deemed necessary;
- (3)
Collect factual information from physicians, coroners, medical examiners, hospitals, and public health officials who have examined any child known or believed to have experienced sudden, unexplained death; provided, that no information shall be collected or solicited that reasonably could be expected to reveal the identity of the child;
- (4)
Make information collected pursuant to subdivision (3) available to physicians, coroners, medical examiners, hospitals, public health officials, and educational and institutional organizations conducting research as to the causes and incidence of sudden, unexplained child death;
- (5)
Cause appropriate counseling services to be established and maintained for families affected by the occurrence of sudden infant death syndrome;
- (6)
Conduct educational programs to inform the general public of any research findings that may lead to the possible means of prevention, early identification, and treatment of sudden infant death syndrome; and
- (7)
Develop educational literature to inform the general public of the risks and prevalence of sudden infant death syndrome and other infant sleep-related deaths that are sometimes mislabeled as sudden infant death syndrome, so that such information may lead to the possible means of prevention. The commissioner shall make the literature set out in this subdivision (7) available on the department of health's website.
Part 12 Public School Nurse Program
§ 68-1-1201. Creation.
- (a)
There is created within the department of health the Tennessee public school nurse program.
- (b)
The chief medical officer for the state, appointed pursuant to § 68-1-102(c), shall serve as executive director of the program.
- (c)
In order to attain the highest level of school attendance, to promote excellence of academic performance and achievement, and to significantly reduce school dropout rates, the executive director, acting through the program, shall strive to improve and safeguard the physical and mental health and well-being of the student population of Tennessee's public schools.
§ 68-1-1202. Duties of executive director.
-
It is the duty and responsibility of the executive director of the program to:
- (1)
Assist local education agencies (LEAs) in the development, implementation and coordination of student health policies with regard to first aid emergencies, medications, acute illnesses and infection control;
- (2)
Provide LEAs with information, advice and technical assistance pertaining to student and parental instruction on topics related to health and wellness, including, but not necessarily limited to:
- (A)
Family life education;
- (B)
Sexually transmitted diseases;
- (C)
Substance abuse;
- (D)
Nutrition;
- (E)
Infection control; and
- (F)
Depression;
- (3)
Assist LEAs in the provision of student health services, including, but not necessarily limited to:
- (A)
Medical screenings;
- (B)
Acute care;
- (C)
Health opinions for teacher referrals;
- (D)
Child abuse assessments;
- (E)
Counseling for students with chronic diseases; and
- (F)
Counseling for students who are engaging in, or who may be at risk of engaging in, behavioral patterns that jeopardize physical or mental health and well-being;
- (4)
Assist and encourage LEAs in developing and implementing efficient and effective policies and procedures to ensure parental notification, knowledge and endorsement of school health services and programs, including, but not limited to, efficient and effective policies and procedures to require and obtain prior parental consent for student participation in the health services and programs offered by each LEA; to fully encourage and maximize parental interest and involvement in all matters pertaining to the physical and mental health and well-being of students; and to ensure full parental access to the school health records of their children;
- (5)
Promote the exchange of information and referrals between LEAs and physicians, health care professionals and sources of health care financial assistance;
- (6)
Assist the department of education in planning, developing and implementing the program of family life education technical support and assistance, as required by § 49-1-205;
- (7)
Assist the department of mental health and substance abuse services in providing suitable programs of alcohol and drug education and prevention for LEAs, as required by § 33-10-103;
- (8)
Report, on or before December 31 each year, to the governor, to each member of the general assembly, and to each member of the state board of education concerning implementation of this section, and also concerning issues and recommendations relating to the physical and mental health and well-being of the state's public school students;
- (9)
Promote and encourage awareness and involvement of parents, civic groups, community organizations, private businesses and religious institutions on matters pertaining to the physical and mental health and well-being of the state's public school students;
- (10)
Engage in such other activities to improve and safeguard physical and mental health and well-being as may be necessary in order to attain the highest level of school attendance, to promote excellence of academic performance and achievement, and to significantly reduce school dropout rates;
- (11)
- (A)
- (i)
Encourage and support public and nonprofit agencies in the development of model rural and urban comprehensive school health programs through a system of competitive, state administered grants.
- (ii)
The availability of grants during any fiscal year shall be subject to the ability of the executive director to raise sufficient funds from other than state sources, including, but not limited to, federal sources and private foundations. To qualify for receipt of any such competitive, state administered grant, each model comprehensive school health program must provide preventive and primary health care services designed to attain the goals set forth in § 68-1-1201(c), and must also conform to the policies set forth in § 68-1-1205. The staff of each model program must also include, at a minimum, a certified pediatric or family nurse practitioner with adequate physician backup, and, when possible, should also include a certified health education specialist and a master social worker with adequate psychiatric backup. Each model program must also form a local advisory committee that includes, but is not necessarily limited to, representatives of the LEA and the local offices of the departments of health and children's services. Each advisory committee shall strongly encourage active participation of parents and community-based providers of children and adolescent services. Each advisory committee shall undertake appropriate activities to encourage coordination of services and continued support for the model program. Each model program shall adopt and implement policies and procedures to assure parental consent, confidentiality, quality assurance and program evaluation;
- (B)
- (i)
Organize and convene, acting jointly with the commission on children and youth, an interdepartmental committee to:
- (a)
Develop policies, procedures, and criteria to govern selection of model comprehensive school health programs;
- (b)
Undertake appropriate activities to solicit grant applications from qualified public and nonprofit agencies;
- (c)
Develop policies, procedures and criteria for ensuring that grant recipients fully utilize all available sources of federal, state and local financial assistance and assistance from private foundations; and
- (d)
Design and implement policies to assure collection and analysis of data needed to evaluate the efficiency and effectiveness of individual model programs as well as the efficiency and effectiveness of the grant program;
- (ii)
The interdepartmental committee shall include representation by the departments of mental health and substance abuse services, intellectual and developmental disabilities, education, children's services, labor and workforce development, the governor's council on physical fitness and health, the governor's drug-free task force, and the division of health access within the department of health, and shall also include one (1) citizen member who shall be a parent of a school-aged child, the citizen member to be appointed by the executive director of the public school nurse program, who, prior to making the appointment, shall receive recommendations pertaining to the appointment from interested persons and groups; and
- (12)
Make available to the department of education educational materials appropriate for distribution so that information about meningococcal disease and the effectiveness of vaccination against meningococcal disease can be provided to parents and guardians. This information shall include the causes, symptoms, and the means by which meningococcal disease is spread and the places where parents and guardians may obtain additional information and vaccinations for their children. The department of education may provide this information, at its discretion, electronically or on its website. Nothing in this subdivision (12) shall be construed to require the department of education to provide or purchase vaccine against meningococcal disease.
§ 68-1-1203. New positions.
- (a)
As additional funding is made available for the school nurse program within the general appropriation acts, new school nurse positions may be created within the program. However, in order to ensure orderly, efficient, and effective development, expansion of the program shall occur incrementally and shall not, in any given year, exceed the level at which quality of service or standards of supervisory control may be lowered.
- (b)
- (1)
Nurses within the program shall be administratively attached and assigned to the various county and district health departments or local education agencies (LEAs) across the state; however, such nurses shall remain under the supervisory control and direction of the executive director of the school nurse program.
- (2)
Until such time as the program shall employ school nurses in sufficient numbers to adequately provide services, i.e., a ratio of at least one (1) permanent, full time, school nurse per three thousand (3,000) students, but in no case, less than one (1) permanent, full time, school nurse for each county-wide system, to all LEAs, the executive director shall give priority in the assignment of school nurses to those health departments or LEAs that serve counties that are plagued by problems of poverty, unemployment and underemployment and are medically underserved to the greatest degree.
- (c)
- (1)
In order to supplement the personnel resources otherwise available to the program, the executive director is authorized to enter into internship or residency agreements with any nursing school, accredited by the board of nursing, that offers a program of education and training for students preparing to become school nurses.
- (2)
In the event of any such agreement, the executive director shall formulate guidelines to ensure that the activities of the student nurses are appropriately supervised and reviewed by departmental personnel.
§ 68-1-1204. Rules and regulations — Public school nurse advisory council.
- (a)
The commissioner of health, acting in consultation with the executive director of the program, is authorized to promulgate rules and regulations necessary to efficiently and effectively implement this part.
- (b)
- (1)
The rules and regulations shall include, but shall not necessarily be limited to, policies and procedures whereby a public school nurse advisory council may be created by a local education agency (LEA) with one (1) or more full-time school nurses.
- (2)
The primary purpose of the advisory council shall be to develop and submit recommendations to the executive director of the school nurse program and to the governing board of the LEA concerning the effective and efficient utilization and coordination of state and local school nurse personnel and resources.
- (3)
The membership of the advisory council shall include both locally employed school nurses and state employed school nurses.
- (4)
All rules and regulations shall be promulgated in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.
§ 68-1-1205. Compliance with laws pertaining to abortion or birth control referrals or information by employees — Abstinence.
-
Each employee of the program, including each intern resident employed pursuant to § 68-1-1203(c), shall at all times remain in compliance with, and shall fully abide by, all applicable federal, state and local statutes, rules, regulations, ordinances and policies pertaining to abortion. Furthermore, each employee of the program, including each intern or resident employed pursuant to § 68-1-1203(c), shall at all times remain in compliance with and shall fully abide by all applicable federal, state and local statutes, rules, regulations, ordinances and policies pertaining to birth control devices and contraceptives. While present on the property or premises of any local education agency (LEA) or while otherwise engaged in the activities of the program, no such employee shall at any time make abortion referrals or otherwise advocate or encourage abortion nor prescribe any form of birth control device or contraceptive. It shall be the policy of the program, and of each employee engaged in the activities of the program, including each intern or resident employed pursuant to § 68-1-1203(c), to vigorously encourage and urge students to abstain from entering into any sexual relationship or activity.
§ 68-1-1206. Local agencies not preempted.
-
This part shall not be construed to terminate the ability of a local education agency (LEA) to locally employ and supervise school nurses who are not employees of the program.
Part 14 Tennessee Resource Mothers Program
§ 68-1-1402. Legislative intent.
- (a)
It is the intention of the general assembly that the program:
- (1)
Be designed with the main emphasis of the program aimed at reducing the infant mortality and low birth weight rates in the state;
- (2)
Facilitate good health practices and the utilization of health care services through prenatal and well-child visits and compliance with medical recommendations;
- (3)
Be targeted to reach teenagers pregnant with their first child, but may also serve high risk pregnant women on a limited basis;
- (4)
Be structured to provide services at least through the infant's first birthday; and
- (5)
Be structured to ensure that participation by those persons targeted to be reached by the program be totally voluntary.
- (b)
It is further the intention of the general assembly that the following results be attained:
- (1)
A decrease in the percentage of low weight births;
- (2)
An increase in the proportion of postpartum teens returning to school;
- (3)
A reduction in smoking and other risk behaviors among teenagers served; and
- (4)
Improvement in parenting skills.
§ 68-1-1403. Elements of program.
-
The program shall contain the following elements:
- (1)
Lay women from the community shall be recruited and provided with intensive training to serve as “resource mothers” for pregnant and parenting teens;
- (2)
- (A)
The resource mother's role is to become a support person for the teenager and the teenager's family. Through a plan of scheduled home visits, the resource mother is to perform the following tasks:
- (i)
Identify pregnant teens and get them into prenatal care early in their pregnancy;
- (ii)
Assist pregnant teens in obtaining medicaid, WIC, family planning, education, and other community services;
- (iii)
Ensure that teens and infants keep health care appointments, providing help with transportation and babysitting, if needed;
- (iv)
Reinforce recommendations of health care providers and give basic health information and advice in areas such as nutrition, avoidance of smoking and alcohol, infant development, and infant care; and
- (v)
Instruct the teenager in good parenting skills;
- (B)
Failure of a pregnant or parenting teen to heed advice, rendered by a resource mother pursuant to subdivision (2)(A)(iv) does not, in and of itself, constitute neglect sufficient to justify removal of the infant from the custody of such teen;
- (3)
Qualifications to be a resource mother include:
- (A)
A high school diploma or equivalency degree;
- (B)
A valid driver license and transportation;
- (C)
A telephone in the home; and
- (D)
The ability to relate well with teenagers;
- (4)
In order to avoid duplication of services and to enhance the delivery of services under the program, services may also be provided through employees of the departments of health and children's services, coordinating their efforts with programs currently in existence that serve the targeted population; and
- (5)
The department of health shall, to the greatest extent possible, utilize medicaid records and services and assistance from the department of children's services in providing the needed training and provision of services under this part.
§ 68-1-1404. Training.
-
The resource mothers shall initially be trained in prenatal care and related health topics, infant development and parenting, community resources, and communication skills. Ongoing supervision and in-service training of the resource mother shall continue as long as the resource mother provides services under the program.
§ 68-1-1405. Coordination of services.
-
In order to avoid duplication of services, the resource mothers program shall, to the greatest extent possible, coordinate the delivery of services with a model teenage pregnancy program that was created pursuant to [former] § 37-3-111 [repealed], if any, in operation in the area to be served by the resource mothers designated site.
§ 68-1-1406. Evaluation of program — Report.
-
The department of health shall evaluate the resource mothers program through site visits and prepare written quarterly reports on the program site objectives. The report shall include a review of the following statistics:
- (1)
The number of pregnant teens entering the program;
- (2)
The number of infants entering the program;
- (3)
The number of infant deaths;
- (4)
The number and percent of low weight births;
- (5)
The number and percent of teens entering the program in the first trimester of pregnancy; and
- (6)
The number and percent of postpartum teens returning to school.
§ 68-1-1407. Gifts and donations.
-
The department of health is authorized to accept gifts or donations of money, goods or services from private individuals or organizations to accomplish the purposes of this part, under such reasonable terms and conditions as the commissioner may establish.
§ 68-1-1408. Implementation — Model program — Sites.
-
The Tennessee resource mothers program shall be implemented initially as a model program in one (1) urban and one (1) rural area. The targeted sites for the model program shall be based on a high incidence of morbidity and mortality related to teenage mothers and infants.
Part 15 Osteoporosis Prevention and Treatment Education Act
§ 68-1-1501. Short title.
-
This part shall be known and may be cited as the “Osteoporosis Prevention and Treatment Education Act.”
§ 68-1-1502. Legislative findings.
- (a)
The general assembly finds the following:
- (1)
Osteoporosis, a bone-thinning disease, is a major public health problem that poses a threat to the health and quality of life to as many as twenty-five million (25,000,000) Americans;
- (2)
The one million five hundred thousand (1,500,000) fractures each year that result from osteoporosis cause pain, disability, immobility and social isolation, affecting quality of life and threatening people's ability to live independently;
- (3)
Because osteoporosis progresses silently and without sensation over many years, and many cases remain undiagnosed, its first symptom is often a fracture, typically of the hip, spine or wrist;
- (4)
One (1) of every two (2) women and one (1) of every five (5) men will suffer an osteoporotic fracture in their lifetime;
- (5)
A woman's risk of hip fracture is equal to the woman's combined risk of breast, uterine and ovarian cancer;
- (6)
The annual direct and indirect costs of osteoporosis to the health care system were estimated to be as high as eighteen billion dollars ($18,000,000,000) in 1993, and are expected to rise to sixty to eighty billion dollars ($60,000,000,000 — $80,000,000,000) by the year 2020;
- (7)
Since osteoporosis progresses silently and currently has no cure, prevention, early diagnosis and treatment are key to reducing the prevalence of and devastation from this disease;
- (8)
Although there exists a large quantity of public information about osteoporosis, it remains inadequately disseminated and not tailored to meet the needs of specific population groups;
- (9)
Most people, including physicians, health care providers and government agencies, continue to lack knowledge in the prevention, detection and treatment of the disease;
- (10)
Experts in the field of osteoporosis believe that, with greater awareness of the value of prevention among medical experts, service providers and the public, osteoporosis will be preventable and treatable in the future, thereby reducing the costs of long-term care;
- (11)
Osteoporosis is a multi-generational issue, because building strong bones during youth and preserving them during adulthood may prevent fractures in later life; and
- (12)
Educating the public and health care community throughout this state about this potentially devastating disease is of paramount importance and is in every respect in the public interest and to the benefit of all residents of this state.
- (b)
By this enactment, it is the intent of the general assembly to:
- (1)
Create and foster a multi-generational, statewide program to promote public awareness and knowledge about the causes of osteoporosis, personal risk factors, the value of prevention and early detection and the options available for treatment;
- (2)
Facilitate and enhance knowledge and understanding of osteoporosis by disseminating educational materials, information about research results, services and strategies for prevention and treatment to patients, health professionals and the public;
- (3)
Utilize educational and training resources and services that have been developed by organizations with appropriate expertise and knowledge of osteoporosis and to use available technical assistance;
- (4)
Evaluate existing osteoporosis services in the community and assess the need for improving the quality and accessibility of community-based services;
- (5)
Provide easy access to clear, complete and accurate osteoporosis information and referral services;
- (6)
Educate and train service providers, health professionals and physicians;
- (7)
Heighten awareness about the prevention, detection and treatment of osteoporosis among state and local health and human service officials, health educators and policy makers;
- (8)
Coordinate state programs and services to address the issue of osteoporosis;
- (9)
Promote the development of support groups for osteoporosis patients and their families and caregivers;
- (10)
Adequately fund these programs; and
- (11)
Provide lasting improvements in the delivery of osteoporosis health care, thus providing patients with an improved quality of life and society with the containment of health care costs.
§ 68-1-1503. Osteoporosis prevention and treatment program — Duties of commissioner and department of health.
- (a)
The commissioner of health may:
- (1)
Assure adequate staffing for implementation of the osteoporosis prevention and treatment education program;
- (2)
Assure appropriate training for osteoporosis prevention and treatment education program staff;
- (3)
Identify the appropriate entities to carry out the program;
- (4)
Base the program on the most up-to-date scientific information and findings;
- (5)
Work to improve the capacity of community-based services available to osteoporosis patients;
- (6)
Work with governmental offices, community and business leaders, community organizations, health care and human service providers and national osteoporosis organizations to coordinate efforts and maximize state resources in the areas of prevention, education and treatment of osteoporosis; and
- (7)
Identify and, when appropriate, replicate or use successful osteoporosis programs and procure related materials and services from organizations with appropriate expertise and knowledge of osteoporosis, as described in subdivisions (b)(5)(A) and (B).
- (b)
The department of health may establish, promote and maintain an osteoporosis prevention and treatment education program in order to raise public awareness, educate consumers, educate and train health professionals, teachers and human services providers, and for other purposes.
- (1)
The department shall use, but is not limited to, the following strategies for raising public awareness of the causes and nature of osteoporosis, personal risk factors, value of prevention and early detection and options for diagnosing and treating the disease:
- (A)
An outreach campaign utilizing print, radio and television public service announcements, advertisements, posters and other materials;
- (B)
Community forums;
- (C)
Health information and risk factor assessment at public events;
- (D)
Targeting at-risk populations;
- (E)
Providing reliable information to policy makers; and
- (F)
Distributing information through county health departments, schools, area agencies on aging, employer wellness programs, physicians, hospitals and health maintenance organizations, women's groups, nonprofit organizations, community health agencies, community-based organizations and departmental regional offices.
- (2)
The department shall use, but is not limited to, the following strategies for educating consumers about risk factors, diet and exercise, diagnostic procedures and their indications for use, risks and benefits of drug therapies currently approved by the food and drug administration, environmental safety and injury prevention and the availability of diagnostic, treatment and rehabilitation services:
- (A)
Identify and obtain educational materials, including brochures and videotapes which translate accurately the latest scientific information on osteoporosis in easy-to-understand terms;
- (B)
Build a statewide capacity to provide information and referral on all aspects of osteoporosis, including educational materials and counseling;
- (C)
Establish state linkage with an existing toll-free hotline for consumers;
- (D)
Facilitate the development and maintenance of osteoporosis support groups; and
- (E)
Conduct workshops and seminars for lay audiences.
- (3)
The department shall use, but is not limited to, the following strategies for educating physicians and health professionals and training community service providers on the most up-to-date, accurate scientific and medical information on osteoporosis prevention, diagnosis and treatment, therapeutic decision-making, including guidelines for detecting and treating the disease in special populations, risks and benefits of medications and research advances:
- (A)
Identify and obtain education materials for the professional that translate the latest scientific and medical information into clinical applications;
- (B)
Raise awareness among physicians and health and human services professionals as to the importance of osteoporosis prevention, early detection, treatment and rehabilitation;
- (C)
Identify and use available curricula for training health and human service providers and community leaders on osteoporosis prevention, detection and treatment;
- (D)
Provide workshops and seminars for in-depth professional development in the field of the care and management of the patient with osteoporosis; and
- (E)
Conduct a statewide conference on osteoporosis at appropriate intervals.
- (4)
- (A)
The department shall conduct a needs assessment study to identify:
- (i)
Research being conducted within the state;
- (ii)
Available technical assistance and educational materials and programs nationwide;
- (iii)
The level of public and professional awareness about osteoporosis;
- (iv)
Needs of osteoporosis patients, their families and caregivers;
- (v)
Needs of health care providers, including physicians, nurses, managed care organizations and other health care providers;
- (vi)
Services available to osteoporosis patients;
- (vii)
Existence of osteoporosis treatment programs;
- (viii)
Existence of osteoporosis support groups;
- (ix)
Existence of rehabilitation services; and
- (x)
Number and location of bone density testing equipment.
- (B)
Based on the needs assessment study, the department shall develop and maintain a list of osteoporosis-related services and osteoporosis health care providers with specialization in services to prevent, diagnose and treat osteoporosis. This list shall be disseminated with a description of diagnostic testing procedures, appropriate indications for their use, drug therapies currently approved by the food and drug administration and a cautionary statement about the current status of osteoporosis research, prevention and treatment. The statement shall also indicate that the department does not license, certify or in any way approve osteoporosis programs or centers in the state.
- (5)
- (A)
The department may replicate and use successful osteoporosis programs and enter into contracts and/or purchase materials or services from organizations with appropriate expertise and knowledge of osteoporosis for such services and materials as, but not limited to, the following:
- (i)
Educational information and materials on the causes, prevention, detection, treatment and management of osteoporosis;
- (ii)
Training of staff;
- (iii)
Physician and health care professional education and training, and clinical conferences;
- (iv)
Conference organization and staffing;
- (v)
Regional office development and staffing;
- (vi)
Nominations for advisory panels;
- (vii)
Support group development;
- (viii)
Consultation;
- (ix)
Resource library facilities;
- (x)
Training home health aides and nursing home personnel; and
- (xi)
Training teachers.
- (B)
The department may enter into an agreement or agreements to work with a national organization or organizations with expertise in osteoporosis to establish and staff an office or offices of that organization in the state to implement parts of the osteoporosis program.
§ 68-1-1504. Sources of grants, services and property — Federal waivers.
- (a)
The commissioner may accept grants, services and property from the federal government, foundations, organizations, medical schools and other entities as may be available for the purposes of fulfilling the obligations of this program.
- (b)
The commissioner shall seek any federal waiver or waivers that may be necessary to maximize funds from the federal government to implement this program.
Part 16 Area Health Education Centers (AHECs)
§ 68-1-1601. Legislative findings — Need for health care professionals in underserved communities.
-
The general assembly declares that the activities and program specified in this part have been proven effective in Tennessee and the nation as means to recruit individuals from rural and urban underserved communities to enter primary health care professions and to choose to practice and continue practicing in rural and urban underserved communities. By increasing the number of primary health care professionals and retaining existing practitioners in rural and urban underserved communities, the area health education centers, referred to as AHECs in this part, programs of Tennessee will improve the ability, accessibility and quality of health care in these communities. The general assembly also declares that improved health among Tennessee's rural and urban underserved community residents will contribute to more viable and economically productive communities.
§ 68-1-1602. Legislative findings — State financial support.
-
The general assembly further finds and declares the state financial support for AHEC activities within Tennessee is an essential criterion of the federal government in determining the eligibility for continued federal financial support. The intent of the federal government is that the state assume financial responsibility for AHEC programs after receiving federal funds for initial planning, development and start-up. State financial support is also necessary to generate matching federal contributions that may be as much as a one-to-one match of state dollars.
§ 68-1-1603. Attachment to department of health — Mission of programs.
-
There is established the AHEC programs of Tennessee. For administration purposes only, the AHEC programs shall be attached to the department of health. The mission of the AHEC programs shall be to use educational interventions through community academic partnerships. The AHEC programs shall accomplish this mission by promoting wellness, disease prevention, primary care and the recruitment of minority and underprivileged individuals into health care professions.
§ 68-1-1604. Accomplishment of mission through enhanced recruitment and educational programs.
-
The mission of the AHEC programs of Tennessee shall be accomplished by:
- (1)
Enhancement of programs to recruit primary, secondary and postsecondary students into primary health care professions;
- (2)
Enhancement of programs designed to recruit health professions students and primary care medical residents to practice primary care in rural and urban underserved communities in Tennessee; and
- (3)
Development of educational programs designed to support practicing health care professionals in rural and urban underserved communities.
§ 68-1-1605. Program development by university medical centers.
- (a)
In order to effectuate §§ 68-1-1603 and 68-1-1604, Meharry Medical College, East Tennessee State University, and the University of Tennessee, Memphis, shall be charged to initiate or further develop programs designed in this part through individual AHEC programs inclusive of existing centers.
- (b)
For the purposes of subsection (a), responsibility for the AHEC programs shall be as follows:
- (1)
Meharry Medical College — the middle grand division; and the AHEC program of the East Tennessee Area Health Education Center, Inc. shall serve the counties of Anderson, Bledsoe, Blount, Bradley, Grundy, Hamilton, Knox, Loudon, Marion, McMinn, Meigs, Monroe, Polk, Rhea, Roane, Sequatchie and Sevier.
- (2)
East Tennessee State University — the AHEC program of the Northeast Tennessee Area Health Education Center shall serve the counties of Campbell, Carter, Claiborne, Cocke, Grainger, Greene, Hamblen, Hancock, Hawkins, Jefferson, Johnson, Morgan, Scott, Sullivan, Unicoi, Union and Washington; and
- (3)
The University of Tennessee, Memphis — the western grand division.
§ 68-1-1606. Health careers manual — Youth recruitment programs.
- (a)
In order to effectuate § 68-1-1604(1), the AHEC programs of Meharry Medical College, East Tennessee State University, and the University of Tennessee, Memphis, with funding from this part, shall collaboratively develop a health careers manual targeted at the youth of Tennessee. The health careers manual shall be updated biennially.
- (b)
The AHEC programs of Meharry Medical College, East Tennessee State University, and the University of Tennessee, Memphis, shall also develop and implement programs designed to interest the youth of Tennessee in entering primary health care professions. These programs may include, but shall not be limited to, health fairs, mentoring programs, field experiences, and enrichment activities.
§ 68-1-1607. Community-based education and training programs for health professions students and medical residents.
- (a)
In order to effectuate § 68-1-1604(2), the AHEC programs of Meharry Medical College, East Tennessee State University, and the University of Tennessee, Memphis, may maintain and enhance existing programs and develop new community-based education and training programs for health professions students and primary care medical residents in rural and urban underserved communities throughout Tennessee. The programs shall be made available to health professions students and primary care medical residents from all health professions training institutions within Tennessee. Students from non-Tennessee institutions may also participate in the training programs on an at-cost basis, based upon the availability of spaces; provided, that no student from a Tennessee institution shall be displaced from participation in the programs by the participation of an out-of-state student.
- (b)
To promote an increasing number of medical school graduates to enter the primary care specializations of family medicine, general internal medicine, and general pediatrics and to practice in rural and urban underserved communities of Tennessee, the three (3) institutions receiving funding from this part shall be required to place their medical students in a AHEC sponsored one-week preceptorship with a primary care physician during each student's freshman and sophomore years. Development of the AHEC preceptorship is contingent upon the appropriation of adequate resources to fund the preceptorship experiences.
- (c)
To ensure the health professions students and primary care medical residents receive quality training experiences in rural and urban underserved communities, the AHEC programs of Meharry Medical College, East Tennessee State University, and the University of Tennessee, Memphis, shall recruit, train, and provide professional support for community-based faculty.
- (d)
To promote health professions students' and primary care medical residents' participation in community-based training experiences, the AHEC programs of Meharry Medical College, East Tennessee State University, and the University of Tennessee, Memphis, may collaboratively develop and maintain a computerized database of clinical sites available within Tennessee for health professions students' and primary care medical residents' field experiences. All health professions training institutions within Tennessee shall be permitted access to the computerized listing of community-based field training sites.
- (e)
To promote health profession students' and primary care medical residents' interest in practicing in rural and urban underserved communities, individuals participating in field experiences shall be eligible for reimbursement for travel expenses and living expenses actually incurred as a result of their participation in field experiences. All reimbursements for travel expenses and living expenses shall be in accordance with the comprehensive state travel regulations promulgated by the commissioner of finance and administration. The AHEC programs at Meharry Medical College, East Tennessee State University, and the University of Tennessee, Memphis, shall be responsible for administering all eligible health professions students' and primary care medical residents' field experiences funded by this part.
- (f)
In response to the changing health care systems in Tennessee and the nation that increasingly utilize multi-disciplinary team approaches to health care delivery, the AHEC programs of Meharry Medical College, East Tennessee State University, and the University of Tennessee, Memphis, shall promote multi-disciplinary training of health professions students and medical residents in AHEC supported activities.
§ 68-1-1608. Professional development programs for professionals in underserved communities.
- (a)
In order to effectuate § 68-1-1604(3), the AHEC programs of Meharry Medical College, East Tennessee State University, and the University of Tennessee, Memphis, shall develop and present professional development programs that address the local needs of primary health care professionals in rural and urban underserved communities in Tennessee. The purpose of professional development programs is to improve the health status of Tennesseans in rural and urban underserved communities by promoting wellness, primary care, disease prevention, and quality of health care delivery.
- (b)
Because quality health care delivery is dependent upon health care professionals' timely access to information about the latest medical and health care discoveries, and because the isolation and difficulties associated with practicing in rural and urban underserved communities limit health care professionals' access to information about the latest discoveries in their fields, the AHEC programs of Meharry Medical College, East Tennessee State University, and the University of Tennessee, Memphis, may develop and enhance existing information dissemination systems. These information dissemination systems shall use appropriate technologies, including telecommunications technologies, to ensure that health care professionals in rural and urban underserved communities have timely access to the latest medical and health care discoveries. The three (3) institutions receiving funding as part of this part are encouraged to link their respective health science centers via telecommunication technologies with health care providers and institutions in rural and urban underserved communities to provide clinical and educational opportunities.
§ 68-1-1609. Consumer health promotion programs.
-
To promote wellness and reduce health care costs in Tennessee's rural and urban underserved communities, the AHEC programs at Meharry Medical College, East Tennessee State University, and the University of Tennessee, Memphis, shall develop consumer health promotion programs. The consumer education programs shall be thoroughly integrated with the AHEC's educational programs and targeted health professions students, primary care medical residents, and practicing health care professionals.
§ 68-1-1612. Income to be retained by programs.
-
Any income generated as a result of programs or activities authorized by this part shall not revert to the general fund at the end of the fiscal year, but shall be maintained by the individual AHEC programs at Meharry Medical College, East Tennessee State University, and the University of Tennessee, Memphis, and shall be reinvested to further the mission of the programs as stated in this part.
§ 68-1-1613. Annual appropriations — Allocation of funds.
- (a)
The appropriation provided for the AHEC program in any fiscal year shall be as set in the general appropriations act.
- (b)
For fiscal years beginning on and after July 1, 1998, funds appropriated for the individual AHEC programs shall be allocated as follows:
- (1)
Sixteen and sixty-seven thousandths percent (16.67%) to East Tennessee State University for the Northeast Tennessee AHEC program;
- (2)
Sixteen and sixty-seven thousandths percent (16.67%) to Meharry Medical College for the East Tennessee AHEC program;
- (3)
Thirty-three and thirty-three thousandths percent (33.33%) to Meharry Medical College for the Middle Tennessee AHEC program; and
- (4)
Thirty-three and thirty-three thousandths percent (33.33%) to the University of Tennessee, Memphis, for the West Tennessee AHEC program.
- (c)
From the funds appropriated, the institutions shall distribute not less than seventy-five percent (75%) of the funds to the local AHEC programs. The institutions shall not require any organizational changes in the local AHEC programs unless federal law so requires such changes.
§ 68-1-1614. Rules and regulations.
-
The commissioner of health is authorized to promulgate rules and regulations to effectuate the purpose of this part. All such rules and regulations shall be promulgated in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.
Part 18 Office of Women's Health Act of 2000
§ 68-1-1801. Short title — Purpose — Creation.
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This part shall be known and may be cited as “The Office of Women's Health Act of 2000” and is enacted for the purpose of educating the public concerning women's health issues and for advocating initiatives to enhance the quality of life for women in the state. This office shall be operated from existing resources of the department of health.
§ 68-1-1802. Part definitions.
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As used in this part, unless the context otherwise requires:
- (1)
“Commissioner” means the commissioner of health;
- (2)
“Department” means the department of health; and
- (3)
“Office” means the office of women's health designated by this part.
§ 68-1-1803. Purpose.
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The office of women's health is designated for the following purposes:
- (1)
To continue to educate and advocate for women's health by establishing appropriate forums, programs, and initiatives designed to educate the public regarding women's health issues with an emphasis on preventive health and healthy lifestyles;
- (2)
To assist the commissioner in identifying, coordinating, and establishing priorities for programs, services, and resources the state should provide for women's health issues and concerns relating to the reproductive, menopausal, and post-menopausal phases of a woman's life with an emphasis on post-menopausal health;
- (3)
To serve as a clearinghouse and resource for information on women's health by maintaining a current list of applicable resources and referring persons to the proper locations for obtaining such information. Information shall include, but not be limited to, the following:
- (A)
Diseases that significantly impact women, including heart disease, cancer, and osteoporosis;
- (B)
Menopause;
- (C)
Mental health;
- (D)
Substance abuse;
- (E)
Sexually transmitted diseases; and
- (F)
Sexual assault and domestic violence;
- (4)
To collect, classify, and analyze relevant research information and data conducted or compiled by the department or other entities in collaboration with the department, as well as to provide, except as prohibited by law, interested persons with information regarding research results;
- (5)
To develop and recommend funding and program activities for educating the public on women's health initiatives, including, but not limited to, the following:
- (A)
Health needs throughout a woman's life;
- (B)
Diseases which significantly affect women, including heart disease, cancer, and osteoporosis;
- (C)
Access to health care for women;
- (D)
Poverty and women's health;
- (E)
The leading causes of morbidity and mortality for women; and
- (F)
Special health concerns for minority women;
- (6)
To make recommendations to the commissioner regarding programs that address women's health issues for inclusion in the department's annual budget and strategic planning;
- (7)
To seek funding from various entities to carry out the purposes of this part;
- (8)
To conduct public educational forums in conjunction with other public health events and conferences in the state to raise public awareness and educate citizens about women's health issues; and
- (9)
To coordinate the activities and programs of the office with other entities that focus on women's health or women's issues.
§ 68-1-1804. Creation of advisory committee — Appointment of committee members.
- (a)
The commissioner may appoint an advisory committee on women's health to assist in advising the office regarding the duties required under this part.
- (b)
The advisory committee shall be comprised of persons with expertise in and knowledge of women's health issues in the state. If the advisory committee is established, the commissioner shall determine the number of persons to serve on the committee; appoint a chair or co-chairs for the committee; and establish the policies and procedures under which the committee shall operate.
§ 68-1-1805. Legislative intent — Statewide initiative to increase gynecological cancer awareness.
- (a)
It is the intent of the general assembly to promote greater awareness of women to the risks of gynecological cancers by increasing their knowledge of the signs of such types of cancers and the benefits of early detection. The general assembly recognizes the traditional and significant role played by the department of health in educating the public about health issues and their relevance to maintaining a good quality of life for all citizens.
- (b)
The department of health is directed to develop and implement a statewide initiative to increase awareness of women regarding gynecological cancers. Through the department's office of women's health, the department shall work with other state and federal programs, such as the Tennessee breast and cervical cancer early detection program and the National Cervical Cancer Coalition, to encourage all women to have regular screening examinations and to follow good health practices which may prevent gynecological cancers.
- (c)
During national cervical health awareness month, the department shall further the public's knowledge and understanding of the signs of gynecological cancers and the importance of early detection through regular examinations by utilizing print, electronic, audio, or other media, as deemed appropriate by the department. The department shall encourage appropriate physicians and other health care providers to actively educate their patients regarding gynecological cancers through dissemination of information about these diseases and their detection and prevention, as well as through participation in the initiative by providing free cervical cancer screening on “Free Pap Smear Day.” Where feasible, the department shall work with similar national campaigns which are directed toward women's health issues, as well as partner with health care professional organizations and governmental entities to enhance the department's efforts related to gynecological cancers.
Part 19 Stroke Care, Education, and Outreach Collaborative
§ 68-1-1901. Establishment of collaborative — Members.
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The commissioner of health shall establish a stroke care, education, and outreach collaborative in each grand division of the state. The members of the collaborative shall be hospitals and health care providers providing stroke care in the grand division. The collaborative shall develop and support a program of education and outreach focused on helping community hospitals acquire the skills and resources necessary to qualify them as stroke centers, equipped for the treatment of a patient with acute stroke. The program will be targeted to hospitals and providers in the grand division.
§ 68-1-1902. Education and outreach program focus.
- (a)
Stroke care education and outreach shall be focused on performance and process improvement, shall employ the use of multidisciplinary teams of care, and shall be knowledge-based and patient-centered. The program shall be comprehensive in its approach, utilizing neurology, cardiology, diagnostic services, rehabilitation services, community resources, and service providers. The collaborative shall designate at least one (1) hospital to be an education site and have resources dedicated to its educational outreach program.
- (b)
Each collaborative shall provide a stroke education program based on:
- (1)
Best current practice developed through research and medical literature and the study of best practice in acute stroke treatment and therapy;
- (2)
Best medical practice that is tailored to meet the patient population served at the center reflecting the cultural, psychosocial, economic and lifestyle characteristics;
- (3)
Clinical guidelines and protocols for standardized care;
- (4)
Benchmarks to monitor quality care practices;
- (5)
Performance improvement for better patient outcomes; and
- (6)
Increased capacity for stroke research.
§ 68-1-1903. Statewide stroke database — Report.
- (a)
The East Tennessee State University College of Public Health, in cooperation with the Tennessee stroke systems task force, shall maintain a statewide stroke database that compiles information and statistics on stroke care involving prevalence, mortality and performance metrics that align with the stroke consensus metrics developed and approved by the American Heart Association, centers for disease control and prevention and the joint commission. The College of Public Health shall make aggregate data available to the public health community via an annual report. The College of Public Health shall support this data platform based on nationally available stroke registry tools that are based on nationally recognized, evidence-based guidelines. To every extent possible, the College of Public Health shall coordinate with national voluntary health organizations involved in stroke quality improvement to avoid duplication and redundancy.
- (b)
Comprehensive stroke centers, primary stroke centers, and hospitals that have a certification from a department-approved, nationally recognized certifying body recognizing the hospital as capable of providing neuroendovascular treatment shall, and all other hospitals are encouraged to, report data quarterly consistent with the national recognized stroke consensus measures on the treatment of individuals with confirmed stroke to the East Tennessee State University College of Public Health.
- (c)
- (1)
This section shall not be construed as a medical practice guideline and shall not be used to restrict the authority of a hospital to provide services for which it has received a license to provide such services under state law.
- (2)
This section shall not be construed to authorize any disclosure of information that would be prohibited pursuant to the federal Health Insurance Portability and Accountability Act of 1996 (HIPAA) (42 U.S.C. § 1320d et seq.).
- (3)
The College of Public Health shall not disclose any hospital-specific information reported to it.
Part 22 Office of Minority Health Act of 2004
§ 68-1-2201. Short title — Purpose — Resources.
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This part shall be known and may be cited as the “Office of Minority Health Act of 2004” and is enacted for the purpose of educating the public concerning health issues regarding the minority populations in this state and for advocating initiatives to enhance the quality of life and address any disparity of health services available for minorities in this state. This office shall be operated from existing resources of the department of health.
§ 68-1-2202. Part definitions.
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As used in this part, unless the context otherwise requires:
- (1)
“Commissioner” means the commissioner of health;
- (2)
“Department” means the department of health;
- (3)
“Minorities” include, but are not limited to, African American, Hispanic, Asian American, American Indian, Alaskan Native, Middle Eastern American and the underserved regardless of age, race, economics, gender, language or geographic location; and
- (4)
“Office” means the office of minority health designated by this part.
§ 68-1-2203. Functions.
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The office of minority health is designated for the following purposes:
- (1)
To assist the commissioner in the assessment of the health needs of the minority populations within the state;
- (2)
To recommend to the commissioner methods and programs that are sensitive and relevant to the unique linguistic, cultural and ethnic characteristics of minority populations;
- (3)
To provide consultation, technical assistance, training, and reference materials regarding health issues of minorities to service providers, organizations and other agencies;
- (4)
To promote awareness of minority health concerns and encourage, promote and aid in the establishment of services to address those concerns;
- (5)
To disseminate information on available minority services;
- (6)
To provide adequate and effective opportunities for minorities to express their views on departmental policy development and program implementation;
- (7)
To coordinate with other agencies providing services to minority populations in an effort to make available services designed to meet the needs of minority residents;
- (8)
To develop local coalitions throughout the state that provide local networks of health organizations and associated agencies, and act as a community focus for minority health related programs; and
- (9)
To seek funding from various entities or sources to carry out or further the purposes of this part.
§ 68-1-2204. Appointment of advisory council.
- (a)
The commissioner may appoint an advisory council on minority health to assist in advising the office regarding the duties required under this part.
- (b)
The advisory council shall be comprised of community leaders and persons with expertise in and knowledge of minority health issues in the state. If the advisory committee is established, the commissioner shall determine the number of persons to serve on the committee; appoint a chair or co-chairs for the committee; and establish the policies and procedures under which the committee shall operate.
Part 23 Child Nutrition and Wellness Act of 2006
§ 68-1-2301. Short title — Purpose.
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This part shall be known and may be cited as the “Child Nutrition and Wellness Act of 2006,” and is enacted for the purpose of educating the public concerning child nutrition and wellness issues and for advocating initiatives to improve the nutrition and wellness of children.
§ 68-1-2302. Part definitions.
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As used in this part, unless the context otherwise requires:
- (1)
“Commissioner” means the commissioner of health;
- (2)
“Department” means the department of health; and
- (3)
“Office” means the office of child nutrition and wellness in the department, which is created in § 68-1-2304.
§ 68-1-2304. Office of child nutrition and wellness.
- (a)
The office of child nutrition and wellness shall be created in the department, but only upon sufficient funding being appropriated for the office.
- (b)
The office shall perform the following functions:
- (1)
Assist the commissioner in identifying and establishing priorities for programs, services, and resources to promote better child nutrition and wellness;
- (2)
Serve as a clearinghouse for information on child nutrition and wellness;
- (3)
Identify and recommend sources of funding for promotion of child nutrition and wellness and seek funding from the sources;
- (4)
Make recommendations to the commissioner regarding programs that address child nutrition and wellness for inclusion in the department's annual budget; and
- (5)
Conduct public educational forums to raise public awareness about child nutrition and wellness issues.
Part 24 Tennessee Nurse Home Visitor Program Act
§ 68-1-2402. Legislative findings — Legislative intent.
- (a)
The general assembly finds that, in order to adequately care for their newborns and young children, new mothers may often benefit from receiving professional assistance and information. Without such assistance and information, a young mother may develop habits or practices that are detrimental to her health and well-being and the health and well-being of her child. The general assembly further finds that inadequate prenatal care and inadequate care in infancy and early childhood often inhibit a child's ability to learn and develop throughout childhood and may have lasting, adverse affects on the child's ability to function as an adult. The general assembly recognizes that implementation of a nurse home visitor program that provides educational, health, and other resources for new young mothers during pregnancy and the first years of their infants' lives has been proven to significantly reduce the amount of drug, including nicotine, and alcohol use and abuse by mothers, the occurrence of criminal activity committed by mothers and their children under fifteen (15) years of age, and the number of reported incidents of child abuse and neglect. Such a program has also been proven to reduce the number of subsequent births, increase the length of time between subsequent births, and reduce the mother's need for other forms of public assistance.
- (b)
It is the intent of the general assembly that such a program be established for the state, beginning with a limited number of participants and expanding by the year 2017 to be available to all low-income, first-time mothers in the state who consent to receiving services.
§ 68-1-2403. Part definitions.
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As used in this part, unless the context otherwise requires:
- (1)
“Department” means the department of health;
- (2)
“Entity” means any nonprofit, not-for-profit, or for-profit corporation, religious or charitable organization, institution of higher education, visiting nurse association, existing visiting nurse program, local health department, county department of social services, political subdivision of the state, or other governmental agency or any combination thereof;
- (3)
“Health care and services facility” means a health care entity or facility identified pursuant to § 68-1-2405 to assist the department in administering the program;
- (4)
“Low-income” means an annual income that does not exceed two hundred percent (200%) of the federal poverty level;
- (5)
“Nurse” means a person licensed as a professional nurse pursuant to title 63, chapter 7; and
- (6)
“Program” means the nurse home visitor program established in this part.
§ 68-1-2404. Establishment of program — Participation — Rules and regulations.
- (a)
- (1)
There is established the nurse home visitor program to provide regular, in-home, visiting nurse services to low-income, first-time mothers, with their consent, during their pregnancies and through their children's second birthday. The program training requirements, program protocols, program management information systems, and program evaluation requirements shall be based on research-based model programs that have been replicated in multiple, rigorous, randomized clinical trials and in multiple sites that have shown significant reductions in:
- (A)
The occurrence among families receiving services through the model program of infant behavioral impairments due to use of alcohol and other drugs, including nicotine;
- (B)
The number of reported incidents of child abuse and neglect among families receiving services through the model program;
- (C)
The number of subsequent pregnancies by mothers receiving services through the model program;
- (D)
The receipt of public assistance by mothers receiving services through the model program; and
- (E)
Criminal activity engaged in by mothers receiving services through the model program and their children.
- (2)
The program shall provide trained visiting nurses to help educate mothers on the importance of nutrition and avoiding alcohol and drugs, including nicotine, and to assist and educate mothers in providing general care for their children and in improving health outcomes for their children. In addition, visiting nurses may help mothers in locating assistance with educational achievement and employment. Any assistance provided through the program shall be provided only with the consent of the low-income, first-time mother, and she may refuse further services at any time. The program should be significantly modeled on the national Nurse-Family Partnership program.
- (b)
The program shall be administered in a community or communities by an entity or entities selected under this part. For the purpose of this pilot program, if the commissioner determines that it is necessary in order to implement a pilot project for the program, then the commissioner is authorized to make a grant or grants without competitive bidding. If selection is made on a competitive basis, any entity that seeks to administer the program shall submit an application to the department as provided in § 68-1-2406. The entity or entities selected pursuant to § 68-1-2407 for implementing the project shall be expected to provide services for up to one hundred (100) low-income, first-time mothers in the community in which the entity administers the program. A mother shall be eligible to receive services through the program if she is pregnant with her first child, and her gross annual income does not exceed two hundred percent (200%) of the federal poverty level.
- (c)
The department may promulgate rules pursuant to Uniform Administrative Procedures Act, compiled in title 4, chapter 5, for the implementation of the program.
- (d)
Notwithstanding subsection (c), the department may adopt rules pursuant to which a nurse home visitation program that is in operation in the state as of July 1, 2007, may qualify for participation in the program if it can demonstrate that it has been in operation in the state for a minimum of five (5) years and that it has achieved a reduction in the occurrences specified in subsection (c). Any program so approved shall be exempt from the rules adopted regarding program training requirements, program protocols, program management information systems, and program evaluation requirements, so long as the program continues to demonstrate a reduction in the occurrences specified in subsection (a).
§ 68-1-2405. Health care and services facility to assist with program.
- (a)
The commissioner of health shall select the national service organization of the Nurse-Family Partnership program as the health care and services facility with the knowledge and experience necessary to assist the department in selecting entities from among the applications, if any, submitted pursuant to § 68-1-2406 and in monitoring and evaluating the implementation of the program in communities throughout the state.
- (b)
The health care and services facility shall monitor the administration of the program by the selected entities to ensure that the program is implemented according to the program training requirements, program protocols, program management information systems, and program evaluation requirements established by the department. The health care and services facility shall evaluate the overall implementation of the program and include the evaluation, along with any recommendations concerning the selected entities or changes in the program training requirements, program protocols, program management information systems, or program evaluation requirements, in the annual report submitted to the department pursuant to § 68-1-2408.
- (c)
The department shall compensate the health care and services facility for the costs incurred in performing its duties under this part. The compensation shall be included in the actual costs incurred by the department in administering the program and paid out of the amount allocated to the department for administrative costs.
§ 68-1-2406. Application to administer program.
- (a)
Any entity that seeks to administer the program in a community pursuant to any competitive bidding process shall submit an application to the department. At a minimum, the application shall specify the basic elements and procedures that the entity shall use in administering the program. Basic program elements shall include, but are not limited to, the following:
- (1)
The specific training to be received by each nurse employed by the entity to provide home nursing services through the program;
- (2)
The protocols to be followed by the entity in administering the program;
- (3)
The management information system to be used by the entity in administering the program;
- (4)
The reporting and evaluation system to be used by the entity in measuring the effectiveness of the program in assisting low-income, first-time mothers; and
- (5)
An annual report to both the health care and services facility and the community in which the entity administers the program that reports on the effectiveness within the community and is written in a manner that is understandable for both the health care and services facility and members of the community.
- (b)
Any program application submitted pursuant to this section shall demonstrate strong, bipartisan public support for and a long-term commitment to operation of the program in the community.
- (c)
The department shall initially review any applications received pursuant to this section and submit to the health care and services facility for review those applications that include the basic program elements. Following its review, the health care and services facility shall submit to the department the name of the entity or entities that the health care and services facility recommends to administer the program.
§ 68-1-2407. Selection of entities recommended by the health care and services facility — Grants — Creation of fund.
- (a)
The department shall select the entities that will administer the program.
- (b)
- (1)
The entity or entities selected to operate the program shall receive grants in amounts specified by the department. The grants may include operating costs, including, but not limited to, development of the information management system, necessary to administer the program. The number of entities selected and the number of communities in which the program shall be implemented shall be determined by moneys available in the nurse home visitor program fund created in subdivision (b)(2).
- (2)
Grants awarded pursuant to subdivision (b)(1) shall be payable from the nurse home visitor program fund, which fund is hereby created in the state treasury. The nurse home visitor program fund, referred to in this section as the fund, shall consist of moneys appropriated to the fund by the general assembly from general revenue and moneys received from the federal government. Any revenues or moneys deposited in the fund shall remain in the fund until expended for purposes consistent with this part and shall not revert to the general fund on any June 30. In addition, the state treasurer may credit to the fund any public or private gifts, grants, or donations received by the department for implementation of the program. The fund shall be subject to annual appropriation by the general assembly to the department for grants to entities for operation of the program. Notwithstanding any other law, all interest derived from the deposit and investment of moneys in the fund shall be credited to the fund.
§ 68-1-2408. Program oversight — Reporting.
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Entities receiving grants shall report to the health care and services facility as often as the department determines to be beneficial to program oversight. The health care and services facility shall report to the department as often as the department determines to be beneficial to program oversight, but at least annually. The department shall report in writing on an annual basis to the general assembly.
Chapter 2 Local Health Services
Part 6 County Health Departments
§ 68-2-601. County board of health — Members — Powers and duties.
- (a)
The county legislative body of each county may establish a board of health. The board shall consist of the following:
- (1)
The county mayor;
- (2)
The director of schools or a designee appointed annually by the director;
- (3)
Two (2) physicians licensed to practice in the state of Tennessee, who shall be nominated by the medical society serving that county;
- (4)
One (1) dentist licensed to practice dentistry in the state of Tennessee, who shall be nominated by the dental society serving that county;
- (5)
One (1) pharmacist licensed to practice in the state of Tennessee, who shall be nominated by the pharmaceutical society serving that county;
- (6)
One (1) registered nurse licensed to practice in the state of Tennessee, who shall be nominated by the nurses association serving that county;
- (7)
The county health director and the county health officer shall serve as ex officio members to the board, with the county health director serving as secretary to the board. In the absence of a duly appointed county health director, the county health officer shall serve as secretary. In the absence of the duly appointed county health officer, the commissioner of health or the commissioner's designee shall serve in that capacity. The board shall elect a chair at its first meeting and annually thereafter. It is the duty of the chair to call all meetings of the board;
- (8)
The county legislative body may, by resolution, provide for the election of a doctor of veterinary medicine as an additional member of the county board of health. The county legislative body may also, by resolution, provide for the election of a citizen representative as another additional member of the county board of health. The citizen representative shall not, at the time of such citizen representative's election, previous to such citizen representative's election, nor during the term of such citizen representative's office, be a health provider or the spouse of a health provider; and
- (9)
In the event a nomination is not timely made, the county legislative body may proceed to elect an otherwise qualified member.
- (b)
All members, except ex officio members, shall be residents of the county. In the event that the required members are not available from within the county to serve on the board of health, the board would remain duly constituted.
- (c)
The members shall be appointed by the county legislative body for a term of four (4) years. All vacancies shall be filled by the legislative body to serve the remainder of the unexpired term. A majority of the board shall constitute a quorum.
- (d)
The county legislative body may remove an appointed member for cause.
- (e)
In counties which fail to establish an active board of health pursuant to subsection (a), the commissioner of health may establish a health advisory committee to function as provided in § 68-2-802; however, the commissioner or the commissioner's designee retains all powers and duties of the board of health.
- (f)
- (1)
Except as provided in § 68-2-611, under advisement of the county board of health under subdivisions (f)(2)(B) and (C), the county mayor has the power to issue orders as are necessary or appropriate to protect the general health and safety of county residents.
- (2)
The powers and duties of county boards of health are to:
- (A)
Govern the policies of full-time county health departments established in accordance with this chapter;
- (B)
Advise the county mayor on the enforcement of such rules and regulations as may be prescribed by the commissioner essential to the control of preventable diseases and the promotion and maintenance of the general health of the county;
- (C)
Advise the county mayor on the adoption of rules and regulations as may be necessary or appropriate to protect the general health and safety of the citizens of the county; and
- (D)
Require that an annual budget be prepared and, when this budget has been approved by the county board of health, submit the same to the county legislative body for consideration and subsequent provision of necessary funds to meet all obligations under the adopted budgets.
- (g)
This part does not grant a county board of health the power to prohibit or regulate agriculture as defined in § 1-3-105.
- (h)
County health departments shall not regulate agriculture as defined in § 1-3-105, except as otherwise authorized under state law.
- (i)
A county health department or board of health of a county in existence prior to July 1, 1985, remains in existence after November 12, 2021. The regulations of such departments and boards remain in full force in effect to the extent such regulations do not conflict with this part.
§ 68-2-603. Establishment of county health department — County health director — County health officer.
- (a)
- (1)
Each county shall establish a county health department which shall be headed by, and under the immediate direction of, a county health director.
- (2)
The county health director shall be appointed by the commissioner of health or by the commissioner's designee, act as the administrative officer of the county health department, take actions and make determinations necessary to properly execute the state department of health's programs, and adequately enforce the rules and regulations established by the commissioner.
- (3)
The county health director shall be a health professional who possesses the necessary education and experience in public health administration as determined by the state department of health and approved by the department of human resources.
- (4)
The county health director shall have compensation paid, all or in part, by the state department of health.
- (5)
If the county health director is a qualified physician, such county health director may also serve as a county health officer.
- (6)
When the commissioner appoints a county health director pursuant to this subsection (a), the appointment shall be made in writing by the commissioner in concurrence with the county mayor of the county for which the appointment is made. The mayor shall submit a slate of not more than three (3) nominees to the commissioner for consideration within ten (10) days of a request for nominees by the commissioner. The commissioner may appoint a health director from the list of nominees or request additional nominees.
- (b)
It is the county health director's duty to enforce the regulations of the state department of health.
- (c)
The commissioner may appoint a county health officer responsible for providing medical direction, including medical enforcement actions. The county health officer shall be a graduate doctor of medicine or osteopathy, schooled and experienced in public health work and licensed to practice in the state of Tennessee. The county health officer shall have compensation paid, all or in part, by the state department of health.
- (d)
Any person who undertakes to hold the position of county health officer without being qualified as provided in this section commits a Class C misdemeanor.
- (e)
In the absence of a duly-appointed county health officer, the commissioner or the commissioner's designee shall appoint a physician who shall provide medical direction, including the authority outlined in § 68-2-609.
- (f)
Except as provided in subsection (g), in the absence of an epidemic or immediate threat of an epidemic, any person who files with the county board of health a signed, written statement that a specific regulation pertaining to personal medical treatment conflicts with the person's religious tenets and practices, affirmed under penalty of perjury, shall be exempted from the regulation.
- (g)
This section does not apply to an immunization, vaccination, or injection for the SARS-CoV-2 virus or any variant of the SARS-CoV-2 virus.
§ 68-2-604. Office facilities for county department of health — Appropriations.
- (a)
The county legislative body is required to provide necessary office facilities, and to appropriate money necessary for the maintenance of the county health department.
- (b)
The state department of health may participate with the county in the cost of construction and renovation of county health department facilities, subject to availability of state funds.
§ 68-2-605. Municipal maintenance of county health departments — Taxes.
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Municipalities located in counties establishing county health departments are empowered to cooperate in the maintenance of county health departments, and to have the county health departments serve as departments for the municipalities, and are authorized to incur the expenses necessary for their proportionate part in the establishment and maintenance of the county health departments, and to levy and collect taxes upon all of the property within the jurisdiction of the municipalities, as may be necessary to meet and pay the expenses.
§ 68-2-607. Contracts and gifts.
- (a)
County health departments may enter into agreements, contracts or arrangements with governmental entities or other persons as necessary or appropriate to assist the county health department in carrying out its duties and functions, unless otherwise prohibited by law, and in accordance with the law, rules and procedures of this state and the local governing entity.
- (b)
- (1)
County health departments may accept gifts, grants, bequests and other donations for use in performing the county health department's programs.
- (2)
Funds or property accepted shall be used as directed by its donor and in accordance with the law, rules and procedures of this state and the local governing entity.
§ 68-2-608. Administrative orders and judicial remedies of county health director.
- (a)
- (1)
Whenever it appears to the county health director that a condition or activity exists or is threatened that may violate the laws, regulations, resolutions, ordinances, permits or licenses that are within the enforcement responsibility of the county health director, the county health director may, after notice and opportunity for a hearing, issue an order for any of the following:
- (A)
Cessation of the activity;
- (B)
Correction of the condition or activity;
- (C)
Removal of the condition in whole or in part;
- (D)
Revocation, suspension or imposition of conditions on a license or permit; or
- (E)
Abatement of a nuisance that involves a violation of the health laws of the state and that can be reasonably expected to adversely affect the health of the public.
- (2)
Any person served with an order pursuant to subdivision (a)(1) shall immediately comply with the order at the person's own expense.
- (b)
Whenever a condition or activity exists or is threatened that, in the opinion of the county health director, causes or threatens an imminent or immediate danger to the public health under circumstances in which an opportunity for prior hearing might further seriously endanger the health of the public, the county health director may issue an order requiring the actions listed in subdivision (a)(1). The person to whom the order is addressed shall immediately comply with the order. However, such person shall be provided an opportunity for a hearing as promptly as is reasonable under the circumstances.
- (c)
The county health director may petition the appropriate chancery court for injunctive relief and any other remedy available at law or equity as necessary to enforce an order issued pursuant to this section, or to otherwise require compliance with the laws, regulations, resolutions, ordinances, permits or licenses that are within the enforcement responsibility of the county health director. It shall not be necessary that an order be issued prior to seeking relief in chancery court. The court shall have the power to assess the cost of corrective measures against any and all persons failing to comply with the order.
§ 68-2-609. Orders of county health officer.
- (a)
Except as provided in subsection (b), the county health officer may order:
- (1)
The quarantine of a place or person, if the county health officer finds that quarantine is necessary to protect the public health from an epidemic;
- (2)
The closure of a public establishment, facility, or building, if the county health officer finds unsanitary conditions of such a nature and extent to significantly threaten the public health. For purposes of this subdivision (a)(2), “unsanitary” does not mean free of agents of infection;
- (3)
The closure of a public establishment, facility, or building, if the county health officer is otherwise authorized by law to take that action; or
- (4)
Except as provided in title 14 and § 68-2-611, rules as are necessary or appropriate to protect the general health and safety of the county.
- (b)
The county health officer shall not issue an order under subsection (a) that closes a church or religious organization for purposes of worship services.
- (c)
An order issued in violation of this section is void and unenforceable.
§ 68-2-610. Fees for vector control.
- (a)
In any county having a population in excess of eight hundred thousand (800,000), according to the 2000 federal census or any subsequent federal census, that has a health department operating an urban and rural sanitation program to prevent or reduce the transmission of vector borne disease, the county legislative body is authorized to establish a vector control fee, which may be assessed and collected from each rate payer in the county. This fee shall not exceed one dollar ($1.00) per rate payer per month and shall be used exclusively by the county for the operation of the program to prevent or reduce the transmission of vector borne disease. In any such county with multiple utilities, the fee shall be assessed by only one (1) utility as determined by the county legislative body.
- (b)
The county providing the service is authorized to enter into a contract for the collection of the vector control fees, or to bill and collect vector control fees as a designated item on its utility bill, with:
- (1)
Any public or private corporation or municipal utilities board or commission operating a water, gas or electric system, other than an electric cooperative incorporated under the Rural Electric and Community Services Cooperative Act, compiled in title 65, chapter 25, part 2 in the area in which vector control services are provided; or
- (2)
Any other city, town or utility district.
§ 68-2-611. Pandemic — Exclusive jurisdiction of governor to issue executive orders and directives.
- (a)
Notwithstanding any law to the contrary:
- (1)
For the purposes of effectively mitigating the impact of a pandemic, upon declaration of a pandemic by the world health organization and a subsequent declaration of a state of emergency by the governor indicating that the pandemic impacts this state, and until the pandemic ceases to exist, the governor has exclusive jurisdiction to issue executive orders and directives related to the pandemic with respect to each county health department in this state, including a county health department created by private or public act prior to July 1, 1985, or by action of a county legislative body; and
- (2)
The commissioner of health and a local health department, board, entity, county mayor, or official shall not supersede, vacate, contradict, or refuse to comply with such executive order or directive of the governor issued pursuant to subdivision (a)(1).
- (b)
For purposes of subsection (a), a pandemic ceases to exist when the governor terminates the state of emergency or allows the declaration of the state of emergency to expire upon finding that the pandemic no longer significantly impacts this state.
Part 7 District Health Departments
§ 68-2-701. Joint district health departments — Powers and duties — Municipal support.
- (a)
Two (2) or more contiguous counties may, by resolution duly approved by a majority vote of each respective county legislative body, combine and contract, each with the other, for the purpose of forming a district health department, having all the powers, responsibilities and duties conferred upon county health departments by the provisions and statutes prescribing these powers, duties and responsibilities, where the combination can be economically administered as determined by the commissioner of health.
- (b)
Municipalities in any component county of the health district are authorized to cooperate in the support of the district health department through the county government of the component county, and to enter into an agreement with the county by which the district health department shall also serve as the health department for the municipality.
§ 68-2-702. Joint district board of health created — Members.
- (a)
There may be created for the health district so formed, a joint district board of health consisting of the county mayor, the county director of schools, and one (1) physician, licensed to practice in Tennessee from each county of the district. The physician member from each county shall be nominated by the medical society and elected by the county legislative body of the county in which the physician member resides. In counties operating under a county council or commission form of government, the chair of the county council or commission shall serve as a member of the district board of health.
- (b)
A district board of health shall be considered duly constituted and empowered as soon as the several physician members from the respective counties have been elected by the respective county legislative bodies.
§ 68-2-703. District health director — District health officer.
- (a)
District health departments shall be headed by, and under the immediate direction of, a district health director, who shall be appointed by the commissioner of health.
- (b)
The district health director shall act as the administrative officer of the district health department and shall take actions and make determinations necessary to properly execute the state department of health's programs and adequately enforce the rules and regulations established by the commissioner and the district board of health.
- (c)
The commissioner may also appoint a district health officer responsible for providing medical direction including medical enforcement actions.
§ 68-2-704. Qualifications of district health director and district health officer — Powers and duties.
- (a)
The district health director shall be a health professional who possesses the necessary education and experience in public health administration as determined by the state department of health and approved by the department of human resources. If the district health director is a qualified physician, the district health director may also serve as district health officer. The district health director shall have compensation paid, all or in part, by the state department of health.
- (b)
The district health officer shall be a doctor of medicine or osteopathy, schooled and experienced in public health work and licensed to practice in the state of Tennessee. The district health officer shall have compensation paid, all or in part, by the state department of health.
- (c)
Any person who undertakes to hold the position of district health officer, without being qualified as provided in this section, commits a Class C misdemeanor.
- (d)
The district health director and district health officer shall have the same responsibilities and powers as the county health director and the county health officer, respectively, as provided in §§ 68-2-603, 68-2-608 and 68-2-609.
§ 68-2-705. Maintenance of district health department — Appropriations by counties.
- (a)
The county legislative bodies of counties establishing a district health department are authorized and empowered to appropriate funds necessary for the maintenance of the district health departments and to levy and collect taxes to meet and pay the same.
- (b)
Each county shall contribute to the maintenance of such district health department, the percentage of contribution by each to be as described in the allocation plans for local health resources, compiled in part 9 of this chapter.
Part 8 Health Advisory Committee
§ 68-2-801. Health advisory committees — Establishment — Members — Powers and duties.
- (a)
Health advisory committees may be established to represent counties, districts or regions; however, each county must have at least one (1) representative.
- (b)
Each health advisory committee established in accordance with § 68-2-601(e) shall function in an advisory capacity. The members of the health advisory committee shall consist of citizen and provider representatives who are residents of the county or district served by the health advisory committee. A citizen representative shall not, at the time of the citizen representative's election, previous to the citizen representative's election, nor during the term of the citizen representative's office, be a health provider or the spouse of a health provider. Citizen members represent major purchasers of health care, as well as social, economic, racial and geographic subpopulations. Provider members represent health professionals, health care institutions, health care insurers, health professional schools and allied health professionals. Members of the health advisory committee serve staggered terms.
- (c)
Where health advisory committees are established, their role is strictly advisory, and the commissioner of health or the commissioner's designee retains enforcement authority.
§ 68-2-802. Functions of health advisory committees.
-
The functions of the health advisory committee shall be to:
- (1)
Be informed concerning the operations and programs of the health department;
- (2)
Assist in informing residents of programs and services;
- (3)
Advise the health director/health officer of community health needs and resources; and
- (4)
Advise the health director, health officer, county mayors and the county commissions of potential solutions to problems in the delivery of health services, and to recommend policies designed to improve the operation of the health department.
Part 9 Allocation Plan for Local Health Resources
§ 68-2-901. Development of plan — Propositions.
-
In order to achieve an equitable allocation of local health resources, the department of health shall develop a plan to distribute state grant-in-aid funds to counties. This plan shall be based on the following propositions:
- (1)
A base allocation shall be made to each county to ensure that a basic level of services can be provided. The base allocation shall provide for a minimum core staff;
- (2)
A special needs fund shall be maintained for meeting special local health needs as determined by the commissioner of health;
- (3)
The remainder of the funds shall be allocated based on a plan prescribed by the commissioner of health;
- (4)
An annual plan shall be developed, which shall be subject to approval by the commissioner of health, the commissioner of finance and administration and the comptroller of the treasury; and
- (5)
Each county shall submit an annual plan of expenditures pursuant to this section for approval by the commissioner of health.
Part 10 County Physician
§ 68-2-1001. Selection — Term — Duties — Qualifications — Penalties — Compensation.
- (a)
The county legislative body may elect a county physician for a definite term, not to exceed four (4) years, or may delegate to the county mayor the authority to retain, with the concurrence of the sheriff, a county physician. It is the duty of the county physician to provide medical and surgical attention within a reasonable period of time for persons confined in the county jail, for inmates of county homes for the indigent, and for other indigent persons as may be ordered by the county legislative body.
- (b)
No person shall be qualified to hold the office of the county physician who is not a physician licensed to practice in Tennessee.
- (c)
Any person who holds the position of county physician or undertakes to discharge the duties of the office, without being so qualified, commits a Class C misdemeanor. Each day any person undertakes to hold the office, or perform the duties of the office, without being so qualified, constitutes a separate offense.
- (d)
Compensation of county physicians shall be such as the county legislative body may fix.
Chapter 3 Vital Records Act of 1977
Part 1 Definitions and Administration
§ 68-3-102. Chapter definitions.
-
As used in this chapter, unless the context otherwise requires:
- (1)
“Certificate of birth resulting in stillbirth” means a certificate issued to record the birth of a stillborn child;
- (2)
“Commissioner” means the commissioner of health;
- (3)
“Dead body” means a human body from the condition of which it reasonably may be concluded that death occurred;
- (4)
“Department” means the department of health;
- (5)
“Fetal death” means death prior to the complete expulsion or extraction from its mother of a product of human conception; the death is indicated by the fact that, after expulsion or extraction, the fetus does not breathe or show any other evidence of life, such as beating of the heart, pulsation of the umbilical cord or definite movement of voluntary muscles;
- (6)
“File” means to present a vital record provided for in this chapter for registration by the office of vital records;
- (7)
“Final disposition” means the burial, interment, cremation, removal from the state or other authorized disposition of a dead body or fetus;
- (8)
“Induced termination of pregnancy” means the intentional termination of pregnancy with the intention other than to produce a live-born infant or to remove a dead fetus;
- (9)
“Institution” means any establishment, public or private, that provides inpatient or outpatient medical, surgical or diagnostic care or treatment or nursing, custodial or domiciliary care, or to which persons are committed by law;
- (10)
“Live birth” means the complete expulsion or extraction from its mother of a product of human conception, irrespective of the duration of the pregnancy, that, after expulsion or extraction, breathes or shows any other evidence of life, such as beating of the heart, pulsation of the umbilical cord, or definite movement of voluntary muscles, whether or not the umbilical cord has been cut or the placenta is attached. Heartbeats shall be distinguished from transient cardiac contractions, and respirations shall be distinguished from fleeting respiratory efforts or gasps;
- (11)
“Person in charge of interment” means any person who places or causes to be placed, a deceased person, still-born child, or dead body, or, after cremation, the ashes thereof, in the earth, a grave, tomb, vault, urn or other receptacle, either in a cemetery or at any other place, or disposes otherwise thereof;
- (12)
“Physician” means a person licensed to practice medicine or osteopathy pursuant to the laws of this state;
- (13)
“Public health council” means the [former] council established in § 68-1-501 [repealed];
- (14)
“Registration” means the acceptance by the office of vital records and the incorporation of vital records provided for in this chapter into its official records;
- (15)
“Stillbirth” means an unintended, intrauterine fetal death after a gestational age of not less than twenty (20) completed weeks or with a weight of three hundred fifty (350) grams or more;
- (16)
“System of vital records” includes the registration, collection, preservation, amendment, and certification of vital records, and the collection of other reports required by this chapter; and
- (17)
“Vital records” means certificates or reports of birth, death, marriage, divorce or annulment and other records related thereto.
§ 68-3-103. Establishment of office of vital records — Rules and regulations — Enforcement — Registration districts — Seal.
-
The department shall:
- (1)
Establish an office of vital records with suitable offices, which shall be properly equipped with fireproof vault and filing cases for the preservation of all official records made and received under this chapter or under the regulations of the department;
- (2)
Make and amend, with the approval of the [former] public health council [repealed], regulations necessary for the creation and efficient performance of an adequate system of vital records, and give instructions and prescribe forms for collecting, transcribing, compiling and preserving vital records;
- (3)
Enforce this chapter and the regulations made pursuant to this chapter;
- (4)
Provide a seal of office;
- (5)
Divide the state into vital records registration districts. The department may from time to time, as conditions justify, change their boundaries. The subdivisions of the state on July 1, 1977, shall be continued until changed by the department; and
- (6)
Make and amend rules and regulations necessary for the tracking and disposition of an aborted fetus or aborted fetal tissue resulting from surgical abortions.
§ 68-3-104. State registrar.
- (a)
The commissioner shall:
- (1)
Appoint a state registrar of vital records, referred to as the state registrar in this chapter, who shall be qualified in accordance with classification standards of education and experience; and
- (2)
In case of a vacancy in the office of state registrar, immediately appoint a successor.
- (b)
The state registrar:
- (1)
Under the supervision of the commissioner, shall act as agent of the commissioner and:
- (A)
Shall have charge of the office of vital records and act as the custodian of all the certificates and records received by the state registrar and perform such other duties as the commissioner may prescribe; and
- (B)
Shall be charged with the execution of this chapter and of the regulations of the department throughout the state and have supervisory power over the local registrars and deputy local registrars;
- (2)
Shall prescribe, with the approval of the department, furnish, and distribute forms required by this chapter and the rules and regulations issued under this chapter or prescribe such other means for transmission of records as will accomplish the purpose of complete and accurate registration;
- (3)
Shall assist in preparing and publishing reports of vital statistics of this state and other reports required by the department;
- (4)
May establish or designate additional offices in the state to aid in the administration of the statewide system of vital records;
- (5)
May delegate functions and duties vested in the state registrar to employees of the office of vital records and to employees of an office established or designated under subdivision (b)(4); and
- (6)
Shall provide copies of certificates or reports required under this chapter or other information derived from the certificates or reports as the state registrar shall determine are necessary to local health agencies for local health planning and program activities. The state registrar shall establish a schedule for transmittal of the copies with each local health agency. The records or other information shall remain the property of the office of vital records and the uses that may be made of the records or other information shall be governed by the state registrar. A schedule for the disposition of the certificates, reports or data provided under this section and § 68-3-103 shall be established by the state registrar.
§ 68-3-105. Violations — Enforcement — Penalties.
- (a)
- (1)
The state registrar has the authority to investigate cases of irregularities or violations of law, personally or by an accredited representative, and all registrars shall aid the state registrar, upon request, in investigations.
- (2)
When the state registrar deems it necessary, the state registrar shall report cases of violations of this chapter to the district attorney general, who shall immediately initiate and follow up the necessary court proceedings against the person alleged to be responsible for the violation of law.
- (3)
Upon request of the department, the attorney general and reporter shall likewise assist in the enforcement provisions of this chapter.
- (b)
It is unlawful for any person to:
- (1)
Willfully and knowingly make any false statement in a certificate, record or report required to be filed under this chapter, or in an application for an amendment of the certificate, record or report, or in an application for a certified copy of a vital record, or willfully and knowingly supply false information, intending that such information be used in the preparation of the report, record or certificate, or amendment of the certificate, record, or report;
- (2)
Absent lawful authority and with the intent to deceive, make, counterfeit, alter, amend or mutilate any certificate, record or report required to be filed under this chapter or a certified copy of such certificate, record or report;
- (3)
Willfully and knowingly obtain, possess, use, sell, furnish or attempt to obtain, possess, use, sell or furnish to another, for any purpose of deception, any certificate, record, report or certified copy of a certificate, record or report so made, counterfeited, altered, amended or mutilated;
- (4)
With the intention to deceive willfully and knowingly obtain, possess, use, sell or furnish to another any certificate of birth or certified copy of a certificate of birth, knowing that such certificate or certified copy was issued upon a certificate that is false, in whole or in part, or that relates to the birth of another person, whether living or deceased;
- (5)
Willfully and knowingly furnish or process a certificate of birth or certified copy of a certificate of birth, with the knowledge or intention that it be used for the purpose of deception by a person other than the person to whom the certificate of birth relates; or
- (6)
Without lawful authority, possess any certificate, record or report required by this chapter or a copy or certified copy of such certificate, record or report, knowing the certificate, record, report or copy to have been stolen or otherwise unlawfully obtained.
- (c)
An offense contained in subsection (b) is a Class C misdemeanor.
- (d)
A person commits a Class C misdemeanor, who willfully and knowingly refuses to provide information required by this chapter or regulations adopted under this chapter; or willfully and knowingly transports or accepts for transportation, interment or other disposition a dead body without an accompanying permit as provided in this chapter; or willfully and knowingly neglects or violates this chapter or refuses to perform any of the duties imposed upon the person by this chapter.
§ 68-3-106. Local registrars.
- (a)
The state registrar shall:
- (1)
Appoint such number of local registrars for the registration districts as necessary. Full-time local health department personnel may be appointed local registrars;
- (2)
Remove for cause any local registrar whose services are found to be unsatisfactory; and
- (3)
Immediately appoint a successor in case of death, resignation, removal from the registration district, or removal for cause of any local registrar.
- (b)
The local registrars and their deputies are charged with the duty of complying with all instructions of the state registrar, and of checking on the compliance by others with this chapter and with the regulations of the department.
- (c)
Each local registrar, upon acceptance of such registrar's written appointment, shall recommend a deputy or deputies, and in case of death, resignation or removal of such deputy, a successor, subject to the approval of the state registrar.
Part 2 Records — General Requirements
§ 68-3-202. Content of certificates and reports — Evidence.
- (a)
In order to promote and maintain nationwide uniformity in the system of vital records, the forms of certificates, reports and other returns required by this chapter, or by regulations adopted under this chapter, shall include, as a minimum, the items recommended by the federal agency responsible for national vital statistics.
- (b)
Each certificate, report and form required to be filed and registered under this chapter shall be on a form or in a format prescribed by the state registrar and shall contain the date received for registration.
- (c)
Each certificate provided for in this chapter, filed within six (6) months after the recorded event occurred, shall be prima facie evidence of the facts stated in the certificate.
§ 68-3-203. Amendment of records.
- (a)
In order to protect the integrity and accuracy of vital records, a certificate or record registered under this chapter may be amended only in accordance with this chapter and regulations adopted by the department.
- (b)
Except as otherwise provided by subsection (f), a certificate or record that is amended under this section shall be marked “amended.” The date of amendment and a summary description of the evidence submitted in support of the amendment shall be endorsed on or made a part of the record. The department shall prescribe, by regulation, the conditions under which additions or minor corrections may be made to certificates or records within one (1) year after the date of the event, without the certificate or record being considered “amended.” “Minor corrections” means amendment of obvious errors, transposition of letters in words of common knowledge, or omissions.
- (c)
Upon receipt of a certified copy of a court order changing the name of a person born in the state, and upon request of such person or such person's parents, guardian or legal representative, the state registrar shall amend the certificate of birth to show the new name.
- (d)
The sex of an individual shall not be changed on the original certificate of birth as a result of sex change surgery.
- (e)
When an applicant does not submit the minimum documentation required in the regulations for amending a vital record, or when the state registrar has reasonable cause to question the validity or adequacy of the applicant's sworn statements or the documentary evidence, and if the deficiencies are not corrected, the state registrar shall not amend the vital record and shall advise the applicant of the reason for this action.
- (f)
In addition to other methods of amending certificates that may be provided by statute or by duly authorized department rule, the state registrar, if presented by an applicant with evidence that a reasonable person would conclude proves beyond a reasonable doubt that an original entry on a certificate was factually inaccurate at the time of recordation, shall block out the misinformation and make the necessary correction. When such an amendment is made, no record of the amendment shall appear upon the face of the certificate; provided, that a record of all evidence submitted relative to the amendment, along with the registrar's analysis of the evidence, shall be maintained by the office of vital records.
- (g)
If a form approved, as provided in § 68-3-305(b), acknowledging the paternity of a child is signed by both parents of the child and is submitted to the office of vital records at any time after the original certificate is filed and prior to the child's nineteenth birthday, the legal surname of the father may be entered on the certificate as that of the child, and the father's name and other personal information may be shown on the certificate of birth in the manner prescribed by regulation; provided, that paternity is not already shown on the certificate of birth. The state registrar may mark the record as amended, but not on the portion to be disclosed pursuant to § 68-3-205. Further, a legitimation by subsequent marriage of the individuals shown on the certificate as the father and mother shall not require a new certificate of birth and §§ 68-3-310(3), 68-3-311 and 68-3-313 shall not apply.
- (h)
In the event a voluntary acknowledgment of paternity is rescinded and a new father is not named, the name and personal information of the originally named father shall be removed by blocking, and the child's surname shall be blocked and the legal surname of the mother at the time of the birth shall be entered as the surname of the child. In the event a voluntary acknowledgment of paternity is rescinded and a new father is named, the changes in the birth certificate shall be made in accordance with subsection (g).
§ 68-3-204. Reproduction of records.
- (a)
To preserve vital records, the state registrar is authorized to prepare typewritten, photographic, electronic or other reproductions of original records and files in the office of vital records.
- (b)
The reproductions, when certified by the state registrar, shall be accepted as the original records.
§ 68-3-205. Disclosure of information — Regulations.
- (a)
- (1)
To protect the integrity of vital records, to ensure their proper use, and to ensure the efficient and proper administration of the system of vital records, it is unlawful for any person to permit inspection of, or to disclose information contained in, vital records, or to copy or issue a copy of all or part of any such records, except as authorized by this chapter, by regulations promulgated pursuant to this chapter, or as otherwise authorized by law, or by order of a court of competent jurisdiction.
- (2)
Regulations promulgated pursuant to this chapter shall provide for adequate standards of security and confidentiality of vital records.
- (b)
The department may authorize, by regulation, the disclosure of information contained in vital records for research purposes.
- (c)
Appeals from decisions of the custodians of permanent local records refusing to disclose information, or to permit inspection of or copying of records under the authority of this section and regulations issued under this section, shall be made to the state registrar, whose decisions shall be binding upon the local custodians of permanent local records.
- (d)
- (1)
As used in this subsection (d), “authenticating document” means the certificate, license, order, decree, report or other document that makes legal, official and final the occurrence of a certain event.
- (2)
- (A)
Notwithstanding any other provision of this chapter, or any rule promulgated pursuant to this chapter, to the contrary, an application for a marriage license and the authenticating document for the events of birth, death, marriage, divorce, or annulment of marriage, whether maintained or stored by or in the possession of a county clerk, court clerk, state registrar or other custodian authorized by the state registrar, shall be considered a public record, and further, that verified information from such documents may be provided upon request. Nothing in this section shall be construed to permit the disclosure of information contained in the “Information for Medical and Health Use Only” section of the birth certificate or the “Confidential Information” section of the certificate of marriage or certificate of divorce or annulment, unless specifically authorized by the state registrar for statistical or research purposes. This data is not subject to subpoena or court order and is not admissible before any court or judicial body.
- (B)
Verified information from birth records may only be provided by the state registrar or the local registrar in a local health department in a county with a population of two hundred fifty thousand (250,000) or greater, according to the 1970 federal census.
- (C)
Certified or noncertified copies or abstracts of birth certificates of persons in the federal witness protection program shall be provided only to a person requesting a copy of the person's own birth certificate or that person's supervising federal marshal.
- (D)
A certified copy or other copy of a death certificate containing the cause of death information shall not be issued, except:
- (i)
Upon specific request of the spouse, children, parents, or other next of kin of the decedent or their respective authorized representatives;
- (ii)
When a documented need for the cause of death to establish a legal right or claim has been demonstrated;
- (iii)
When the request for the copy is made by or on behalf of an organization that provides benefits to the decedent's survivors or beneficiaries;
- (iv)
Upon specific request by local, state, or federal agencies for research or administrative purposes approved by the state registrar;
- (v)
When needed for research activities approved by the state registrar;
- (vi)
Upon receipt of an order from a court of competent jurisdiction ordering such release; or
- (vii)
Upon receipt of a written request from a department representative authorized by chapter 142, part 1, of this title to obtain the records.
- (E)
The state registrar and other custodians of vital records authorized by the state registrar to issue certified copies shall, upon receipt of an application, issue a certified copy of a vital record in the registrar's or custodian's custody, or a part of the vital record to the registrant, the registrant's spouse, children, parents, or guardian, or their respective authorized representative. Others may be authorized to obtain certified copies when they demonstrate that the records are needed for the determination or protection of their personal or property rights.
- (3)
Except as provided in subdivision (d)(2), nothing in this subsection (d) shall be construed as altering the legal status as an open or confidential record of any information, document, record or report used to compile or produce the information contained on the authenticating document, including, but not limited to, applications, medical or law enforcement reports, settlement agreements, or court pleadings and filings.
- (4)
The state registrar shall promulgate rules to effectuate the provisions and intent of this subsection (d), including rules concerning the provision of verified information from authenticating documents to members of the public.
- (e)
When one hundred (100) years have elapsed, after the date of birth, or fifty (50) years have elapsed after the date of death, marriage, divorce or annulment of marriage, the records of these events in the custody of the state registrar shall be made available to the public in accordance with regulations that provide for the continued safekeeping of the records.
- (f)
Any microfilm copy of a vital record in the possession of the state library and archives, or a local library, shall be available for public inspection.
§ 68-3-206. Copies of records.
-
In accordance with § 68-3-205 and the regulations adopted pursuant to § 68-3-205:
- (1)
The state registrar and other custodian or custodians authorized by the state registrar to issue certified copies shall, upon receipt of written application, issue a certified copy of a vital record in the state registrar's or custodian's custody or a part of the vital record to any applicant showing a direct and tangible interest in the vital record. Each copy issued shall show the date of registration and copies issued from records marked “delayed” and “amended” shall be similarly marked and show the effective date. All forms and procedures used in the issuance of certified copies of vital records in this state shall be approved or provided by the state registrar;
- (2)
A certified copy of a vital record or any part of the vital record, issued in accordance with subdivision (1), shall be considered for all purposes the same as the original and shall be prima facie evidence of the facts stated in the vital record;
- (3)
The federal agency responsible for national vital statistics may be furnished copies or data from the system of vital records it may require for national statistics; provided, that the federal agency shares in the cost of collecting, processing and transmitting the data; and provided further, that the data shall not be used for other than statistical purposes by the federal agency, unless so authorized by the state registrar;
- (4)
Federal agencies, the state of Tennessee, Tennessee courts and municipal and county law enforcement agencies, upon official request, may be furnished verification of information for statistical or administrative purposes upon such terms or conditions as may be prescribed by regulation; provided, that the copies or information shall not be used for other than the purpose for which it was requested, unless so authorized by the state registrar;
- (5)
- (A)
The state registrar may, by agreement, transmit transcripts of records and other reports required by this chapter to offices of vital records outside this state, when the records or other reports relate to residents of those jurisdictions or persons born in those jurisdictions. The agreement shall require that the transcripts be used for statistical and administrative purposes only as specified in the agreement. Any agreement shall provide that the transcripts shall not be retained by the other jurisdiction for more than two (2) years from the date of the event or after the statistical tabulation has been accomplished, whichever time period is shorter;
- (B)
Transcripts received from other jurisdictions by the office of vital records in this state shall be handled in the same manner as prescribed in subdivision (5)(A);
- (6)
- (A)
The department of health shall implement a pilot program to authorize, but not require, county clerks to issue certified copies of computer abstract birth certificates to walk-in customers pursuant to this subdivision (6). The program shall only be implemented in one (1) site within a county.
- (B)
County clerks may issue certified copies of birth certificates, which copies shall have the force and effect of certified copies issued by the office of vital records. The state registrar may promulgate regulations or emergency rules as may be necessary to effectuate this subdivision (6), including, but not limited to, rules governing the issuance, inventories, and security and confidentiality standards of the birth certificates or certified copies or both, in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.
- (C)
The department shall provide state security paper for issuing copies of birth certificates pursuant to this section. The county clerk shall be responsible for all other expenses including, but not limited to, connectivity, hardware and direct cost of training staff; provided, however, that each county clerk is authorized to charge a reasonable fee in addition to the fee established by regulations and paid to the department to defray any reasonable costs associated with issuing the certificates. From the proceeds collected from the fee established by regulations, the county clerk shall remit to the department the portion of the fee due the state and shall remit to any local health department located within the county the portion of the fee due such local health department in the manner prescribed by contract.
- (D)
County clerks and the department may utilize existing T-carrier signaling schemes for the purpose of transmitting data.
- (7)
Local health departments in counties with a population of two hundred fifty thousand (250,000) or greater, according to the 1970 federal census or any subsequent federal census, may issue copies of birth certificates, which copies shall have the force and effect of certified copies issued by the office of vital records. The local health departments in those counties are designated as branch offices of the central office of vital records for the purpose of issuance of copies of birth certificates only, but not for the purpose of alteration of birth certificates;
- (8)
Local health departments may issue copies of death certificates, which copies have the force and effect of certified copies issued by the office of vital records; and
- (9)
No person shall prepare or issue any certificate that purports to be an original, certified copy, or copy of a vital record, except as authorized in this chapter or regulations adopted pursuant to this chapter.
§ 68-3-207. Fees for copies and for searches.
- (a)
- (1)
The department shall prescribe the fees to be paid for certified copies or certificates or records, or for a search of the files or records when no copy is made, or for copies or information provided for research, statistical or administrative purposes.
- (2)
The department shall not collect any fee under this section for a copy of a death certificate for a deceased person who was a veteran of an armed service of the United States, if:
- (A)
The person requesting the copy presents the department with adequate proof of the veteran status of the deceased;
- (B)
The person requesting the copy is related to the deceased within two (2) degrees of collateral or lineal kinship; and
- (C)
Not more than two (2) copies of the death certificate have been previously provided on behalf of the deceased veteran without collection of the fee.
- (b)
Fees collected under this section by the state registrar shall be deposited in the general fund of this state, according to the prevailing procedures governing collection.
§ 68-3-208. Medical records.
-
Medical records will be made available to the state registrar or any direct representative of the registrar for the limited purpose of gathering information on birth certificates, death certificates and reports of fetal deaths.
Part 3 Births
§ 68-3-301. Registration generally — Attestation to accuracy of data.
- (a)
A certificate of birth for each live birth that occurs in this state shall be filed with the office of vital records, or as otherwise directed by the state registrar, within ten (10) days after the birth and shall be registered if it has been completed and filed in accordance with §§ 68-3-301 — 68-3-306.
- (b)
Either parent of the child or any other knowledgeable informant shall attest to the accuracy of the personal data provided in sufficient time to permit the filing of a certificate within the ten (10) days prescribed by §§ 68-3-301 — 68-3-306.
§ 68-3-302. Birth inside institution — Establishing paternity — Acknowledgment of paternity — Report.
- (a)
When a birth occurs in an institution or en route to an institution, the person in charge of the institution, or that person's designated representative, shall obtain the data required by the certificate, prepare the certificate, certify that the child was born alive at the place and time and on the date stated, either by signature or by an approved electronic process, and file the certificate with the office of vital records or as otherwise directed by the state registrar within the required ten (10) days.
- (b)
The physician in attendance shall provide the medical information required by the certificate to the institution's designated representative within seventy-two (72) hours after the birth.
- (c)
Immediately before or after the birth of a child to an unmarried woman in a birthing institution, an authorized representative of the birthing institution shall provide to the mother, and, if present, the biological father:
- (1)
Written and oral information concerning the alternatives to, the legal consequences of, the rights, and the responsibilities arising from the completion of the voluntary acknowledgment. The information shall be provided to the birthing institution by the department of human services, which shall develop the information in conjunction with the department of health. A videotaped or audio presentation will satisfy the requirement for the oral explanation.
- (2)
An acknowledgment of paternity on a form approved pursuant to § 68-3-305(b), and shall provide the opportunity to complete and submit to the institution the acknowledgment form.
- (d)
The birthing institution or other entity receiving the voluntary acknowledgment of paternity shall forward the original, signed acknowledgment of paternity to the office of vital records, and shall send a copy of the signed and notarized acknowledgment of paternity to the Title IV-D child support agency where the mother resides, if the mother or child is receiving temporary assistance pursuant to title 71, chapter 3, part 1; medicaid; TennCare; or any successor programs. Copies of the signed and notarized voluntary acknowledgment of paternity shall also be provided to the mother and father of the child. The copies shall be deemed originals.
- (e)
The department of health shall annually assess the numbers of acknowledgments of paternity as compared with the numbers of out-of-wedlock births by each birthing institution, and shall prepare a report of the results, which shall be provided to the department of human services or other persons or agencies that request it.
- (f)
Voluntary paternity establishment services through hospitals and the department of health shall be offered in accordance with federal regulations as prescribed by the secretary of health and human services.
§ 68-3-303. Birth outside institution.
-
When a birth occurs outside an institution, the certificate shall be prepared and filed by one (1) of the following, in the indicated order of priority:
- (1)
The physician in attendance at or immediately after the birth, or in the absence of such person;
- (2)
Any other person in attendance at or immediately after the birth, or in the absence of such person;
- (3)
The father, the mother, or, in the absence of the father and the inability of the mother, the person in charge of the premises where the birth occurred.
§ 68-3-304. Birth in moving conveyance.
- (a)
When a birth occurs on a moving conveyance within the United States and the child is first removed from the conveyance in this state, the birth shall be registered in this state and the place where it is first removed shall be considered the place of birth.
- (b)
When a birth occurs on a moving conveyance while in international waters or airspace or in a foreign country, and the child is first removed from the conveyance in this state, the birth shall be registered in this state; but the certificate shall show the actual place of birth insofar as can be determined.
§ 68-3-305. Father's name on birth certificate — Surname of child.
- (a)
- (1)
If the mother was married at the time of either conception or birth, or anytime between conception and birth, to the natural father of the child, the name of the natural father shall be entered on the certificate and the surname of the child shall be entered on the certificate as one of the following:
- (A)
The surname of the natural father; or
- (B)
The surname of the natural father in combination with either the mother's surname or the mother's maiden surname.
- (2)
If the surname of the child includes the mother's surname, mother's maiden surname, or any combination of those two (2) surnames but does not include the surname of the natural father, it may be so entered, but only upon the concurrent submission of a sworn application to that effect signed by both parents who mutually agree to that surname or combination of surnames.
- (3)
If a surname is not chosen by the parents within the ten (10) days required for filing of the birth certificate, the father's surname shall be entered on the birth certificate as the surname of the child. Within this ten-day period, the father may file and submit a sworn statement to the hospital that states that the parents do not agree on a surname, in which case the father's surname shall be entered on the birth certificate as the surname of the child.
- (4)
If, within the first year after the child's date of birth, both the mother and the father sign and submit a sworn statement to the office of vital records that both parents wish to change the child's surname, then the office of vital records shall amend the child's birth certificate in accordance with the parents' request to change the child's surname, if the chosen surname is either:
- (A)
The surname of the natural father;
- (B)
The surname of the mother;
- (C)
The mother's maiden surname; or
- (D)
Any combination of the surnames listed in subdivisions (a)(4)(A)-(C).
- (5)
If, within the first year after the child's date of birth, the parents cannot mutually agree on a surname, either one can submit a signed, sworn statement that acknowledges the disagreement, states the father was not available within the time allowed by law for filing of the birth certificate to participate in the choice of his child's surname, and requesting that the name be changed to the father's surname, in which case the father's surname shall be entered on the amended birth certificate as the surname of the child.
- (b)
- (1)
If the mother was not married at the time of either conception or birth or between conception and birth, the name of the father shall not be entered on the certificate of birth and all information pertaining to the father shall be omitted, and the surname of the child shall be that of either:
- (A)
The surname of the mother;
- (B)
The mother's maiden surname; or
- (C)
Any combination of the surnames listed in subdivisions (b)(1)(A) and (B).
- (2)
- (A)
If an original, sworn acknowledgment signed by both the mother and the biological father of a child, on a form provided by the state registrar or the department of human services, is submitted to the office of vital records at any time prior to the child's nineteenth birthday, the legal surname of the father may be entered on the certificate as that of the child, and the father's name and other personal information may be entered in the spaces provided on the birth certificate, notwithstanding the absence of a marriage relationship between the parents of the child.
- (B)
The acknowledgment form shall be in the form of an affidavit, shall contain the social security numbers of the mother and father of the child and shall be approved by the state registrar and the department of human services. The state registrar and the department of human services shall modify the form to comply with the minimum regulations for the form, which are finalized by the secretary of health and human services. An acknowledgment executed in conformity with this section shall be valid as long as it is executed on a form approved by the state registrar and the department of human services. A voluntary acknowledgment of paternity may be completed by a minor, if a parent or legal guardian of the minor is present and consents at the time of completion of the acknowledgment.
- (C)
A legitimation by subsequent marriage of the individuals shown on the certificate of birth as the father and mother shall not require a new certificate of birth; and §§ 68-3-310(3), 68-3-311, and 68-3-313 shall not apply.
- (3)
Upon request of the department of human services or any of its contractors in the child support program established under Title IV-D of the Social Security Act (42 U.S.C. § 651 et seq.), the office of vital records shall provide to them a certified copy of the acknowledgment of paternity form executed under this part.
- (c)
In any case in which paternity of a child is determined by a court of competent jurisdiction, the name of the father and surname of the child shall be entered on the certificate of birth in accordance with the finding and order of the court.
- (d)
In all other cases, the surname of the child shall be either:
- (1)
The surname of the mother;
- (2)
The mother's maiden surname; or
- (3)
Any combination of the surnames listed in subdivisions (d)(1) and (2).
- (e)
If the father is not named on the certificate of birth, no other information about the father shall be entered on the certificate.
§ 68-3-307. Infants of unknown parentage — Foundling registration.
- (a)
Whoever assumes the custody of a live-born infant of unknown parentage shall report on a form and in a manner prescribed by the state registrar within ten (10) days to the office of vital records the following information:
- (1)
The date and place of finding;
- (2)
Sex, color or race, and approximate birth date of the child;
- (3)
Name and address of the person or institution with whom the child has been placed for care;
- (4)
Name given to the child by the custodian of the child; and
- (5)
Other data required by the state registrar.
- (b)
The place where the child was found shall be entered as the place of birth.
- (c)
A report registered under this section shall constitute the certificate of birth for the child.
- (d)
If the child is subsequently identified and a certificate of birth is found or obtained, the report registered under this section shall not be subject to inspection, except upon order of a court of competent jurisdiction or as provided by regulation.
§ 68-3-308. Delayed registration of birth.
- (a)
When the birth of a person born in this state has not been filed within the time period provided in §§ 68-3-301 and 68-3-302, a certificate of birth may be filed in accordance with regulations of the office of vital records. The certificate shall be registered subject to such evidentiary requirements as the office of vital records shall, by regulation, prescribe to substantiate the alleged facts of birth.
- (b)
A certificate of birth registered six (6) months or more after the date of birth shall be marked “delayed” and show on its face the date of the delayed registration.
- (c)
A summary statement of the evidence submitted in support of the delayed registration shall be endorsed on the certificate.
- (d)
When an applicant does not submit the minimum documentation required in the regulations for delayed registration or when the state registrar has reasonable cause to question the validity or adequacy of the applicant's sworn statement or the documentary evidence, and if the deficiencies are not corrected, the state registrar shall not register the delayed certificate of birth and shall advise the applicant of the reason for this action.
§ 68-3-309. Judicial determination of facts of birth.
- (a)
If a delayed certificate of birth is rejected under § 68-3-308, a petition signed and sworn to by the petitioner may be filed with a court of competent jurisdiction for an order establishing a record of the date and place of the birth and the parentage of the person whose birth is to be registered.
- (b)
The petition shall allege that:
- (1)
The person for whom a delayed certificate of birth is sought was born in this state;
- (2)
No certificate of birth can be found in the office of vital records; and
- (3)
Diligent efforts by the petitioner have failed to obtain the evidence required in accordance with § 68-3-308 and regulations adopted pursuant to § 68-3-308.
- (c)
The petition shall be accompanied by a statement of the state registrar made in accordance with § 68-3-308 and all documentary evidence that was submitted to the state registrar in support of registration.
- (d)
The court shall fix a time and place for hearing the petition and shall give the state registrar twenty-one (21) days' notice of the time and place for hearing the petition. The state registrar or the state registrar's authorized representative may appear and testify in the proceeding.
- (e)
If the court finds, from the evidence presented, that the person for whom a delayed certificate of birth is sought was born in this state, it shall make findings as to the place and date of birth, parentage, and other findings the case may require, and shall issue an order to establish a certificate of birth. This order shall include the birth data to be registered, a description of the evidence presented, and the date of the court's action.
- (f)
The clerk of the court shall forward each order to the state registrar no later than forty (40) days from entry of the order. The order shall be registered by the state registrar and shall constitute the authority for placing a delayed certificate of birth on file.
- (g)
The person for whom the delayed certificate of birth is sought or the person's parent or legal guardian shall sign the delayed certificate form furnished by the state registrar before a notary public or other person authorized to administer oaths, unless the registrant is deceased or deemed incompetent.
§ 68-3-310. New certificate of birth — Prerequisites.
-
The state registrar shall prepare a new certificate of birth for a person born in Tennessee, upon receipt of required legal documents, as provided in the following cases:
- (1) Adoption.
A certified copy of adoption or certified copy of final decree of adoption and request for new certificate of birth by adoption;
- (2) Legitimation by Court Order in Cases Where the Parents Have Never Married.
A certified copy of an order of legitimation that establishes the relationship of parent and child between the petitioner and child named in the petition, decrees the name the child is to bear, and a request for new certificate of birth by legitimation on a form provided by the state registrar that furnishes information for locating the certificate of birth in the original name and information concerning parents to be entered on the new certificate;
- (3) Legitimation by Subsequent Marriage of Parents.
A certified copy of the marriage certificate or certificate of marriage of parents, and affidavits of the mother and father acknowledging paternity on a form provided by the state registrar. The form shall furnish information for locating the certificate of birth in the original name and information concerning the parents to be entered on the new certificate. If the father is deceased, in lieu of the father's affidavit, the state registrar shall accept a certified copy of a bill or petition for divorce or sworn answer to a bill or petition for divorce properly filed, in which the husband, by oath, acknowledged himself as father of the child or children named in the bill or petition for divorce or the answer, or a certified copy of an order, judgment or decree in which the court determined the deceased husband to be the father of the child or children and had acknowledged paternity of the child or children, whether heard on an ex parte or contested proceeding;
- (4) Order of Paternity.
A certified copy of an order of paternity or a certificate of paternity on a form provided by the state registrar that furnishes information for locating the certificate of birth in the original name, establishes the name of the father, and decrees the name the child is to bear; and
- (5) Report of Foreign Birth.
The state registrar shall prepare a report of foreign birth for a child not born in any state, territory or possession of the United States whose adoptive parents are residents of Tennessee when required adoption papers have been received from a court of competent jurisdiction in Tennessee.
§ 68-3-311. New certificate of birth — Adoptions, legitimations, and orders of paternity — Preparation and filing.
- (a)
- (1)
New certificates of birth shall be prepared on adoptions, legitimations and orders of paternity only.
- (2)
All orders of adoption, legitimation and paternity shall be final, and all required legal papers placed on file in the office of vital records.
- (3)
The certificate of birth in the original name shall be removed from the volume and a record inserted that shall show the original certificate number, date removed and code citation.
- (4)
The birth shall have occurred in Tennessee and a certificate of birth in the original name shall be on file in the department.
- (b)
- (1)
The new certificate shall be prepared on a standard form in current use in the department and shall be signed by the state registrar in the space provided for the signature of the attendant at birth.
- (2)
The new certificate shall show the date of birth, place of birth, sex, and date of filing as shown on the certificate of birth in the original name.
- (3)
A new certificate of birth by adoption shall show the residence of the adoptive parent or parents as at the time the final order of adoption was granted.
- (c)
- (1)
When a final order of adoption has been granted to only one (1) petitioner and upon receipt of a certified request of the petitioner, the word “adoption” may be entered on the new certificate of birth in the space provided for the information concerning the other parent.
- (2)
The certified request shall be furnished to the state registrar prior to the preparation of the new certificate.
- (3)
A new certificate of birth by adoption shall not be prepared if so requested by the court that granted the adoption, the adoptive parent or parents, or the adopted person.
- (d)
- (1)
A certificate of birth in the original name that indicates a legitimate birth and another person as father shall not be removed for the preparation of a new certificate of birth by legitimation, unless an order from a court of competent jurisdiction refuting such facts as set forth by regulation is furnished to the state registrar.
- (2)
A new certificate of birth shall not be prepared for the person in the instance where the person's father and mother were married prior to the birth of the person and the original certificate indicates another person as father or an illegitimate birth.
- (3)
The certificate of birth in the original name shall be amended in accordance with regulations to show correct facts at the time of the birth.
- (e)
Upon receipt from the juvenile court clerk of an order of legitimation as provided in [former] § 36-2-206 [repealed], or an order of paternity, a new certificate of birth shall be issued, regardless of the age of the person named in any such order.
- (f)
When an order of paternity has been granted on an unborn infant, the original certificate of birth shall be prepared and filed in accordance with the laws and regulations of the department, and a new certificate by paternity shall be prepared upon receipt of the required legal papers from the court.
§ 68-3-312. New certificate of birth — Court report of adoption.
- (a)
For each final decree of adoption by a court of competent jurisdiction in Tennessee, the court shall require the preparation of a report of adoption on a form prescribed and furnished by the state registrar.
- (b)
For each amendment or annulment of an order of adoption, the clerk of the court shall prepare a report thereon, which shall include such facts as are necessary to identify the original report of adoption and those facts amended in the adoption decree, and forward a certified copy of the report to the state registrar.
- (c)
The child-placing agency or, in family adoptions, the attorney or petitioners, shall complete, on a form furnished by the state registrar, the request for a new certificate of birth by adoption and shall file this form with the clerk of the court to be forwarded to the state registrar with the certified report of adoption when the final order has been granted. This form shall furnish information for locating the certificate of birth in the original name and information concerning the adoptive parent or parents to be entered on the new certificate. The form shall be signed by the petitioner or petitioners to whom the final decree was granted and, in stepparent adoptions, the adoptive and natural parent.
- (d)
No later than the tenth day of each calendar month or as directed by the state registrar, the clerk of the court shall forward to the state registrar the certified report of adoption, annulment or amendment to the adoption decree and the request for a new certificate of birth by adoption.
- (e)
When the state registrar receives a report of adoption, annulment or amendment to the decree of adoption from the clerk of the court for a person born in another state, the report shall be forwarded to the state registrar in the state of birth. If the birth occurred in a foreign country, the report of adoption shall be returned to the attorney or agency handling the adoption for submission to the appropriate federal agency.
- (f)
Upon receipt of a certified copy of the final decree of adoption, or certified report of adoption prepared in accordance with the laws of another state or foreign country, and the request for a new certificate of birth by adoption, the state registrar shall prepare and file a new certificate of birth in the adopted name for a person born in Tennessee, if not in conflict with Tennessee adoption laws.
§ 68-3-313. New certificate of birth — Sealing of documents.
- (a)
- (1)
All legal documents pertaining to the adoption, legitimation or order of paternity, together with the certificate of birth in the original name, shall be placed in an envelope and sealed following the preparation of the new certificate.
- (2)
These sealed documents shall be preserved in a fireproof vault in the department and shall not be removed from that office, except by order of a court of competent jurisdiction.
- (3)
The sealed documents shall be opened by the state registrar for the purpose of issuing a copy of the certificate in the name at birth, upon receipt of a certified copy of an order of the court that granted the adoption, legitimation, or order of paternity or in legitimations by subsequent marriage of the parents or upon receipt of a directive from the department of human services consistent with § 36-1-126 or § 36-1-127.
- (4)
Upon receipt of a certified copy of an order from the court of competent jurisdiction ordering the annulment of an order of adoption, legitimation, or order of paternity or the replacement of a certificate of birth in the original name on file, the state registrar shall open the sealed documents, replace the certificate of birth in the original name in the volume of births in which originally filed, remove the new certificate, and place it under seal with the legal documents and the certified copy of the court order.
- (b)
When a new certificate of birth has been filed by the state registrar, all copies of the record of birth in the original name in the custody of any other party shall be forwarded to the state registrar upon receipt of the state registrar's request.
§ 68-3-314. Notice to be provided to parent or legal guardian of newborn child regarding security freezes on records of individuals under 16 years of age.
-
When a birth occurs:
- (1)
In an institution or en route to an institution, the person in charge of the institution, or that person's designated representative, shall provide the notice described in § 47-18-2111(m), to the mother, father, or legal guardian of the child; or
- (2)
On a moving conveyance as described in § 68-3-304, the office of vital records shall provide the notice described in § 47-18-2111(m), to the mother, father, or legal guardian of the child in conjunction with any issued certificate of birth.
Part 4 Marriages, Annulments and Divorces
§ 68-3-401. Marriage registration.
- (a)
A record of each marriage performed in this state shall be filed with the office of vital records and shall be registered, if it has been completed and filed in accordance with this section.
- (b)
The official who issues the marriage license shall prepare the record on the form prescribed and furnished by the state registrar on the basis of information obtained from the parties to be married. The form for a certificate of marriage shall contain a place for the recording of the married persons' social security numbers, and those numbers shall be recorded on the certificate and on any forms necessary to prepare such certificate. This information shall be provided in the record submitted to the office of vital records by the county clerk.
- (c)
Every person who performs a marriage shall certify the fact of marriage and return the record to the official who issued the license within three (3) days after the ceremony.
- (d)
Every official issuing marriage licenses shall complete and forward to the office of vital records, on or before the tenth day of each calendar month, the records of marriages filed with the official during the preceding calendar month.
- (e)
A marriage record not filed within the time prescribed by statute may be registered in accordance with regulations of the office of vital records.
- (f)
If a license to marry has been obtained by incorrect identification, the fraudulent record shall be voided and a correct certificate of marriage placed on file by order of the court in the county where the license was issued, in accordance with regulations established by the department.
§ 68-3-402. Divorce, dissolution of marriage, and annulment — Registration.
- (a)
For each divorce, dissolution of marriage, or annulment granted by any court in this state, a record shall be filed by the clerk of the court with the office of vital records and shall be registered, if it has been completed and filed in accordance with this section.
- (b)
The clerk of the court shall complete and forward to the office of vital records, on or before the tenth day of each calendar month, the record of each divorce, dissolution of marriage, or annulment filed with the clerk during the preceding calendar month. The form for a certificate of divorce shall contain a place for the recording of the divorced persons' social security numbers and such numbers shall be recorded on the certificate and any forms necessary to prepare such certificate. This information shall be provided in the record submitted to the office of vital records by the court clerk.
Part 5 Deaths
§ 68-3-501. Uniform Determination of Death Act.
- (a)
This section may be cited as the “Uniform Determination of Death Act.”
- (b)
An individual who has sustained either:
- (1)
Irreversible cessation of circulatory and respiratory functions; or
- (2)
Irreversible cessation of all functions of the entire brain, including the brain stem;
-
is dead. A determination of death must be made in accordance with accepted medical standards.
- (c)
This section shall be applied and construed to effectuate its general purpose to make uniform the law with respect to the subject of this section among states enacting it.
§ 68-3-502. Death registration.
- (a)
- (1)
A death certificate for each death that occurs in this state shall be filed with the office of vital records or as otherwise directed by the state registrar within five (5) days after death and prior to final disposition, or as prescribed by regulations of the department. It shall be registered, if it has been completed and filed in accordance with this section.
- (2)
If the place of death is unknown but the body is found in this state, the death certificate shall be completed and filed in accordance with this section. The place where the body is found shall be shown as the place of death. If the date of death is unknown, it shall be determined by the date the body was found.
- (3)
When death occurs in a moving conveyance in the United States and the body is first removed from the conveyance in this state, the death shall be registered in this state and the place where it is first removed shall be considered the place of death. When a death occurs on a moving conveyance while in international waters or airspace or in a foreign country and the body is first removed from the conveyance in this state, the death shall be registered in this state; but the certificate shall show the actual place of death insofar as can be determined.
- (b)
The funeral director who first assumes custody of the dead body, medical examiner, or attending or pronouncing physician in a hospital may file the death certificate. The funeral director, medical examiner, or attending or pronouncing physician in a hospital shall obtain the personal data from the next of kin or the best qualified person or source available, and shall obtain the medical certification from the person responsible for medical certification, as set forth in subsection (c).
- (c)
- (1)
The medical certification shall be completed, signed and returned to the funeral director by the physician in charge of the patient's care for the illness or condition that resulted in death within forty-eight (48) hours after death, except when inquiry is required by the county medical examiner or to obtain a veteran's medical records pursuant to subsection (j). In the absence of the physician, the certificate may be completed and signed by another physician designated by the physician or by the chief medical officer of the institution in which the death occurred. In cases of deaths that occur outside of a medical institution and are either unattended by a physician or not under hospice care, the county medical examiner shall investigate and certify the death certificate when one (1) of the following conditions exists:
- (A)
There is no physician who had attended the deceased during the four (4) months preceding death, except that any physician who had attended the patient more than four (4) months preceding death may elect to certify the death certificate if the physician can make a good faith determination as to cause of death and if the county medical examiner has not assumed jurisdiction; or
- (B)
The physician who had attended the deceased during the four (4) months preceding death communicates, orally or in writing, to the county medical examiner that, in the physician's best medical judgment, the patient's death did not result from the illness or condition for which the physician was attending the patient.
- (2)
Sudden infant death syndrome shall not be listed as the cause of death of a child, unless the death meets the definition set forth in chapter 1, part 11 of this title.
- (3)
- (A)
In addition to this section, prior to signing medical certification of the cause of death, the physician, chief medical officer or medical examiner shall require screening x-rays of the skull, long bones and chest of any child who was not subject to an autopsy and who died of unknown causes or whose death is suspected to be from sudden infant death syndrome.
- (B)
The physician, chief medical officer or medical examiner who orders the x-ray examinations pursuant to this section shall be entitled to a reasonable fee as set by the commissioner of health for the costs of the x-ray examinations, to be paid from the funds allotted to the postmortem examiners program in the department of health.
- (d)
When inquiry is required, the medical examiner shall determine the cause of death and shall complete and sign the medical certification within forty-eight (48) hours after taking charge of the case. On or before January 1, 2013, the commissioner of health shall establish by rule a protocol for use by medical examiners in cases involving death resulting from opiate, illegal or illicit drug overdose, that requires an appropriate report under § 38-7-108. The commissioner is authorized to promulgate such rules in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.
- (e)
If the cause of death cannot be determined within forty-eight (48) hours after death, the medical certification shall be completed as provided by regulation. The attending physician or medical examiner shall give the funeral director notice of the reason for the delay, and final disposition of the body shall not be made until authorized by the attending physician or medical examiner.
- (f)
If the death occurs in a military or veteran's hospital or in a state veteran's home in the state of Tennessee, the death certificate may be signed by the attending physician who holds a license in another state.
- (g)
In the event a person is dead on arrival at a military or veteran's hospital or at a state veteran's home in the state of Tennessee, the death certificate may be signed by a physician who is employed by one (1) of these institutions and who holds a license in another state.
- (h)
The form for a certificate of death shall contain a place for the recording of the deceased's social security number and the social security number shall be recorded on the certificate and on any forms necessary to prepare the certificate.
- (i)
- (1)
Notwithstanding this section to the contrary, this subsection (i) governs manner of death determinations of death investigations for which suicide is suspected or determined to be the manner of death.
- (2)
If a county medical examiner suspects that suicide may be a potential manner of death, then the medical examiner shall consult the decedent's treating mental health professional or primary care physician, if known and reasonably able to be identified through the decedent's next of kin, prior to determination of manner of death.
- (3)
- (A)
After inquiry by a county medical examiner pursuant to title 38, chapter 7, part 1, the medical examiner shall enter the manner of death and file the death certificate. If the manner of death is suicide and the next of kin disagrees with the manner of death determination, then the next of kin may contact the county medical examiner who performed the autopsy to request a meeting. The county medical examiner shall meet with the next of kin within thirty (30) calendar days of that initial contact by the requesting next of kin or, if more time is needed to gather documentation, on a mutually acceptable date. The meeting must be either in person or via teleconference, at the discretion of the requesting next of kin. At the meeting, each party must present the reasons supporting their position with respect to the manner of death, including any relevant documentation.
- (B)
Within thirty (30) calendar days of the meeting with the next of kin, the county medical examiner shall make a written determination on the manner of death and notify the next of kin. The notification must address the next of kin's specific bases for disagreement, inform the next of kin of their right to seek reconsideration from the office of the state chief medical examiner (OSCME), and include information on how to request the reconsideration. The notification must also inform the next of kin of their right to seek judicial review.
- (4)
- (A)
Within one hundred twenty (120) calendar days of the notification of the manner of death from the county medical examiner, the next of kin may request reconsideration from the OSCME in writing.
- (B)
Within fifteen (15) calendar days of receiving the reconsideration request, the OSCME shall notify the county medical examiner of the reconsideration request and request all records and documentation from the county medical examiner and the next of kin.
- (C)
The county medical examiner shall send the requested records and documentation to the OSCME within fifteen (15) calendar days of receiving the request.
- (D)
- (i)
- (a)
Upon receipt of the records and documentation, the state chief medical examiner shall convene a peer review panel to conduct the reconsideration.
- (b)
The peer review panel must consist of the state chief medical examiner and all chief medical examiners of the regional forensic centers except for the chief medical examiner of the regional forensic center for the region in which the autopsy was performed. The state chief medical examiner shall serve as chair of the peer review panel.
- (c)
The chief medical examiners of the regional forensic centers may each appoint a designee to serve on the peer review panel. The designee must be a forensic pathologist licensed in this state who is employed by the regional forensic center.
- (d)
The state chief medical examiner may distribute records and documentation to the peer review panel members by electronic means. The panel may meet remotely via teleconference or video conference.
- (ii)
The peer review panel shall complete the reconsideration within ninety (90) calendar days of the date the OSCME receives the records and documentation from the county medical examiner. If the initial review indicates a need for additional investigation, then the peer review panel may use an additional ninety (90) calendar days to finalize their findings and must send written notification to the next of kin that the extra ninety-calendar-day period is necessary.
- (iii)
Once the members of the peer review panel have completed the review of the records and documentation, the members shall vote on a manner of death determination. The state chief medical examiner shall not vote except in the event of a tie vote among all other panel members. A manner of death that achieves a simple majority of all panel members prevails, at which time a reconsideration investigation is deemed complete.
- (iv)
The state chief medical examiner shall prepare a written report of the peer review panel's findings and decision and shall detail in the report the panel's reasoning for its decision and an explanation of any additional investigation that was done. The state chief medical examiner shall send a copy of the report to the next of kin and the county medical examiner within fifteen (15) calendar days of the completion of the investigation.
- (5)
- (A)
If the findings of a reconsideration conducted pursuant to subdivision (i)(4) support the original manner of death determination made by the county medical examiner, then the next of kin may appeal that decision to a court of competent jurisdiction.
- (B)
If the findings of a reconsideration conducted pursuant to subdivision (i)(4) support a manner of death determination other than suicide, then the state chief medical examiner shall, no later than fifteen (15) calendar days after the date of the written report, amend the manner of death.
- (6)
- (A)
Next of kin may terminate a reconsideration process requested pursuant to this subsection (i) at any time and for any reason by written notice to the OSCME of their intent to terminate the reconsideration.
- (B)
Next of kin may seek judicial review at any time during the reconsideration process following the receipt of the original death certificate by written notice to the OSCME of their intent to seek judicial review.
- (7)
By requesting reconsideration under this subsection (i), the next of kin authorizes release of any medical records, hospital records, investigative reports, or other documentary evidence of the deceased that the peer review panel deems necessary to complete the reconsideration.
- (8)
The department of health shall maintain a notice of decedent's next of kin rights with regard to this subsection (i) on its public website.
- (9)
As used in this subsection (i), “next of kin” means the person who has the highest priority pursuant to § 62-5-703.
- (10)
This subsection (i) applies only when the manner of death is suspected or determined to be suicide.
- (11)
A physician, who acts in good faith to comply with this subsection (i), is immune from individual civil liability in the absence of gross negligence or willful misconduct for actions authorized by this subsection (i).
- (12)
Unrelated parties have no liability for relying on the original death certificate, without regard to subsequent revision under this part.
- (13)
OSCME shall maintain statistics on the number of reconsideration requests, the number of manner of death determinations that are upheld or overturned, and the number of next of kin terminations of a reconsideration process before the issuance of final findings. The OSCME may also maintain additional information relative to the reconsideration requests that may assist in carrying out other functions of the office.
- (j)
- (1)
This subsection (j) applies only if an attending physician, chief medical officer, or medical examiner signing the medical certification of the cause of death of a military veteran:
- (A)
Knows that the deceased person was a United States military veteran; and
- (B)
Is provided with access to the veteran's medical records.
- (2)
If the requirements of subdivision (j)(1) have been met, then prior to signing the medical certification of the cause of death of a United States military veteran, the attending physician, chief medical officer, or medical examiner shall conduct a review of the veteran's medical records, including records made available from the United States department of veterans affairs, to determine if a service-connected disability was the principal or a major contributory cause of death, including when a concurrent or comorbid health condition, such as COVID-19, existed. If a service-connected disability was the principal or a major contributory cause of death, then the attending physician, chief medical officer, or medical examiner shall include the finding on the medical certification.
§ 68-3-503. Delayed registration of death.
- (a)
When a death occurring in this state has not been registered within the time period prescribed by § 68-3-502, a certificate may be filed in accordance with the regulations of the department. The certificate shall be registered subject to such evidentiary requirements as the department shall, by regulation, prescribe to substantiate the alleged facts of death.
- (b)
Certificates of death registered six (6) months or more after the date of death shall be marked “delayed.”
§ 68-3-504. Reports of fetal death.
- (a)
- (1)
Each fetal death of three hundred fifty (350) grams or more or of twenty (20) completed weeks' gestation or more, that occurs in this state, shall be reported to the office of vital records within ten (10) days after delivery.
- (2)
When a dead fetus is delivered in an institution, the person in charge of the institution, or the person's designated representative, shall prepare and file the report.
- (3)
When a dead fetus is delivered outside an institution, the physician in attendance at or immediately after the delivery shall prepare and file the report.
- (b)
The name of the father shall be entered on the fetal death report, in accordance with § 68-3-305.
- (c)
When a fetal death required to be reported by this section occurs without medical attendance at or immediately after the delivery, or when inquiry is required, the medical examiner shall investigate the cause and shall prepare and file the report.
§ 68-3-505. Reports of abortions — Information to be included.
- (a)
Each induced termination of pregnancy that occurs in this state shall be reported to the office of vital records within ten (10) days after the procedure by the person in charge of the institution in which the induced termination of pregnancy was performed. If the induced termination of pregnancy was performed outside an institution, the attending physician shall prepare and file the report. Each such report shall indicate whether the abortion involved a surgical procedure and, if so, which method was employed, and shall indicate which method authorized by § 39-15-219 was employed to dispose of the aborted fetus or aborted fetal tissue. If the aborted fetus or aborted fetal tissue was transferred to a third party for disposition, the report shall indicate the name and address of the third party and the date of the transfer.
- (b)
The individual undergoing the induced termination of pregnancy shall not be identified by name on the report, though some means of identification shall be used to provide retrieval of further information if necessary.
§ 68-3-506. Authorization for final disposition of a dead fetus.
- (a)
Prior to final disposition of fetal remains in accordance with § 39-15-219, regardless of the duration of pregnancy, the funeral director, the person in charge of the institution, or other person assuming responsibility for final disposition of the fetus, shall obtain from the mother authorization for final disposition on a form prescribed and furnished, or approved by the state registrar.
- (b)
When the demise of the fetus is the result of a surgical abortion, a copy of the mother's authorization for disposition, specifying the means of the disposition, shall be appended to the informed consent signed by the mother prior to the procedure pursuant to § 39-15-202.
- (c)
After final disposition, the authorization shall be retained for a period of three (3) years by the funeral director, the person in charge of the institution, or other person making the final disposition.
§ 68-3-507. Moving body from place of death.
-
With the consent of the physician or medical examiner who is to certify the cause of death, a body may be moved from the place of death for the purpose of being prepared for final disposition.
§ 68-3-508. Disinterment and reinterment.
- (a)
Authorization for disinterment and reinterment, in cases of movement of cemeteries or parts of cemeteries or for reuniting families, shall be required prior to disinterment of a dead body or fetus.
- (b)
Authorization shall be issued by the state registrar to a licensed funeral director or person acting as funeral director, upon proper application.
§ 68-3-509. Commemorative certificates of nonviable birth.
- (a)
As used in this section:
- (1)
“Commemorative certificate” means a document commemorating a nonviable birth;
- (2)
“Department” means the department of health; and
- (3)
“Nonviable birth” means an unintentional, spontaneous fetal demise occurring prior to the twentieth week of gestation during a pregnancy that has been verified by a healthcare practitioner.
- (b)
- (1)
A healthcare practitioner licensed pursuant to title 63 who attends or diagnoses a nonviable birth, or a healthcare facility licensed pursuant to this title at which a nonviable birth occurs, may, based on the practitioner's best medical judgement and knowledge of the patient, advise a patient who experiences a nonviable birth that the patient may request a commemorative certificate from the department of health as provided in this section. The healthcare practitioner may delegate this duty to the practitioner's designee. The healthcare practitioner or the practitioner's designee shall provide the patient with a form provided by the department pursuant to subdivision (b)(2) and executed by the healthcare practitioner or the practitioner's designee.
- (2)
The department shall provide on the department's website a form to be executed by a healthcare practitioner or the practitioner's designee affirming that a patient experienced a nonviable birth that the healthcare practitioner attended or diagnosed.
- (c)
Upon the request of the patient and submission of the executed form, the department shall issue a commemorative certificate within sixty (60) days after receipt of the request. The department shall charge a fee not to exceed its actual cost for issuing the commemorative certificate.
- (d)
- (1)
The commemorative certificate must contain the name of the fetus and the sex, if known. If the name is not furnished by the patient, the department shall fill in the commemorative certificate with the name Baby Boy or Baby Girl and the last name of the patient, and if the sex of the child is also unknown, the department shall fill in the commemorative certificate with the name Baby and the last name of the patient.
- (2)
The following statement must appear on the front of the commemorative certificate:
-
This commemorative certificate is not proof of a live birth.
- (e)
The department shall not register the birth associated with a commemorative certificate issued under this section or use it to calculate live birth statistics. The commemorative certificate is commemorative in nature and has no legal effect.
- (f)
A commemorative certificate issued under this section must not be used to establish, bring, or support a civil cause of action seeking damages against any person or entity for bodily injury, personal injury, or wrongful death for a nonviable birth.
- (g)
A commemorative certificate issued under this section is not a public record.
§ 68-3-510. Records kept by persons releasing, moving or disposing of dead body or fetus.
- (a)
When a dead body is released or disposed of by an institution, the person in charge of the institution shall keep a record showing the name of the deceased, date of death, name and address of the person to whom the body is released, date of removal from the institution, or if finally disposed of by the institution, the date, place and manner of disposition.
- (b)
A funeral director, embalmer or other person who removes from the place of death or transports or finally disposes of a dead body or fetus, in addition to filing any certificate or other report required by this chapter or regulations promulgated under this chapter, shall keep a record, which shall identify the body, and such information pertaining to this receipt, removal and delivery of the body as may be provided in regulations adopted by the department.
§ 68-3-511. Death determination and pronouncement by registered nurse.
-
A registered nurse may make the actual determination and pronouncement of death under the following circumstances:
- (1)
- (A)
The deceased was suffering from a terminal illness;
- (B)
Death was anticipated, and the attending physician or the hospice medical director has agreed in writing to sign the death certificate. The agreement by the attending physician or hospice medical director must be present and with the deceased at the place of death;
- (C)
Prior to death, the deceased had been receiving the services of a Medicare certified hospice program licensed by the state;
- (D)
The nurse is licensed by the state; and
- (E)
The nurse is employed by the attending hospice program;
- (2)
- (A)
The deceased was a resident of a nursing home;
- (B)
Death was anticipated, and the attending physician or nursing home medical director has agreed in writing to sign the death certificate. The agreement by the attending physician or nursing home medical director must be present and with the deceased at the place of death;
- (C)
The nurse is licensed by the state; and
- (D)
The nurse is employed by the nursing home in which the deceased resided;
- (3)
- (A)
The deceased was receiving the services of a licensed home care organization;
- (B)
Death was anticipated, and the attending physician has agreed in writing to sign the death certificate. The agreement by the attending physician must be present with the deceased at the place of death;
- (C)
The nurse is licensed by the state; and
- (D)
The nurse is employed by the home care organization providing services to the deceased;
- (4)
- (A)
The deceased was a patient at a hospital as defined by § 68-11-201;
- (B)
Death was anticipated, and the attending physician has agreed in writing to sign the death certificate. The agreement by the attending physician must be present with the deceased at the place of death;
- (C)
The nurse is licensed by the state; and
- (D)
The nurse is employed by the hospital providing services to the deceased;
- (5)
- (A)
The deceased was receiving the services of a program for all-inclusive care for the elderly (PACE) that is a permanent medicare provider as approved by the centers for medicare and medicaid services;
- (B)
Death was anticipated, and the attending physician has agreed in writing to sign the death certificate. The agreement by the attending physician must be present with the deceased at the place of death;
- (C)
The nurse is licensed by the state; and
- (D)
The nurse is employed by a program described in subdivision (5)(A); and
- (6)
- (A)
The deceased was a resident of an assisted-care living facility;
- (B)
Death was anticipated, and the attending physician has agreed in writing to sign the death certificate. The agreement by the attending physician must be present and with the deceased at the place of death;
- (C)
The nurse is licensed by the state; and
- (D)
The nurse is employed by the assisted-care living facility in which the deceased resided.
§ 68-3-512. Death determination and pronouncement by physician assistant.
-
The determination and pronouncement of death may be made by a physician assistant licensed under title 63, chapter 19, part 1, so long as this task is expressly included in the written protocol developed jointly by the physician assistant and the collaborating physician setting forth the range of services that may be performed by that physician assistant.
§ 68-3-514. Certificate of birth for stillborn children.
- (a)
For any stillborn child in this state, the department shall issue a certificate of birth resulting in stillbirth within sixty (60) days after a parent named on a report of fetal death submits a request for a certificate of birth resulting in stillbirth.
- (b)
The department shall inform applicable persons or entities licensed by the department of the requirements of this section at time of licensure.
- (c)
The request for a certificate of birth resulting in stillbirth shall be on a form prescribed by the department by rule and must include the date of the stillbirth and the county in which the stillbirth occurred. The request form shall include a space for the parent requesting the certificate of birth resulting in stillbirth to fill in the state file number of the corresponding report of fetal death pursuant to § 68-3-504, if known or applicable.
- (d)
The certificate of birth resulting in stillbirth shall contain:
- (1)
The date of the stillbirth;
- (2)
The county in which the stillbirth occurred;
- (3)
If a name does not appear on the original or amended report of fetal death and the requesting parent does not wish to provide a name, the office of vital records shall fill in the certificate of birth resulting in stillbirth with the first name left blank and the last name of the parent or parents as provided in part 3 of this chapter;
- (4)
The state file number of the corresponding report of fetal death; and
- (5)
The following statement: “This certificate is not proof of live birth.”
- (e)
A certificate of birth resulting in stillbirth shall not be a public record.
- (f)
- (1)
A parent may request that the office of vital records issue a certificate of birth resulting in stillbirth regardless of the date on which the report of fetal death was issued. The requesting party shall be responsible for providing any records necessary for issuing the certificate.
- (2)
When no report of fetal death is available, then a parent of a stillborn child under this section may request the office of vital records to issue a certificate of birth resulting in stillbirth for a stillbirth that occurred prior to July 1, 2010, if it meets the requirements established by this section. The requesting party shall be responsible for providing any records necessary for issuing the certificate. The office shall issue the certificate if the stillbirth is reported to the office in a manner satisfactory to the office.
- (g)
It is final agency action, not subject to review under the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, for the office of vital records to refuse to issue a certificate to a person who is not a parent named on the report of fetal death or who is not otherwise entitled to a certificate of birth resulting in stillbirth by this section.
- (h)
The office of vital records may not use a certificate of birth resulting in stillbirth to calculate live birth statistics.
- (i)
The registrar shall prescribe by rules promulgated in accordance with the Uniform Administrative Procedures Act the fees, the form and content of and process for issuing the certificate of birth resulting in stillbirth.
- (j)
The registrar of vital records is authorized to set fees which shall not exceed the reasonable cost incurred by the department for processing and filing a new certificate of birth resulting in stillbirth or report of fetal death pursuant to this section or § 68-3-504.
Part 6 Maternal Mortality Review and Prevention Act of 2016
§ 68-3-601. Short title.
-
This part shall be known and may be cited as the “Maternal Mortality Review and Prevention Act of 2016.”
§ 68-3-602. Findings — Definitions.
- (a)
The general assembly finds that:
- (1)
Maternal deaths are a serious public health concern and have a tremendous family and societal impact;
- (2)
Maternal deaths are significantly underestimated and inadequately documented, preventing efforts to identify and reduce or eliminate the causes of death;
- (3)
No processes exist in this state for the confidential identification, investigation, or dissemination of findings regarding maternal deaths;
- (4)
The centers for disease control and prevention has determined that maternal deaths should be investigated through state-based maternal mortality reviews in order to institute the systemic changes needed to decrease maternal mortality; and
- (5)
There is a need to establish a program to review maternal deaths and to develop strategies for the prevention of maternal deaths in this state.
- (b)
As used in this part:
- (1)
“Department” means the department of health;
- (2)
“Maternal death” or “maternal mortality” means a:
- (A)
Pregnancy-associated death;
- (B)
Pregnancy-related death; or
- (C)
Pregnancy-associated but not a pregnancy-related death;
- (3)
“Pregnancy-associated, but not pregnancy-related death” means the death of a woman while pregnant or within one (1) year following the end of pregnancy, due to a cause unrelated to the pregnancy; and
- (4)
“Pregnancy-associated death” means the death of a woman while pregnant or within one (1) year of the end of her pregnancy, irrespective of the cause of death and regardless of the duration or site of the pregnancy;
- (5)
“Pregnancy-related death” means the death of a woman while pregnant or within one (1) year of the end of her pregnancy, regardless of the duration or site of the pregnancy, from any cause related to or aggravated by the pregnancy or its management, but not from accidental or incidental causes.
§ 68-3-603. Maternal mortality review program.
-
The commissioner of health is authorized to create the Tennessee maternal mortality review program. The intent of the Tennessee maternal mortality review program is to identify and address the factors contributing to poor pregnancy outcomes for women and facilitate state systems changes to improve the health of women before, during and after pregnancy.
§ 68-3-605. Composition of state team.
-
The composition of the state team shall include:
- (1)
The commissioner of health or the commissioner's designee;
- (2)
The state maternal and child health director or the director's designee;
- (3)
A physician licensed or certified under title 63, chapter 6 or 9, with training in obstetrics;
- (4)
A physician licensed or certified under title 63, chapter 6 or 9, with training in neonatology;
- (5)
A hospital-based nurse with experience in obstetrics, labor and delivery, postpartum, or maternity care;
- (6)
The chief medical examiner or the examiner's designee;
- (7)
The chair of the health and welfare committee of the senate, or the chair's designee;
- (8)
The chair of the health committee of the house of representatives, or the chair's designee; and
- (9)
Additional members as determined by the department, including representatives from multiple disciplines and relevant community-based organizations as necessary to fulfill the intent of this part.
§ 68-3-607. Duties of state team.
-
The state team shall:
- (1)
Review maternal deaths according to rules established under this part;
- (2)
Make determinations regarding the preventability of maternal deaths;
- (3)
Report at least annually to the governor and the general assembly concerning the state team's activities and its recommendations for changes to any law, rule, or policy that would promote the safety and well-being of women and prevention of maternal deaths; and
- (4)
Undertake annual statistical studies of the incidents and causes of maternal mortality in this state and disseminate findings and recommendations to policy makers, healthcare providers, healthcare facilities, and the general public.
§ 68-3-608. Inspection of records — Meetings — Confidentiality requirements.
- (a)
- (1)
The department and the state team are public health authorities conducting public health activities pursuant to the federal Health Insurance Portability and Accountability Act (HIPAA) (42 U.S.C. § 1320d et seq.). Notwithstanding §§ 63-2-101(b) and 68-11-1502, and any express or implied contracts, agreements, or covenants of confidentiality based upon §§ 63-2-101(b) and 68-11-1502, the records of all healthcare facilities and providers shall be made available to the state team for inspection and copying as necessary to complete the review of a specific fatality and effectuate the intent of this part.
- (2)
The state team:
- (A)
Is authorized to inspect and copy any other records from any source as necessary to complete the review of a specific fatality and effectuate the intent of this part, including, but not limited to, hospital records, outpatient clinic and laboratory records, police investigations data, medical examiner investigative data, vital records cause of death information, social services records, and records from state offices, agencies, and departments; and
- (B)
May share information with other public health authorities or their designees as the state team may determine necessary to achieve the goals of the program.
- (b)
The state team may request that persons with direct knowledge of circumstances surrounding a particular fatality provide the state team with information necessary to complete the review of the particular fatality; such persons may include healthcare providers or staff involved in the care of the woman or the person who first responded to a report concerning the woman.
- (c)
Meetings of the state team shall not be subject to title 8, chapter 44, part 1. Any minutes or other information generated during official meetings of the state team shall be sealed from public inspection. However, the state team may periodically make available, in a general manner that shall not reveal confidential information about individual cases, the aggregate findings of team's reviews and their recommendations for preventive actions.
- (d)
- (1)
All information and records acquired by the state team in the exercise of their duties shall be confidential and not subject to discovery or introduction into evidence in any proceedings; provided, however, certain information may be disclosed as necessary to carry out the purposes of the state team.
- (2)
A member of the state team or attendee of a team meeting shall not:
- (A)
Release to the public or the news media information discussed at official meetings; or
- (B)
Testify in any proceeding about details of the team meeting, including any information presented at the meeting, or about opinions formed by the person as a result of the meeting.
- (3)
This subsection (d) shall not prohibit a person from testifying in a civil or criminal action about matters that occurred in the team meeting; provided, that such testimony shall be based upon the person's independent knowledge.
- (e)
Each member of the state team and any attendee of a meeting of the state team shall sign a statement indicating an understanding of and adherence to the state team's confidentiality requirements, including potential civil or criminal consequences for a breach of confidentiality pursuant to this part.
§ 68-3-609. Staff or consultants.
-
To the extent of funds available, the state team may hire staff or consultants to assist the state team in completing their duties.
§ 68-3-610. Immunity.
-
A person or facility acting in good faith in compliance with this part shall be immune from civil and criminal liability arising from such action.
§ 68-3-612. Promulgation of rules.
-
The commissioner of health is authorized to promulgate such rules, pursuant to the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, as are necessary to carry out the intent of this part. The rules authorized pursuant to this section may address, but not be limited to, the following:
- (1)
The procedures by which healthcare providers, healthcare facilities, and other parties identify and report maternal deaths to the department or as directed by the department;
- (2)
The protocols, procedures, methods, manner, and extent of all investigations and reviews; and
- (3)
The manner in and extent to which information shall be disseminated in accordance with the intent of this part.
Chapter 4 Disposition of Dead Bodies
§ 68-4-101. Notice of death occurring while receiving medical attention or in institution — Action taken upon expiration of eight hours — Penalty.
- (a)
When any person dies in a doctor's office, or any clinic, hospital or state, county or city institution, it is unlawful for any doctor, nurse, attendant, orderly, janitor or bookkeeper, or anyone, to call an undertaker without first making an effort to contact a relative of the person, if the person has any known kin in the county where the person died, so as to give the kin or relative the right to call an undertaker or crematory of the next of kin's or relative's choice.
- (b)
In the event kin or relatives are not available or are not known, or should the next of kin fail or refuse to summon an undertaker or crematory or to dispose of the body in some manner within eight (8) hours after the death of the person, then the doctor, hospital, clinic or other institution may summon an undertaker to take over the body.
- (c)
In the event the next of kin refuses to summon an undertaker or crematory or dispose of the body in some manner immediately, then the doctor, hospital, clinic or institution may summon some undertaker to take over the body.
- (d)
Any doctor, nurse, attendant, orderly, janitor or bookkeeper or anyone connected with the office, hospital, clinic or institution violating subsection (a) commits a Class C misdemeanor.
§ 68-4-102. Disposition of unclaimed bodies of persons dying in charitable or penal institutions or to be buried at public expense.
- (a)
In order to promote medical and surgical science, and to provide for the disposition of unclaimed bodies of persons who die in any charitable or penal institutions, or are delivered to a public official for the purpose of burial at public expense, the chief medical examiner appointed pursuant to § 38-7-102 shall direct the disposition of unclaimed dead bodies, except those of honorably discharged veterans, which shall be interred as directed by the commissioner of veterans services, or the commissioner's representative, superseding other provisions of §§ 68-4-102 — 68-4-109.
- (b)
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.
§ 68-4-103. Persons dying in publicly-supported institutions or to be buried at public expense — Notice to relatives — Notice to chief medical examiner — Removal of body — Embalming — Infectious or contagious cases.
- (a)
Whenever a person dies in any hospital, infirmary, mental health institute, poorhouse, penitentiary, house of correction, workhouse, jail, or other charitable or penal institution that is supported in whole or in part at public expense, or whenever a body is delivered to a public official for the purpose of determining the cause of death or for the purpose of burial of the body or the cremated remains at public expense, it is the duty of the public official or of the custodian, superintendent or active head of such institution to immediately notify the nearest relative of the person, if any relative be known, of the person's death.
- (b)
- (1)
After the notification pursuant to subsection (a), the custodian, superintendent or active head of the institution or public official shall then hold the body of the deceased person not less than ninety-six (96) hours, and if at the end of that time no relative claims the dead body and no provision has been made for its interment by burial of the body or the cremated remains other than at public expense, then the custodian, superintendent or active head or public official shall notify the chief medical examiner or the chief medical examiner's representative that the custodian, superintendent or active head or public official has the body, and, upon demand by the chief medical examiner or the chief medical examiner's representative, shall deliver or surrender the body to the chief medical examiner or the chief medical examiner's representative or to either of their order.
- (2)
Notification shall be made in any manner that the chief medical examiner shall direct and all the expense of notification and delivery or surrender of the body shall be at the expense of and shall be borne by the institution obtaining the dead body.
- (c)
If the chief medical examiner or the chief medical examiner's representative, upon receipt of the notification, does not, within seventy-two (72) hours, make a demand for the body, then the body or the cremated remains shall be buried as provided by law or cremated in accordance with § 68-4-113. The public official or the custodian, superintendent or active head of such institution as referred to in subsection (a) may, in such person's discretion, choose to have the body cremated prior to burial.
- (d)
No custodian, superintendent or head of a charitable or penal institution or public official shall charge, receive or accept money or other consideration for any body.
- (e)
The chief medical examiner may, by proper instructions, have the body embalmed by such person as the chief medical examiner may direct, and, to the person performing this work under the chief medical examiner's instructions the institution receiving the body shall pay a reasonable compensation.
- (f)
No person who has died of any contagious or infectious disease shall be held to be within §§ 68-4-102 — 68-4-109, unless proper precautions, as prescribed by the chief medical examiner, are taken to prevent the spread of contagions or infections.
§ 68-4-104. Distribution of bodies among medical, dental and anthropologic institutions — Receiving institution to pay expense.
- (a)
The chief medical examiner, upon receiving the bodies or notification of the availability of the bodies as provided in this chapter, shall distribute them among the medical, dental and anthropologic institutions of this state regularly chartered and in active operation as prescribed in §§ 68-4-102 — 68-4-109, and shall not give, sell or deliver any body to any other person, firm, society, association or corporation.
- (b)
Bodies shall be distributed by the chief medical examiner to the institution that is closest to the location of the body and that has indicated a current need for bodies for the purposes authorized by this chapter.
- (c)
The institution receiving any body shall bear all the expense incident to the transportation of the body from the institution where death occurred, and its delivery to the institution receiving it.
§ 68-4-105. Bodies to be used only for promotion of science — Surrender to relative upon demand.
- (a)
The institution receiving a body shall use it only within this state and for the purpose of medical and dental, surgical or anatomical study and for the promotion of science alone.
- (b)
If, at any time before or after such use of the body, it is claimed for burial by any relatives of the deceased person, at their expense, or in the case of a veteran's body, the commissioner of veterans services, then the institution shall surrender the body.
- (c)
If, at any time, the institution elects to discontinue use of the unclaimed body for the purposes prescribed in this section, the institution shall summon a funeral director to take over the body at the expense of the institution.
§ 68-4-106. Resolution of conflict regarding the person authorized to direct disposition of remains in the event of death when military personnel in a duty status.
- (a)
As used in this section, “DD Form 93” means the form used by the department of defense as a record of emergency data required to be completed by military personnel, a portion of which is used by military personnel to designate the person authorized to direct disposition of their remains (PADD) in the event of death when military personnel are in a duty status as defined in 10 U.S.C. § 1481.
- (b)
If a member of the military has executed any of the following documents:
- (1)
A durable power of attorney for health care executed pursuant to title 34, chapter 6, part 2;
- (2)
An advance directive executed pursuant to chapter 11, part 18 of this title;
- (3)
A donor card or other directive executed pursuant to the Revised Uniform Anatomical Gift Act, compiled in chapter 30, part 1 of this title;
- (4)
A living will, executed pursuant to title 32, chapter 11;
- (5)
A will executed pursuant to title 32 or validly executed pursuant to any other law; or
- (6)
Any other document properly executed pursuant to law relating to the disposition of the person's remains; and
-
such member of the military has also executed a DD Form 93, then notwithstanding the provisions of law identified in subdivisions (b)(1)-(6) or documents executed thereunder, if there is a conflict between the person designated in any document identified in subdivisions (b)(1)-(6) and the PADD in the DD Form 93, the PADD designated in the DD Form 93 shall be the person to make the decisions concerning the disposition of the remains of the member of the military executing the DD Form 93 when a member of the military is in a duty status defined in 10 U.S.C. § 1481.
§ 68-4-109. Immunity from civil suit.
-
The chief medical examiner or the chief medical examiner's representative, any medical school, dental school, anthropologic school, or other person or organization that in good faith complies with §§ 68-4-102 — 68-4-109 shall be granted immunity from civil suit for damages in performing the authorized services.
§ 68-4-110. Regulations governing disinterment.
- (a)
The department of health is empowered to prepare suitable regulations governing the disinterment of dead bodies for the protection of public health.
- (b)
The department of health may not require permits for the disinterment of a wrongfully buried decedent if the disinterment is pursuant to § 46-1-112 and the cemetery operator follows all procedures as set out in that section.
§ 68-4-111. Autopsy by consent of persons having custody of body.
- (a)
A physician holding an unlimited license to practice medicine under the laws of Tennessee is deemed to have been legally authorized to perform an autopsy upon the body of a deceased person, when the autopsy has been consented to by the person assuming custody of the body for the purposes of burial, such as the surviving spouse, the father, the mother, a child, a guardian, next of kin, or in the absence of any of the foregoing, such governmental agencies as charged by law with the responsibility for burial. If two (2) or more such persons assume custody of the body, the consent of one (1) of them shall be deemed sufficient legal authorization for the performance of the autopsy.
- (b)
Nothing contained in this section shall be construed as repealing, amending or in any way affecting § 38-1-104, which prescribes the procedure by which district attorneys general may petition for an autopsy, nor § 38-5-107, which prescribes the procedure by which coroners may summon as a witness a surgeon or physician to make examination of a dead body, including the performing of an autopsy.
§ 68-4-113. Cremation of unclaimed dead body.
-
Notwithstanding any law to the contrary, the coroner, medical investigator or county medical examiner may direct the cremation of an unclaimed dead body; provided, that:
- (1)
Proper notice is given in accordance with § 68-4-103; and
- (2)
The body is held for the time period provided in § 68-4-103.
Chapter 5 Prevention of Diseases
Part 1 General Provisions
§ 68-5-101. Notice to be given of communicable diseases in a household.
-
Whenever any case of communicable disease exists, except it shall not embrace any venereal disease, such as gonorrhea or syphilis, or is even suspected to exist in any household, it is the duty of the head of the household, or any other person in the household possessing knowledge of the facts, immediately to notify the municipal or county health authorities of the town or county in which the disease or diseases exist or may be supposed to exist.
§ 68-5-102. Required notifications regarding diagnosed communicable and other disease and related deaths.
-
Whenever any physician, surgeon or practitioner of medicine knows or suspects that any person whom the physician, surgeon or practitioner of medicine has been called to visit, or who has been brought to the physician, surgeon or practitioner of medicine for examination, or any other suspicious information received relative thereto, is infected, or even so suspected, with any communicable disease, except venereal disease, such physician, surgeon or practitioner of medicine shall immediately notify the health authorities of the town or county in which the diseased person or persons are found. In the event of the death of such person, the physician, surgeon or practitioner of medicine shall also notify, or cause to be notified, at the time of delivery, the person to whom the body is delivered of the known or suspected communicable, contagious or infectious disease, including acquired immune deficiency syndrome (AIDS), so that the necessary and proper precautions can be taken in the handling, preparation for disposition or disposition of the body.
§ 68-5-104. Quarantine — Penalty for escape.
- (a)
- (1)
It is the duty of the local health authorities, on receipt of a report of a case, or suspected case, of disease declared to be communicable, contagious, or one which has been declared by the commissioner of health to be subject to isolation or quarantine, to confirm or establish the diagnosis, to determine the source or cause of the disease and to take such steps as may be necessary to isolate or quarantine the case or premise upon which the case, cause or source may be found, as may be required by the rules and regulations of the state department of health.
- (2)
The commissioner is authorized and directed to promulgate and publish such rules and regulations as may be necessary to prevent the spread of contagious or communicable diseases in order to protect the public health and welfare.
- (b)
Any person isolated or quarantined in accordance with any statute or rule or regulation promulgated and published in accordance with statutes relating to isolation or quarantine, who willfully escapes from such isolation or quarantine, commits a Class B misdemeanor.
- (c)
Whenever any one of the local health authorities, either municipal or county as the case may be, isolates, quarantines or placards any person or house for communicable diseases, it is the duty of the health official to deliver or cause to be delivered to the head of the household a copy of this law or such portion of this law as may pertain to the particular case under consideration.
§ 68-5-105. Establishment of clinics for vaccinations.
- (a)
It is the duty of each county board of health to establish one (1) or more clinics in each county for the purpose of providing vaccinations or inoculations, or both, to prevent the introduction and spread of communicable diseases in the county. Each county board of health shall follow the recommendations of the state department of health as to the procedures necessary to provide immunity for each disease for which an immunizing agent is available and supplied by the department. No restriction shall be applied as to the eligibility of any person to receive an immunizing agent supplied by the department, except the restrictions that may be included in the recommendations of the department.
- (b)
If any county board of health fails or refuses to carry out this section, the department is authorized to make provision for these services, and the cost of these services shall be paid from the joint budget of the local full time public health service cooperating with the department. In the event no local full-time public health service exists, the cost of these vaccination or inoculation services shall be paid from any grant-in-aid funds available to the county under § 68-2-901.
- (c)
It is the legislative intent of this section to establish through the department, on a statewide basis, a uniform minimum vaccination and immunization program. Nothing in this section shall be construed as prohibiting county boards of health established and operating in accordance with chapter 2 of this title, or their counterparts in office established under private acts, from adopting and enforcing such regulations as may be reasonable and necessary to prevent the introduction of, or to arrest the progress of, communicable diseases within their jurisdictions.
- (d)
Any vaccination or inoculation required for international travel that is provided by a public clinic shall be available to a person residing outside the county but within the state in which the clinic is located at the same cost as charged to individuals residing within the county where the clinic is located, when the vaccination or inoculation is unavailable at a public clinic in the person's home county. This subsection (d) shall not apply in any county having a population of not less than two hundred eighty-five thousand (285,000) nor more than two hundred eighty-six thousand (286,000), according to the 1990 federal census or any subsequent federal census.
§ 68-5-107. Reports of city and county boards to department.
-
It is the duty of each city or county board of health to make such reports, including special reports within their jurisdiction, as the state department of health may require, in such manner, form and times as may be set out in the rules and regulations of the department.
§ 68-5-108. Violations — Penalties.
- (a)
Any person mentioned in this part, unless the penalty is prescribed in this part, who willfully neglects or refuses to comply with any of the provisions of this part, commits a Class C misdemeanor. Upon complaint from any health authority, it is the duty of the district attorney general to prosecute the violation of this part.
- (b)
Any person having reason at the time to believe that such person is afflicted with any contagious disease who voluntarily goes upon any public highway or street, or to any place at which people are accustomed to collect or assemble, or who enters or goes on board any steamboat, railroad car or other public conveyance, or any person who knowingly aids or assists anyone thus to offend, commits a Class C misdemeanor.
§ 68-5-109. Failure of local board to carry out provisions.
-
Whenever a local board or department of health, either municipal or county, willfully neglects or refuses to comply with this part, and it is apparent that an epidemic of a communicable disease is threatened to invade other municipalities or counties, it then becomes the duty of the state department of health to carry out this part in such municipality or county, as the case may be, and the necessary expense incurred by the department of health in carrying out these provisions shall be paid by the respective municipality or county, as the case may be, to the commissioner of finance and administration, and the commissioner shall place the payment to the credit of the department.
§ 68-5-110. Information on pertussis vaccine.
-
In accordance with the latest recommendations of the advisory committee on immunization practices of the centers for disease control and prevention, during the postpartum period and prior to discharge, each hospital shall provide parents of newborns educational information on pertussis disease and the availability of a vaccine to protect against pertussis. This educational information shall include, but is not limited to, information on the center for disease control and prevention's recommendation that parents and caregivers receive Tdap during the postpartum period to protect their newborns from the transmission of pertussis. Nothing in this section shall require any hospital to provide or pay for any vaccination against pertussis. This section also shall not constitute a requirement to be assessed during any inspection under chapter 11, part 2 of this title.
§ 68-5-111. Educational information on influenza and availability of vaccine.
- (a)
In accordance with the latest recommendations of the advisory committee on immunization practices of the centers for disease control and prevention, each hospital shall between the dates of August 1 through March 31 and prior to patient discharge, provide to patients or inform patients where they can find educational information on influenza disease and the availability of a vaccine to protect against the influenza virus. The educational information shall include, but is not limited to, the causes and symptoms of influenza disease, the effectiveness and known contraindications of influenza immunizations and the means by which influenza is spread. This information shall be provided to all patients aged six (6) months and older and may be provided to a parent or legal guardian of patients aged six (6) months through eighteen (18) years of age.
- (b)
Nothing in this section shall require any hospital to provide or pay for any vaccination against influenza.
- (c)
This section shall also not constitute a requirement to be assessed during any inspection under chapter 11, part 2 of this title.
§ 68-5-112. Making available information and instruction concerning the appropriate use and techniques of infant cardiopulmonary resuscitation (CPR) — Blakeleigh Rone Act.
- (a)
An obstetrical provider who treats a prenatal patient on at least two (2) different occasions shall make available information and instruction concerning the appropriate use and techniques of infant cardiopulmonary resuscitation (CPR) to at least one (1) future parent or caregiver.
- (b)
A hospital or birthing center where a baby is born shall make available information and instruction concerning the appropriate use and techniques of infant CPR to at least one (1) parent or caregiver before the newborn is discharged from the facility.
- (c)
A primary care provider who treats a newborn in an ambulatory care setting within twenty-eight (28) days after the date of birth shall make available information and instruction concerning the appropriate use and techniques of infant CPR to at least one (1) parent or caregiver.
- (d)
Nothing in this section shall require classes in certification of infant CPR. This section shall also not constitute a requirement to be assessed during any inspection under chapter 11, part 2 of this title.
- (e)
Any facility or practitioner acting within the scope of their licensure or practice shall be immune from any civil or administrative liability under this section and shall have an affirmative defense to any criminal liability arising from making such information available.
- (f)
This section shall be known and may be cited as the “Blakeleigh Rone Act.”
§ 68-5-113. Cytomegalovirus — Information — Liability.
- (a)
As used in this section, “CMV” means cytomegalovirus.
- (b)
If a healthcare provider as defined by § 63-6-703, who assumes responsibility for the prenatal care of either pregnant women during gestation or women who may become pregnant, has determined that a patient is at risk of contracting CMV, the healthcare provider or the healthcare provider's facility shall inform that patient regarding:
- (1)
The incidence of CMV;
- (2)
The transmission of CMV to at-risk women who are pregnant or who may become pregnant;
- (3)
Birth defects caused by congenital CMV;
- (4)
Methods of diagnosing congenital CMV; and
- (5)
Available preventative measures.
- (c)
Healthcare providers covered under subsection (b) are encouraged to provide all other patients with information identifying where the patients can learn about CMV.
- (d)
- (1)
Nothing in this section shall be construed to create or impose liability for failing to comply with the requirements of this section.
- (2)
Nothing in this section shall be deemed to create a duty of care or other legal obligation beyond the requirements set forth in this section.
§ 68-5-114. Chronic Disease Prevention Act.
- (a)
This section shall be known and may be cited as the “Chronic Disease Prevention Act.”
- (b)
By no later than October 1, 2019, the speaker of the senate, the speaker of the house of representatives, the commissioner of health, and the governor shall establish a task force to study methods on how best to prevent cardiovascular disease, hypertension, and diabetes in this state.
- (c)
The task force is composed of eleven (11) members, as follows:
- (1)
One (1) member of the senate health and welfare committee, to be appointed by the speaker of the senate;
- (2)
One (1) member of the health committee of the house of representatives, to be appointed by the speaker of the house of representatives;
- (3)
One (1) member of the senate finance, ways and means committee, to be appointed by the speaker of the senate;
- (4)
One (1) member of the house finance, ways and means committee, to be appointed by the speaker of the house of representatives;
- (5)
One (1) member of the senate who serves in a leadership position, to be appointed by the speaker of the senate;
- (6)
One (1) member of the house of representatives who serves in a leadership position, to be appointed by the speaker of the house of representatives;
- (7)
Three (3) persons who are subject matter experts in one (1) or more of the subjects that the task force will study, to be appointed by the governor in consultation with the commissioner of health;
- (8)
One (1) person who is a certified medical professional from a historically black college or university offering advanced degrees in medicine, dentistry, or public health administration based in Tennessee and having a research and development unit, to be appointed by the governor; and
- (9)
One (1) person who possesses experience in the subjects of health and public health and who has previous legislative experience, to be appointed by the governor.
- (d)
The person appointed under subdivision (c)(9) shall call the first meeting of the task force.
- (e)
By no later than December 15, 2020, the task force shall complete its findings and make recommendations in a report to the governor and to the speaker of the senate and the speaker of the house of representatives.
- (f)
The members of the task force shall serve without compensation but are entitled to reimbursement of any travel expenses incurred. All reimbursement for travel expenses must conform to the comprehensive state travel regulations as promulgated by the commissioner of finance and administration and approved by the attorney general and reporter.
- (g)
The task force ceases to exist upon completion of the task force's report and recommendations.
Part 2 Newborn Testing — Eyes
§ 68-5-202. Treatment specified for infant at birth — Reports of redness, swelling, inflammation or pus — Religious exemption.
- (a)
It is the duty of any physician, nurse or midwife who assists and is in charge at the birth of any infant, or has the care of the infant after birth, to treat the eyes of the infant with a prophylaxis to prevent ophthalmia neonatorum or infections leading to blindness. The treatment shall be given as soon as practicable after the birth of the infant and always within one (1) hour; and if any redness, swelling, inflammation, or gathering of pus appears in the eyes of the infant or upon the lid or about the eyes within two (2) weeks after birth, then any nurse, midwife or other person having care of the infant shall report the condition within six (6) hours after its discovery to a physician licensed and practicing medicine in this state.
- (b)
Nothing in this part shall require medical treatment under subsection (a) for the minor child of any person who files with the department of health a signed, written statement that such medical treatment conflicts with the person's religious tenets and practices, affirmed under penalties of perjury.
Part 5 Genetic Testing
§ 68-5-501. Definitions for parts 4 and 5.
-
As used in parts 4 and 5 of this chapter, unless the context otherwise requires:
- (1)
“Birth defects” means those abnormalities of body structure or function present at birth that adversely affect the intellectual capacity, health or abilities of affected individuals;
- (2)
“Commissioner” means the commissioner of health or a designated representative;
- (3)
“Committee” means the genetics advisory committee;
- (4)
“Department” means the department of health;
- (5)
“Genetic and metabolic screening” means search through systematic testing of the population at risk for metabolic or genetic conditions, to enable early dietary or medical treatment and counseling so as to ameliorate or avoid adverse consequences of those disorders; and
- (6)
“Genetic disorders” means those conditions caused by an alteration or abnormality in the genetic material (DNA) which may adversely affect the health and functional abilities of affected individuals.
§ 68-5-502. Establishment of genetics program.
- (a)
The department shall establish a statewide genetics program to ensure the availability of genetic services to citizens of the state who need them for the prevention and treatment of intellectual disability or other physical dysfunctions.
- (b)
The program shall include comprehensive genetic services programs, including genetic and metabolic screening programs, genetic counseling services, and other related services that will aid in the prevention and treatment of particular genetic disorders and birth defects or related conditions as determined by the department through rules and regulations duly promulgated in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, with the advice of the committee established in § 68-5-503.
§ 68-5-503. Appointment of advisory committee — Terms — Travel.
- (a)
The commissioner shall appoint a committee to consult with the department in the administration of parts 4 and 5 of this chapter.
- (b)
The committee shall be composed of one (1) representative from each regional genetic and each regional sickle cell center established pursuant to parts 4 and 5 of this chapter; at least two (2) members at large; and the chief medical officer for the state.
- (c)
The chief medical officer shall serve as chair of this committee.
- (d)
Each member shall hold office for a term of four (4) years or until such member's successor is appointed, except for the terms of initial appointments which shall be set so as to have an equal number of terms expiring each successive year.
- (e)
Any member appointed to fill a vacancy for any unexpired term shall serve the remainder of that term.
- (f)
The committee shall meet as frequently as the commissioner deems necessary, but not less than once a year.
- (g)
Committee members shall be reimbursed for travel expenses in accordance with the comprehensive travel regulations as promulgated by the department of finance and administration and approved by the attorney general and reporter.
§ 68-5-504. Functions of program — Duties of department.
- (a)
- (1)
Genetic and other testing services provided for by parts 4 and 5 of this chapter shall be provided only to:
- (A)
Born children;
- (B)
Unborn children whose testing would result in treatment;
- (C)
Men;
- (D)
Nonpregnant women; and
- (E)
Those pregnant women whose testing would result in treatment for themselves or their unborn children.
- (2)
Induced abortion shall not be regarded as treatment; therefore, procedures or services designed to search out disorders in unborn children that are not treatable shall not be provided for under parts 4 and 5 of this chapter, it being the finding of the general assembly that the use of this program to abort unborn children is against the public policy of the state of Tennessee.
- (b)
The department shall:
- (1)
Develop and administer statewide genetic and metabolic screening programs to prevent, detect and assure follow-up for birth defects and genetic disorders. The screening programs shall include testing for phenylketonuria and hypothyroidism as provided by part 4 of this chapter, testing for sickle cell disease and other hemoglobinopathies and other testing programs as the department shall deem appropriate for the preventive treatment of intellectual disability or physical dysfunction, as publicly noted through rules and regulations duly promulgated in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5;
- (2)
Prescribe effective tests and examinations designed to detect genetic disorders as determined by the department, prescribe the methods of obtaining samples or specimens for the required tests and examinations, and designate the person or persons required to conduct the tests and examinations;
- (3)
Develop standards for statewide genetic services;
- (4)
Assist in the development, expansion and maintenance of regional genetic centers and regional sickle cell centers, including purchase of equipment and employment of specialized personnel;
- (5)
Develop and implement state/regional programs of professional education and training for health care providers in the causes, prevention, detection and treatment of birth defects and genetic disorders;
- (6)
Support clinical diagnosis and counseling services regarding genetic disorders and birth defects;
- (7)
Implement public education programs to inform persons of genetic screening, genetic disorders, and birth defects and the various services available;
- (8)
Develop a system of consultation, communication and referral to regional genetics centers and regional sickle cell centers;
- (9)
Develop a reporting system to allow data to be collected and stored and to facilitate the compilation of statistical information on causes, methods of treatment and prevention of genetic disorders and birth defects. The system shall be in accordance with laws and rules of the department governing confidentiality of information;
- (10)
Enter into contractual agreements with other agencies to provide services under the state program; and
- (11)
Promulgate and enforce all rules and regulations as may be necessary to effectuate the purposes of parts 4 and 5 of this chapter.
- (c)
It is the specific intent of the general assembly that neither abortion nor abortion research should be funded by this program.
§ 68-5-506. Creation of birth defects registry — Advisory committee — Confidentiality — Penalty for unauthorized disclosure of confidential information.
- (a)
The general assembly finds and declares that birth defects represent problems of public health importance about which too little is known; that these conditions impose enormous physical, emotional, social, educational and financial burdens on individuals, families, communities and the state; and that a system to obtain more information about these conditions could result in development of preventive measures to decrease their incidence in the future. Therefore, it is the intent of the general assembly in enacting this section to accomplish all of the following:
- (1)
To maintain an ongoing program of birth defects monitoring statewide. “Birth defect” as used in this section means any structural or biochemical abnormality, regardless of cause, diagnosed at any time before or after birth, that requires medical or surgical intervention or that interferes with normal growth or development;
- (2)
To provide, on at least an annual basis, information on the incidence, prevalence and trends of birth defects;
- (3)
To provide information to determine whether environmental hazards are associated with birth defects;
- (4)
To provide information as to other possible causes of birth defects;
- (5)
To evaluate the current prevention initiatives undertaken by the state, and to give guidance for improvement of these initiatives or for the addition of new prevention strategies; and
- (6)
To provide a case referral element whereby the families of children born with birth defects are provided information on public services available to them and their children.
- (b)
- (1)
There is established a birth defects registry in the department of health.
- (2)
The commissioner of health shall establish an advisory committee to guide the department in establishing and maintaining the registry. The committee shall include members representing the disciplines of obstetrics and gynecology, pediatrics, genetics, epidemiology, biostatistics, hospital administration, state agency service providers, parents of children with birth defects, members of interested nonprofit organizations and members of the general public. The advisory committee shall annually evaluate the adequacy of the registry and report their findings annually to the appropriate standing committees of the general assembly.
- (3)
The department shall maintain a system for the collection of information necessary to accomplish the outlined purposes of this section. For purposes related to the registry, the department shall have access to any medical record that pertains to a diagnosed or suspected birth defect, including the records of the mother. Providers acting pursuant to this section shall not be liable for the release of medical records as authorized by this section. The department shall develop and disseminate information about the birth defects registry to the participating perinatal centers that will be made available to the family, that explains and describes the purpose and process of the registry and how confidentiality will be protected. The information shall be made available in pamphlet format that meets the requirements imposed by § 68-5-508. The commissioner, with guidance from the advisory committee, shall promulgate by rule a mechanism for the active verification of reports through the use of multiple sources.
- (4)
The registry shall collect information on birth defects, whether they occur as live births, stillbirths, or fetal deaths.
- (5)
The registry shall collect information on birth defects diagnosed in children up to five (5) years of age.
- (6)
The registry shall be implemented as a pilot project to include reporting by any of the five (5) designated perinatal centers choosing to be included in the pilot project. Perinatal centers participating in the pilot project shall report to the birth defects registry as required by the commissioner.
- (c)
The department, with guidance from the advisory committee, shall establish a program in the registry for referring families of children born with birth defects or the mothers of children lost to birth defects to available appropriate state resources. In order for a family of a child with a birth defect to participate in the referral program established by this subsection (c), the child's parents or legal guardian must contact the department and request to be included in the program.
- (d)
The staff of the registry shall use the information collected pursuant to this section and information available from other reporting systems and health providers to conduct studies to investigate the causes of birth defects, and to determine and evaluate measures designed to prevent their occurrence. The department's investigation shall not be limited to geographic, temporal, or occupational associations, but may include investigation of past exposures.
- (e)
- (1)
All information collected and analyzed pursuant to this section shall be confidential insofar as the identity of the individual patient is concerned and shall be used solely for the purposes provided in this section; provided, that the commissioner may provide access to those scientists approved by the advisory committee who are engaged in demographic, epidemiological or other similar studies related to health, and who agree, in writing as nonstate employees, to be identified and coded while maintaining confidentiality as described in this section and to the centers for disease control (CDC) for inclusion in the National Birth Defects Registry.
- (2)
The department shall maintain an accurate record of all persons who are given access to the information in the registry. The record shall include:
- (A)
The name of the persons authorizing access;
- (B)
The name, title, and organizational affiliation of persons given access;
- (C)
The dates of access;
- (D)
The specific purpose for which the information is to be used; and
- (E)
The results of the independent research.
- (3)
Nothing in this section shall prohibit the publishing of statistical compilations relating to birth defects or poor reproductive outcomes that do not in any way identify individual sources of information.
- (4)
- (A)
Any individual who willfully discloses information made confidential by this section, unless permitted to do so by subdivisions (e)(1) and (3), commits a Class A misdemeanor.
- (B)
Any individual who negligently discloses information made confidential by this section, unless permitted to do so by subdivisions (e)(1) and (3), commits a Class B misdemeanor.
Part 6 Pregnancy Serological Tests
§ 68-5-601. Part definitions.
-
As used in this part, unless the context otherwise requires:
- (1)
“Approved laboratory” means a publicly or privately operated laboratory approved by the department according to its rules, governing the approval and licensing of laboratories for the purposes of this part;
- (2)
“Commissioner” means the commissioner of health or the commissioner's designee;
- (3)
“Department” means the department of health;
- (4)
“Forms” means the forms that are authorized, prepared and distributed by the department to carry out this part; and
- (5)
“Standard serological test” means a test for syphilis infection or rubella immunity approved by the department and performed by an approved laboratory.
§ 68-5-602. When required — Hepatitis B treatment — Exception.
- (a)
Every physician, surgeon, or other person permitted by law to attend a pregnant woman during gestation shall, in the case of each woman so attended, take or cause to be taken a sample of the blood of the woman at the time of first examination and visit or within ten (10) days after the first examination. If the first visit is at the time of delivery, or after delivery, the standard serological test required by this subsection (a) shall be performed at that time. The blood sample shall be sent to a laboratory approved by the department for testing for syphilis infection, rubella immunity, and hepatitis B surface antigen (HBsAg). In the same manner, a sample of blood shall be taken during or after the twenty-eighth week of gestation for a woman whom the attending physician determines to be at high risk of hepatitis B or syphilis according to the current standards of care. This second sample shall be sent to a laboratory approved by the department for testing for syphilis infection and HBsAg only. Additional testing for rubella immunity is not required in subsequent pregnancies once a positive result is verified or a documented history of vaccination against rubella is available. However, all pregnant women shall be tested for syphilis and hepatitis B during an early prenatal visit in each pregnancy. A positive test for syphilis and hepatitis B shall be reported to the local health department in accordance with this chapter, and regulations governing the control of communicable diseases in Tennessee.
- (b)
Every person attending a pregnant woman who is not permitted by law to take blood samples shall cause a sample of blood to be taken by a health provider permitted by law to take the samples at the time of first examination and visit or within ten (10) days after the first examination. These samples shall be submitted to the same approved laboratories for testing for syphilis infection and HBsAg. If no rubella immunity is documented, testing for rubella is required.
- (c)
Infants born to HBsAg-postive mothers shall receive, in a timely manner, the appropriate treatment as recognized by the centers for disease control.
- (d)
This part shall not apply to any female who files with the attending medical authority a signed, written statement that taking a sample of blood or receiving other preventive measures conflict with the female's religious tenets and practices affirmed under the penalties of perjury.
§ 68-5-603. Testing free of charge — Authorized laboratories.
- (a)
Upon request, the laboratory tests required by this part shall be made without charge in the laboratories of the department.
- (b)
This section shall not be interpreted to mean that the department's laboratories shall be the only laboratory approved to perform these tests.
§ 68-5-604. Reports — Confidentiality.
- (a)
The laboratory report of the serological test shall be made on a form provided by the department.
- (b)
A detailed report of the standard serological test and showing the result of the test shall be transmitted by the laboratory to the health care provider. A copy of the laboratory specimen slip shall be concurrently submitted to the local health department having jurisdiction under the following conditions, when the local health department is not the originating health care provider:
- (1)
A serologic test for syphilis with a result of reactive; however, a serologic test for syphilis with a result of negative need not be sent to the local health department, unless specifically requested; and
- (2)
A serologic test for rubella with a result of negative; however, a serologic test for rubella with a result of positive need not be sent to the local health department, unless specifically requested.
- (c)
The copy submitted to the local health department shall be held in absolute confidence and not open to public inspection; provided, that it shall be produced as evidence at a trial or proceeding in a court of competent jurisdiction, involving issues in which it may be material and relevant, on order of a judge of the court; and provided further, that it may be used in the compilation of aggregate figures and reports, without disclosing the identities of the persons involved.
- (d)
The physician of any patient who is susceptible to rubella, as indicated by a negative result on a serological test, should counsel the patient about the test results, precautions to take, and recommend immunization after delivery.
§ 68-5-605. Use of test information.
-
The department is authorized to use the information derived from pregnancy serological tests for such follow-up procedures as are required by law or deemed necessary by the department for the protection of the public health.
§ 68-5-607. Violations — Penalties — Enforcement.
- (a)
- (1)
Any person who misrepresents any of the facts called for by the serological examination, or who in any way alters the determination of a serological examination, commits a Class C misdemeanor.
- (2)
It is the duty of the district attorney general to prosecute the suit when requested by the commissioner, the county health officer or local board of health.
- (b)
Any physician or representative of a laboratory who willfully and knowingly misrepresents, falsifies, or issues false information under this part commits a Class C misdemeanor.
- (c)
It is the duty of the district attorney general in whose jurisdiction an offense is committed to institute proceedings against violators of this part.
- (d)
It is the duty of the commissioner to give all assistance necessary for the enforcement of this part to the district attorney general representing the county in which proceedings may be instituted.
Part 7 Tennessee HIV Pregnancy Screening Act of 1997
§ 68-5-701. Short title.
-
This part shall be known and may be cited as the “Tennessee HIV Pregnancy Screening Act of 1997.”
§ 68-5-702. Purpose.
-
The purpose of this part is to require all providers of health care services who assume responsibility for the prenatal care of pregnant women during gestation, except in cases where women refuse testing, to test these women for human immunodeficiency virus (HIV) and to provide referral into appropriate medical and social services for those women who test positive.
§ 68-5-703. Testing of pregnant women for HIV — Confidentiality — Counseling.
- (a)
A health care provider shall arrange for each pregnant woman under the provider's care to be tested for HIV as early as possible in the course of the pregnancy, and again during the third trimester, unless the woman has refused testing in writing and this refusal has been placed in the medical chart.
- (b)
A pregnant woman who presents herself for delivery and who does not have a documented negative HIV test during the last trimester of the pregnancy, unless already known to be HIV positive, shall be tested for HIV using a rapid HIV test, unless she refuses in writing. If she refuses testing, and when the time and circumstances are medically appropriate, she should be counseled regarding the consequences of exposing her unborn child to HIV.
- (c)
All HIV testing performed under this part shall be done in a confidential manner and the results of the testing may be disclosed only as provided by law.
- (d)
After receiving a positive HIV test result, the medical provider, when the time and circumstances are medically appropriate, shall:
- (1)
Explain the meaning and reliability of the test results and the availability of additional or confirmatory testing, if appropriate;
- (2)
Counsel the woman to obtain appropriate medical treatment for herself and her baby and inform her of the increased risks to her baby if she fails to obtain appropriate treatment;
- (3)
Make available information concerning the available medical interventions to prevent onset of illness in the mother and to prevent transmission of HIV to her children; and
- (4)
Arrange for additional counseling in order to assist the woman in obtaining access to a comprehensive clinical care facility that can meet her needs.
§ 68-5-705. Rulemaking.
-
The department may promulgate rules in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, to implement this part.
Part 8 Tennessee Chronic Kidney Disease Screening Act of 2005
§ 68-5-801. Short title.
-
This part shall be known and may be cited as the “Tennessee Chronic Kidney Disease Screening Act of 2005.”
§ 68-5-802. Purpose.
-
The purpose of this part is to urge all providers of health care services that assume responsibility for patients with diabetes, hypertension or a family history of kidney disease to counsel these patients regarding chronic kidney disease, to test such patients for chronic kidney disease, and to ensure that consulting laboratories provide appropriate reports concerning chronic kidney disease.
§ 68-5-803. Counseling and testing of patients by providers — Laboratory reports.
- (a)
A provider of health care services that assumes responsibility for the care of patients with diabetes, hypertension, or a family history of kidney disease, is urged to counsel each such patient regarding chronic kidney disease, and is urged to test those patients for chronic kidney disease through routine clinical laboratory assessment of kidney function, unless the patient refuses such testing.
- (b)
Laboratories shall report the glomerular filtration rate on any serum creatinine test ordered by a health care provider.
§ 68-5-804. Rules and regulations.
-
The commissioner of health is authorized to promulgate rules and regulations to effectuate the purposes of this part. All such rules and regulations shall be promulgated in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.
Part 9 Early Detection of Hearing Loss
§ 68-5-901. Legislative findings.
-
The general assembly finds and declares the following:
- (1)
That hearing loss occurs in newborns more frequently than any other health condition for which newborn screening is currently required;
- (2)
That early detection of hearing loss, early intervention, and early follow-up have been demonstrated to be highly effective in encouraging development of a child's health and communication and cognitive skills; and
- (3)
That early screening and intervention will serve the public purposes of promoting healthy development of children and reducing public expenditures for health care, special education and related services.
§ 68-5-902. Part definitions.
-
As used in this part, unless the context otherwise requires, “hearing screening” or “hearing screening test” means a screening or test provided in accordance with current hearing screening standards established by a nationally recognized organization such as the Joint Committee on Infant Hearing Screening of the American Academy of Pediatrics.
§ 68-5-903. Newborn infant.
-
Every newborn infant shall be screened for hearing loss in order to prevent the consequences of unidentified hearing loss, unless the parent or parents of the child object on the grounds that the test would conflict with the parent or parents' religious tenets or practices.
§ 68-5-904. Child born in hospital or other specified facilities.
- (a)
A child born in a hospital or other birthing facility shall be screened for hearing loss prior to discharge from that facility. The attending health care professional shall refer a child born in a setting other than a hospital or other birthing facility to the department of health or an appropriate hearing screening provider as listed in the latest edition of the directory of hearing screening providers in Tennessee for hearing screening. A child born on an emergency basis in a hospital that does not otherwise provide obstetrical or maternity services and that does not provide infant hearing screening tests prior to discharge of an infant from the hospital, shall refer a child born in that facility to the department of health or an appropriate hearing screening provider as listed in the latest edition of the directory of hearing screening providers in Tennessee for hearing screening. The hearing screening test shall be provided in accordance with current hearing screening standards established by a nationally recognized organization such as the Joint Committee on Infant Hearing Screening of the American Academy of Pediatrics. All screening providers or entities shall report their screening results to the department of health.
- (b)
Any medical or audiologic provider performing follow-up tests shall report the results of the tests to the department of health.
§ 68-5-905. Report and referrals.
-
The results of all hearing screenings performed pursuant to this part shall be reported to the department of health. The department of health shall refer any child who does not pass the hearing screening test to the Tennessee early intervention system (TEIS) of the department of education for follow-up. Children who have been identified with hearing loss or high risk conditions that place them at high risk for hearing loss as identified by standards established by a nationally recognized organization such as the Joint Committee on Infant Hearing Screening of the American Academy of Pediatrics shall be referred to the TEIS.
§ 68-5-906. Rules and Regulations.
-
The department of health, in consultation with the department of education, shall promulgate rules and regulations in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, to effectuate this part.
Chapter 6 Sudden Cardiac Arrest Prevention Act
§ 68-6-102. Chapter definitions.
-
As used in this chapter, unless the context otherwise requires:
- (1)
“Community-based youth athletic activity” or “youth athletic activity” means an athletic activity organized by a city, county, business, or nonprofit organization when the majority of the participants are under eighteen (18) years of age, and are engaging in an organized athletic game or competition against another team, club, or entity or in practice or preparation for an organized game or competition against another team, club, or entity. “Community-based youth athletic activity” does not include college or university activities or an activity which is entered into for instructional purposes only, an athletic activity that is incidental to a nonathletic program, or a lesson;
- (2)
“Department” means the department of health;
- (3)
“Health care provider” means a Tennessee licensed medical doctor (M.D.) or an osteopathic physician (D.O.);
- (4)
“Person” means any individual or governmental entity, corporation, association, organization, nonprofit institution, or other entity or such entities' representatives; and
- (5)
“School youth athletic activity” means a school or a local education agency organized athletic activity when the majority of the participants are under eighteen (18) years of age, and are engaging in an organized athletic game or competition against another team, club, or entity or in practice or preparation for an organized game or competition against another team, club, or entity. “School youth athletic activity” does not include college or university activities, an activity which is entered into for instructional purposes only, or an athletic activity that is incidental to a nonathletic program, or a lesson.
§ 68-6-103. Requirements to be met by governing authorities of public and nonpublic schools for prevention of sudden cardiac arrest during school youth athletic activities.
- (a)
This section applies to school youth athletic activity.
- (b)
- (1)
The governing authority of each public and nonpublic elementary school, middle school, junior high school, and high school, working through guidance approved by the department of health and communicated through the department of education, shall at a minimum:
- (A)
Adopt guidelines and other pertinent information and forms as approved by the department of health to inform and educate coaches, school administrators, youth athletes, and their parents or guardians of the nature, risk, and symptoms of sudden cardiac arrest, including the risks associated with continuing to play or practice after experiencing any of the following symptoms:
- (i)
Fainting or seizures during exercise;
- (ii)
Unexplained shortness of breath;
- (iii)
Chest pains;
- (iv)
Dizziness;
- (v)
Racing heart rate; or
- (vi)
Extreme fatigue;
- (B)
Require annual completion by all coaches, whether the coach is employed or a volunteer, and by school athletic directors of a sudden cardiac arrest education program approved by the department. In developing the program, the department may use, at no cost to the state, materials and resources created by organizations, such as Simon's Fund, for the purpose of educating coaches about sudden cardiac arrest. The department shall make the sudden cardiac arrest education course program available on its website for any school to access free of charge;
- (C)
Require that, on a yearly basis, a sudden cardiac arrest information sheet be signed and returned by each coach and athletic director and, if appointed, a licensed health care professional, to the lead administrator of a nonpublic school or, for a public school, the local education agency's director of schools prior to initiating practice or competition for the year;
- (D)
Require that, on a yearly basis, a sudden cardiac arrest information sheet be reviewed by each youth athlete and the athlete's parent or guardian. The information sheet shall be signed and returned by the youth athlete, if the youth athlete is eighteen (18) years of age or older, otherwise by the athlete's parent or guardian, prior to the youth athlete's initiating practice or competition, to confirm that both the parent or guardian and the youth athlete have reviewed the information and understand its contents;
- (E)
Maintain all documentation of the completion of a sudden cardiac arrest education course program and signed sudden cardiac arrest information sheets for a period of three (3) years;
- (F)
Establish as policy the immediate removal of any youth athlete who passes out or faints while participating in an athletic activity or immediately following an athletic activity, or who exhibits any of the following symptoms:
- (i)
Unexplained shortness of breath;
- (ii)
Chest pains;
- (iii)
Dizziness;
- (iv)
Racing heart rate; or
- (v)
Extreme fatigue; and
- (G)
Establish as policy that a youth athlete who has been removed from play shall not return to the practice or competition during which the youth athlete experienced symptoms consistent with sudden cardiac arrest and not return to play or participate in any supervised team activities involving physical exertion, including games, competitions, or practices, until the youth athlete is evaluated by a health care provider and receives written clearance from the health care provider for a full or graduated return to play.
- (2)
After a youth athlete who has experienced symptoms consistent with sudden cardiac arrest has been evaluated and received clearance for a graduated return to play from a health care provider, then a school may allow a licensed health care professional, if available, with specific knowledge of the youth athlete's condition to manage the youth athlete's graduated return to play based upon the health care provider's recommendations. The licensed health care professional, if not the youth athlete's health care provider, shall provide updates to the health care provider on the progress of the youth athlete, if requested.
- (3)
No licensed health care professional or other person acting in good faith within the authority prescribed under this chapter shall be liable on account of any act or omission in good faith while so engaged; provided, that “good faith,” as used in this chapter, shall not include willful misconduct, gross negligence, or reckless disregard.
- (c)
The local education agency, in consultation with the head of the school youth athletic activity, may establish the following minimum penalties for a coach found in violation of ignoring a youth athlete's sudden cardiac arrest symptoms or allowing the youth to return to the practice or competition during which the youth athlete experienced the symptoms without written clearance from the health care provider for a full or graduated return to play:
- (1)
For a first violation, suspension from coaching any school youth athletic activity for the remainder of the season;
- (2)
For a second violation, suspension from coaching any school youth athletic activity for the remainder of the season and the next season; and
- (3)
For a third violation, permanent suspension from coaching any school youth athletic activity.
§ 68-6-104. Requirements to be met by organizers of community-based youth athletic activities for prevention of sudden cardiac arrest.
- (a)
This section applies to community-based youth athletic activity.
- (b)
- (1)
Any city, county, business, or nonprofit organization that organizes a community-based youth athletic activity for which an activity fee is charged, working through guidance from the department of health, shall at a minimum:
- (A)
Adopt guidelines and other pertinent information and forms as developed by the department of health to inform and educate the director of the youth athletic activity, coaches, youth athletes, and their parents or guardians of the nature, risk, and symptoms of sudden cardiac arrest, including the risks associated with continuing to play or practice after experiencing any of the following symptoms:
- (i)
Fainting or seizures during exercise;
- (ii)
Unexplained shortness of breath;
- (iii)
Chest pains;
- (iv)
Dizziness;
- (v)
Racing heart rate; or
- (vi)
Extreme fatigue;
- (B)
Require annual completion by all coaches, whether the coach is employed or a volunteer, and, if appointed, the licensed health care professional of a sudden cardiac arrest education program approved by the department. In developing the program, the department may use, at no cost to the state, materials and resources created by organizations, such as Simon's Fund, for the purpose of educating coaches about sudden cardiac arrest. The department shall make the sudden cardiac arrest education course program available on its website for any youth athletic activity operated by a city, county, business, or nonprofit organization to access free of charge;
- (C)
Require that, on a yearly basis, a sudden cardiac arrest information sheet be signed and returned by each coach to the head of the youth athletic activity prior to initiating practice or competition for the year;
- (D)
Require that, on a yearly basis, a sudden cardiac arrest information sheet be reviewed by each youth athlete and the athlete's parent or guardian. The information sheet shall be signed and returned by the youth athlete, if the youth athlete is eighteen (18) years of age or older, otherwise by the athlete's parent or guardian, prior to the youth athlete's initiating practice or competition, to confirm that both the parent or guardian and the youth athlete have reviewed the information and understand its contents;
- (E)
Maintain all documentation of the completion of a sudden cardiac arrest education course program and signed sudden cardiac arrest information sheets for a period of three (3) years;
- (F)
Establish as policy the immediate removal of any youth athlete who passes out or faints while participating in an athletic activity or immediately following an athletic activity, or who exhibits any of the following symptoms:
- (i)
Unexplained shortness of breath;
- (ii)
Chest pains;
- (iii)
Dizziness;
- (iv)
Racing heart rate; or
- (v)
Extreme fatigue; and
- (G)
Establish as policy that a youth athlete who has been removed from play shall not return to the practice or competition during which the youth athlete experienced symptoms consistent with sudden cardiac arrest and not return to play or participate in any supervised team activities involving physical exertion, including games, competitions, or practices, until the youth athlete is evaluated by a health care provider and receives written clearance from the health care provider for a full or graduated return to play.
- (2)
After a youth athlete who has experienced symptoms consistent with sudden cardiac arrest has been evaluated and received clearance for a graduated return to play from a health care provider, then the organizer of the community-based youth athletic activity may allow a licensed health care professional, if available, with specific knowledge of the youth athlete's condition to manage the youth athlete's graduated return to play based upon the health care provider's recommendations. The licensed health care professional, if not the youth athlete's health care provider, shall provide updates to the health care provider on the progress of the youth athlete, if requested.
- (3)
No coach, head of any athletic activity, licensed health care professional, or other person acting in good faith within the authority prescribed under this chapter shall be liable on account of any act or omission in good faith while so engaged; provided, that “good faith,” as used in this chapter, shall not include willful misconduct, gross negligence, or reckless disregard.
- (c)
The head of the community-based youth athletic activity may establish the following minimum penalties for a coach found in violation of ignoring a youth athlete's sudden cardiac arrest symptoms or allowing the youth to return to the practice or competition during which the youth athlete experienced the symptoms without written clearance from the health care provider for a full or graduated return to play:
- (1)
For a first violation, suspension from coaching any community-based youth athletic activity for the remainder of the season;
- (2)
For a second violation, suspension from coaching any community-based youth athletic activity for the remainder of the season and the next season; and
- (3)
For a third violation, permanent suspension from coaching any community-based youth athletic activity.
Chapter 7 Medical Cannabis Commission
§ 68-7-101. Chapter definitions.
-
For purposes of this chapter:
- (1)
“Bona fide practitioner-patient relationship” means a practitioner and patient have a treatment or consulting relationship, during the course of which the practitioner has completed an assessment of the patient's medical history and current medical disease or condition, including an appropriate examination and confirmation of the patient having a qualifying medical disease or condition;
- (2)
“Commission” means the medical cannabis commission;
- (3)
“Medical cannabis program”:
- (A)
Means a program that authorizes the licensing or regulation of the cultivation, processing, shipping, or distribution of cannabis for medical use; and
- (B)
Does not include a four-year public or private institution of higher education operating pursuant to § 39-17-402(16)(E);
- (4)
“Practitioner” means a physician who is licensed to practice medicine in this state pursuant to title 63, chapter 6, or osteopathic medicine in this state pursuant to title 63, chapter 9;
- (5)
“Qualifying medical disease or condition” means:
- (A)
Alzheimer's disease;
- (B)
Amyotrophic lateral sclerosis (ALS);
- (C)
Cancer, when such disease is diagnosed as end stage or the treatment produces related wasting illness, recalcitrant nausea and vomiting, or pain;
- (D)
Inflammatory bowel disease, including Crohn's disease and ulcerative colitis;
- (E)
Epilepsy or seizures;
- (F)
Multiple sclerosis;
- (G)
Parkinson's disease;
- (H)
Human immunodeficiency virus (HIV) or acquired immunodeficiency syndrome (AIDS); or
- (I)
Sickle cell disease; and
- (6)
“Valid letter of attestation” means a letter signed and dated by a practitioner with whom the patient has a bona fide practitioner-patient relationship, that:
- (A)
Attests that the patient has a qualifying medical disease or condition;
- (B)
Specifies the patient's qualifying medical disease or condition;
- (C)
Attests that the patient has received conventional methods of treatment for the patient's qualifying medical disease or condition and those methods have insufficiently addressed the patient's disease or condition, or symptoms of the disease or condition; and
- (D)
Is only valid six (6) months from the date of the practitioner's signature, or to a date certain that is less than six (6) months from the date of the signature if specified by the practitioner.
§ 68-7-102. Medical cannabis commission.
- (a)
There is created the medical cannabis commission. The commission shall serve as a resource for the study of federal and state laws regarding medical cannabis and the preparation of legislation to establish an effective, patient-focused medical cannabis program in this state upon the rescheduling or descheduling of marijuana from Schedule I of the federal Controlled Substances Act (21 U.S.C. § 801, et seq.).
- (b)
This chapter does not authorize a medical cannabis program to operate in this state, and licenses for such a program shall not be issued, or authorized to be issued, until marijuana is removed from Schedule I of the federal Controlled Substances Act.
§ 68-7-103. Members of commission — Oath of office.
- (a)
The commission consists of nine (9) members appointed as follows:
- (1)
The speaker of the senate shall appoint three (3) members, with at least one (1) member being a physician licensed under title 63, chapter 6 or 9 and one (1) member being a pharmacist licensed under title 63, chapter 10;
- (2)
The speaker of the house of representatives shall appoint three (3) members, with at least one (1) member being a physician licensed under title 63, chapter 6 or 9 and one (1) member being a pharmacist licensed under title 63, chapter 10; and
- (3)
The governor shall appoint three (3) members, with one (1) appointed from each grand division and with at least one (1) member being a patient who has been diagnosed with a qualifying medical disease or condition and who can establish the diagnosis for purposes of appointment to and service on the commission with a valid letter of attestation.
- (b)
- (1)
Initial appointments begin July 1, 2021, and expire as follows:
- (A)
Terms for members appointed by the governor expire on June 30, 2023;
- (B)
Terms for members appointed by the speaker of the senate expire on June 30, 2024; and
- (C)
Terms for members appointed by the speaker of the house of representatives expire on June 30, 2025.
- (2)
Following the expiration of initial appointments as prescribed in subdivision (b)(1), all appointments to the commission are for terms of four (4) years and begin on July 1 and terminate on June 30.
- (3)
All members serve until the expiration of the term to which they were appointed and until their successors are appointed.
- (4)
A vacancy occurring prior to the expiration of the member's term must be filled in the same manner as the vacated appointment for the remainder of the unexpired term.
- (5)
Notwithstanding subdivision (b)(3), the appointing authority may remove a member appointed by the authority only for just cause, including misconduct, incompetency, or willful neglect of duty, after first delivering to the member a copy of the charges against the member.
- (6)
Members are eligible for reappointment to the commission following the expiration of their terms; except, that no member may serve more than two (2) full four-year terms consecutively.
- (c)
- (1)
The appointing authority shall remove from the commission a member who is absent from more than fifty percent (50%) of the scheduled commission meetings in a twenty-four-month period and shall appoint a new member to fill the remainder of the unexpired term.
- (2)
The presiding officer of the commission shall promptly notify, or cause to be notified, the applicable appointing authority of a member who violates the attendance requirement described in subdivision (c)(1).
- (d)
The members comprising the commission must be at least thirty (30) years of age and have been residents of this state for at least two (2) years preceding their appointment.
- (e)
In making appointments to the commission, the appointing authorities shall strive to:
- (1)
Ensure that the commission is composed of persons who are considered experts in the fields of health care, mental health, business, management, agriculture, or law enforcement and have demonstrated a commitment to integrity, ethics, and professionalism; and
- (2)
Select persons who are diverse in race, color, sex, ethnicity, national origin, and age, as reflected in the population of this state.
- (f)
A person who has an economic interest in a business enterprise devoted to medical or recreational cannabis or hemp is not eligible for appointment to the commission. A commission member shall not acquire an economic interest in a business enterprise devoted to medical or recreational cannabis or hemp during the member's term on the commission or within twelve (12) months following the expiration of the member's term. The commission shall take adverse action, which may include a denial or suspension of a medical cannabis license for up to two (2) years, against a business enterprise devoted to medical or recreational cannabis or hemp that provides an economic interest to a commission member during the member's term or within twelve (12) months following the expiration of the term. For purposes of this subsection (f), “economic interest” means employment or direct ownership of an equity interest in a business enterprise devoted to medical or recreational cannabis or hemp, including direct ownership of stock or shares of the business enterprise.
- (g)
Prior to beginning their duties, each member of the commission shall take and subscribe to the oath of office provided for state officers.
§ 68-7-104. Official domicile — Meetings.
- (a)
The official domicile of the commission is in Nashville. All meetings of the commission must be held in Nashville.
- (b)
The commission must be impaneled and hold its first meeting no later than October 1, 2021, at which time, and annually thereafter, the members shall elect a chair and other officers as the members deem necessary.
- (c)
The commission shall meet in Nashville at least once every two (2) months prior to March 1, 2023, and hold other meetings for any period of time as may be necessary for the commission to transact and perform its official duties and functions. Beginning March 1, 2023, the commission is authorized to meet less frequently than once every two (2) months; provided, that the commission shall set and hold regular meetings necessary for the commission to transact and perform its official duties and functions. The commission may hold a special meeting at any time it deems necessary and advisable in the performance of its official duties. Five (5) members of the commission constitute a quorum for the transaction of business or the performance of a duty, power, or function of the commission; provided, that five (5) affirmative votes are required to adopt or report out a resolution or recommendation of the commission. A special meeting may be called by the chair or by a majority of the commission. The commission may participate by electronic or other means of communication pursuant to § 8-44-108 for the benefit of the public and the commission in connection with a meeting authorized by law; provided, that a physical quorum is maintained at the location of the meeting.
§ 68-7-105. Reimbursement for travel expenses.
-
All reimbursement for travel expenses must 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.
§ 68-7-106. Executive director.
- (a)
The commission shall appoint an executive director qualified by education and experience. The executive director must demonstrate knowledge and experience in the areas of public administration, public health, or law enforcement.
- (b)
The commission shall fix the salary of the executive director, who shall serve at the pleasure of the commission. The executive director shall be the chief administrative officer of the commission and the appointing authority, as defined in § 8-30-103, exercising general supervision over all persons employed by the commission.
- (c)
The executive director has the following duties:
- (1)
Keep a written record of all proceedings and transactions of the commission, which must be open to public inspection during regular office hours;
- (2)
Assist the commission in researching and examining federal laws, the effectiveness of other states' laws and legislation, and laws and legislation in this state relating to the medical use of cannabis;
- (3)
Oversee the preparation of recommendations to the general assembly, including proposed legislation;
- (4)
Represent the commission before the general assembly;
- (5)
Prepare the agenda, including consent and emergency calendars, and notice to the general public of all meetings and public hearings of the commission;
- (6)
Employ personnel, within the budget, to assist in carrying out this chapter;
- (7)
Carry out all policies that are adopted by the commission;
- (8)
Be responsible for the performance of all duties and functions delegated by the commission; and
- (9)
Supervise the expenditure of funds.
- (d)
The executive director shall be reimbursed for travel expenses in accordance with the comprehensive travel regulations as promulgated by the department of finance and administration and approved by the attorney general and reporter.
§ 68-7-108. Conflict of interest policy — Disclosures.
-
The commission shall adopt and implement a conflict of interest policy for its members. The policy must mandate annual written disclosures of financial interests and other possible conflicts of interest and an acknowledgement by commission members that they have read and understand all aspects of the policy. The policy must also require persons who are to be appointed to acknowledge, as a condition of appointment, that they are not in conflict with the conditions of the policy.
§ 68-7-109. Examination of laws and legislation — Recommendations and findings.
- (a)
In anticipation of a potential rescheduling or descheduling of marijuana from Schedule I of the federal Controlled Substances Act (21 U.S.C. § 801, et seq.), the commission shall examine federal laws, the effectiveness of other states' laws and legislation, and laws and legislation in this state relating to the medical use of cannabis, specifically considering issues relating to:
- (1)
Patient qualification;
- (2)
Patient registration;
- (3)
The role of physicians, nurse practitioners, and physician assistants in recommending and prescribing the medical use of cannabis;
- (4)
The role of pharmacists in medical cannabis programs for recommending, prescribing, and dispensing medical cannabis;
- (5)
Preventing nonmedical personnel from recommending, prescribing, and dispensing medical cannabis;
- (6)
Licensing and regulation of facilities and providers of medical cannabis services, including medical cannabis:
- (A)
Cultivation;
- (B)
Processing;
- (C)
Labelling;
- (D)
Transporting;
- (E)
Shipping; and
- (F)
Distributing;
- (7)
Establishing guidelines for determining acceptable medical uses;
- (8)
Testing of medical cannabis to ensure product safety;
- (9)
The role of other departments and state regulatory agencies and boards;
- (10)
The role of law enforcement;
- (11)
Current criminal laws relating to the possession and use of marijuana;
- (12)
Taxes and fees;
- (13)
- (A)
The development of a recommended standard of care, including, but not limited to:
- (i)
Medical certification of qualifying diseases or conditions;
- (ii)
Treatment methods;
- (iii)
Medical history and physical examination, prior medication history, and history of substance abuse;
- (iv)
Alternative modalities, including modalities attempted and used;
- (v)
Dosing and route of administration recommendations; and
- (vi)
Drug interactions and contraindications; and
- (B)
Requiring that a board that licenses persons who would certify a qualifying medical disease or condition, or dispense medical cannabis, must consider recommended standards of care and adopt by policy an appropriate standard of care before a person licensed by such board may qualify a medical disease or condition, or dispense medical cannabis, under a state medical cannabis program; and
- (14)
Other issues relevant to the medical use of cannabis.
- (b)
For the purposes of facilitating patient reciprocity with other states, the commission shall prioritize the recommendations for the creation of a patient registration process or program that includes patients with a qualifying medical disease or condition recommended by the commission.
- (c)
The commission shall prepare recommendations for how best to establish an effective, patient-focused medical cannabis program in this state and include proposed legislation in its recommendations, including provisions that create an independent and financially self-sufficient commission, to be governed by its appointed members, to administer the program. With its recommendations regarding self-sufficiency, the commission shall also include a strategy for repaying the state general fund for appropriations it receives to establish the commission and any subsequent medical cannabis program.
- (d)
The commission shall report its findings and recommendations to the general assembly relating to the medical use of cannabis in this state. The report must be submitted in writing to the chief clerks of the senate and the house of representatives and the legislative librarian no later than January 1 of each year, beginning in 2022. The report may be submitted electronically.
Chapter 8 Rabies
§ 68-8-102. Chapter definitions.
-
As used in this chapter, unless the context otherwise requires:
- (1)
“Cat” means all domesticated members of the feline family;
- (2)
“Commissioner” means the commissioner of health or a duly authorized representative;
- (3)
“Compendium or rabies compendium” means the most recent issue of the national “Compendium of Animal Rabies Prevention and Control” published by the Association of State Public Health Veterinarians;
- (4)
“Confinement” means housed in a building, pen or by some other suitable escape-proof method or enclosure or being leashed;
- (5)
“Department” means the Tennessee department of health;
- (6)
“Dog” means all domesticated members of the canine family;
- (7)
“Hybrid animal” means the offspring of wild animals crossbred to domestic dogs or cats or any of their progeny for which the owner has records substantiating that their genetic heritage consists of twenty-five percent (25%) or more from wild animals. Crossbred dogs or cats with less than twenty-five percent (25%) documented genetic heritage from wild animals will be considered as domestic dogs or cats for purposes of this chapter;
- (8)
“Observation period” means the time following a bite incident during which the biting animal's health status must be monitored;
- (9)
“Owner” means any person having a right or property in a dog or cat, or who keeps or harbors a dog or cat, or who has it in such person's care or acts as its custodian, or who permits a dog or cat to remain on or about any premises;
- (10)
“Peace officer” means animal control officer, police, rabies control officer, sheriff, wildlife officer, or similar duly appointed law enforcement officer of the state or any political subdivision thereof, authorized by the Constitution, statutes, charter, or ordinances to enforce statutory, rule, charter or ordinance violations. It does not include employees of the department assigned to implement this chapter;
- (11)
“Quarantine” means a state of strictly enforced isolation from other animals or the public imposed to prevent the spread of disease;
- (12)
“Shelter” means animal or humane shelter, dog pound or animal pound;
- (13)
“Vaccination” means the injection of a rabies vaccine for animals, which meets the standards prescribed by both the United States Department of Agriculture (USDA) license granted to the vaccine for interstate sale and by the department; and
- (14)
“Veterinarian” means any individual licensed by the state board of veterinary medical examiners to practice veterinary medicine in this state.
§ 68-8-103. Vaccination of animals — Certificate and tags — Frequency.
- (a)
It is unlawful for any person to own, keep or harbor any dog or cat six (6) months of age or older that has not been vaccinated against rabies as required by this chapter, or the rules and regulations promulgated pursuant to this chapter.
- (b)
Dogs and cats may be vaccinated as early as three (3) months of age or at an age as specified by the vaccine's United States department of agriculture (USDA) license, but will be considered as noncompliant with this section if over six (6) months of age.
- (c)
Ferrets, certain livestock, hybrid animals and other animals may be vaccinated for rabies if a vaccine is legally available for that species. Routine rabies vaccination of animals other than dogs or cats is not required unless deemed necessary by the commissioner or by emergency rules of the department.
- (d)
All rabies vaccinations of dogs and cats as required by this chapter shall be administered only by or under the supervision of a veterinarian.
- (e)
Evidence of such vaccination shall consist of a certificate that contains the owner's name and address, date of vaccination, date the dog or cat should be revaccinated, description and sex of the dog or cat vaccinated, number of the vaccination tag issued when applicable, manufacturer and lot number of vaccine administered, and the name and signature of the supervising veterinarian. If the vaccination is given at an animal control facility or shelter, then the certificate shall contain the name and signature of the person administering the vaccine as well as that of the supervising veterinarian.
- (f)
The vaccination certificate shall be prepared in one (1) of the following manners, unless otherwise provided for by rule:
- (1)
Paper forms in triplicate; the original shall be given to the owner, the first copy provided to and retained by the department, and the veterinarian administering or supervising the administration of the vaccine shall retain the second copy; or
- (2)
Computer printout or electronic format, such that the owner, the department and the veterinarian administering the vaccine obtain a copy of the information provided for in subsection (e).
- (g)
The rabies certificate form and rabies tags shall be provided by the department.
- (h)
A licensed veterinarian may provide and use an alternative tag and certificate providing that the requirements in subsections (e) and (f) are met.
- (i)
Nothing in this section shall be construed to require more frequent rabies vaccinations or a greater number of rabies vaccinations than are required by the rabies compendium.
§ 68-8-104. Registration of cats and dogs — Fees — Rabies control program — Vaccination required for registration.
- (a)
In addition to, but not as a substitute for or in any way detracting from the vaccination requirements of this chapter, authorization is granted for the adoption of local laws or ordinances to require the registration of dogs or cats in counties or municipalities.
- (b)
Any local laws or ordinances implementing animal registration shall include methods for the collection of registration fees and shall require the expenditure of these funds to establish and maintain a rabies control program, also commonly known as an animal control program. In addition to various animal control activities, the rabies control program shall ensure that dogs and cats are properly vaccinated in accordance with this chapter and that biting animals or rabies suspects are observed or confined in accordance with this chapter and rules of the department.
- (c)
No dog or cat registration certificate shall be issued unless an unexpired certificate of rabies vaccination is exhibited.
- (d)
All fees collected for registration shall become part of the county or municipality rabies control fund and shall be disbursed by the appropriate trustee in a manner prescribed by the local legislative body for the sole purpose of the payment of salaries, for the establishment and operation of an animal shelter, for the establishment and operation of an animal control program, or for other expenses incidental to the enforcement of this chapter in the jurisdiction to which the registration requirement applies.
- (e)
Any funds remaining at the end of any fiscal year shall be carried over to the next fiscal year, and its expenditure authorized by the local legislative body only for the purpose of rabies and animal control.
§ 68-8-105. Exempt programs.
- (a)
Any county or municipality maintaining a program for the control of rabies shall be exempt from the operation of this chapter so long as such rabies program meets the minimum requirements of this chapter.
- (b)
This chapter shall not apply to any county that now has or hereafter may enact private laws governing the control of rabies in that county, that meet the minimum requirements of this chapter.
§ 68-8-106. Rabies tag.
- (a)
The person or facility administering the vaccine shall issue a rabies tag for every dog vaccinated for rabies and the identification numbers on the tag shall be recorded on the rabies certificate.
- (b)
Cats may be, but are not required, to be issued a rabies tag.
- (c)
Every dog owner shall attach a metal tag or other evidence of rabies vaccination to a collar, which shall be worn at all times by the dog vaccinated; provided, that the collar may be removed in the case of hunting dogs while in chase or returning from the chase. Nothing in this section shall be construed as permitting the use of an unvaccinated dog for any purpose.
§ 68-8-107. Seizure of dogs running at large — Notification of seized animals — Redemption by owner — Vaccination requirement.
- (a)
Any dog found running at large may be seized by any peace officer and placed in an animal shelter in counties or cities where an animal shelter or pound is available.
- (b)
If the dog or cat is wearing a rabies vaccination tag or other identification, all reasonable effort shall be made to locate and notify the owners who shall be required to appear within five (5) days and redeem the animal by paying a pound fee as set by the city or county legislative body. A failure to pay the pound fee, or have the animal vaccinated if proof of current vaccination is not produced prior to release, shall require the animal to be adopted or destroyed.
- (c)
If any dog or cat is not wearing a vaccination tag or other identification, the animal may be adopted or destroyed, unless legally claimed by the owner within three (3) days.
- (d)
No dog or cat three (3) months of age or older shall be released from a shelter without having proof of current vaccination or until it has been vaccinated and, where applicable, a tag issued.
- (e)
A county may allow, by local ordinance, the adoption of a dog or cat three (3) months of age or older without a vaccination as long as procedures are established to ensure that the animal is vaccinated for rabies within seventy-two (72) hours of release from the shelter.
§ 68-8-108. Transportation of dogs and cats in the state.
-
This chapter shall not prohibit the transportation of dogs or cats in the state; provided, that dogs or cats diagnosed with or suspected of having rabies are securely confined or kept on a leash while being transported in the state.
§ 68-8-109. Observation period by confinement or quarantine — Investigation.
- (a)
If any animal has bitten any person, is suspected of having bitten any person or is for any reason suspected of being infected with rabies, the animal may be required to be placed under an observation period either by confinement or by quarantine for a period of time deemed necessary by the commissioner or rules of the department.
- (b)
The act of investigating the bite or rabies exposure and placing the animal under observation by confinement or quarantine shall be accomplished either by the department or by the animal control program, in either the county or municipality wherein either the animal owner or the person bitten resides, in consultation with the department.
- (c)
The confinement, quarantine or other disposition of the animal shall follow the current recommendations in the national rabies compendium unless more specific guidelines are designated by duly promulgated rules of the department or as deemed necessary by the commissioner to protect the public's health.
- (d)
The observation period by confinement or quarantine may occur at the animal owner's home at the discretion of the department or the animal control program.
§ 68-8-111. Liability for rabies program.
-
Any licensed veterinarian who provides services to vaccinate animals against rabies at a community clinic that is sponsored by a county health department or municipality in accordance with this chapter, shall not by such participation assume any responsibility or liability for the supervision of the site or location where the rabies program is conducted. Such responsibility and liability shall be borne by the sponsoring county or municipality.
§ 68-8-112. Rules and regulations.
- (a)
The commissioner of health shall have the authority to promulgate such rules and regulations as may be deemed necessary for the proper enforcement of this chapter.
- (b)
The commissioner in adopting rules may rely in whole or in part on guidance or standards contained in the rabies compendium or issued by the United States department of agriculture.
- (c)
The rules deemed necessary by the commissioner to effectuate this chapter are of such importance to the welfare of the citizens of this state that they may be promulgated as emergency rules.
§ 68-8-113. Violations.
-
Any person failing to meet any requirements or violating any of the provisions of this chapter commits a Class C misdemeanor with each violation being a separate offense.
Chapter 9 Tuberculosis
Part 1 General Provisions
§ 68-9-102. Division of tuberculosis control created.
-
The department of health is authorized and empowered to create and maintain a division of tuberculosis control, which shall provide effective measures for the diagnosis, prevention, treatment and cure of tuberculosis.
§ 68-9-103. Chapter definitions.
-
As used in this chapter, unless the context otherwise requires:
- (1)
“Approved hospitals” means hospitals approved by the commissioner as having adequate facilities and staff for the diagnosis and treatment of tuberculosis;
- (2)
“Chest disease hospitals” means state-owned hospitals established, operated and maintained by the department for the diagnosis, treatment, prevention and cure of tuberculosis;
- (3)
“Commissioner” means the commissioner of health or the commissioner's duly authorized representative;
- (4)
“Department” means the department of health;
- (5)
“Division” means the division of tuberculosis control;
- (6)
“Physician” means any doctor of medicine or doctor of osteopathy duly licensed to practice the doctor's profession in Tennessee or the state in which the doctor resides and lawfully practices the doctor's profession;
- (7)
“Tuberculosis” means a disease caused by the human tubercle bacillus, whether infectious or noninfectious; and
- (8)
“Tuberculosis suspect” means a person with clinical, epidemiologic, x-ray, or laboratory evidence suggestive of tuberculosis.
§ 68-9-104. Rules and regulations — Purposes.
-
The commissioner is authorized to adopt, promulgate and enforce rules and regulations to:
- (1)
Enable the department to carry out this chapter for the control of tuberculosis;
- (2)
Establish criteria for the admission of patients to approved hospitals, and for the proper hospital and out-patient care for these patients; and
- (3)
Establish procedures for the reporting of tuberculosis and for isolating and quarantining those persons infected with tuberculosis who have been determined by the commissioner or by a state, district, county or municipal health officer to be contagious.
§ 68-9-106. Data and records.
-
The department shall maintain a tuberculosis register system and conduct epidemiologic studies of the conditions existing within the state, regarding the prevalence, prevention, treatment and cure of tuberculosis. It shall compile data from the register system and the studies and keep a record of the data, to the end that the disease may be more effectually combated.
§ 68-9-107. Field treatment clinics.
-
The division has the power and is authorized to expend from the amount appropriated to it such amount as may be recommended by the commissioner and approved by the governor for the establishment and operation of field treatment clinics, which shall include, but not be limited to, the necessary medical personnel, nursing personnel, anti-tuberculosis medications, supplies and x-ray and other equipment necessary to the organization and conduct of such clinic, research, administration, and all other purposes incident thereto.
§ 68-9-108. Acquisition and divestiture of property.
-
For the execution of the powers, duties and obligations vested in the department, the department has the right to acquire by purchase, gift, bequest, lease, devise or otherwise, all necessary or proper personalty, lands and tenements, or any interest in personalty, lands and tenements as the department may determine to acquire or accept, and the department has the right to sell, give, lease or otherwise dispose of the personalty, lands and tenements, or any interest in the personalty, land and tenements, as, to the best interests of the state and for the execution of the powers and duties vested, may to the department appear necessary or proper; provided, that all property acquired by the department shall be held by the department as trustees for the state of Tennessee, for only the purposes and uses necessary or proper to the execution of the powers and duties.
§ 68-9-109. Contracts.
- (a)
The department is empowered to enter into, execute and perform all contracts for services or property, or both, necessary or proper to the execution of the purposes of this chapter and, to this end, may enter into any contract with any county or municipality, or both, jointly, for the use, loan or purchase of any property, real or personal, belonging to the county or municipality, and suitable for the execution of the powers conferred in this chapter, and to make any arrangement for the care, treatment, observation and supervision of eligible patients, under this chapter that may appear proper to the commissioner.
- (b)
Any contract authorized in this chapter shall comply with all requirements of the law in executing the contract and shall be subject to the budgetary process of the general assembly.
§ 68-9-110. Hospital administrative personnel.
-
The commissioner shall employ a hospital administrator for each of the chest disease hospitals and other capable administrative personnel as are required for the efficient and effective administration of the hospital.
§ 68-9-111. Classification of expenditures — Hospitalization available to all.
- (a)
The expenditure of public funds for the control of tuberculosis and the isolation and treatment of persons ill with tuberculosis shall be considered as expenditures for the protection of the public health, and not as funds expended for welfare or relief.
- (b)
Hospitalization shall be available for the diagnosis and treatment of any person having or suspected of having tuberculosis.
§ 68-9-112. Bill collection — Free treatment.
- (a)
- (1)
The commissioner may make such rules and regulations as may be deemed necessary to collect all or any part of the established cost of treatment from a patient, or from the person or persons legally liable for the patient's support, who may have income or estate sufficient to make reimbursement without materially affecting their economic support or obligations, or responsibilities to dependents.
- (2)
All funds collected pursuant to subdivision (a)(1) are to be treated as expendable receipts and are to be used for the operation of the hospitals.
- (b)
- (1)
Any resident of Tennessee having or suspected of having tuberculosis, who is considered as acceptable for treatment by the commissioner, may be treated without cost when the person to receive care or treatment, or the person or persons legally responsible for the resident's support, is unable to pay, in whole or in part, the established cost of care and treatment.
- (2)
The department of human services may be requested to make field investigations.
- (c)
The department is empowered to enter into and execute contracts with other states or agencies for the reimbursement of the established cost for the care and treatment of persons who are acceptable for treatment by the commissioner.
§ 68-9-113. Fiscal policies authorized to qualify for federal and other aid.
-
The department, with the approval of the governor, has the power and is authorized to adopt such reasonable fiscal policies governing the use and allocation of funds appropriated under provisions of this chapter as may be necessary to enable the state to procure the maximum possible financial and other aid for tuberculosis control purposes from federal and other agencies.
§ 68-9-114. Federal aid.
-
The state of Tennessee accepts any and all legislation enacted by the congress of the United States, whether heretofore or hereafter enacted, providing financial aid to or cooperation with the several states in the eradication, prevention or treatment of tuberculosis.
§ 68-9-115. Attorney general and reporter — Duties.
-
It is the duty of the attorney general and reporter, upon the request of the department, to advise the department at all times of its legal rights, duties, powers and obligations, in matters concerning this chapter, to appear in any proceedings in the courts or otherwise, concerning the department and to do all things proper to carry out the duties in this chapter imposed upon the attorney general and reporter.
§ 68-9-116. East Tennessee Chest Disease Hospital not affected.
-
Nothing in this chapter shall be construed to affect the continued operation and function of the East Tennessee Chest Disease Hospital or to deny to patients in the area that it serves the opportunity to be admitted to and receive treatment in that hospital, as the availability of facilities and the patient load permit.
Part 2 Quarantine
§ 68-9-201. Report of diseased persons — Immunity from liability.
- (a)
If any attending physician or other person knows or has good reason to suspect that a person having tuberculosis is behaving so as to expose other persons to infection, or is about to so conduct themselves, the attending physician or other person shall notify the state, district, municipal or county health officer of the name and address of the diseased person and the essential facts in the case.
- (b)
State, district, municipal and county health officers involved in tuberculosis control and elimination shall notify appropriate health authorities of jurisdictions in the appropriate states, territories, and municipalities when an individual with confirmed or clinically diagnosed infectious tuberculosis or currently under treatment for tuberculosis disease relocates from Tennessee into another jurisdiction, such notification being subject to approval of the state health officer or such officer's designee. Notwithstanding any law to the contrary, the commissioner of health is authorized to notify the appropriate tuberculosis infection control staff of this or another state of an individual's tuberculosis infection for the sole purpose of containing a potential threat to the public health and welfare or to assure completion of proper treatment of the diseased person. All persons who receive notification of the infectious condition of an individual under this subsection (b) shall hold the information in the strictest confidence and shall not reveal the information to others. A person making disclosure by providing patient identifying information and medical information related to the patient's tuberculosis status is immune from liability for making this disclosure of information for the purpose of preventing the further spread of disease and assuring completion of proper treatment of the diseased person.
§ 68-9-202. Examination and quarantine of suspects.
-
The commissioner and all state, district, county or municipal health officers or their authorized deputies within their respective jurisdictions, are authorized, directed and empowered, when in their judgment it is necessary to protect the public health, to make or have examinations made by a duly licensed and practicing physician of this state to be selected by the health officer, of persons reasonably suspected because of known clinical or epidemiological evidence of having infectious tuberculosis, and to require persons found to have infectious tuberculosis to comply with all provisions of this chapter for protection of the public from exposure to tuberculosis, and also, when in the judgment of the commissioner or state, district, municipal or county health officers, it is necessary to protect the public health, the officers are directed and empowered to isolate or quarantine persons who, because of known clinical or epidemiological evidence, are suspected of having infectious tuberculosis; provided, that any person so suspected may have present at the time of examination a physician of the person's own choosing to participate in the examination.
§ 68-9-203. Quarantine conditions.
-
In establishing isolation or quarantine, the commissioner or state, district, municipal or county health officer having jurisdiction shall designate and define the length of time, site and any other conditions required of the person to be isolated or quarantined.
§ 68-9-204. Quarantine — Commencement — Termination — Standards.
- (a)
No one but the commissioner, a state, municipal, district or county health officer or such person's duly authorized representative shall establish and terminate isolation or quarantine of persons with infectious tuberculosis.
- (b)
Isolation or quarantine may be established when clinical signs of the disease are shown to be present with the aid of such laboratory examination for diagnosis as the health officer may deem necessary, or isolation or quarantine may be established when tuberculosis is shown to be present in a communicable stage.
- (c)
The release of a person from isolation or quarantine for tuberculosis shall be made when, in the judgment of the commissioner or the health officer, the disease is no longer communicable.
- (d)
It is the duty of the commissioner to set up such clinical and laboratory criteria as may be necessary for the guidance of health officers in the performance of their duties as outlined in this section.
§ 68-9-205. Detention facilities.
-
The department may establish and maintain one (1) or more detention facilities as the commissioner deems appropriate to sufficiently confine all persons who refuse to be examined, treated, isolated or quarantined as provided for by this part.
§ 68-9-206. Incarceration of suspect — Procedure — Appeal — Violation of quarantine.
- (a)
- (1)
Whenever, in the judgment of the commissioner or a state, municipal, district or county health officer, there is reasonable clinical or epidemiological evidence to suspect that any person or persons have infectious tuberculosis that may be communicable, and the person or persons refuse to be examined or comply as provided for in this chapter, the commissioner or health officer or such person's duly authorized deputy is authorized to go before a magistrate or a judge of a court of general sessions and swear out a warrant of arrest for the person or persons.
- (2)
However, the magistrate or judge is not bound to issue the warrant, unless and until there is a showing of reasonable cause on the basis of sound clinical and epidemiological evidence to believe the person has infectious tuberculosis.
- (3)
If reasonable cause is shown for the arrest and examination of the person or persons, the magistrate or judge shall direct that an examination be made of the person or persons to determine whether or not they are infectious.
- (4)
The examination shall be made by the health officer or by a duly licensed and practicing physician of this state to be selected by the health officer, and the accused person or persons may also have a physician of their own choosing present to participate in the examination.
- (5)
If the physicians are not in accordance as to their diagnosis, then the court shall reach its decision after a hearing.
- (6)
If after a full hearing the court is of the opinion that the person examined has infectious tuberculosis that may be communicable, the court may commit the person to the custody of the commissioner for detention as provided in § 68-9-205, the person to remain under treatment until the disease, in the opinion of the commissioner or health officer, is no longer communicable.
- (7)
No appeal or certiorari from the decision of the court committing the person to the place of isolation shall stay the commitment, nor shall any court have the power to supersede the order, but the person or persons shall immediately be placed in the detention facility, there to remain until released by the commissioner or the health officer as no longer communicable, or released by order of court.
- (8)
Any person committed under this chapter may appeal from the judgment of the magistrate or court of general sessions as now provided by law for civil cases.
- (9)
Whenever any person violates isolation or quarantine under this chapter by leaving quarantine or isolation except as provided in this chapter, the health officer in charge of the place of isolation or quarantine may invoke the aid of all processes of law and all state, county and municipal authorities to effect the return of the person to the quarantine or isolation.
- (b)
If a person, who is admitted either voluntarily or as the result of commitment by the processes authorized in this part, violates quarantine by leaving the place of quarantine designated by a health officer, or becomes unruly, boisterous, offensive or recalcitrant or violates in any manner the reasonable rules and regulations of the institution in which the person is quarantined, then the commissioner or health officer may go before the judge of the court of general sessions to ask the court to commit the person to the detention facility, as provided for in this section.
§ 68-9-207. Release for voluntary hospital treatment — Recommitment.
- (a)
If, at any time after being isolated or quarantined, any person so isolated or quarantined shall, in the opinion of the commissioner or health officer in charge of the place of isolation or quarantine, be a fit and proper person for release from the isolation or quarantine to become a voluntary patient in any hospital for the treatment of tuberculosis, then the commissioner or health officer is authorized and empowered to release the isolated or quarantined person for admission into such a hospital.
- (b)
If the isolated or quarantined person so released shall ever hereafter for any reason become a proper person against whom § 68-9-206 should be again invoked, the former release of the person from isolation or quarantine under this section shall not constitute a bar against again invoking § 68-9-206 or any other provisions of this chapter against the person, but the necessity for again invoking § 68-9-206 or any other provisions of this chapter shall be deemed and constitute a new and separate violation of this chapter.
Chapter 10 Sexually Transmitted Diseases
§ 68-10-101. Chapter definitions.
-
As used in this chapter, unless the context otherwise requires:
- (1)
“Commissioner” means the commissioner of health or the commissioner's designee; or in the absence of the commissioner, the deputy commissioner;
- (2)
“Department” means the department of health;
- (3)
“Forms” means the certificates that are authorized, prepared and distributed by the department to carry out this chapter;
- (4)
“Sexually transmitted disease (STD)” means any disease that is transmitted primarily through sexual practices and is identified in rules and regulations of the department; and
- (5)
“Test” means a test approved by the department to determine possible infection with STDs.
§ 68-10-103. Printed instructions given patients.
-
It is the duty of every physician or other person treating persons infected with a STD to give such persons printed instructions containing information deemed advisable by the department, such printed instructions to be furnished by the department.
§ 68-10-104. Officers to examine suspected persons and require treatment — Sources of infection to be investigated.
- (a)
- (1)
State, district, county and municipal health officers or their authorized deputies, within their respective jurisdictions, are directed and empowered, when, in their judgment, it is necessary to protect the public health, to make an examination of a person reasonably suspected because of known clinical or epidemiological evidence of being infected with a STD of a communicable nature, and to require such person when found infected to report for treatment to a reputable physician or clinic, and continue treatment until discharged by the physician or clinic as noninfectious, or in a stage of the disease in which an infectious relapse will not occur, or to submit to treatment provided at public expense until discharged as noninfectious, or in a stage of the disease in which an infectious relapse will not occur; and also, when in the judgment of the state, municipal or county health officer, it is necessary to protect the public health, to isolate and quarantine the person infected with a STD; provided, that any person so suspected may have present at the time of examination a physician of the person's own choosing to participate in the examination.
- (2)
Loitering about or residing in a house of assignation or prostitution or any other place where lewdness is practiced shall be construed as sufficient to suspect a person of being infected with a STD.
- (b)
It is the duty of all health officers to investigate sources of infection of STDs and to cooperate with the proper officers whose duty it is to enforce laws directed against prostitution, lewdness and assignation and the spread of STDs.
- (c)
The following healthcare officers and providers licensed in this state may examine, diagnose, and treat minors infected with STDs without the knowledge or consent of the parents of the minors, and shall incur no civil or criminal liability in connection with the examination, diagnosis, or treatment, except for negligence:
- (1)
Any state, district, county, or municipal health officer; or
- (2)
Any physician, nurse practitioner with a certificate of fitness and an appropriate supervising physician, nurse midwife who is an advanced practice registered nurse under § 63-7-126 and who has an appropriate supervising physician, or physician assistant with an appropriate supervising physician.
§ 68-10-105. Infected persons isolated or quarantined to specified area.
-
In establishing isolation or quarantine, the municipal or county health officer having jurisdiction shall designate and define the limits of the area within which the infected person is to be isolated or quarantined, and no person other than the attending physician or nurse shall enter or leave the area of isolation or quarantine without the permission of the health officer.
§ 68-10-106. Quarantine of infected persons.
- (a)
- (1)
No one but a state, municipal, district or county health officer or such officer's duly authorized representative shall establish and terminate quarantine of persons infected with STDs.
- (2)
A decision to establish or terminate quarantine shall be based upon the judgment of the state, municipal, district or county health officer or such officer's duly authorized representative, considering available medical and epidemiological information concerning the STD diagnosis, modes of transmission, available treatment, and the necessity of the protection of the public health.
- (b)
It is the duty of the commissioner to set up the clinical and laboratory criteria necessary for the guidance of health officers in the performance of their duties as outlined in this section.
§ 68-10-108. Places for detention of infected persons.
-
The county legislative bodies and the city officials, or other boards of the incorporated towns or cities, are empowered to provide suitable places for the detention of persons who may be subjected to isolation or quarantine and who should be segregated under this chapter. County legislative bodies and governing boards of incorporated cities and towns are authorized to incur, on behalf of their counties, cities and towns, the expenses necessary to the enforcement of this chapter.
§ 68-10-109. Rules and bylaws for control of sexually transmitted diseases.
- (a)
The department of health is empowered and directed to make such rules and bylaws for the control of STDs, not in conflict with this chapter, including the reporting of STDs and isolating and quarantining of infected persons, as it may from time to time deem advisable.
- (b)
All rules and bylaws made pursuant to subsection (a) shall be of force and binding upon the state, municipal and county health officers, and all other persons affected by the rules and regulations, and shall have the force and effect of law.
§ 68-10-110. Arrest and temporary commitment for treatment authorized — Hearing — Examination — Appeal.
- (a)
Whenever in the judgment of the municipal, county or district health officer, there is reasonable clinical or epidemiological evidence to suspect that any person or persons are infected with a STD as defined in this chapter, and the person or persons refuse to be examined as provided in § 68-10-104, the health officer or the health officer's authorized deputy may go before a magistrate or judge of a court of general sessions and swear out a warrant of arrest for the person or persons.
- (b)
The magistrate or judge is not bound to issue the warrant pursuant to subsection (a), unless and until there is a showing of reasonable cause on the basis of sound clinical and epidemiological evidence.
- (c)
If reasonable cause is shown for the arrest and examination of the person or persons, the magistrate or judge shall direct that an examination be made of the person or persons to determine whether or not they are infected.
- (d)
The examination shall be made by the health officer or by a duly licensed and practicing physician of this state, to be selected by the health officer. The accused person or persons may also have a physician of their own choosing present to participate in the examination.
- (e)
If the physicians are not in accordance as to their diagnosis, then the court shall reach its decision after a hearing.
- (f)
If, after a full hearing, the court is of the opinion that the person examined is infected with a STD as defined in this chapter, the court may commit the person to an isolation hospital maintained by the state or local government for the purpose of detaining and treating such persons, who shall remain under treatment until the disease, in the opinion of the health officer, is no longer communicable or no longer in a stage in which infectious relapse may occur.
- (g)
No appeal or certiorari from the decision of the court committing the person to the isolation hospital shall stay the commitment, nor shall any court have power to supersede such order, but the person or persons shall immediately be placed in the isolation hospital, there to remain until released by the health officer as no longer communicable or in a stage of the disease in which infectious relapse may occur, or released by order of the court.
- (h)
Any person committed under this chapter may appeal from the judgment of the magistrate or court of general sessions as now provided by law for civil cases.
§ 68-10-111. Violation of chapter — Penalty.
-
Any health officer or any other persons who fail to perform the duties required of them in this chapter, or violate any of the provisions of this chapter, or of any rule or bylaw promulgated under its authority, commit a Class C misdemeanor. Each violation is a separate offense.
§ 68-10-112. Reports of physicians and health officers.
- (a)
Every physician or other person who makes a diagnosis of, treats, or prescribes for a case of STD and every superintendent or manager of a clinic, hospital, laboratory or penal institution, in which there is a case of STD, shall report the case immediately to those persons or agencies designated as recipients of such reports by the commissioner.
- (b)
Reports shall be made on forms supplied by the department, stating the name, address, age, sex, race, stage of the disease and other information on the form as may be required for the location, treatment and control of infectious cases.
- (c)
Reporting of STDs, other than those designated as reportable in the regulations promulgated by the department, is not required.
§ 68-10-113. Confidentiality of records and information.
-
All records and information held by the department or a local health department relating to known or suspected cases of STDs shall be strictly confidential. This information shall not be released or made public upon subpoena, court order, discovery, search warrant or otherwise, except that release may be made under the following circumstances:
- (1)
Release is made of medical or epidemiological information for statistical purposes, in such form that no individual person can be identified;
- (2)
Release is made of medical or epidemiological information with the consent of all persons identified in the information released;
- (3)
Release is made of medical or epidemiological information to medical personnel, appropriate state agencies, or county and district courts to enforce this chapter and related regulations governing the control and treatment of STDs;
- (4)
Release is made of medical or epidemiological information to medical personnel in a medical emergency to the extent necessary to protect the health or life of the patient;
- (5)
In a case involving a minor not more than thirteen (13) years of age, only the name, age, address and STD treated shall be reported to appropriate agents as required by § 37-1-403. No other information shall be released. If the information to be disclosed is required in a court proceeding involving child abuse, the information shall be disclosed in camera; or
- (6)
- (A)
Release is made during a legal proceeding when ordered by a trial court judge, designated by § 16-2-502, or a juvenile court judge through an order explicitly finding each of the following:
- (i)
The information sought is material, relevant, and reasonably calculated to be admissible evidence during the legal proceeding;
- (ii)
The probative value of the evidence outweighs the individual's and the public's interest in maintaining its confidentiality;
- (iii)
The merits of the litigation cannot be fairly resolved without the disclosure; and
- (iv)
The evidence is necessary to avoid substantial injustice to the party seeking it and, either the disclosure will result in no significant harm to the person examined or treated, or it would be substantially unfair as between the requesting party and the person examined or treated not to require the disclosure.
- (B)
A juvenile court judge shall make the findings set forth in subdivision (6)(A) by examining the information, in camera, and shall order the information placed under seal. The judge shall only examine the records of a juvenile who is under the jurisdiction of the court.
§ 68-10-114. Knowledge of governmental persons regarding records.
-
Except as provided in § 68-10-113, no state or local department officer or employee shall be examined in a civil, criminal, special or other proceeding as to the existence or contents of pertinent records of a person examined or treated for a STD by a state or local health department, or of the existence or contents of such reports received from a private physician or private health facility.
§ 68-10-116. Exposure of officers, emergency personnel or employees of Tennessee bureau of investigation's crime laboratories to hepatitis or HIV virus — Testing of blood or body fluids.
- (a)
- (1)
If, during the course of arresting, transporting, or processing a person charged with the commission of a criminal offense, a law enforcement officer is exposed to the blood or other body fluid of the arrested person in any manner that presents a significant risk of transmission of the hepatitis virus or the HIV/AIDS virus, then the exposed officer may request that the arrested person's blood be tested for the presence of the hepatitis virus and the HIV/AIDS virus, and such test shall be administered if requested.
- (2)
If, during the course of receiving, analyzing, or transporting the blood or other body fluid of any person who has been arrested and charged with a criminal offense, an employee of any of the Tennessee bureau of investigation's crime laboratories is exposed to the blood or body fluid in any manner that presents a significant risk of transmission of the hepatitis virus or the HIV/AIDS virus, then the exposed employee may request that the arrested person's blood be tested for the presence of the hepatitis virus and the HIV/AIDS virus, and such test shall be administered if requested.
- (3)
If, while acting in the scope of duty, a firefighter, emergency medical technician-paramedic, or emergency medical technician is exposed to the blood or other body fluid of an arrested person in any manner that presents a significant risk of transmission of the hepatitis virus or the HIV/AIDS virus, then the exposed individual may request that the arrested person's blood be tested for the presence of the hepatitis virus and the HIV/AIDS virus, and such test shall be administered if requested.
- (b)
Testing shall occur at a licensed health care facility, with the cost to be paid by the state, county, or municipal subdivision that employs the law enforcement officer, fire fighter, emergency medical technician-paramedic, emergency medical technician, or employee of the crime laboratory of the Tennessee bureau of investigation. Any person who, acting at the written request of a law enforcement officer, fire fighter, emergency medical technician-paramedic, emergency medical technician, or employee of the crime laboratory of the Tennessee bureau of investigation, withdraws blood from a person for the purpose of making the test, shall not incur any civil or criminal liability as a result of the withdrawing of the blood, except for any damages that may result from the negligence of the person withdrawing the blood. Neither shall the hospital or licensed health care facility incur, except for negligence, any civil or criminal liability as a result of the act of withdrawing blood from any person. The results of the testing shall be confidential; provided, that the law enforcement officer, fire fighter, emergency medical technician-paramedic, emergency medical technician, or employee of the crime laboratory of the Tennessee bureau of investigation, exposed to the blood or other body fluid shall have the right to request the results of the testing and the person providing the test results shall be immune from liability in the same manner as is provided in § 68-10-115.
- (c)
As used in this section, “law enforcement officer” includes an employee of any of the Tennessee bureau of investigation's crime laboratories, firefighter, emergency medical technician-paramedic, or emergency medical technician; provided, however, that nothing in this section shall grant any law enforcement authority to a person who does not otherwise have the authority.
§ 68-10-117. Possible exposure of emergency workers to airborne or bloodborne diseases — Testing.
- (a)
If, in the course of performing normal, authorized professional job duties, or rendering emergency care as a good samaritan under the Good Samaritan Law, codified in § 63-6-218, a member of one of the categories of individuals listed in subsection (d) reasonably believes that the member may have been exposed to potentially life-threatening airborne or bloodborne diseases, including, but not limited to, tuberculosis, HIV or hepatitis B, the person has the right to request, in writing, that the individual who may have exposed the person be evaluated to determine the presence of such disease or diseases. The request shall be made to the designated exposure control officer of the responding agency or county medical examiner, who shall conduct the evaluation pursuant to the rules provided for in subsection (c).
- (b)
Any evaluation pursuant to subsection (a) shall include all medical records held by the department of health, any health care provider, or health care facility pertaining to the individual who is the subject of the evaluation. Any information provided shall be made available in accordance with the rules provided for in subsection (c) and shall be used only for the purpose of performing the evaluation and shall be otherwise confidential. Any cost related to the evaluation shall be paid by the responding agency.
- (c)
Any evaluation provided for in subsection (a) shall be conducted pursuant to emergency rules promulgated by the commissioner of health consistent with federal regulations for such determination of exposure experienced by emergency response workers. Any agency, individual, or facility providing any assistance or information necessary for completing the evaluation shall not incur any civil or criminal liability as a result of providing assistance or information consistent with the rules promulgated pursuant to this subsection (c).
- (d)
The categories of individuals who may request evaluations are paramedics, emergency response employees, fire fighters, first response workers, emergency medical technicians, and volunteers making an authorized emergency response. The evaluations may also be requested by any person rendering services as a good samaritan under the Good Samaritan Law.
§ 68-10-118. AIDS Centers of Excellence established — Committee membership — Terms — Compensation and reimbursement.
- (a)
Subject to annual appropriations made available to the state by the United States public health service through Part B (Title II) of the Ryan White CARE Act (42 U.S.C. § 300ff-21 et seq.), the commissioner of health shall establish an AIDS Center of Excellence advisory committee to advise the department of health in the designation of AIDS Centers of Excellence, provide quality assurance monitoring for the centers, and the establishment and review of policies for continuation of the AIDS Centers of Excellence. If, in any fiscal year, federal funding for the committee is eliminated or reduced, then the committee shall cease to exist in accordance with title 4, chapter 29.
- (b)
The committee shall be appointed by the commissioner of health, and shall be composed of the commissioner of health or the commissioner's designee, who shall serve as chair; the director of communicable and environmental disease services within the Tennessee department of health; three (3) physicians licensed in the state of Tennessee, each representing a grand division of the state and actively involved in the delivery of HIV/AIDS care; an attorney licensed in the state of Tennessee; a nurse licensed in the state of Tennessee and actively involved in the delivery of HIV/AIDS care; a social worker licensed in the state of Tennessee and actively involved in the delivery of HIV/AIDS care; and two (2) at-large members currently living with HIV/AIDS.
- (c)
The members' appointments shall be staggered as follows: four (4) members to be appointed for a term of three (3) years; two (2) members for a term of four (4) years; and the remaining members for a term of two (2) years. Any member appointed to fill a vacancy for an unexpired term shall serve the remainder of that term.
- (d)
The committee shall meet as frequently as the commissioner deems necessary, but not less than once each year. The committee members shall receive no compensation but will be reimbursed for travel expenses incurred in carrying out their duties as members of this committee. All reimbursements 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.
Chapter 11 Health Facilities and Resources
Part 3 Medical Records Act of 1974
§ 68-11-302. Part definitions.
-
As used in this part, unless the context otherwise requires:
- (1)
“Board” means the board for licensing health care facilities, as established in § 68-11-203;
- (2)
“Business records” means all those books, ledgers, records, papers and other documents prepared, kept, made or received at hospitals that pertain to the organization, administration or management of the business and affairs of hospitals, but that do not constitute hospital records as defined in subdivision (5);
- (3)
“Department” means the department of health;
- (4)
“Hospital” means any institution, place, building or agency that has been licensed by the board, as defined in § 68-11-201, or any clinic operated under the authority of a local or regional health department established under chapter 2, parts 6 and 7, of this title;
- (5)
- (A)
“Hospital records” means those medical histories, records, reports, summaries, diagnoses, prognoses, records of treatment and medication ordered and given, entries, X-rays, radiology interpretations, and other written, electronic, or graphic data prepared, kept, made or maintained in hospitals that pertain to hospital confinements or hospital services rendered to patients admitted to hospitals or receiving emergency room or outpatient care;
- (B)
“Hospital records” also includes reductions of the original records upon photographic film of convenient size as provided in § 68-11-306;
- (C)
“Hospital records” do not, however, include ordinary business records pertaining to patients' accounts or the administration of the institution;
- (6)
- (A)
“Patient” includes, but is not limited to, outpatients, inpatients, persons dead on arrival, persons receiving emergency room care, and the newborn;
- (B)
For the purposes of this part, an unborn fetus shall not be considered a patient, whether the result of miscarriage or abortion; and
- (7)
“Retirement” means the withdrawal from current files of hospital records, business records, or parts thereof on or after the expiration of the applicable period of retention established pursuant to § 68-11-305.
§ 68-11-303. Hospital's duty to keep records.
- (a)
All hospitals, their officers or employees, and medical and nursing personnel practicing in the hospitals, shall with reasonable promptness prepare, make and maintain true and accurate hospital records, including records pertaining to abortions as provided in § 39-15-203, complying with the methods, minimum standards, and contents thereof as may be prescribed by rules and regulations adopted by the board.
- (b)
The responsibility for supervision, filing and indexing of medical records shall be delegated to a responsible employee of the hospital.
§ 68-11-304. Records property of hospitals — Access — Not public records — Funding for medical record requests — Access during time of public health threat.
- (a)
- (1)
Hospital records are and shall remain the property of the various hospitals, subject, however, to court order to produce the records. Unless restricted by state or federal law or regulation, a hospital shall furnish to a patient or a patient's authorized representative such part or parts of the patient's hospital records without unreasonable delay upon request in writing by the patient or the representative.
- (2)
- (A)
- (i)
The party requesting the patient's records shall be responsible for the reasonable costs of copying and mailing the patient's records.
- (ii)
The charges to a patient or a lawyer authorized by the patient to review the patient's records shall not exceed the reasonable costs for copying and the actual costs of mailing the records. The reasonable costs shall not include any costs involved with the maintenance and storage of the records, nor shall it include any costs that may be from or associated with providing the records to any party other than a patient or a lawyer authorized by the patient to review the patient's records.
- (iii)
- (a)
The following charges shall be presumed to be reasonable:
- (1)
A fee of eighteen dollars ($18.00), which shall include the first five (5) pages of the medical record and a per page charge of eighty-five cents (85¢) a page for the sixth page, up to and including the fiftieth page;
- (2)
Sixty cents (60¢) a page for the fifty-first page up to the two hundred fiftieth page and thirty-five cents (35¢) a page for all pages thereafter;
- (3)
A fee for certifying medical records, not to exceed twenty dollars ($20.00) for each record certified.
- (b)
The costs charged for reproducing records of patients involved in a workers' compensation claim shall be as defined in § 50-6-204.
- (iv)
In workers' compensation cases, a request for medical records shall include a medical or anatomical impairment rating, if such record is available. Requests for such records shall be subject to the limits on charges established by this section. Special additional or separate charges for including impairment ratings are not permitted.
- (B)
- (i)
Notwithstanding subdivision (a)(2)(A), a hospital may not impose a charge on an indigent person for furnishing the person, or the person's attorney or authorized representative, with a health record or part thereof concerning the patient for the purpose of supporting a claim or appeal under any provision of the Social Security Act (42 U.S.C. § 301 et seq.), if a request for the record or part thereof is accompanied by a copy of a recent application seeking benefits under the Social Security Act or a copy of a recent decision denying benefits. Patients being represented by organizations whose purpose is to provide legal assistance to the indigent, or represented by attorneys with an affiliated pro bono program, shall be presumed indigent. A hospital may demand reasonable proof of indigency from any other patient not so represented, or the patient's attorney or authorized representative, by submission of the following form:
- (ii)
If a copy of the patient's medical records has been previously provided without charge to an indigent patient or the patient's attorney or authorized representative, the hospital is not required to provide an additional copy of the same records without charge. A hospital shall furnish a health record requested pursuant to this section within thirty (30) days of the request.
- (3)
Nothing in this section shall be construed as superseding any law that establishes specific costs for the reproduction, copying or mailing of records.
- (4)
Payment of costs may be required by the hospital prior to the records being furnished.
- (5)
Nothing in this section shall be construed as prohibiting a hospital from charging the actual costs of postage, in addition to charges otherwise permitted by this section.
- (b)
Hospital records shall be made available when requested for inspection by a duly authorized representative of the board or department.
- (c)
Except as otherwise provided by law, hospital records shall not constitute public records, and nothing contained in this part shall be deemed to impair any privilege of confidentiality conferred by law on patients, their personal representatives or heirs.
- (d)
Prior to January 1, 2000, the department of human services shall request from the social security administration increased funding relative to medical records requested by the department to determine eligibility of persons for social security disability benefits, so that the reimbursement rates paid for such records shall be consistent with the rates permitted under subdivision (a)(2)(A)(iii).
- (e)
Providers, as defined in § 71-5-2503, shall make available for inspection and copying, to the office of inspector general and the medicaid fraud control unit, upon request, no later than by the close of business on the next business day, a complete set of all medical records requested in connection with an investigation being pursued by the agency, or shall provide a compelling reason why the requested records cannot be produced; provided, that no such records shall be removed from the grounds of the provider's office without the provider's consent, unless the office of inspector general or the medicaid fraud control unit reasonably believes that requested documents are about to be altered or destroyed.
- (f)
On request of a provider, a duly authorized agent of the requesting agency shall sign a document acknowledging receipt of records produced pursuant to this section. On request of a duly authorized agent of the requesting agency, a duly authorized agent of the provider shall sign a document acknowledging the return of specific records to the provider.
- (g)
No person or entity shall be subject to any civil or criminal liability for releasing patient information in response to a request from the office of inspector general or the medicaid fraud control unit.
- (h)
Pursuant to § 68-1-104, the commissioner or the commissioner's designee, upon request, shall obtain access to records maintained by any facility, entity, or individual licensed under title 63. Access shall be given in the most efficient and expedient means possible, including remote electronic access, to facilitate investigations and inquiries while responding to an immediate threat to the public health, welfare, or general good. Electronic access shall be limited to the minimum necessary for the duration of the outbreak, event, or time in which the public health is under immediate threat as determined by the commissioner.
§ 68-11-305. Preservation of records for specified time — Method of destruction.
- (a)
- (1)
Unless specified otherwise by the board, a hospital shall retain and preserve records that relate directly to the care and treatment of a patient for a period of ten (10) years following the discharge of the patient or such patient's death during such patient's period of treatment within the hospital.
- (2)
In cases of patients under mental disability or minority, their complete hospital records shall be retained for the period of minority or known mental disability, plus one (1) year, or ten (10) years following the discharge of the patient, whichever is longer.
- (b)
An X-ray film may be retired four (4) years after the date of exposure; provided, that the written findings or interpretations of a radiologist who has read the X-ray film signed by the radiologist shall be retained for the same period as other hospital records under subsection (a).
- (c)
Notwithstanding any law or rule to the contrary, mammography records shall be retained for the same period as other hospital records under subsection (a).
- (d)
- (1)
Upon retirement of the record as provided in subsection (a), the record or any part of the retired record shall be destroyed by burning, shredding or other effective method in keeping with the confidential nature of its contents.
- (2)
Destruction of records must be made in the ordinary course of business and no record shall be destroyed on an individual basis.
§ 68-11-306. Abstract prepared where required — Photographic reproductions — Reproduction considered original record.
- (a)
Before the hospital record is destroyed, the hospital shall cause an abstract to be made of any pertinent data, where so required by the rules and regulations of the board, or as the hospital in its discretion may find proper.
- (b)
- (1)
Any hospital may transfer and record upon photographic film of convenient size, such as microfilm, photograph or photostat, or upon nonerasable optical and electronic imaging technology, for the preservation thereof as evidence, pursuant to [former] § 24-7-110 [repealed], for the purposes of medical research and professional education, or administrative convenience, any or all of the original files and records of the hospital, dealing with case history, physical examination and daily hospital records of the individual patients thereof, including any miscellaneous documents, papers and correspondence in connection therewith.
- (2)
The original documents so reproduced may be destroyed pursuant to the procedures set forth in § 68-11-305(c), and any such reproduction or copy of an original hospital record or part of an original hospital record shall be deemed to be the original hospital record or part of an original hospital record for all purposes, subject to retention and retirement as provided in § 68-11-305 and subsection (a).
§ 68-11-307. Continued storage of records.
-
Any hospital may retain, preserve and store hospital records, either in the original or reproduced form, for such longer periods as in its discretion it may find proper, or as may be required by any court of competent jurisdiction.
§ 68-11-308. Records of closed hospitals retained.
- (a)
If any hospital is finally closed, its hospital records shall be delivered and turned over, in good order and properly indexed for convenient reference, to the department, which shall store, retain, retire and provide access to the information in the same manner as is provided for by hospitals.
- (b)
In its discretion, the department may also exercise like authority, and to the same effect, with respect to reproduction of such hospital records as is conferred in § 68-11-306.
§ 68-11-309. Retirement of hospital business records.
- (a)
Except as otherwise provided by law, order or decree of any court of competent jurisdiction, or applicable rules and regulations, any hospital may retire any business records at such times as in its judgment may conform to sound business practices and the reasonable accommodation of other interested parties.
- (b)
Any hospital may, in its discretion, and at any time, cause any part of its business records to be reproduced as provided in § 68-11-306(b) for hospital records; however, this shall not be construed to permit the destruction, retirement or earlier retirement of any business record that is otherwise prohibited by law.
§ 68-11-310. Report of hospital statistics.
- (a)
- (1)
All hospitals licensed by the health facilities commission or by the department of mental health and substance abuse services shall, within one hundred fifty (150) days after the end of each individual hospital's fiscal year, submit to the department of health a joint annual report of the statistical particulars relative to their patients for the fiscal year.
- (2)
If a hospital closes during the fiscal year, the owner of the hospital at the beginning of the fiscal year shall file a joint annual report with the department of health for the period of time that the hospital was owned or operated. The joint annual report shall be submitted within one hundred five (105) days after closure. If a hospital changes ownership during the fiscal year, the owner of the hospital at the beginning of the fiscal year shall either:
- (A)
File a joint annual report with the department of health within one hundred five (105) days of the sale for the period of time that the hospital was owned or operated; or
- (B)
Provide a notarized statement to the department of health within one hundred five (105) days of the sale indicating that the required data for the period of time that the hospital was owned or operated has been provided to the purchaser who shall submit a report for the full year.
- (3)
If the department of health determines that there are errors in the joint annual report, the hospital shall be notified of the errors and shall be required to provide corrections to the department of health within fifteen (15) business days of notification.
- (4)
All hospitals that submit a joint annual report to the department of health as designated in this section shall also submit to the department, at the same time they send the signed paper copy of the report, a notarized statement from their chief financial officer stating that the financial data reported on the joint annual report is consistent with the audited financials for the hospitals for that reporting year. The notarized statement shall also be attested to by the chief executive officer of the hospital.
- (b)
The commissioner shall determine, through the promulgation of rules and regulations, the contents of the report, but may request early completion of the report, portions of the report or special reports when requested to do so by the office of the comptroller or at other times, but only after consultation with the Tennessee Hospital Association. In no event shall the department of health authorize the reporting of a hospital's statistics for less than a full twelve-month period, unless the hospital was not open during the entire twelve-month period. Any hospital that is open for less than the full twelve-month period shall report for the entire period of its operation.
- (c)
- (1)
Hospitals that fail to file their joint annual report in a timely manner, as referenced in § 68-1-109, or that file a joint annual report that does not include all of the required data elements or includes data that does not pass the department's editing, shall receive a deficiency from the department. Within fifteen (15) business days from receipt of the deficiency, the hospital shall be required to return a plan of correction indicating:
- (A)
How the deficiency will be corrected;
- (B)
The date upon which each deficiency will be corrected;
- (C)
What measures or systemic changes will be put in place to ensure that the deficient practice does not recur; and
- (D)
How the corrective action will be monitored to ensure that the deficient practice does not recur.
- (2)
Either failure to submit a plan of correction in a timely manner or a finding by the department that the plan of correction is unacceptable shall subject the hospital's license to possible disciplinary action.
- (d)
The department of health shall compile, finalize and make available to the public an electronic compilation of the statistics reported by the hospitals for the fiscal years ending during a calendar year by November 30 of the following year.
§ 68-11-311. Violations — Civil liability.
- (a)
A willful violation of this part is a Class C misdemeanor.
- (b)
No hospital, its officers, employees, or medical and nursing personnel practicing in the hospital, shall be civilly liable for violation of this part, except to the extent of liability for actual damages in a civil action for willful or reckless or wanton acts or omissions constituting such violation. Such liability shall be subject, however, to any immunities or limitations of liability or damages provided by law.
§ 68-11-312. Communication between health care providers and their patients.
- (a)
It is the public policy of the state of Tennessee to promote effective communications between health care providers while rendering care to their patients.
- (b)
- (1)
There is no implied covenant of confidentiality or other restriction that precludes:
- (A)
Health care providers from communicating with each other in the course of providing care and treatment to a patient; or
- (B)
A health care provider from responding to a request from a hospital regarding entries in the patient's records of the requesting hospital made or reviewed by that health care provider during the course of providing care and treatment to the patient in the hospital.
- (2)
Notwithstanding subdivision (b)(1), any information received from a health care provider that corrects or modifies a patient's hospital record shall be made a part of the patient's hospital record with a notation as to the date the information was supplied and the name or names of the person or persons supplying the information.
- (c)
This section shall not be construed to authorize any disclosure of information that would be prohibited pursuant to the federal Health Insurance Portability and Accountability Act of 1996 (HIPAA) (42 U.S.C. § 1320d et seq.).
§ 68-11-313. Authentication of verbal orders.
- (a)
- (1)
A hospital licensed pursuant to this chapter shall require that all verbal orders be authenticated by a physician or authorized individual who has the authority to issue verbal orders in accordance with hospital policies or medical staff bylaws.
- (2)
The policies or bylaws shall require that: authentication of a verbal order occurs within forty-eight (48) hours after the time the order is made unless a read-back and verify process pursuant to subdivision (a)(3) is used. The individual receiving a verbal order shall record the date and time of the verbal order, and sign the verbal order in accordance with hospital policies or medical staff bylaws.
- (3)
A hospital policy may provide for a read-back and verify process for verbal orders. A read-back and verify process shall require that the individual receiving the order immediately read back the order to the physician or authorized individual, who shall immediately verify that the read-back order is correct. The individual receiving the verbal order shall record that the order was read back and verified. If the read-back and verify process is followed, the verbal order shall be authenticated no later than fourteen (14) days after the date of the verbal order.
- (b)
Nothing in this subsection (b) shall be interpreted to encourage the more frequent use of verbal orders by the medical staff of a hospital.
- (c)
Hospital policies or medical staff bylaws may establish a variety of modalities for communicating verbal orders and a read-back and verify process including, but not limited to, oral or electronic means so long as subdivisions (a)(2) and (3) are met.
- (d)
For the purposes of this section, telephone orders are considered verbal orders.
§ 68-11-314. Obtaining records to facilitate investigations regarding opiate drug abuse, overdoses, and deaths.
- (a)
Pursuant to § 68-1-104, the commissioner of health or the commissioner's designee may obtain records maintained by any facility licensed under this title to facilitate investigations and inquiries concerning opioid drug abuse, opioid drug overdoses, and opioid overdose deaths. Such facilities shall provide records in the most efficient and expedient means possible. To determine these means, the department shall:
- (1)
Consult with stakeholders to develop data reporting elements and a short term mechanism for near real-time electronic access to these data elements by July 1, 2016;
- (2)
Implement the short-term reporting system by October 1, 2016; and
- (3)
Consult with stakeholders to develop a long-term electronic real-time data reporting plan utilizing electronic processes for opioid drug abuse, overdoses, and overdose deaths by January 1, 2017.
- (b)
Electronic access and reporting shall be limited to the minimum necessary to facilitate the commissioner's investigation or inquiry and may be communicated to licensed clinicians involved in the patient's care or their authorized representatives.
Part 4 Hospital Records as Evidence
§ 68-11-401. Part definitions.
-
As used in this part, unless the context otherwise requires:
- (1)
“Custodian” means and includes the medical record practitioner and the administrator or other chief officer of a duly licensed hospital in this state and its proprietor, the appropriately designated person of a community mental health center, as well as their deputies and assistants, and any other persons who are official custodians or depositories of records; and
- (2)
- (A)
“Records” means and includes “hospital records” as defined in § 68-11-302; however, a subpoena duces tecum for records shall not be deemed to include X-rays, electrocardiograms and like graphic matter, unless specifically referred to in the subpoena.
- (B)
For the purposes of this part, “records” includes those records identified in § 68-11-302(5) maintained by a community mental health center for the purposes intended in such section, and the terms “hospital confinement,” “hospital services,” or “hospitals” as contained in such section shall, for the purposes of this part only, include a community mental health center.
§ 68-11-402. Furnishing copies of records in compliance with subpoenas.
- (a)
Except as otherwise provided, when a subpoena duces tecum is served upon a custodian of records of any community mental health center or hospital duly licensed under the laws of this state in an action or proceeding in which the hospital is neither a party nor the place where any cause of action is alleged to have arisen, and the subpoena requires the production of all or any part of the records of the hospital or community mental health center relating to the care or treatment of a patient in the hospital or community mental health center, it shall be sufficient compliance with the subpoena if the custodian or other officer of the hospital or community mental health center within five (5) days after being served with a subpoena duces tecum, shall, either by personal delivery or certified or registered mail, file with the court clerk or the officer, body or tribunal conducting the hearing, a true and correct copy, which may be a copy reproduced on film or other reproducing material by microfilming, photographing, photostating or other approximate process, or a facsimile, exemplification or copy of such reproduction or copy, of all records described in the subpoena.
- (b)
Any party intending to use this section shall furnish the adverse party or the adverse party's attorney a copy of the subpoena duces tecum not less than ten (10) days prior to the date set for the trial of the matter for which the records may be introduced.
§ 68-11-403. Sealing, identification and direction of copies.
-
The copy of the records shall be separately enclosed in an inner envelope or wrapper, sealed, with the title and number of the action, name of witness and date of subpoena clearly inscribed on the envelope or wrapper. The sealed envelope or wrapper shall then be enclosed in an outer envelope or wrapper, sealed and directed as follows:
- (1)
If the subpoena directs attendance in court, to the clerk of such court or to the judge thereof;
- (2)
If the subpoena directs attendance at a deposition, to the officer before whom the deposition is to be taken, at the place designated in the subpoena for the taking of the deposition or at such officer's place of business; and
- (3)
In other cases, to the officer, body or tribunal conducting the hearing, at a like address.
§ 68-11-404. Opening of sealed envelopes.
- (a)
- (1)
Unless the sealed envelope or wrapper is returned to a witness who is to appear personally, the copy of records shall remain sealed and shall be opened only at the time of trial, deposition or other hearing, upon the direction of the judge, court, officer, body or tribunal conducting the proceeding, in the presence of all parties who have appeared in person or by counsel at such trial, deposition or hearing. Before directing that such inner envelope or wrapper be opened, the judge, court, officer, body or tribunal shall first ascertain that either:
- (A)
The records have been subpoenaed at the instance of the patient involved or such patient's counsel of record;
- (B)
The patient involved or someone authorized in such patient's behalf to do so for such patient has consented thereto and waived any privilege of confidentiality involved; or
- (C)
The records have been subpoenaed in a criminal proceeding.
- (2)
Records that are not introduced in evidence or required as part of the record shall be returned to the person or entity from whom received.
- (b)
- (1)
Upon receipt of a subpoena, the custodian shall send the records to the attorney responsible for the issuance of the subpoena at the place, and on or before the date designated in the subpoena, if such subpoena:
- (A)
States conspicuously on its face that the records are required in a tort action or proceeding in which the plaintiff has raised the issue of the plaintiff's physical or emotional condition; and
- (B)
Directs the custodian's attendance at a deposition.
- (2)
The attorney responsible for the issuance of the subpoena need not meet the requirements of subsection (a) before opening the sealed records, if the attorney furnishes a copy of the records to the plaintiff or someone authorized on the plaintiff's behalf to receive them.
§ 68-11-405. Affidavit of custodian as to copies — Costs.
- (a)
The records shall be accompanied by an affidavit of a custodian stating in substance:
- (1)
That the affiant is duly authorized custodian of the records and has authority to certify the records;
- (2)
That the copy is a true copy of all the records described in the subpoena;
- (3)
That the records were prepared by the personnel of the hospital or community mental health center, staff physicians, or persons acting under the control of either, in the ordinary course of hospital or community mental health center business at or near the time of the act, condition or event reported in the records; and
- (4)
Certifying the amount of the reasonable charges of the hospital or community mental health center for furnishing such copies of the record.
- (b)
If the hospital or community mental health center has none of the records described, or only part of the records, the custodian shall so state in the affidavit and file the affidavit and such records as are available in the manner described in §§ 68-11-402 and 68-11-403.
- (c)
The filing of such affidavit with respect to reasonable charges shall be sufficient proof of such expense, which shall be taxed as costs of court.
§ 68-11-406. Admissibility of copies and affidavits.
- (a)
The copy of the record shall be admissible in evidence to the same extent as though the original of the record were offered and the custodian had been present and testified to the matters stated in the affidavit.
- (b)
- (1)
The affidavit shall be admissible in evidence and the matters stated in the affidavit shall be presumed true in the absence of a preponderance of evidence to the contrary.
- (2)
When more than one (1) person has knowledge of the facts, more than one (1) affidavit may be made.
§ 68-11-407. Personal attendance of custodian — Production of original record.
- (a)
Where the personal attendance of the custodian is required, the subpoena duces tecum shall contain a clause which reads:
-
“The procedure authorized pursuant to § 68-11-402 will not be deemed sufficient compliance with this subpoena.”
- (b)
Where both the personal attendance of the custodian and the production of the original record are required, the subpoena duces tecum shall contain a clause that reads:
-
“Original records are required, and the procedure authorized pursuant to § 68-11-402 will not be deemed sufficient compliance with this subpoena.”
- (c)
Where the personal attendance of the custodian is required, the reasonable cost of producing the records shall be taxed as costs of court.
§ 68-11-408. Substitution of copies for original records.
- (a)
In view of the property right of the hospital or community mental health center in its records, original records may be withdrawn after introduction into evidence and copies substituted, unless otherwise directed for good cause by the court, judge, officer, body or tribunal conducting the hearing.
- (b)
The custodian may prepare copies of original records in advance of testifying for the purpose of making substitution of the original record, and the reasonable charges for making such copies shall be taxed as costs of court.
- (c)
If copies are not prepared in advance, they can be made and substituted at any time after introduction of the original record, and the reasonable charges for making such copies shall be taxed as costs of court.
Part 5 Contributions and Public Aid to Hospitals
§ 68-11-501. Cities or counties guaranteeing maintenance of hospital erected and equipped by others.
- (a)
Any municipality through its mayor and governing board is authorized to enter into contracts and guarantee the payment, and to make payment of the expense of maintaining a hospital for a period of five (5) years; provided, that any person will agree to defray the expense of building and equipping the hospital within the limits of the city for its use.
- (b)
Any county is empowered through its county legislative body at its regular meeting to enter into contracts and guarantee, and to make payment of, the expense of maintaining a hospital for a period not exceeding five (5) years; provided, that any person will agree to defray the expense of building and equipping such hospital within the county for its use.
§ 68-11-502. Interlocal agreements for apportionment of expense.
-
Municipalities and counties are empowered severally and jointly to enter into the contracts provided for in § 68-11-501. The municipalities and counties and those persons maintaining hospitals are authorized mutually to agree as to the amount of the expenses of the operation and upkeep of the hospital to be paid by the municipality and the county, and to apportion the expenses of operation and upkeep between the municipality and the county, the agreement to be made by the legislative bodies of the municipality and the county.
§ 68-11-503. Contracts to build and equip hospital — Acceptance.
- (a)
- (1)
The contract provided for by §§ 68-11-501 and 68-11-502, when made by the county legislative body of any county, shall be embodied in a resolution and shall set forth in full the proposition made by any person offering to build and equip the hospital.
- (2)
The resolution shall be adopted by the majority vote of the members of the county legislative body at a regular meeting of the legislative body.
- (b)
The legislative body of any municipality shall adopt an ordinance embodying the contract with any person offering to build such hospital and the ordinance shall be duly passed, signed and attested as other ordinances made by the municipality.
- (c)
The contract so made by either a municipality or county, whether separately or jointly, shall be entered upon the minutes of the respective legislative bodies.
§ 68-11-504. Contributions to public welfare hospitals by counties or incorporated municipalities.
-
Any county or incorporated municipality of this state is empowered and authorized to make contributions of property or money from the public funds of the county or municipality, or of both, to any general welfare corporation established under the laws of this state, and engaged in acquiring, erecting, building, constructing, improving, maintaining, operating, expanding, enlarging or repairing any hospital of this state that serves the citizens and residents of the county or municipality, without regard to race, creed or color, and that is not operated for private profit, without regard to whether the hospital is located within or without the territorial limits of the county or municipality.
§ 68-11-506. Manner of making contributions.
- (a)
In making any contribution pursuant to this part, the county legislative body shall act by resolution making an appropriation where the contribution is from the funds of the county, or directing the execution of a bill of sale or deed by appropriate county officers in the name of the county whenever the contribution is one of real or personal property.
- (b)
Any contribution made by a municipality shall be by ordinance or resolution adopted as required by the charter of the municipality, and providing either an appropriation or for the transfer of real or personal property.
Part 6 Medical Arts Building Act of 1974
§ 68-11-602. Part definitions.
-
As used in this part, unless the context otherwise requires:
- (1)
“County or municipality” includes any county or incorporated city or town of this state;
- (2)
“Equipment” includes, but is not limited to, X-ray machines, dental chairs, dental drills, autoclaves, refractometers, examining tables, dialysis equipment and all other equipment and instruments used and useful in the practice of medicine and dentistry;
- (3)
“Governing body” includes the body or board by whatever name it may be known, charged with the governing of a municipality;
- (4)
“Medical arts building” means any building or buildings, including the site of the building or buildings, providing space suitable for the use of physicians or dentists, or both, as office space, emergency treatment rooms, laboratories, examining rooms, therapy rooms or other uses in connection with the practice of medicine or dentistry and the provision of health care, but does not include hospital facilities or overnight or extended care facilities; and
- (5)
“Professional corporation” or “professional partnership” means a corporation or partnership formed pursuant to Tennessee law by a person or persons licensed to practice medicine or dentistry in this state.
§ 68-11-603. Purpose — Construction.
- (a)
It is determined and declared that for the benefit of the people of this state, the improvement and maintenance of their health and living conditions and their general welfare, it is essential that the people of this state have access to adequate medical and dental care; that it is essential that physicians and dentists have available adequate structures in which to carry on the examination, treatment and testing that is a part of their professional practice; that largely because of a lack of availability of such structures there has been an increasing outward migration of physicians and dentists from this state; and that it is the purpose of this part to provide a measure of assistance in making available for lease to individual physicians and dentists, professional partnerships and professional corporations, structures in which they may carry on their medical and dental practices, such structures defined in this part to be medical arts buildings, all to the public benefit and good.
- (b)
This part shall be liberally construed in conformity with such intention.
§ 68-11-604. Powers of county or municipality.
-
In addition to powers that it may otherwise have in its charter or the laws of this state, any county or municipality is empowered under this part, subject to the conditions, limitations and restrictions provided in this part, to:
- (1)
Construct, acquire by gift or purchase, reconstruct, improve, better or extend, and equip any medical arts building within the county or municipality, and acquire by gift or purchase lands or rights in land in connection with the medical arts building;
- (2)
Issue bonds to finance, in whole or in part, the cost of the acquisition, purchase, construction, reconstruction, improvement, betterment or extension, and equipping of medical arts buildings, including the acquisition of lands or rights in land in connection with the medical arts building. The governing body of the county or municipality, in determining the cost, may include all costs and estimated cost of the issuance of the bonds, all engineering, inspection, fiscal and legal expenses, and interest that it is estimated will accrue during the construction period and for six (6) months thereafter on money borrowed or that it is estimated will be borrowed pursuant to this part;
- (3)
Rent or lease all or a portion of the medical arts buildings to individual physicians or dentists licensed to practice in this state, professional partnerships or professional corporations, in such manner that rents to be charged for the use of the medical arts buildings shall be fixed and revised from time to time so as to produce income and revenues sufficient to provide for the prompt payment of interest upon all bonds issued under this part, and to create a sinking fund to pay the principal of the bonds when due, and to provide for the operation and maintenance of the medical arts buildings, and for an adequate depreciation account, if desired, in connection with the medical building;
- (4)
Pledge to the punctual payment of bonds authorized under this part and interest on the bonds the income and revenues to be received from such medical arts buildings, including improvements, betterments or extensions to the medical arts building, sufficient to pay the bonds and interest as the bonds and interest shall become due and to create and maintain reasonable reserves for the bonds and interest;
- (5)
Make certain the punctual payment of bonds authorized under this part, and interest on the bonds, by pledging the full faith and credit of the county or municipality under the conditions, restrictions and limitations set forth in this part; and
- (6)
Issue its bonds to refund in whole or in part, bonds theretofore issued by the county or municipality under authority of this part.
§ 68-11-605. Construction authorized — Bonds.
- (a)
The construction, acquisition, reconstruction, improvement, betterment, extension and equipping of any medical arts buildings may be authorized under this part, and bonds may be authorized to be issued under this part to provide funds for such purpose or purposes or for the refunding of bonds already issued under this part, by resolution or resolutions of the governing body, which resolutions may be adopted by a majority of all the members of the governing body then in office at the same meeting at which they are introduced, and shall take effect immediately upon adoption.
- (b)
The bonds shall bear interest at the rate or rates, payable semiannually, may be in one (1) or more series, may bear the date or dates, may mature at the time or times not exceeding forty (40) years from their respective dates, may be payable in the medium of payment at the place or places, may carry the registration privileges, may be subject to the terms of redemption with or without premium, may be executed in the manner, may contain the terms, covenants and conditions, and may be in the form, either coupon or registered, as the resolution or subsequent resolutions may provide.
- (c)
The bonds may be sold in the manner and upon the terms as may be deemed advisable by the governing body; provided, that bonds to which the full faith and credit and unlimited taxing power of the county or municipality are pledged shall be sold at public sale pursuant to the Local Government Public Obligations Law, compiled in title 9, chapter 21; and further provided, that bonds for refunding purposes shall not be sold at less than par, but may be delivered in exchange for bonds to be refunded thereby.
- (d)
- (1)
Pending the preparation of the definitive bonds, interim receipts or certificates in the form and with the provisions as the governing body may determine, may be issued to the purchaser or purchasers of bonds sold pursuant to this part.
- (2)
The bonds and interim receipts or certificates shall be fully negotiable within the meaning of and for all purposes of title 47, chapter 3.
§ 68-11-606. Approval of bond issue at election.
- (a)
The governing body of any county or municipality desiring to issue bonds as authorized in this part shall declare its intention of issuing the bonds by adopting an initial resolution calling for their issuance and providing that prior to the delivery of and payment for any bonds authorized under this part, a three-fourths (¾) majority of the registered voters of the municipality voting at an election on the special question of issuing the bonds shall approve of the bond issue; provided, that no election shall be necessary in connection with the authorization of refunding bonds under this part.
- (b)
The governing body shall, by resolution, direct the county election commission to hold an election on the question of issuing the bonds.
- (c)
The question submitted to the voters shall include the maximum amount of bonds to be issued, the purpose for the bonds and a statement as to whether the bonds shall be payable exclusively from the income and revenues derived from the medical arts buildings, or from the income and revenues and, in the event of a deficiency of income and revenues, from general ad valorem taxes.
- (d)
It is the duty of the governing body of the county or municipality to enter upon its minutes the results and returns of the election, and after the delivery of any bonds voted upon at the election and payment therefor, the entry upon the minutes shall be conclusive evidence of the result of the election, and thereafter no suit, action or other proceeding contesting the validity of the election shall be entertained in any of the courts of the state.
- (e)
If the election results unfavorably to the proposition, then no second or other election shall be ordered or held until the governing body again determines that an election may be held.
§ 68-11-607. Resolution of governing body on details of bonds to be issued.
- (a)
After the adoption of the initial resolution provided for in § 68-11-606, but not necessarily subsequent to the election on the special question of issuance of bonds, the governing body shall adopt a bond resolution providing the details of the bonds to be issued. Any resolution may contain covenants as to:
- (1)
The use and disposition of the rentals from the medical arts building for which the bonds are to be issued, including the creation and maintenance of reserves;
- (2)
The issuance of other or additional bonds payable from the income and revenues from the medical arts building;
- (3)
The maintenance and repair of the medical arts building;
- (4)
The insurance to be carried on the medical arts building and the use and disposition of insurance moneys; and
- (5)
The terms and conditions upon which the holders of the bonds, or any portion of the bonds or any trustees for the bonds, are entitled to the appointment of a receiver by the chancery court, which court shall have jurisdiction in such proceedings.
- (b)
The receiver may enter and take possession of the medical arts building and lease and maintain it, prescribe rentals and collect, receive and apply all income and revenues thereafter arising from the medical arts building, in the same manner and to the same extent as the municipality itself might do.
- (c)
This part and any such resolution or resolutions shall be a contract with the holder or holders of the bonds and shall continue in effect until the principal of and the interest on the bonds so issued have been fully paid, and the duties of the county or municipality and its governing body and officers under this part, and any bond resolution or resolutions shall be enforceable by a bondholder by mandamus, or other appropriate suit, action or proceedings in any court of competent jurisdiction.
§ 68-11-608. Collection of rents for payment of bonds.
- (a)
The governing body of the municipality issuing bonds pursuant to this part shall prescribe and collect rentals for each medical arts building, and shall revise the rentals from time to time whenever necessary, so that the income and revenues to be derived from the rentals will always be sufficient to pay when due all bonds and interest on the bonds for the payment of which the revenues are pledged, including reserve for the bonds if any, and to provide for all expenses of operation and maintenance, of the medical arts buildings, and for an adequate depreciation account, if desired, in connection with the medical arts building.
- (b)
All funds arising under this part shall be kept separate and apart from other funds of the municipality.
§ 68-11-609. Bonds secured by lien on rentals.
-
All bonds issued under this part and the interest on the bonds shall be secured by a lien upon the rentals from the medical arts building for which the bonds have been issued, and the governing body may provide in the bond resolution for additional bonds to be equally and ratably secured by a lien upon the rentals or may provide that the lien upon the rentals for future bonds shall be subordinate.
§ 68-11-610. Pledges of full faith and credit and taxing power as additional security — Enforcement of bondholders' rights.
- (a)
- (1)
If desired by the governing body in order to further secure the payment of any of the bonds issued pursuant to this part, and interest on the bonds, any municipality shall have the power as to the bonds to pledge in addition to all other revenues and funds provided for in this part, the full faith and credit and unlimited taxing power of the county or municipality to the punctual payment of the principal of and interest on the bonds.
- (2)
In the event the pledge of full faith and credit and unlimited taxing power of the county or municipality is given, any holder or holders of the bonds, including a trustee or trustees for holders of such bonds, shall have the right, in addition to all other rights, by mandamus or other suit, action or proceedings in any court of competent jurisdiction, to enforce the holder's or holders', or any such trustee's or trustees' rights against the municipality, and the governing body of the county or municipality and any officer, agent or employee of the county or municipality, including, but not limited to, the right to require the county or municipality and governing body and any proper officer, agent or employee of the county or municipality, to assess, levy and collect taxes and other revenues and charges adequate to carry out any agreement as to, or pledge of, such taxes, revenues and charges.
- (b)
The taxes authorized to be pledged in this part shall be levied without limit as to rate or amount upon all taxable property within the county or municipality, and all such taxes to be levied are declared to have been levied for county and corporation purposes, respectively, within the meaning of article II, § 29 of the Constitution of Tennessee.
§ 68-11-611. Validity of bonds.
- (a)
Bonds issued pursuant to this part bearing the signatures, or facsimiles of the signatures of the officers in office on the date of the signing of the bonds shall be valid and binding obligations, notwithstanding that before the delivery of the bonds and payment for the bonds, any or all the persons whose signatures or facsimile signatures appear on the bonds shall have ceased to be officers of the county or municipality issuing the bonds.
- (b)
The validity of the bonds shall not be dependent on nor affected by the validity or regularity of any proceedings relating to the acquisition, purchase, construction, reconstruction, improvement, betterment, extension or equipping of the medical arts building for which the bonds are issued.
- (c)
The bond resolution shall provide that the bonds contain a recital that they are issued pursuant to this part, which recital shall be conclusive evidence of their validity and of the regularity of their issuance.
§ 68-11-612. Bonds exempt from taxes.
-
All bonds issued pursuant to this part and the income from the bonds shall be exempt from all state, county and municipal taxation, except inheritance, transfer and estate taxes.
§ 68-11-613. Bonds legal and authorized investments.
- (a)
Bonds issued under the authority of this part and secured by a pledge of full faith and credit shall be and are declared to be legal and authorized investments for banks, savings banks, trust companies, building and loan associations, insurance companies, fiduciaries, trustees, guardians and for all public funds of the state of Tennessee, including, but not limited to, the sinking funds of cities, towns, villages, counties, school districts or other political corporations or subdivisions of the state.
- (b)
The bonds shall be eligible to secure the deposit of any and all public funds of the state and any and all public funds of cities, towns, villages, counties, school districts or other political corporations or subdivisions of the state, and the bonds shall be lawful and sufficient security for the deposits to the extent of their value when accompanied by all unmatured coupons appertaining to the bonds.
§ 68-11-614. Joint undertakings.
-
Two (2) or more counties or municipalities may exercise jointly the powers and authorities conferred upon them individually in this part.
§ 68-11-615. Provisions supplemental — Bonds.
- (a)
The powers conferred by this part shall be in addition and supplemental to, and the limitations imposed by this part shall not affect the powers conferred by, any other general, special or local law.
- (b)
Medical arts buildings may be acquired, purchased, constructed, reconstructed, improved, bettered, extended and equipped, and bonds may be issued under this part for such purposes, notwithstanding that any general, special or local law may provide for the acquisition, purchase, construction, reconstruction, improvement, betterment, extension and equipping of a like medical arts building, or the issuance of bonds for like purposes, and without regard to the requirements, restrictions, limitations or other provisions contained in any other general, special or local law.
Part 7 Patient Transfers
§ 68-11-701. Legislative intent.
-
It is the intent of the general assembly that the department of health, acting through the board for licensing health care facilities created in § 68-11-203, shall promulgate rules, in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, to regulate the transfer of inpatients between hospitals, and that inpatients should not be involuntarily transferred for purely economic reasons, but should receive the needed medical care as required by chapter 140, part 3 of this title.
§ 68-11-702. Standards and policies.
- (a)
The health facilities commission, acting through the board for licensing health care facilities created in § 68-11-203, shall adopt rules, in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, to provide standards governing the transfer of hospital inpatients. The rules shall provide that inpatient transfers between hospitals shall be accomplished in a medically reasonable manner by providing for:
- (1)
The transfer of patients requiring emergency services who have sustained an injury or who are suffering from an acute medical condition where the injury or condition is liable to cause death, severe injury, or severe illness, as determined by a physician, only after having complied with the requirements of chapter 140, part 3 of this title;
- (2)
The use of medically reasonable life support measures to stabilize the patient prior to transfer and to sustain the patient during the transfer, as determined by a physician;
- (3)
The transfer of any necessary records for continuing the care for the patient;
- (4)
The prohibition of discrimination against patients based on race, religion or national origin; and
- (5)
The date by which each hospital must adopt policies in accordance with these rules.
- (b)
Each hospital shall adopt policies relating to inpatient transfers that are consistent with the rules adopted by the board.
§ 68-11-703. Notice and correction of violations.
-
If the board for licensing health care facilities finds that a hospital is violating or has violated this part, or a rule adopted pursuant to this part, the board shall notify the hospital of its finding and shall provide the hospital a reasonable opportunity to correct the violation.
§ 68-11-705. Persons with mental illness or intellectual disability.
-
In promulgating the regulations regarding transfers of hospital inpatients, as required by this part, the board for licensing health care facilities shall give due regard to title 33, regarding commitment and transfer of persons with mental illness or intellectual disability, it being the express legislative intent that neither this part nor the regulations promulgated pursuant to this part shall be construed to constitute an amendment or modification of title 33.
Part 8 Deficient Nursing Homes
§ 68-11-801. Authority to impose penalties — Consultation to determine medical necessity.
- (a)
The executive director of the health facilities commission has the authority to impose civil monetary penalties upon deficient nursing homes, as defined by § 68-11-201, under the circumstances provided in this part.
- (b)
In addition to the civil monetary penalties specifically enumerated in this part, the executive director has the authority to impose civil monetary penalties in such amount, scope, manner and circumstances as required by the federal Nursing Home Reform Act of 1987.
- (c)
The executive director has the authority to promulgate rules and regulations to impose the civil monetary penalties described in subsection (b).
- (d)
The imposition of a state civil penalty pursuant to this section and the decision to impose such penalty shall not be affected by either the imposition or withholding of a federal sanction under Title XVIII of the Social Security Act (42 U.S.C. § 1395 et seq.), or Title XIX of the Social Security Act (42 U.S.C. § 1396 et seq.).
§ 68-11-802. Type A civil monetary penalties.
- (a)
Type A civil monetary penalties may be imposed whenever the executive director of the health facilities commission finds the conditions in a nursing home are, or are likely to be, detrimental to the health, safety or welfare of the patients, and the executive director has accompanied this finding by ordering the nursing home to suspend the admission of any new patients, as provided by § 68-11-252.
- (b)
No type A civil penalty may be imposed solely for a communicable disease where the nursing home has maintained an adequate quality of patient care and made reasonable efforts to prevent the spread of the communicable disease.
- (c)
The imposition of a type A civil penalty shall exclude the assessment of type B or type C civil penalties for the specific violations contributing to these conditions.
§ 68-11-803. Type B civil monetary penalties — Violation of enumerated patients' rights and nursing home standards.
- (a)
Type B violations directly impact the care of the patients in the nursing home and are of such clarity and specificity as to provide ample notice to all nursing homes and to the public of the acts prohibited and the conduct required.
- (b)
A type B civil monetary penalty may be imposed whenever any of the following standards are violated and the violation need neither be repeated, nor found in multiple cases, before the penalty is assessed:
- (1)
No residents shall be willfully abused or neglected, as these terms are defined by § 71-6-102;
- (2)
No patient shall be transferred without a written order from the patient's physician, or through other legal processes, and without notification of next of kin, or authorized representative, if any;
- (3)
No patient shall be involuntarily transferred or discharged, except for the following reasons:
- (A)
Medical reasons;
- (B)
The patient's welfare or the welfare of the other patients; or
- (C)
Nonpayment, except as prohibited by the medicaid program;
- (4)
No involuntary transfer or discharge shall be made, until the nursing home has first informed the health facilities commission and the area long-term care ombudsman;
- (5)
Facilities for isolating a patient shall be provided in every nursing home. The medical procedures and isolation techniques ordered by a physician shall be used in the care of those patients determined to be contagious. Provisions shall be made to care for any patient exposed to a contagious patient. An infection control procedure shall be developed and implemented;
- (6)
The nursing home shall have a full-time administrator, who is licensed in this state and who shall not function as the director of nursing. Any change of administrators shall be reported to the health facilities commission within fifteen (15) working days. Any agreement to manage a nursing home must be reported to the health facilities commission within fifteen (15) days of its implementation. However, no civil penalty shall be assessed under this section when the board for licensing health care facilities has granted, in a specific case, a temporary waiver of this requirement due to the unexpected absence of a full-time administrator when suitable interim arrangements have been made, or when the procedures of § 68-11-225 regarding unexpected loss of an administrator have been followed;
- (7)
The nursing service shall be under the direction of a full-time, licensed nurse;
- (8)
There shall be at least one (1) licensed nurse on duty at all times;
- (9)
There shall be at least two (2) nursing personnel on duty on each shift; and
- (10)
Each nursing home shall retain by written agreement a physician, licensed to practice in this state, to serve as a medical consultant.
- (c)
A type B civil monetary penalty shall be imposed for violations of the following standards, only when the violation directly impacts the care of multiple patients, with such scope and magnitude as to clearly show consistent and willful neglect of the requirements, fundamental flaws in the facility's operation, knowing refusal to comply with the minimum standards, or willful inattention to the patient's basic needs:
- (1)
Body position of bed patients and chair-bound patients shall be changed at least every two (2) hours, day and night, and good body alignment maintained. Bony prominences and weight-bearing parts shall be bathed, dried and massaged, when needed and when not contradicted by a physician's orders;
- (2)
Patients who are incontinent shall have partial baths each time the bed or bed clothing has been wet or soiled. The wet or soiled linen and bed clothing shall be promptly replaced with clean, dry linen and clothing after being soiled. Rubber or plastic sheets shall be cleaned not less than once a week;
- (3)
Patients under restraint shall be checked every thirty (30) minutes and, every two (2) hours, shall have the restraints released, their position changed, and be exercised. They shall be offered toilet privileges at least every two (2) hours, or more frequently when requested by the patient;
- (4)
Restraints may be applied or administered to patients only on the signed order of a physician. The order must be for a specified and limited period of time and must document the necessity of the restraint. There shall be no standing orders for restraints. Locked restraints are prohibited. Where an emergency exists in which the failure to use restraints is likely to endanger the health or safety of the patient or others, the nurse in charge may use such nurse's judgment to use physical restraints when a physician cannot be immediately consulted, but a consultation and written order must be obtained as soon as possible;
- (5)
Restraints must be applied in a manner by which they can be speedily removed in case of fire or other emergency;
- (6)
Whenever a chemical restraint is administered, the patient shall be observed for adverse reaction and, if found, the drug shall be discontinued immediately and the physician notified;
- (7)
Each patient has the right to privacy during treatment and personal care;
- (8)
Patients who are ambulatory shall have baths or showers at least two (2) times each week;
- (9)
Patients who are bedfast shall have a sponge bath each day;
- (10)
Patients shall be weighed and their weight recorded at least monthly;
- (11)
Each patient shall be given regular personal attention and care of skin, hair, feet, nails and oral hygiene;
- (12)
Patients shall have clean clothing whenever needed and shall be kept free from odor;
- (13)
Medication shall be administered only by licensed medical or licensed nursing personnel;
- (14)
Medications administered shall be ordered by a duly-licensed physician or dentist;
- (15)
Medications, treatments and diet shall be carried out as prescribed;
- (16)
Assistance shall be provided to the patient in eating, whenever the patient is unable to eat without assistance;
- (17)
Whenever patients have medically-prescribed special diets, the menus for those patients must be planned by a registered dietitian;
- (18)
Special diets shall be prepared and served to comply with the physician's orders. Food intake shall be observed and recorded as a part of the patient's care;
- (19)
Three (3) meals shall be served to the patients daily, at recognized mealtimes. No more than fourteen (14) hours shall elapse between the supper and breakfast meals. Food shall be available for snacks and as ordered by the physician;
- (20)
Supplementary food and special diets shall be furnished as ordered in writing by the patient's physician;
- (21)
The water temperature in patient showers and bathing facilities shall not exceed one hundred twenty degrees Fahrenheit (120°F);
- (22)
No person shall be employed as a nurse assistant in a nursing home unless the person has either satisfactorily completed a training course approved by the board for licensing health care facilities or satisfactorily completes the training within four (4) months of initial employment by passing a practical examination and a written examination; and
- (23)
Nursing homes shall provide a minimum of two (2) hours of direct care to each patient every day, including four-tenths (0.4) hours of licensed nursing personnel time.
- (d)
- (1)
Whenever a type B civil monetary penalty is based upon a violation's direct impact upon multiple patients, as authorized in subsection (c), there shall be a rebuttable presumption that a violation exists whenever an error rate of twenty percent (20%) or more is shown for a three-month period.
- (2)
For the purpose of subdivision (d)(1), the error rate may be calculated according to pertinent standards, commonly accepted by the health care industry, or, when no standard has such acceptance, by dividing the number of errors found by the potential number of occurrences among all patients affected by the requirement, such as the number of restraints not released every two (2) hours divided by the product of the number of patients restrained multiplied by the number of restraint releases required during the period of the observation.
§ 68-11-804. Type C civil monetary penalties — Violation of enumerated patients' rights and nursing home standards.
- (a)
Type C violations are neither directly detrimental to the patients, nor directly impact their care, but have only an indirect relationship to patient care. Type C civil monetary penalties shall be imposed for those violations that require an intermediate sanction to ensure consistent compliance whenever a nursing home fails to correct a violation, or whenever a violation is repeated, as provided in subsection (b).
- (b)
Whenever a deficiency that may constitute a type C violation is found, the health facilities commission shall issue a written citation. The nursing home shall plan specific steps to correct the deficiency, identify the date on which these corrections will be completed, and return its written plans to the health facilities commission within ten (10) days of receiving the citation. The health facilities commission shall either find the plan and the schedule to be reasonable, given the nature of the deficiency and its impact upon the patients in the facility, or require a different plan or schedule of completion. After the date on which the planned corrections are to have been completed, the health facilities commission shall reinspect the nursing home. If the violation has been corrected, no civil monetary penalty shall be imposed, unless the violation has been repeated. If the same violation continues, a type C civil monetary penalty shall be assessed. If the same violation is found during a subsequent inspection or investigation, conducted within twelve (12) months of the finding of the first violation, then a type C civil penalty shall be assessed without any further opportunity to correct the violation before the penalty is imposed, and without regard to whether or not a civil penalty was actually imposed for the first violation.
- (c)
A type C civil monetary penalty shall be imposed, under the circumstances set forth in subsection (b), for any violation of the following standards:
- (1)
- (A)
Nursing homes shall retain legible copies of the following records and reports concerning the facility for the thirty-six (36) months next following their issuance:
- (i)
Local fire safety inspections;
- (ii)
Local building code inspections, if any;
- (iii)
Fire marshal reports;
- (iv)
Health facilities commission licensure and fire safety inspections and surveys;
- (v)
Health facilities commission quality assurance surveys, including follow-up visits, and certification inspections, if the facility has entered into an agreement to provide services to the medicaid or medicare medical assistance programs;
- (vi)
Federal health care financing administration surveys and inspections, if any;
- (vii)
Orders of the executive director of the health facilities commission or board, if any; and
- (viii)
Comptroller of the treasury's audit reports and findings, if any;
- (B)
Copies of these records and reports shall be maintained in a single file at a location convenient to the public; and, during normal business hours, they shall be promptly produced for the inspection of any person who requests to view them. Each resident and each person assuming any financial responsibility for a resident must be fully informed, before or at the time of admission, of the availability of these reports to the public, of their location within the nursing home, and given an opportunity to inspect the file before entering into any monetary agreement with the facility;
- (2)
The governing board of the nursing home shall establish, and the administrator shall implement, written policies and procedures setting forth the rights of patients to the protection and preservation of dignity, individuality, and, to the extent medically feasible, independence. These policies and procedures may be individual to the nursing home and specific to its program. Staff of the facility shall be trained to respect these considerations and shall execute these policies and procedures. Patients, their families, or other representatives must be fully informed of these rights; and the patient shall acknowledge receipt of a copy of the policy accompanied by all of the facility's rules governing patient conduct and responsibilities, at the time of admission and whenever amended;
- (3)
No nursing home shall retaliate against or, in any manner, discriminate against any person because of a complaint made in good faith and without malice to the board, the health facilities commission, the adult protective service, the comptroller of the treasury, the long-term care ombudsman, or other agency having jurisdiction. A nursing home shall neither retaliate, nor discriminate, because of information lawfully provided to these authorities, because of a person's cooperation with them, or because a person is subpoenaed to testify at a hearing involving one (1) of these authorities;
- (4)
Nursing homes shall notify the patient's physician of the condition of a patient, when it is medically indicated;
- (5)
Each patient has a right to have the patient's personal records kept confidential and private. The nursing home shall have policies to govern access and duplication of the patient's records. Except for those persons authorized by law to inspect the records, written consent by the patient must be obtained before any information can be released. If the patient is mentally incompetent, written consent is required by the patient's legal representative;
- (6)
The facility shall maintain and allow each patient access to a written record of all financial arrangements and transactions involving the individual patient's funds. The facility shall provide each patient, or the patient's authorized representative, with a written itemized statement at least quarterly of all financial transactions involving the patient's funds. The facility shall keep any funds received from a patient for safekeeping in an account separate from the facility's funds, and patient funds shall not be used by the facility;
- (7)
All internal and external medications and preparations intended for human use shall be stored separately. They shall be properly stored in medicine compartments, including cabinets on wheels, or drug rooms. The cabinets or drug rooms shall be kept securely locked when not in use, and the key shall be in the possession of the supervising nurse or other authorized persons then on duty. Poisons or external medications shall not be stored in the same compartment and shall be labeled as such;
- (8)
Schedule II drugs must be stored behind two (2) separately locked doors at all times and accessible only to persons in charge of administering medication;
- (9)
In general patient areas, each room shall be served by at least one (1) nurse's calling station and each bed shall be provided with a call button. Two (2) call buttons serving adjacent beds may be served by one (1) calling station. Calls shall register in the nurses' station and shall activate a visible signal in the corridor. A nurses' call emergency button shall be provided for patient's use at each patient toilet, bath and shower room. Nursing personnel shall answer calls in a timely manner;
- (10)
The nursing home must ensure that a physician examines each patient on admission or no more than sixty (60) days before the admission;
- (11)
A dietary history must be accomplished on each patient as a part of the patient's admission record;
- (12)
Abnormal food intake shall be routinely recorded as part of the patient's chart;
- (13)
If the nursing service is under the direction of a licensed practical nurse, a licensed registered nurse must be available on the nursing home premises to consult, to review and to advise on the quality of nursing care for at least forty-eight (48) weeks in each calendar year. The registered nurse-consultant shall be on the premises at least eight (8) hours each week and, in nursing homes with fifty-one (51) or more licensed beds, a minimum of twelve (12) hours each week. The nursing home shall maintain documentation of the consultative service provided by the registered nurse;
- (14)
Nursing homes shall plan, develop and conduct monthly in-service education programs for nursing personnel and other employees of the nursing homes. An organized orientation program shall be developed and implemented for all nursing personnel;
- (15)
Each nurse assistant shall receive at least ten (10) hours each year of in-service training related to the nurse assistant's job responsibilities. A record verifying attendance by each nurse assistant shall be kept in the nursing home files;
- (16)
Any admission in excess of the licensed bed capacity is prohibited, except when an emergency admission has been previously approved by the health facilities commission;
- (17)
The nursing home shall develop and periodically review with all employees a prearranged written plan for fire prevention and safety, elimination of hazards, and the orderly evacuation of all patients in case of a fire, internal disaster or other emergency. The plan of evacuation shall be posted throughout the home. Fire drills shall be held at least once each quarter on each work shift;
- (18)
Cleaning supplies, toxic substances and equipment shall be secured at all times to prevent access by patients. Toxic substances shall not be left unattended when not secured;
- (19)
The nursing home shall be clean, sanitary and in good repair at all times;
- (20)
When the temperature of any patient area falls below sixty-five degrees Fahrenheit (65°F) or exceeds eighty-five degrees Fahrenheit (85°F), or is reasonably expected to, the facility staff shall be alerted to the potential danger, and the health facilities commission shall be notified;
- (21)
Nursing homes shall maintain readily-available linen in sufficient quantity to meet the needs of the patients;
- (22)
Food shall be protected from dust, flies, rodents, unnecessary handling, droplet infection, overhead leakage and other sources of contamination, whether in storage or while being prepared and served or transported through hallways;
- (23)
Incidents, such as a fire in the nursing home, burning of a patient, suspected abuse of a patient, or an unusual accident that causes injury to a patient, shall be recorded, investigated within the facility, and reported pursuant to § 68-11-211;
- (24)
The nursing home's medical consultant shall review all accidents and unusual incidents occurring on the premises, identify hazards to health and safety, and recommend corrective action to the nursing home administrator;
- (25)
- (A)
To provide electricity during an interruption of the normal electric supply, the nursing home shall be equipped with an emergency power source on the premises. It shall have fuel supply to operate the generator for a minimum of twenty-four (24) hours at rated full load;
- (B)
However, no civil monetary penalty shall be imposed solely because the nursing home lacks an emergency generator, if the nursing home meets all of the following standards:
- (i)
It is otherwise capable of providing emergency electrical power appropriate to the needs of the facility;
- (ii)
It maintains an emergency power source meeting the equivalency requirements of § 517 of the 1981 edition of the National Electric Code; and
- (iii)
It does not admit, or retain, patients dependent on electric life support equipment;
- (26)
Dishwashing machines shall have a hot water supply of one hundred forty degrees Fahrenheit (140°F) to one hundred sixty degrees Fahrenheit (160°F) for washing and one hundred eighty degrees Fahrenheit (180°F) for sanitizing, if within the original design capacity of the machine;
- (27)
All refrigerators and freezers shall have thermometers. Refrigerators shall be kept at an air temperature not to exceed forty-five degrees Fahrenheit (45°F) whenever food is stored in the unit. Freezers shall be kept at an air temperature sufficient for stored foods to remain frozen, but freezer air temperatures shall never exceed twenty degrees Fahrenheit (20°F);
- (28)
The nursing home must ensure that a physician writes and signs orders for care, any diagnostic tests, any medication and treatment;
- (29)
The nursing home must have an agreement with a physician and a hospital that will care for a patient who does not have a private physician or hospital of choice;
- (30)
Clean linens shall be physically separated from soiled linens. Each type of linen shall be received, sorted, processed, held, stored and issued in designated areas, physically separated from the other. However, no civil monetary penalty shall be imposed solely because a nursing home has failed to construct new separations for the linens, if the nursing home was licensed on July 1, 1987, and if it has not made substantial alterations to its existing building since that date;
- (31)
All nursing homes shall disinfect contaminated articles and surfaces, such as mattresses, linens, thermometers and oxygen tents;
- (32)
Patients shall be aided in receiving necessary dental care;
- (33)
Perishable food shall not be allowed to stand at room temperature except during necessary periods of preparation or serving. Prepared foods shall be kept hot, at one hundred forty degrees Fahrenheit (140°F) or above, or cold at forty-five degrees Fahrenheit (45°F) or lower. Appropriate equipment for temperature maintenance, such as hot and cold serving units or insulated containers, shall be used; and
- (34)
- (A)
The nursing home shall carry out the following functions, all of which shall be documented in a written medical equipment management plan:
- (i)
Develop and maintain a current itemized inventory of medical equipment used in the facility, that is owned or leased by the operator of the facility;
- (ii)
Develop and maintain a schedule for the maintenance, inspection and testing of medical equipment according to manufacturers' recommendations or other generally accepted standards. The schedule shall include the date and time maintenance, inspection and testing was actually performed, and the name of the individual who performed the tasks; and
- (iii)
Ensure maintenance, inspection and testing were conducted by facility personnel adequately trained in the procedures or by a contractor qualified to perform the procedures.
- (B)
For purposes of subdivision (34)(A) only, “medical equipment” means equipment used for the diagnosis, treatment and monitoring of patients, including, but not limited to, oxygen care equipment and oxygen delivery systems, enteral and parenteral feeding pumps, and intravenous pumps.
§ 68-11-805. Applicability of penalties — Higher, additional and more detailed standards — Lesser standards not allowed.
- (a)
The standards specified in §§ 68-11-803 and 68-11-804 are those whose violation may justify the imposition of a civil monetary penalty.
- (b)
The board for licensing health care facilities may, as authorized by § 68-11-209, promulgate rules and regulations establishing higher, additional and more detailed minimum standards for nursing homes, but the board shall not have the authority to adopt any standard that is less rigorous than those specified in §§ 68-11-801 — 68-11-805.
- (c)
Should the board find that its rules governing licensed nursing homes are less rigorous than §§ 68-11-801 — 68-11-805, the board shall amend its rules to conform to these standards.
- (d)
Should the board adopt higher standards, they may be used for all purposes related to the licensing of nursing homes, but will not alter the circumstances under which civil penalties can be imposed, that power being specifically reserved for the general assembly.
§ 68-11-806. Notification of inspection or false statements — Civil monetary penalties — Assessment — Procedure.
- (a)
Any individual who notifies, or causes to be notified, a nursing home of the time or date of an inspection conducted pursuant to § 68-11-210 is subject to a civil monetary penalty of not more than two thousand dollars ($2,000).
- (b)
Any individual who willfully and knowingly certifies a material and false statement in a resident assessment required by federal law and prepared in accordance with rules and regulations of the health facilities commission or board is subject to a civil monetary penalty of not more than one thousand dollars ($1,000) for each assessment.
- (c)
Any individual who willfully and knowingly causes another individual to certify a material and false statement in a resident assessment required by federal law and prepared in accordance with rules and regulations of the health facilities commission or board is subject to a civil monetary penalty of not more than five thousand dollars ($5,000) for each assessment.
- (d)
All civil monetary penalties pursuant to this section shall be assessed as follows:
- (1)
The health facilities commission may initiate the proceeding by mailing to the individual a written statement citing the provisions of this section that the health facilities commission alleges to have been violated, stating the amount of the penalty being assessed and informing the individual of the individual's right to contest the penalty;
- (2)
- (A)
All penalties assessed pursuant to this section shall become final and not subject to review, unless the individual requests a hearing within thirty (30) days of receipt of the written statement of violation;
- (B)
Should the individual fail to answer or to demand a hearing within thirty (30) days, the individual shall be deemed to have waived the individual's right to a hearing, to have admitted the allegations of the assessment, and the civil penalty shall become due and payable;
- (3)
Should the individual pay the penalty assessed on or before the day on which the answer is due without contesting the assessment, the amount of the penalty shall be reduced by ten percent (10%); and
- (4)
All provisions contained in §§ 68-11-801, 68-11-805, 68-11-815, and 68-11-826 shall apply to penalties provided in this section.
§ 68-11-811. Minimum and maximum amounts of penalties — Second penalties.
- (a)
Type A civil penalties may be assessed in the amount of not less than one thousand five hundred dollars ($1,500) and not more than seven thousand five hundred dollars ($7,500).
- (b)
Type B civil penalties may be assessed in the amount of not less than five hundred dollars ($500) and not more than one thousand five hundred dollars ($1,500).
- (c)
Type C civil penalties shall be assessed in the amount of not less than two hundred fifty dollars ($250) and not more than four hundred dollars ($400).
- (d)
Whenever a second civil penalty is imposed for the same violation within twelve (12) months of the first penalty, the amount of the second penalty shall be double the amount otherwise authorized by this section.
§ 68-11-812. Notice that violation is or may constitute basis of suspension of admissions or civil monetary penalty.
- (a)
Upon finding a violation that is, or may be, the basis of a suspension of admissions, as provided in § 68-11-252, or that is, or may be, the basis of a civil monetary penalty as set forth in §§ 68-11-801 — 68-11-805, the health facilities commission inspector shall orally and in writing advise the nursing home of the findings before concluding the inspection or investigation. The written notification shall include an acknowledgement of both the findings and the state or federal penalties that could result from the findings.
- (b)
As soon as practicable after the health facilities commission inspector advises the nursing home of finding a violation that is, or may be, the basis of a suspension of admissions, as provided in § 68-11-252, or that is, or may be, the basis of a civil monetary penalty as set forth in §§ 68-11-801 — 68-11-805, the executive director of the health facilities commission shall provide notice of the apparent violation to the members of the senate and house of representatives of the general assembly in whose district the nursing home is located.
§ 68-11-813. Initiation of type A penalty proceedings — Suspension of admissions — Contests — Hearings.
- (a)
Type A civil penalties shall be assessed by the executive director of the health facilities commission in the executive director's order suspending the admission of any new patients to the nursing home, as provided in § 68-11-252.
- (b)
- (1)
Within three (3) working days after concluding the inspection or investigation, the executive director may initiate type A civil penalty proceedings by mailing a notice to the facility, stating the executive director's decision to suspend the admissions of new patients.
- (2)
Within eight (8) working days after concluding the inspection or investigation, the health facilities commission shall mail to the nursing home the executive director's order, which shall detail the alleged facts and pertinent law with particularity, and shall also inform the nursing home of its right to contest the action.
- (c)
Should any nursing home exercise its right to a hearing in contest of both the assessment of a type A civil penalty and the suspension of admissions, the matters shall be consolidated for hearing before an administrative judge and, should reconsideration of the administrative judge's initial order be requested by either party pursuant to § 4-5-317, the matters may be separated with the board for licensing health care facilities reviewing the suspension of admissions and the civil penalty being reviewed as provided in §§ 68-11-811 — 68-11-818.
§ 68-11-814. Initiation of type B or C penalty proceedings.
- (a)
Within five (5) working days after concluding an inspection or investigation, the health facilities commission may initiate type B or type C civil penalty proceedings by mailing to the nursing home a written statement citing the provisions of §§ 68-11-801 — 68-11-805 that the health facilities commission alleges to have been violated, stating the amount of the penalty being assessed, and informing the facility of its right to contest the penalty.
- (b)
Within ten (10) working days after concluding an inspection or investigation, the health facilities commission shall mail to the nursing home a more detailed statement describing the findings with particularity and citing the law with specificity.
§ 68-11-815. Filing of documents — Dismissal and reinstatement of proceedings.
- (a)
All documents assessing civil penalties shall be promptly filed with the administrative procedures division of the secretary of state.
- (b)
- (1)
Thereafter, should the health facilities commission elect not to proceed to prosecute the assessment, the commission shall file a notice of dismissal, detailing and explaining the reasons for its decision.
- (2)
The notice of dismissal shall be maintained upon the public record and copies filed with the Tennessee commission on aging and disability and the Tennessee Health Care Association.
- (c)
- (1)
Within thirty (30) days of its entry, a third party may petition the administrative judge to reinstate the penalty proceeding.
- (2)
The administrative judge may grant the petition if it demonstrates that the petitioner's legal rights, duties or legal interests were the subject of the original proceeding, if the administrative judge determines that the petitioner is properly prepared to prosecute the action, and if the administrative judge also determines that the interests of justice and the orderly and prompt conduct of the proceedings shall not be impaired by allowing the reinstatement.
- (3)
Should the assessment of the penalty be reinstated, the administrative judge may, in the administrative judge's discretion, either excuse the health facilities commission or require the commission to participate in the proceeding.
§ 68-11-816. Time for paying or contesting penalty — Waiver.
- (a)
Five (5) working days after the nursing home's actual receipt of either the health facilities commission's detailed statement of the type B or type C penalty required by § 68-11-814, or the health facilities commission executive director's order suspending admissions to the nursing home and assessing a type A penalty, the nursing home shall either pay the penalty assessed or file with the administrative procedures division of the secretary of state and with the health facilities commission an answer, demanding a contested case hearing.
- (b)
Should the nursing home fail to answer or to demand a hearing within five (5) working days of its actual receipt of the health facilities commission's notice, it shall be deemed to have waived its right to a hearing, to have admitted the allegations of the assessment, and the civil penalty assessed shall then be due and payable.
- (c)
- (1)
Should the nursing home pay the penalty assessed on or before the day upon which its answer is due, the amount of the penalty shall be reduced by ten percent (10%).
- (2)
Such payment may be made under protest while contesting the assessment; and, if the case is dismissed and the penalty abated, the payment under protest shall be returned to the nursing home.
§ 68-11-818. Authority of panel or administrative judge — Increasing, upholding or reducing amounts of penalties — Consultation to determine medical necessity.
- (a)
Upon hearing a case or reviewing an initial order, the administrative judge, if sitting alone during a hearing, shall have the power to determine whether the imposition of any civil monetary penalty was proper and lawful, and, if so, whether the amount of the penalty was authorized by law and justified by the facts of the matter.
- (b)
The administrative judge, when sitting alone, may find that no penalty should have been assessed; and, if so, the case shall be dismissed and the penalty abated.
- (c)
When it finds that a civil penalty was properly assessed for a violation specified in §§ 68-11-801 — 68-11-805, the administrative judge, when sitting alone, may uphold the amount originally imposed, correct the amount of the assessment to conform with the law, or reduce the amount of the penalty, but the amount may be reduced only after considering the following factors:
- (1)
Those set forth in § 68-11-207(b);
- (2)
Whether the nursing home had recognized the violation, had voluntarily notified the health facilities commission prior to any inspection, and had documented the correction of the violation within five (5) working days after the inspection;
- (3)
Whether the violation was an unintended and temporary consequence typical of the on-going operation of a health care facility, which had minimal impact upon the care of the patients; and
- (4)
Whether the nursing home has a dispute, made in good faith and not solely for the purposes of delay, regarding the health facilities commission executive director's legal authority to impose an assessment.
§ 68-11-819. Annual report on nursing home inspections and enforcement activities.
-
The executive director of the health facilities commission shall submit a report no later than February 1 of each year to the governor, the chief clerk of the house of representatives, and the chief clerk of the senate, regarding the commission's nursing home inspection and enforcement activities during the previous year. The report must analyze trends in compliance with nursing home standards and residents' rights by nursing homes in this state, and must be limited to identifying those trends through aggregate and quantitative data only. In preparing the report, the executive director may utilize quantitative data compiled by nursing homes pursuant to federal or state regulations. The executive director shall ensure that the report is promptly made available to the public by dissemination via the internet and that the report is available for members of the public to copy.
§ 68-11-826. Recovery or collection of civil monetary penalties.
- (a)
Any civil monetary penalties for which a nursing home or individual is liable under §§ 68-11-213, and 68-11-801 — 68-11-805 shall be recovered, collected, deposited and expended under this section and §§ 68-11-827 and 68-11-829.
- (b)
No action to recover or collect such amounts shall be taken until:
- (1)
The nursing home has waived its rights to a contested case hearing pursuant to the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, part 3;
- (2)
The time allowed the nursing home to demand a contested case hearing, pursuant to § 68-11-816, has expired without a demand being made or a denial filed; or
- (3)
A final administrative order has been entered pursuant to § 4-5-314.
- (c)
If the amount due has not been received in full within sixty (60) days from the occurrence of any one (1) of the events specified in subsection (b), the executive director of the health facilities commission shall immediately proceed to recover such amount, plus interest computed at the applicable formula rate defined by § 47-14-102 retroactive to the earliest date of occurrence of any event specified in subsection (b), by one (1) or more of the following means:
- (1)
Directing the reduction of the amount owed from any balance otherwise due from the state to the facility and directing a remittance of the amount to the health facilities commission;
- (2)
Adding such amounts to the facility's licensing fee, the renewal of the facility's license pursuant to §§ 68-11-206(a)(8) and 68-11-216 to be contingent upon the prior payment of such costs; or
- (3)
Bringing an action in the circuit or chancery court to recover such amounts.
§ 68-11-827. Nursing home resident protection trust fund — Deposit of penalties — Unspent funds.
- (a)
- (1)
The executive director of the health facilities commission shall establish and maintain a nursing home resident protection trust fund, created by the deposit of all penalty moneys collected from nursing homes and individuals under this part.
- (2)
The fund created by this subsection (a) shall be maintained for the purpose of protecting the residents of a nursing home, whose noncompliance with the conditions of continued licensure, applicable state and federal statutes, rules, regulations and contractual standards threatens the residents' continuous care, the residents' property, the nursing home's continued operation, or the nursing home's continued participation in the medical assistance program of title 71, chapter 5.
- (3)
In addition to any other lawful use of the nursing home resident protection trust fund, the fund may also be used for making payments for temporary management as provided in § 68-11-831.
- (4)
In addition to any other lawful use of the nursing home resident protection trust fund, the fund may also be used to fund a pilot grant program to assist in the implementation of Eden Alternative enhanced quality of life projects in nursing homes, assisted-care living facilities and homes for the aged in Tennessee.
- (b)
Notwithstanding any other law to the contrary, any such funds remaining unspent at the end of the fiscal year shall be carried over into the budget of the health facilities commission for the subsequent fiscal year, and shall continue to be carried over from year to year until expended for the purposes prescribed in this section.
§ 68-11-828. Equitable proceedings — Payments from trust fund.
-
Whenever a nursing home is a party to a proceeding seeking equitable relief pursuant to § 68-11-213(a) or § 29-1-103 and in such other proceedings in which the court with jurisdiction over the matter finds that complete relief cannot be awarded to a person with a just claim without invoking this section, the nursing home resident protection trust fund shall be subject to the order of the court for the purposes of assisting with the costs of relocating indigent residents upon the voluntary or involuntary closure of a nursing home, of reimbursing residents for any personal funds lost while held in trust by a nursing home, or of maintaining, in the interests of the residents' health and safety, the on-going operation of a nursing home pending the conclusion of the legal proceedings.
§ 68-11-829. Recovery of moneys paid out of trust fund.
- (a)
Any order under the authority of § 68-11-828 that divests the assets of the nursing home resident protection trust shall give to the executive director of the health facilities commission, as trustee, a right of action to recover any moneys paid out of the fund against the property of any person or organization who was legally liable for these expenditures.
- (b)
The action may be brought in the same court in which the other proceedings are pending or in any court having personal jurisdiction over the defendant.
§ 68-11-830. Intermediate care facilities for individuals with intellectual disabilities (ICF/IID) — Exercise of enforcement powers — Taxation.
- (a)
Notwithstanding any other law to the contrary, any and all enforcement powers and authority conferred by § 68-11-252 or by §§ 68-11-811 — 68-11-818 and 68-11-826 — 68-11-829 on the executive director of the health facilities commission shall be exercised by the commissioner of intellectual and developmental disabilities in the case of any facility that is both licensed by the department of intellectual and developmental disabilities, pursuant to title 33, chapter 2, part 4, and is also certified to participate in the medicare or medicaid medical assistance programs as an intermediate care facility for individuals with intellectual disabilities (ICF/IID), as defined by 42 CFR 442.1 et seq.
- (b)
All powers and duties conferred by § 68-11-252 on the board for licensing health care facilities shall, for the limited purposes of this section, be exercised by the commissioner of intellectual and developmental disabilities.
- (c)
Before exercising the powers of §§ 68-11-811 — 68-11-818 and 68-11-826 — 68-11-829, the commissioner of intellectual and developmental disabilities shall first promulgate regulations identifying those standards pertinent to ICF/IIDs whose violation may justify the assessment of a civil monetary penalty, classifying those standards by type, and detailing the circumstances under which civil penalties may be imposed.
- (d)
- (1)
Each ICF/IID shall pay a tax as set forth in this subsection (d). Licensed facilities that are owned or operated by an agency of the state are not excluded from paying the tax.
- (2)
The tax shall be at the rate of five and one-half percent (5.5%) of the monthly gross receipts of an ICF/IID operating in this state. The tax due from facilities that are not one hundred percent (100%) ICF/IID certified shall be based at the rate of five and one-half percent (5.5%) of the monthly gross receipts generated from beds certified as intermediate care beds for individuals with intellectual disabilities in the facility. The tax shall be paid monthly based on the amount of the tax established in this subdivision (d)(2). The monthly payments are due on the fifteenth of each following month, beginning August 15, 1994, for the July 1994 payment, and ending with a final payment on July 15, 2017. It is the clear and unequivocal intent of the general assembly that this subdivision (d)(2) has retroactive application to January 1, 2008.
- (3)
The executive director of the health facilities commission shall adopt rules and regulations governing the collection of such taxes. Notwithstanding any other law, the executive director is authorized to promulgate such rules as emergency rules pursuant to the rulemaking provisions of the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.
- (4)
Any challenge to the tax imposed by this subsection (d) shall be brought pursuant to title 67, chapter 1, part 18 and § 9-8-307(a)(1)(O).
- (5)
All revenue collected pursuant to this subsection (d) shall be deposited in the general fund.
- (6)
- (A)
If any part of any tax imposed under this subsection (d) is not paid on or before the due date, a penalty of five percent (5%) of the amount due shall at once accrue and be added to such tax. Thereafter, on the first day of each month during which any part of any tax or any prior accrued penalty remains unpaid, an additional penalty of five percent (5%) of the then unpaid balance shall accrue and be added to such tax or prior accrued penalty. In addition, taxes under this subsection (d) not paid on the due date shall bear interest at the maximum lawful rate from the due date to the date paid. Payment shall be deemed to have been made upon date of deposit in the United States mail. The commissioner may, for good cause, approve an alternative payment plan as long as full payment of the tax is made.
- (B)
If an ICF/IID is more than sixty (60) days delinquent in paying its monthly amount, the commissioner of intellectual and developmental disabilities may initiate proceedings to revoke the license of the facility in accordance with the Uniform Administrative Procedures Act.
- (C)
If a facility is more than thirty (30) days delinquent in paying the amount of its tax or any installment of an alternative payment plan approved by the board or executive director, the executive director of the health facilities commission has the additional authority to deduct the amount owing from the facility's forthcoming medicaid payments and to notify the facility that it will be locked into a process by which the monthly installment will automatically be deducted from each month's medicaid payment for an appropriate period of time, as determined by the state. The facility will also be notified of an opportunity to request a hearing before the executive director or the executive director's designee to consider the sole issues of whether the amount of the tax was proper and whether the payment of the tax was more than thirty (30) days delinquent. If requested by the facility, this hearing shall be promptly held, but in no case shall the pendency of a hearing result in delay of the deductions envisioned in this subdivision (d)(6)(C).
- (7)
The tax imposed by this subsection (d) may not be billed by the ICF/IID as a separately stated charge, but this shall not prevent the ICF/IID from adjusting its rates to defray the cost associated with the tax.
- (8)
The fiscal review committee shall review and have oversight of the implementation of this subsection (d).
- (9)
Any tax obligation imposed by this subsection (d) shall be suspended to the extent that and for the period that receipt of the tax by the state results in a corresponding reduction in federal financial participation under Title XIX of the federal Social Security Act (42 U.S.C. § 1396 et seq.).
- (10)
The tax established by this subsection (d) shall terminate on July 15, 2017.
§ 68-11-831. Appointment of temporary management.
- (a)
The health facilities commission is authorized to appoint temporary management to oversee the operation of a nursing home and to assure the health and safety of the nursing home's residents where:
- (1)
There is an orderly closure of the nursing home; or
- (2)
Improvements are made in order to bring the nursing home into compliance with all applicable deficiencies cited pursuant to § 68-11-210.
- (b)
All proceedings initiated pursuant to this section shall be consistent with those in §§ 68-11-207 and 68-11-208, and, to the extent practicable, may be brought concurrently with proceedings initiated pursuant thereto.
- (c)
The temporary management under this section shall not be terminated until the facility is closed under subdivision (a)(1), or until the health facilities commission has determined that the nursing home has the management capability to ensure continued compliance with all requirements for nursing homes.
- (d)
The health facilities commission has the authority to appoint temporary management under this section during the pendency of a hearing.
§ 68-11-832. Tennessee Eden Alternative Grant Assistance Program Act of 1999.
- (a)
This section shall be known and may be cited as the “Tennessee Eden Alternative Grant Assistance Program Act of 1999.”
- (b)
- (1)
The general assembly recognizes the need to improve and enhance the quality of life of the elderly who reside in health care facilities statewide, and acknowledges that, in order to provide the quality of life deserved by our elderly, changes have to be made in the way facilities operate. The general assembly further recognizes that there is one (1) nationally recognized program that has been proven to successfully improve and enhance the quality of life in residential health care facilities, that states nationwide are adopting and striving to implement the Eden Alternative program in their respective states and that elderly Tennesseans should not be deprived of the enhanced quality of life this program offers.
- (2)
It is the intent of the general assembly in enacting this section and related provisions to provide for the establishment and implementation of a pilot program to assist facilities in Tennessee in implementing the Eden Alternative program to enhance the lives of facility residents and staff, while demonstrating the effectiveness of the Eden Alternative method and encouraging its adoption statewide.
- (c)
- (1)
In addition to any other lawful use of the nursing home resident protection trust fund, the fund may be used to fund a pilot grant program to assist in the implementation of Eden Alternative enhanced quality of life projects in nursing homes, assisted-care living facilities and homes for the aged in Tennessee.
- (2)
The executive director of the health facilities commission is authorized to establish a grants application and award process to be developed in conjunction with the state's Eden Alternative coalition. The grant application and award process shall be established and conducted in accordance with accepted state and federal contracting practices.
- (3)
Each grant application shall be reviewed and evaluated by the grant selection committee of the Eden Alternative coalition.
- (4)
The executive director of the health facilities commission shall be responsible for awarding grants under this section.
- (5)
No more than sixty thousand dollars ($60,000) shall be expended from the nursing home protection trust fund in any fiscal year to finance the program authorized by this section. No more than fifty thousand dollars ($50,000) shall be expended from that sum in any fiscal year to finance the facility grant assistance program authorized by this section. No more than ten thousand dollars ($10,000) shall be expended from that sum in any fiscal year to finance education and research activities conducted by the Eden Alternative coalition in conjunction with the health facilities commission.
- (6)
A maximum of ten (10) Eden Alternative grants, of not more than five thousand dollars ($5,000) each, shall be awarded in any fiscal year. Of the ten (10) facilities selected to receive grant awards annually, five (5) shall be nursing homes, three (3) shall be assisted-care living facilities, and two (2) shall be homes for the aged.
- (7)
The executive director of the health facilities commission is authorized to promulgate rules and regulations to effectuate this grant program. Regulations promulgated under this section shall be developed in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.
- (d)
The executive director of the health facilities commission shall establish and maintain evaluation procedures to assess the availability of revenues for the program and the viability of such program on a yearly basis, and shall determine whether such program shall be fully funded or partially funded with resources available.
Part 9 Rights of Nursing Home Residents and Patients, and Members of the Public Regarding Nursing Homes
§ 68-11-901. Enumeration of minimum rights.
-
Every nursing home resident/patient has the following minimum rights:
- (1)
To privacy during treatment and personal care. Residents/patients shall be assured of at least visual privacy in multi-bed rooms and in the bathtub, shower and toilet rooms;
- (2)
If married, to visit in private with their spouse, and, if not medically contraindicated and if space is available, to have conjugal visits with their spouse and to share a room with their spouse;
- (3)
To visit in private with any person or persons during reasonable hours, subject to the right of the administrator to refuse access to the facility to any person, if the presence of that person in the facility would be injurious to the health and safety of a resident or the staff, or would threaten the security of the property of the resident, staff or facility;
- (4)
To communicate by telephone with any person they so choose. Telephones shall be readily accessible, and at least one (1) telephone shall be equipped with sound amplification and shall be accessible to patients while in wheelchairs;
- (5)
To meet with members of, and take part in activities of, social, commercial, religious and community groups, subject to the same limitations as in subdivision (3);
- (6)
To the delivery of their mail, unopened, on the business day it is received by the facility and to send mail to any person without interference by the facility;
- (7)
To exercise their rights as residents and citizens, to be able to voice grievances and recommend changes in policies and services to nursing home staff and outside persons of their choice, free from restraint, interference, coercion, discrimination or reprisal, and to form and attend patient council meetings to further these rights. The facility shall provide space for these council meetings and, if requested to do so, shall assist residents in organizing and conducting the meetings;
- (8)
To retain and use personal clothing and possessions, as space permits:
- (A)
The facility must prepare a written personal inventory on the day of admission and update this inventory as new items are acquired or old items are disposed of, as soon as the nursing home becomes aware of these changes;
- (B)
The facility shall have a written policy regarding the protection of residents' personal property and the process by which any loss of property is to be investigated;
- (9)
To be free from being required by the facility to work or perform services;
- (10)
To choose, with the help of their authorized family member or guardian, a personal physician. Further, to be fully informed of the resident's medical condition, unless medically contraindicated and documented by the physician in the resident's medical record. The facility shall give the patient and authorized family member the opportunity to participate in the planning of the patient's total care plan and medical treatment;
- (11)
To refuse treatment:
- (A)
The resident must be informed of the consequences of that decision;
- (B)
The refusal and its reason must be documented in the resident's medical record and reported to the physician; and
- (C)
The right to refuse treatment may not be abridged, restricted, limited or amended by medical contraindication as provided below;
- (12)
To refuse experimental treatment and drugs. Written consent must be obtained from any resident who agrees to participate in research and retained in the resident's medical record;
- (13)
To have records kept confidential and private:
- (A)
Written consent by the resident must be obtained before any information can be released, except for persons authorized under the law;
- (B)
If the resident is mentally incompetent, written consent is required by the resident's legal representative; and
- (C)
The facility must have a written policy governing access to and duplication of patient records and copies of the policy shall be available to all residents and their families upon request;
- (14)
To manage the resident's financial affairs:
- (A)
If the resident requests assistance from the nursing home in managing the resident's financial affairs, the request must be in writing;
- (B)
If the resident desires to designate an additional person to have access to personal funds held for the resident by the facility, this designation must likewise be in writing;
- (C)
In the event of the resident's death, the facility shall provide, within thirty (30) days thereafter, an accounting of the resident's funds held by the facility and an inventory of the resident's personal property held by the facility to the resident's executor, administrator or other persons authorized by law to receive the decedent's property. The facility shall obtain a signed receipt from any person to whom the decedent's property is transferred;
- (D)
In the event of sale of the facility, the seller shall provide written verification that all resident funds and property have been transferred and shall obtain a signed receipt from the new owner. Upon receipt, the buyer shall provide an accounting of funds and property held to the residents;
- (E)
The facility shall maintain and allow each resident access to a written record of all financial arrangements and transactions involving the individual resident's funds;
- (F)
The facility shall provide each resident, or the resident's authorized representative, with a written itemized statement at least quarterly of all financial transactions involving the resident's funds; and
- (G)
The facility shall keep any funds received from a resident for safekeeping in an account separate from the facility's funds, and resident funds shall not be used by the facility;
- (15)
To be suitably dressed at all times and to be given assistance, when needed in dressing, grooming and maintaining body hygiene;
- (16)
For the family or guardian to be notified immediately of any accident, sudden illness, disease, unexplained absence or anything unusual involving the resident;
- (17)
To be free from detention against their will. Residents shall be permitted to go outdoors, when weather permits, and to leave the premises when accompanied by a responsible, authorized adult whenever they wish, unless such activity would be clearly dangerous for the resident;
- (18)
Not to be involuntarily transferred or discharged, unless the action is medically indicated and so documented by the treating physician in the resident's medical record, is for the patient's welfare or the welfare of the other patients, or is due to nonpayment, except as prohibited by the medicaid program;
- (19)
Not to suffer discrimination or retaliation by the nursing home because the resident has reported to or cooperated with any board or agency having the responsibility for protecting the rights of residents or has attempted to assert any right protected by state or federal law;
- (20)
To be free from chemical (drugs) and physical restraints, except upon specific written orders of the treating physician;
- (21)
To be free from willful abuse or neglect, as these terms are defined by § 71-6-102;
- (22)
To be told in writing before or at the time of admission about the services available in the facility and about any extra charges, charges for services not covered under medicare or medicaid, or not included in the facility's bill;
- (23)
To exercise the resident's own independent judgment by executing any documents, including admission forms;
- (24)
To be treated with consideration, respect and full recognition of the resident's dignity and individuality;
- (25)
Each facility shall respect a resident's right to the use and quiet enjoyment of such resident's personal room or, in the case of multiple occupancy, that part of the resident's room designated for the resident's personal use. To this end, a resident shall have the right to close the door to the resident's room if the resident wishes, unless the physician or registered nurse, for medical reasons, orders the door to remain ajar or fully open. The staff of the facility shall have the right to check on a resident in the resident's room by coming to the door or into the room as needed to provide medical care, personal care or to ensure the safety of the patient; and
- (26)
Subject to the availability of space, facilities with multiple occupancy rooms shall honor the request for a common room assignment when both residents make the request and when both are of the same sex or are related by blood or marriage. If the treating physician states there are medical reasons for denial of the request, the facility may deny a joint room assignment.
§ 68-11-902. Nursing home residents and patients — Abridging, restricting, limiting or amending minimum rights.
- (a)
The rights set forth in § 68-11-901 may be abridged, restricted, limited or amended only as follows:
- (1)
When medically contraindicated; or
- (2)
When necessary to protect and preserve the rights and safety of the other residents in the facility.
- (b)
- (1)
Any reduction in resident's rights based upon medical consideration or the rights of other residents must be explicit, reasonable, appropriate to the justification, and the least restrictive response feasible.
- (2)
Reductions in rights may be time-limited, shall be explained to the resident, and must be documented in the individual resident's record by reciting the limitation's reason and scope.
- (3)
Medical contraindications shall be supported by a physician's order.
- (4)
At least once each month, the administrator and the director of nursing shall review the restriction's justification and scope before removing it, amending it or renewing it.
- (5)
The names of any residents in the facility whose rights have been restricted under this subsection (b) shall be maintained on a separate list, which shall be available for inspection by the health facilities commission and by the area long-term ombudsman.
§ 68-11-903. Retaliation or discrimination against complainants.
-
No nursing home or home for the aged may retaliate or discriminate in any manner against any person who:
- (1)
In good faith complains or provides information to, or otherwise cooperates with, any agency of government or any person or entity operating under contract with an agency of government, having any responsibility for protecting the rights of residents of nursing homes or homes for the aged; or
- (2)
Attempts to assert any right protected by state or federal law.
§ 68-11-904. Confidentiality of complainant's identity.
- (a)
Whenever the health facilities commission conducts inspections and investigations in response to complaints received from the public, the identity of the complainant and the identity of any patient or resident who is the subject of the complaint, or identified in the complaint, shall be treated as confidential and shall not be open to inspection by members of the public, notwithstanding any provision of title 10, chapter 7 to the contrary.
- (b)
It being in the public interest that the identity of a person described in subsection (a) shall be protected from disclosure, the person's identity shall be provided in response to litigation, only after a finding by the court that justice so requires.
§ 68-11-905. Personal property — Storage space — Security — Theft.
- (a)
Each nursing home shall provide a reasonable amount of storage space for the personal property of the residents.
- (b)
The nursing home shall provide a means of safeguarding small items of value for the resident in the resident's room, or in some other part of the facility if the resident can have daily access to the valuables.
- (c)
The facility shall develop procedures for investigating complaints of the theft of residents' property and shall document its investigation of all the complaints.
§ 68-11-906. Deposit of residents' funds — Surety bond.
- (a)
Each nursing home shall deposit any funds in excess of one hundred dollars ($100) received from, or on behalf of, a resident in an interest-bearing account, insured by an agency of the federal government.
- (b)
The account shall be maintained in a manner clearly indicating that the facility has only a fiduciary interest in the funds.
- (c)
When individual interest-bearing accounts or collective accounts capable of individual attribution of interest payments are not readily available for such deposits, the nursing home may use a single account for deposits by, or on behalf of, more than one (1) resident, but shall maintain records documenting the amount of principal owned by each depositor.
- (d)
Any interest accruing on such accounts need not be paid to individual depositors, but shall be used for the benefit of the facility's residents to pay for activities or amenities not covered by the facility's charges.
- (e)
The nursing home may keep up to one hundred dollars ($100) of a resident's money in a non-interest bearing account or petty cash fund, readily available for the resident's current expenditures.
- (f)
The nursing home shall maintain a surety bond on all funds held in trust for facility residents and shall make an annual, audited accounting of such funds, available to the residents and for public inspection.
§ 68-11-907. Involuntary transfer or discharges.
- (a)
Except when the resident's attending physician determines that the failure to transfer a nursing home resident will threaten the health or safety of the resident or others, and documents that determination in the resident's medical record, no involuntary transfer or discharge shall occur until a physician has certified, in writing, that the physician has personally examined the resident within the seven (7) days immediately before the proposed transfer or discharge, that the physician is familiar with the discharge plans and provisions for continuing the resident's care, and that the transfer or discharge will not pose a threat to the health or safety of the resident.
- (b)
As used in this section, “transfer” refers to the movement of a patient or resident to a location outside of the nursing home and does not refer to intrafacility transfers in which a patient or resident changes beds, rooms or wings of the same nursing home.
§ 68-11-908. Refusal of access to nursing home.
- (a)
The administrator of a nursing home may refuse access to the facility to any person whose presence would be injurious to the health and safety of a resident or the staff, or would threaten the security or the property of the residents, staff or facility.
- (b)
- (1)
Any person refused access to a nursing home shall be notified at the time of the refusal of the person's right to file a complaint with the health facilities commission, which may require the facility to answer as to its reasons.
- (2)
Counseling residents regarding their legal rights shall not constitute an activity justifying denial of access.
§ 68-11-909. Data aiding enforcement of quality of care standards.
- (a)
The executive director of the health facilities commission shall determine what, if any, nursing home resident morbidity and mortality data would materially aid enforcement of quality of care standards and would be feasible for nursing homes to report.
- (b)
Data meeting this criteria shall be collected and reported to the health facilities commission as prescribed by regulation, but shall be confidential and not subject to public inspection under § 10-7-503.
§ 68-11-910. Preadmission or precontract disclosures.
- (a)
Prior to the admission of a resident to a nursing home or prior to the execution of a contract for the care of a resident in a nursing home, whichever occurs first, the nursing home shall make the following written disclosures to the resident, the resident's authorized representative and the resident's next of kin, if any:
- (1)
The facility's basic daily or monthly rates;
- (2)
A description of all facility services, including those offered on an as-needed basis, and related charges, including any extra charges for services not covered by third party governmental programs or by the facility's basic daily or monthly rate;
- (3)
The right of the resident, the resident's authorized representative, and the resident's authorized next of kin to review the resident's medical and financial records and the resident's right to have the records be kept confidential as to inspection by other third parties, unless the resident has given those parties written consent or they are otherwise authorized by law to make the inspection;
- (4)
A copy of the policies or procedures required for the protection of residents' rights by this chapter or by the regulations of the board for licensing health care facilities or by any federal agency with jurisdiction over the facility;
- (5)
The address and telephone numbers of the health facilities commission, the local long term care ombudsman and local legal services organizations funded under the Older Americans Act (42 U.S.C. § 3001 et seq.), that offer services without charge to facility residents, along with a brief description of the services provided without charge by such agencies; and
- (6)
A statement indicating whether the facility has liability insurance and the identity of the primary insurance carrier. If the facility is self-insured, the statement shall reflect that fact and indicate the corporate entity responsible for payment of any claims.
- (b)
A notice shall be posted conspicuously in the reception area and business office of the nursing home advising the public of the availability for inspection of these materials and of those reports required by § 68-11-804(c)(1).
- (c)
- (1)
In addition to any other disclosure required by this part, prior to the admission of a resident to a nursing home or prior to the execution of a contract for the care of a resident in a nursing home, whichever occurs first, the nursing home shall disclose in writing to the resident or to the resident's guardian, conservator or representative, if any, that the facility does not have:
- (A)
A fire suppression sprinkler system throughout the facility;
- (B)
A smoke detector or alarm in each patient room; or
- (C)
Neither a fire suppression sprinkler system throughout the facility nor a smoke detector or alarm in each patient room.
- (2)
Such disclosure shall be made on a form separate from the contract for the care of the resident and shall be printed in bold type and in no less than twelve-point font. The form must be signed by the resident or the resident's guardian, conservator or representative, if any, and the signature must be witnessed. If the resident cannot read, the form must be read aloud to the resident. If the facility maintains an internet website, the disclosure must also be made on that internet website.
- (3)
The requirements of this subsection (c) shall not apply to any nursing home that is fully sprinklered as of April 17, 2004.
Part 10 Registry of Persons Who Have Abused, Neglected, or Misappropriated the Property of Vulnerable Individuals
§ 68-11-1001. Establishment and maintenance of registry — Confidentiality — Access to records.
- (a)
The health facilities commission shall establish and maintain a registry containing the names of any persons who have been determined by Tennessee government agencies or any state or federal court or any administrative bodies to have abused, neglected, misappropriated or exploited the property of vulnerable individuals.
- (b)
The names and information contained in this registry shall be available for public inspection as provided by this chapter.
- (c)
The health facilities commission may discharge its responsibilities under this part directly, or through interagency agreement; provided, that authorized access to the records by means of a single centralized agency shall be assured.
§ 68-11-1002. Part definitions.
-
As used in this part, unless the context requires otherwise:
- (1)
“Abuse” means the willful infliction of injury, unreasonable confinement, intimidation, or punishment with resulting physical harm, pain, or mental anguish;
- (2)
“Criminal disposition” means the disposition of criminal charges constituting an offense against a vulnerable person, as that term is defined by this section, either by conviction, or by pretrial diversion authorized by any court pursuant to title 40, chapter 15, or by an order deferring further proceedings and placing an individual on probation by post-trial diversion issued pursuant to title 40, chapter 35;
- (3)
“Exploitation” means, in cases that are investigated by the department of human services, the improper use by a caretaker of funds that have been paid by a governmental agency to an adult or to the caretaker for the use or care of the adult;
- (4)
“Misappropriation” means any taking, possession or use of the property of a vulnerable person the elements of which constitute any criminal offense involving such property, or that constitute a violation of a fiduciary duty of a caretaker of a vulnerable person;
- (5)
“Neglect” means the failure to provide goods and services necessary to avoid physical harm, mental anguish, or mental illness;
- (6)
“Offense against a vulnerable person” means any act that constitutes abuse, neglect, misappropriation or exploitation of the property of a vulnerable person even if the act does not constitute a criminal act, or any crime the elements of which constitute abuse, neglect, or misappropriation or exploitation of the property of a vulnerable person;
- (7)
“Property” means all interests of any type in real property, and any interests of any type in personal property whether in moneys or financial instruments of any type, goods, furnishings, and similar property; provided, however, that for purposes of reporting to the registry established by this part, property shall only consist of funds paid by a governmental agency to an “adult” as defined in § 71-6-102, if the report of abuse, neglect, misappropriation or exploitation is investigated by the department of human services pursuant to title 71, chapter 6, part 1; and
- (8)
“Vulnerable person” means anyone who:
- (A)
Is under eighteen (18) years of age; or
- (B)
Is eighteen (18) years of age or older and, by reason of advanced age or other physical or mental condition, is vulnerable to or has been determined to have suffered from abuse, neglect or misappropriation or exploitation of property and is or has been:
- (i)
The subject of any report of harm, abuse, neglect, or exploitation of property made to any state agency or investigative authority with responsibility to investigate those reports pursuant to title 37, chapter 1, parts 1 or 6, title 71, chapter 6, part 1, or pursuant to any other law or regulation;
- (ii)
Receiving protective services from a state agency pursuant to law;
- (iii)
The victim of any criminal offense that constitutes abuse, neglect, or misappropriation or exploitation of property;
- (iv)
In the care of either a state agency, an entity that is licensed or regulated by a state agency, or in the care of an entity providing services under a contract between that entity and a state agency; or
- (v)
Receiving services in the person's home from any agency licensed or regulated by or contracted to a state agency, including, but not limited to home and community-based services, home health care, or other health care-related services provided through state or federal funds to assist persons to remain in their homes.
§ 68-11-1003. Prerequisites to including name on registry — Notice to alleged perpetrator — Removal of name from registry.
- (a)
- (1)
Any state government agency that finds that an individual has committed abuse, neglect, or misappropriation or exploitation of the property of a vulnerable person shall notify the health facilities commission concerning such individual in accordance with subdivision (a)(2). The health facilities commission shall include the name of an individual on the registry when it receives notification from an agency of Tennessee state government that the individual has been found by that agency, pursuant to that agency's procedures and definitions, to have committed abuse, neglect, or misappropriation or exploitation of the property of a vulnerable person.
- (2)
Notification shall consist of a copy of an emergency, initial, or final administrative order, a judicial order, or other evidence indicating that the agency has afforded the individual an opportunity for an administrative due process hearing pursuant to the requirements of the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, part 3, or equivalent judicial or administrative procedures; provided, that nothing in this part shall require the state agency to establish any new procedures or to modify any existing procedures it may use for the provision of due process to the individual.
- (3)
Notification shall include the individual's last known mailing address, and the agency's definition of abuse, neglect, misappropriation or exploitation of property that it used in making the determination, and any other information that the commission determines is necessary to adequately identify the individual for purposes of administrative hearings provided by this part, or to adequately identify the individual when inquiry to the registry is made.
- (b)
The commission shall also include an individual's name on the registry when it receives a copy of a criminal disposition from the Tennessee bureau of investigation or another federal, state, or local law enforcement agency, court, or criminal justice agency indicating that a criminal disposition against the named individual was the result of an offense against a vulnerable person, but only if the copy of the court's criminal disposition order indicates that:
- (1)
The individual was notified that, as a consequence of the conviction, the individual will be placed on the abuse registry;
- (2)
The offense constitutes an offense against a vulnerable person; and
- (3)
The court has ordered placement on the abuse registry pursuant to this part and the clerk is required to forward such judgment to the commission.
- (c)
Upon receiving the notification set out in subsection (a) or (b), the commission shall, in addition to entering the individual's name on the registry, also maintain and make available upon request the name of the reporting agency and the applicable definition of abuse, neglect, misappropriation or exploitation of property supplied by that agency. The individual's name, once entered on the registry, shall remain on the registry, except as provided in subsection (f), even if the individual meets the requirements of any criminal disposition, and regardless of any expunction that may be ordered by any court or that may take place by operation of law in connection with the criminal disposition; provided, however, that any expunction reported to the commission shall result in the removal from the registry of everything regarding the criminal disposition, except the individual's name, and the commission shall destroy any other documentation of the criminal disposition; provided, further, however, that if a person is reported by any state agency pursuant to this part, the identification of the individual as a perpetrator of abuse, neglect, misappropriation or exploitation of a vulnerable person shall not be subject to removal based upon expunction of a criminal disposition.
- (d)
Upon entry of this information, the commission shall notify the individual, at the individual's last known mailing address, of the individual's inclusion on the registry. Although the individual will not be entitled or given the opportunity to contest or dispute either the prior hearing conclusions, or the content or terms of any criminal disposition, or attempt to refute the factual findings upon which such are based, the individual may challenge the accuracy of the report that such a criminal disposition has occurred, or such hearing conclusions were made or any fact issue related to the correct identity of the individual. If the individual makes such a challenge within sixty (60) days of notification of inclusion on the registry, the executive director of the health facilities commission, or the executive director’s designee, shall afford the individual an opportunity for a hearing on the matter that complies with the requirements of due process and the Uniform Administrative Procedures Act.
- (e)
If the commission receives from the Tennessee bureau of investigation, other federal, state or local law enforcement agency, any court, or criminal justice agency documentation substantiating that an offense against a vulnerable person has been committed by an individual, whose name has not already been placed on the registry pursuant to subsection (a) or (b), the commission shall, prior to placing the individual's name on the registry, afford that individual an opportunity for an administrative due process hearing pursuant to the requirements of the Uniform Administrative Procedures Act, or equivalent judicial or administrative procedures; provided, however, that nothing in this part shall require the commission to establish any new procedures or modify any existing procedures it may use for the provision of due process. If, as a result of the hearing, the commission finds the individual committed an offense against a vulnerable person, the commission shall include the name of the individual on the registry.
- (f)
Any individual's name shall be immediately removed from the registry if:
- (1)
Upon a hearing, the executive director of the health facilities commission, or the executive director’s designee, determines that the initial report of a criminal disposition, or the administrative hearing conclusions never occurred; or
- (2)
At the final step taken in an appellate process, a reported conviction, an emergency order, or an administrative hearing result is reversed.
- (g)
- (1)
A state agency that has placed a person in the registry pursuant to this part may recommend to the commission the removal of the person's name if:
- (A)
It finds that the placement of the person's name on the registry was in error; or
- (B)
An advisory group convened by the state agency composed of persons with experience in the subject matter areas of the agency's work, or who by experience or education the agency determines are qualified to provide recommendations to the agency regarding a person's likelihood of committing further acts or omissions that led to the person's placement on the registry determines, based upon evidence presented to the group, that removal of the person from the registry is clearly warranted, then the group may recommend in writing to the agency a waiver and removal of the person from the registry.
- (2)
The final decision regarding the recommendation for removal from the registry shall be made by the state agency and the recommendation shall be reduced to writing, giving the agency's reasons for the decision and sent to the person seeking the waiver.
- (3)
If the decision is to remove the person from the registry, the recommendation shall be sent to the commission and the person's name shall be removed by the commission.
- (4)
If the person seeking a waiver is dissatisfied with the determination made by the state agency, the person shall be permitted to appeal. The appeal shall be conducted as a contested case hearing pursuant to the Uniform Administrative Procedures Act.
- (5)
The decision and the written recommendations of the advisory group and the state agency shall be open for public inspection.
§ 68-11-1004. Agencies or entities required to consult registry prior to hiring employees or utilizing volunteers.
- (a)
Any of the following shall determine whether any prospective employee or volunteer person engaged in providing services to persons subject to this part is listed on the registry before the person is permitted to be employed or provide volunteer services:
- (1)
A state agency under title 33, 37, 68 or 71 that provides licensing authority over any entity subject to subdivision (a)(2) or that provides care for persons subject to this part;
- (2)
An entity licensed by a state agency as defined in subdivision (a)(1); or
- (3)
An entity with a contract between that entity and a state agency, as defined in subdivision (a)(1), and that provides care for persons subject to this part.
- (b)
No employee or volunteer who is listed on the registry may be hired or otherwise permitted to provide such regulatory oversight or services.
§ 68-11-1005. Immunity from liability for allegations or testimony regarding abuse, neglect, or misappropriation of property.
- (a)
Anyone who submits an allegation of abuse, neglect, or misappropriation or exploitation of property to the health facilities commission for inclusion in the registry, or who testifies in any administrative or judicial proceeding arising from the allegation, shall be immune from any civil or criminal liability for making the report or for testifying, except for liability for perjury, unless the person acted in bad faith or with malicious purpose.
- (b)
A licensing authority that refuses to license a person listed on the registry established by this part, or that refuses to license an entity that employs or allows such a person to provide care to vulnerable persons, or a person or entity that declines to employ or otherwise utilize such a person, or that terminates such a person, shall be absolutely immune from suit by or on behalf of that person and from any liability for such actions based upon the person's listing on the registry.
§ 68-11-1006. Promulgation of rules.
-
The executive director of the health facilities commission shall promulgate rules to effectuate the purposes of this part. The rules shall be promulgated in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.
Part 11 Indigent Health Care
§ 68-11-1101. Purpose.
-
The purpose of this part is to ensure a more equitable allocation of public financial resources provided for the purpose of off-setting the financial burden placed on hospitals in providing necessary services to medically indigent citizens.
§ 68-11-1102. Indigent health care risk fund — Created — Allocations.
- (a)
There is created within the state treasury an indigent health care risk fund to be administered by the commissioner of finance and administration, with the approval of the governor.
- (b)
The fund shall allocate the total revenue received by the state pursuant to § 68-11-216, less such amounts for administrative costs as may be set forth in the general appropriations act, pursuant to rules and regulations that the commissioner is authorized to promulgate.
- (c)
In allocating the funds in the indigent health care risk fund, consideration shall be given by the commissioner to:
- (1)
The relative amounts of bad debt, medically indigent and charity care provided by the hospitals;
- (2)
The amount of government subsidies to the hospitals; and
- (3)
Any other factor relating to indigent care as determined by the commissioner.
§ 68-11-1103. Indigent health care risk fund — Deposits — Interest — Payments — Reports.
- (a)
All funds received, appropriated or otherwise coming under [former] § 68-11-216(c) [obsolete] shall be deposited into the state treasury to the credit of the indigent health care risk fund.
- (b)
Any interest earned on such funds shall also be credited to the indigent health care risk fund.
- (c)
The commissioner of finance and administration shall make payments from the fund in the same manner as other state agencies for the administration and implementation of the purposes of this part.
- (d)
- (1)
Amounts in the fund at the end of any fiscal year shall not revert to the general fund, but shall remain available for the purposes as set forth in this part.
- (2)
The commissioner shall report to the general assembly annually on the financial status of the fund, including receipts, payments, the year-end balance, and such other information as may be pertinent.
Part 12 Public Costs Savings Act of 1990
§ 68-11-1202. Part definitions.
-
As used in this part, unless the context otherwise requires:
- (1)
“Equivalent competitive procedures” means procedures that include the following:
- (A)
Use of a notification procedure designed to reach prospective suppliers of goods or services likely to be interested, as well as able, to satisfy the requirement for such goods and services;
- (B)
Use of specifications that do not unfairly limit the goods or services that would be responsive to the requirement and that afford a fair and reasonable opportunity for competition;
- (C)
Use of a written request for quotations or bids, whenever reasonably possible; and
- (D)
Use of procedures for evaluating proposals that provide a fair and equitable review of competing proposals;
- (2)
“Governing board” means that group of persons designated as commissioners, directors, trustees or similar titles denoting responsibility for establishing policy and having ultimate authority for control of the management, operations and finances of a public body;
- (3)
“Group purchasing program” means any plan, program or method that is intended to provide one (1) or more public bodies, or other governmental or nonprofit organizations, or other entities or persons, whether located in this state or elsewhere, with the opportunity to obtain goods or services at a discount or savings not otherwise available through the purchasing practices of a public body; and
- (4)
“Public body” means:
- (A)
Any hospital organized and operating under the Metropolitan Hospital Authority Act, compiled in title 7, chapter 57, as it existed on or after May 1, 1990;
- (B)
Any hospital created as a hospital district;
- (C)
Any hospital or hospital authority created by public act or private act of the general assembly;
- (D)
Any hospital, hospital authority or hospital district operated by any municipality or county or jointly by any one (1) or more municipalities or counties; or
- (E)
Any agency or instrumentality of any of the foregoing.
§ 68-11-1203. Cost savings authorized.
- (a)
Notwithstanding any other law, public bodies may make purchases under or through the auspices of a group purchasing program that has not submitted a formal bid, but has made available to the public body a price quote on the goods or services proposed for purchase by the public body and which quote may be considered and accepted by the public body as the submission of a formal bid as a part of the process of the otherwise applicable competitive bidding process; provided, that:
- (1)
The price quote of the group purchasing program is competitive and represents the lowest and best bid for the goods or services sought to be purchased under the competitive bidding process;
- (2)
The group purchasing program certifies to the governing board of the public body that it uses equivalent competitive procedures to obtain quotes or contracts for goods or services sought to be purchased by the public body, so as to obtain the lowest and best bid available to the group purchasing program for the goods or services to be made available for purchase by the public body or other participants in the group purchasing program; and
- (3)
The governing board of the public body has determined that participation in the group purchasing program is in the best interest of the public, such determination to be made at a meeting of the governing board of the public body no less frequently than annually upon a submission of a summary report by management of the public body showing the purchases made through one (1) or more group purchasing programs over a specific period of time covered by the summary report.
- (b)
This part shall be construed as authority supplemental to purchasing authority provided under any other public or private act, and in the event of conflict between this part and any other public or private act, then this part shall prevail to the extent of any conflict.
§ 68-11-1204. Applicability.
-
This part shall not be applicable to purchases made through any group purchasing organization whose membership is limited exclusively to Tennessee public hospitals and, furthermore, nothing in this part shall be construed to grant authority for the organization and operation of a group purchasing entity whose membership is limited exclusively to public hospitals.
Part 13 Hospital Cooperation Act of 1993
§ 68-11-1302. Part definitions.
-
As used in this part, unless the context otherwise requires:
- (1)
“Commissioner” means the commissioner of health;
- (2)
“Cooperative agreement” means an agreement among two (2) or more hospitals for the consolidation by merger or other combination of assets, offering, provision, operation, planning, funding, pricing, contracting, utilization review or management of health services or for the sharing, allocation, or referral of patients, personnel, instructional programs, support services and facilities or medical, diagnostic or laboratory facilities or procedures or other services traditionally offered by hospitals;
- (3)
“Department” means the department of health;
- (4)
“Hospital” means:
- (A)
Any institution required to be licensed as a hospital under § 68-11-201, or defined as a psychiatric hospital in [former] § 68-11-102 [repealed]; or
- (B)
Any parent of a hospital, hospital subsidiary or hospital affiliate that provides medical or medically-related diagnostic and laboratory services or engages in ancillary activities supporting those services; and
- (5)
“Intervenor” means any hospital, physician, allied health professional, healthcare provider or other person furnishing goods or services to, or in competition with, hospitals, insurer, hospital service corporation, medical service corporation, hospital and medical services corporation, preferred provider organization, health maintenance organization, or any employer or association that directly or indirectly provides health care benefits to its employees or members.
§ 68-11-1303. Cooperative agreements — Certificate of public advantage.
- (a)
It is the policy of this state, in certain instances, to displace competition among hospitals with regulation to the extent set forth in this part and to actively supervise that regulation to the fullest extent required by law, in order to promote cooperation and coordination among hospitals in the provision of health services and to provide state action immunity from federal and state antitrust law to the fullest extent possible to those hospitals issued a certificate of public advantage under this section.
- (b)
A hospital may negotiate and enter into cooperative agreements with other hospitals in the state, if the likely benefits resulting from the agreements outweigh any disadvantages attributable to a reduction in competition that may result from the agreements.
- (c)
Parties to a cooperative agreement may apply to the department for a certificate of public advantage governing that cooperative agreement. The application shall include an executed written copy of the cooperative agreement and describe the nature and scope of the cooperation in the agreement and any consideration passing to any party under the agreement. A copy of the application and copies of all additional related materials shall be submitted to the attorney general and reporter and to the department at the same time. The attorney general and reporter and the department are entrusted with the active and continuing oversight of all cooperative agreements.
- (d)
The department shall review the application in accordance with the standards set forth in subsection (e) and shall hold a public hearing in accordance with the rules adopted by the department. The department shall give notice of the application to interested parties by publishing a notice in the Tennessee administrative register in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5. Any intervenor may intervene in the proceeding. The department shall grant or deny the application within one hundred twenty (120) days of the date of filing of the application, and that decision shall be in writing and set forth the basis for the decision. The department shall furnish a copy of the decision to the applicants, the attorney general and reporter, and any intervenor. An intervenor aggrieved by a decision of the department to grant or deny the application shall have the right to appeal the department's decision, except that there shall be no stay of the department's decision granting an application unless the chancery court of Davidson County shall have issued a stay of the department's decision in accordance with § 68-11-1304, which shall be accompanied by an appeal bond from the intervenor. Additionally, if the intervenor shall appeal the department's decision and the appeal is unsuccessful, the intervenor shall be responsible for the costs of the appeal and attorneys' fees of the applicants.
- (e)
- (1)
After consultation with and agreement from the attorney general and reporter, the department shall issue a certificate of public advantage for a cooperative agreement, if it determines that the applicants have demonstrated by clear and convincing evidence that the likely benefits resulting from the agreement outweigh any disadvantages attributable to a reduction in competition that may result from the agreement.
- (2)
In evaluating the potential benefits of a cooperative agreement, the department shall consider whether the following benefits may result from the cooperative agreement:
- (A)
Enhancement of the quality of hospital and hospital-related care provided to Tennessee citizens;
- (B)
Preservation of hospital facilities in geographical proximity to the communities traditionally served by those facilities;
- (C)
Gains in the cost-efficiency of services provided by the hospitals involved;
- (D)
Improvements in the utilization of hospital resources and equipment;
- (E)
Avoidance of duplication of hospital resources;
- (F)
Demonstration of population health improvement of the region served according to criteria set forth in the agreement and approved by the department;
- (G)
The extent to which medically underserved populations have access to and are projected to utilize the proposed services; and
- (H)
Any other benefits that may be identified.
- (3)
The department's evaluation of any disadvantages attributable to any reduction in competition likely to result from the agreement shall include, but need not be limited to, the following factors:
- (A)
The extent of any likely adverse impact on the ability of health maintenance organizations, preferred provider organizations, managed healthcare organizations, or other healthcare payors to negotiate appropriate payment and service arrangements with hospitals, physicians, allied healthcare professionals, or other healthcare providers;
- (B)
The extent of any reduction in competition among physicians, allied health professionals, other healthcare providers, or other persons furnishing goods or services to, or in competition with, hospitals that is likely to result directly or indirectly from the cooperative agreement;
- (C)
The extent of any likely adverse impact on patients in the quality, availability, and price of healthcare services; and
- (D)
The availability of arrangements that are less restrictive to competition and achieve the same benefits or a more favorable balance of benefits over disadvantages attributable to any reduction in competition likely to result from the agreement.
- (f)
The department shall consult with the attorney general and reporter regarding its evaluation of any potential reduction in competition resulting from a cooperative agreement. The attorney general and reporter may consult with the United States department of justice or the federal trade commission regarding its evaluation of any potential reduction in competition resulting from a cooperative agreement.
- (g)
The department shall review, on at least an annual basis, each certificate of public advantage it has granted pursuant to this part. If the department determines that the likely benefits resulting from a certified agreement no longer outweigh any disadvantages attributable to any potential reduction in competition resulting from the agreement, the department may first seek modification of the agreement with the consent of the parties. If such modification is not obtained, the department may terminate the certificate of public advantage and the certificate holder may appeal in accordance with § 68-11-1304. The certificate of public advantage shall remain in full force and effect until such time as the certificate of public advantage holder has submitted, the department has approved, and the certificate holder has completed a plan of separation. The department's active supervision shall continue until such time as the department issues an official determination that the plan of separation has been completed.
- (h)
The department shall maintain on file all cooperative agreements for which certificates of public advantage remain in effect. The holder of a certificate of public advantage who voluntarily seeks to terminate a cooperative agreement shall file a notice of termination with the department at least forty-five (45) days prior to termination. The department, in its discretion, may require a plan of separation before accepting the notice of termination.
§ 68-11-1304. Judicial review.
- (a)
Any applicant or certificate holder aggrieved by a decision of the department denying an application, refusing to act on an application, or terminating a certificate is entitled to judicial review of the department's decision by the chancery court of Davidson County, which shall be the only available method of judicial review. The chancery court of Davidson County is granted the jurisdiction to conduct judicial review of the decisions made by the department pursuant to this part, and to render a decision thereon.
- (b)
Proceedings for review are instituted by filing a petition for review in the chancery court of Davidson County within sixty (60) days after the final decision of the department denying an application, refusing to act on an application, or terminating a certificate. Copies of the petition shall be served upon the department and the attorney general and reporter, in accordance with the provisions of the Tennessee Rules of Civil Procedure pertaining to service of process.
- (c)
The filing of the petition for review does not itself stay enforcement of the department's decision. The department may grant, or the chancery court of Davidson County may order, a stay upon appropriate terms, but if it is shown to the satisfaction of the chancery court of Davidson County, in a hearing that shall be held within ten (10) days of a request for hearing by either party, that any party or the public at large may suffer injury by reason of the granting of a stay, then no stay shall be granted until a good and sufficient bond, in an amount fixed and approved by the court, shall be given by the petitioner conditioned to indemnify the other persons who might be so injured, and if no bond amount is sufficient, then the stay shall be denied. The chancery court of Davidson County shall not consider a stay unless notice has been given to the attorney general and reporter; nor shall the chancery court of Davidson County consider a stay unless the petitioner has previously sought a stay from the department or demonstrates that the department's ruling on a stay application cannot be obtained within a reasonable time.
- (d)
Within forty-five (45) days after service of the petition, or within further time allowed by the court, the department shall transmit to the chancery court of Davidson County the original or a certified copy of the entire record of the proceeding under review. By stipulation of all the parties, the record may be shortened. A party unreasonably refusing to stipulate to limit the record may be taxed by the court for the additional cost. The court may require or permit subsequent corrections or additions to the record.
- (e)
The review shall be conducted by the chancery court of Davidson County without a jury and shall be confined to the record. In cases of alleged irregularities in procedure before the department, not shown in the record, proof thereon may be taken in the court.
- (f)
The court may reverse the decision of the department if the court finds that the decision is:
- (1)
In violation of constitutional or statutory procedures;
- (2)
In excess of the statutory authority of the department;
- (3)
Made upon unlawful procedure;
- (4)
Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion; or
- (5)
Unsupported by evidence that is both substantial and material in the light of the entire record; provided, that in determining the substantiality of evidence, the court shall take into account whatever in the record fairly detracts from its weight, but the court shall not substitute its judgment for that of the department as to the weight of the evidence on questions of fact.
- (g)
The chancery court of Davidson County shall reduce its findings of fact and conclusions of law to writing and make them parts of the record.
- (h)
A certificate of public advantage granted by the department pursuant to this part shall not constitute a property right or interest of the recipient.
§ 68-11-1305. Judicial remedies and procedures — Subpoenas — Actions — Injunctions.
- (a)
The attorney general and reporter, at any time after an application is filed under § 68-11-1303(c), may require by subpoena the attendance and testimony of witnesses and the production of documents in Davidson County or the county in which the applicants are located for the purpose of investigating whether the cooperative agreement satisfies the standards set forth in § 68-11-1303(e).
- (b)
The attorney general and reporter may seek to enjoin the operation of a cooperative agreement for which an application for certificate of public advantage has been filed by filing suit against the parties to the cooperative agreement in chancery court. The attorney general and reporter may file an action before or after the department acts on the application for a certificate, but the action must be brought no later than thirty (30) days after the department's approval of an application for a certificate of public advantage.
- (c)
Upon the filing of the complaint in an action under subsection (b), the department's certification, if previously issued, must be stayed and the cooperative agreement is of no further force, unless the court orders otherwise or until the action is concluded. The attorney general and reporter may apply to the court for any ancillary temporary or preliminary relief necessary to stay the cooperative agreement pending final disposition of the case.
- (d)
In any action brought under subsection (c), the applicants for a certificate bear the burden of establishing by clear and convincing evidence that, in accordance with § 68-11-1303(e), the likely benefits resulting from the cooperative agreement outweigh any disadvantages attributable to a reduction in competition that may result from the agreement. In assessing disadvantages attributable to a reduction in competition likely to result from the agreement, the court may draw upon the determinations of federal and state courts concerning unreasonable restraint of trade under 15 U.S.C. §§ 1 and 2 and title 47, chapter 25.
- (e)
If, at any time following the thirty-day period specified in subsection (b), the attorney general and reporter determines that as a result of changed circumstances, the benefits resulting from a certified agreement no longer outweigh any disadvantages attributable to a reduction in competition resulting from the agreement, the attorney general and reporter may file suit in the chancery court seeking to cancel the certificate of public advantage. The standard for adjudication for an action brought under this subsection (e) is as follows:
- (1)
Except as provided in subdivision (e)(2), in any action brought under this subsection (e), the attorney general and reporter has the burden of establishing by a preponderance of the evidence that, as a result of changed circumstances, the benefits resulting from the agreement and the unavoidable costs of cancelling the agreement are outweighed by the disadvantages attributable to a reduction in competition resulting from the agreement;
- (2)
In any action under this subsection (e), if the attorney general and reporter first establishes by a preponderance of evidence that the department's certification was obtained as a result of material misrepresentation to the department or the attorney general and reporter or as the result of coercion, threats or intimidation toward any party to the cooperative agreement, then the parties to the agreement bear the burden of establishing by clear and convincing evidence that the benefits resulting from the agreement and the unavoidable costs of cancelling the agreement outweigh the disadvantages attributable to any reduction in competition resulting from the agreement.
- (f)
The chancery court may resolve any action brought by the attorney general and reporter under this chapter by entering an order that, with the consent of the parties, modifies the cooperative agreement. Upon the entry of such an order, the parties to the cooperative agreement have the protection specified in § 68-11-1306 and the cooperative agreement has the effectiveness specified in § 68-11-1306.
§ 68-11-1306. Protections, effectiveness, validity and applicability of agreements.
- (a)
Notwithstanding title 47, chapter 25, or any other law, a cooperative agreement for which a certificate of public advantage has been issued is a lawful agreement. Notwithstanding title 47, chapter 25, or any other law, if the parties to a cooperative agreement file an application for a certificate of public advantage governing the agreement with the department, the conduct of the parties in negotiating and entering into a cooperative agreement is lawful conduct. Nothing in this subsection (a) immunizes any person for conduct in negotiating and entering into a cooperative agreement for which an application for a certificate of public advantage is not filed.
- (b)
If the department determines that the applicants have not established by clear and convincing evidence that the likely benefits resulting from a cooperative agreement outweigh any disadvantages attributable to any potential reduction in competition resulting from the agreement, then the agreement is invalid and has no further force or effect, except that the department's active supervision shall continue until the plan of separation in § 68-11-1303(g) has been determined by the department to be complete.
- (c)
Nothing in this part exempts hospitals or other health care providers from compliance with laws governing certificates of need.
- (d)
Any dispute among the parties to a cooperative agreement concerning its meaning or terms is governed by normal principles of contract law.
§ 68-11-1307. Application fees — Contracting with and compensation of qualified experts, assistants and examiners — Rules and regulations.
- (a)
- (1)
Parties to a cooperative agreement who have applied to the department for a certificate of public advantage shall pay the charges incurred in the examination of the initial application and, in the event the certificate of public advantage is approved, the charges incurred for the review and ongoing supervision of the agreement, including the expenses of the commissioner, and the expenses of the commissioner's assistants, including, but not limited to experts and examiners employed in the examination and review.
- (2)
The compensation of the assistants, experts, and examiners designated by the commissioner for examining the agreement and all records deemed relevant by the commissioner for the examination and review shall be fixed by the commissioner at an amount commensurate with usual compensation for like services.
- (b)
The commissioner may contract, in accordance with applicable state contracting procedures, for qualified experts, the commissioner deems necessary to conduct examination and review of the agreement and the parties' records.
- (c)
The full cost of the examination and ongoing review fixed by the commissioner shall be paid into the department for its use and benefit in meeting the expenses and compensation for the assistants, experts, and examiners engaged in the examination and review.
- (d)
The department may promulgate rules to implement this part in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, but rules are not necessary for the operation of this part.
§ 68-11-1308. Restrictions on interpretation and authority.
-
Unless otherwise permitted by law, nothing in this part shall be deemed to grant any hospital or group of hospitals, pursuant to a cooperative agreement, the authority to operate as a health maintenance organization, preferred provider organization or insurer without obtaining an appropriate license from the department of commerce and insurance. Nothing in this part shall be deemed to grant any hospital or group of hospitals, pursuant to a cooperative agreement, the authority to negotiate terms, prices or reimbursement rates with insurers, health maintenance organizations or preferred provider organizations otherwise prohibited under federal or state antitrust laws. Furthermore, nothing in this part shall be construed as authorizing a public benefit hospital entity to enter into a public benefit hospital conveyance transaction without complying with the requirements of the Public Benefit Hospital Sales and Conveyance Act of 2006, compiled in title 48, chapter 68, part 2, or shall be construed as impacting in any way the authority of the attorney general and reporter with respect to public benefit hospital conveyance transactions under that act.
§ 68-11-1310. Prohibited disclosure of confidential and proprietary information in connection with hospital cooperative agreements.
- (a)
The following records received by the department or the attorney general and reporter from the recipients or applicants of a certificate of public advantage for a cooperative agreement issued pursuant to this part shall not be subject to disclosure pursuant to title 10, chapter 7, part 5:
- (1)
Operating and capital budgets;
- (2)
Existing and future business plans other than any plans, and any modifications to those plans, that are required to be submitted to the state pursuant to a certificate of public advantage or application for a certificate of public advantage;
- (3)
Financial audit working papers as defined in § 4-3-304;
- (4)
Contracts or agreements with payors and payor pricing information;
- (5)
Physician recruitment plans and contracts or agreements with physicians;
- (6)
Contracts or agreements with vendors;
- (7)
Complaints, including hotline complaints and open investigations of such complaints; and
- (8)
Employee personnel files, including performance evaluations, disciplinary actions, individual compensation amounts, and employment contract terms not otherwise publicly available.
- (b)
Records set forth in subsection (a) may contain trade secrets as defined in § 47-25-1702. The state shall notify in writing the recipient or applicant of a certificate of public advantage for a cooperative agreement at least seven (7) business days before any intended disclosure of such records. The recipient, applicant, or third party may petition the department pursuant to § 4-5-223 for a declaratory order to determine if disclosure would cause the loss of a trade secret. Any contested case convened in response to the petition shall be conducted as set forth in title 4, chapter 5, part 3; however, § 4-5-325 shall not be applicable. Records subject to the petition shall not be disclosed until the review process in title 4, chapter 5, part 3 is completed.
Part 14 Alzheimer's Disease Treatment
§ 68-11-1401. Part definitions.
-
As used in this part, unless the context otherwise requires:
- (1)
“Alzheimer's disease” or “Alzheimer's related dementia” means a progressive, degenerative disease or condition that attacks the brain and results in impaired memory, thinking and behavior; and
- (2)
“Department” means the department of health.
§ 68-11-1403. Applicability.
- (a)
This part shall not apply to an individual licensed to practice medicine under § 63-6-204, and any person employed by such an individual; provided, that, except for facilities exempted from this part pursuant to § 68-11-1404(a), any facility licensed under part 2 of this chapter, that is engaged in the treatment of the elderly, shall be subject to this part.
- (b)
To the extent that a hospital or subsidiary of a hospital holds itself out as providing care, treatment or therapeutic activities for persons with Alzheimer's disease or Alzheimer's related dementia as part of a specialty unit, such hospital or subsidiary shall be subject to this part.
§ 68-11-1404. Disclosure of Alzheimer's disease treatment — Form.
- (a)
Any entity, facility, program or any instrumentality of the state or political subdivision of the state that advertises, markets or offers to provide specialized care, treatment or therapeutic activities for one (1) or more persons with a probable diagnosis of Alzheimer's disease or Alzheimer's-related dementia, including, but not limited to, dementia with lewy bodies and frontotemporal dementia shall disclose the form of care, treatment or therapeutic activities provided beyond that care, treatment or therapeutic activities provided to persons who do not have a probable diagnosis of Alzheimer's disease or Alzheimer's-related dementia, including, but not limited to, dementia with lewy bodies and frontotemporal dementia. However, any facility licensed under part 2 of this chapter, that is engaged in the treatment of the elderly shall not be required to comply with the disclosure requirements of this part merely because the facility provides specialized care, treatment or therapeutic activities for one (1) or more persons with a probable diagnosis of Alzheimer's disease or Alzheimer's related dementia, unless such facility advertises or markets that it does so provide such specialized care, treatment or therapeutic activities for such persons. However, if such a facility does in fact provide specialized care, treatment or therapeutic activities for a patient having such a diagnosis or dementia beyond that care, treatment, or therapeutic activities provided to persons who do not have such a diagnosis or dementia, and if an immediate family member of such patient requests information relative to such specialized care, treatment or therapeutic activities, then the facility shall disclose such information to the requesting family member. The facility may, but is not required to, use the disclosure form developed by the department pursuant to subsection (c). If this form is not used, the information shall be provided in a manner to address the questions and concerns of the requesting family member.
- (b)
The disclosure shall be made in writing on the disclosure form required by subsection (c) and shall be provided to any person seeking information concerning placement in or care, treatment or therapeutic activities from an entity, facility, program or the instrumentality of the state or of a political subdivision of the state.
- (c)
With input from persons and organizations with experience or expertise regarding care, treatment or therapeutic activities for persons who have Alzheimer's disease or Alzheimer's related dementia, the department shall develop a standard disclosure form. The disclosure shall be made on such form. The entity, facility, program or the instrumentality of the state or a political subdivision of the state shall revise the disclosure form whenever significant changes are made.
§ 68-11-1405. Specific disclosures required.
-
The disclosure required by § 68-11-1404 shall explain the specialized care, treatment or therapeutic activities provided to patients, residents or participants with Alzheimer's disease or Alzheimer's related dementia as follows:
- (1)
The overall philosophy and mission of the entity, facility, program or of the instrumentality of the state or of a political subdivision of the state that reflects the needs of patients or residents with Alzheimer's disease or Alzheimer's related dementia;
- (2)
The processes for accepting patients, residents or participants into the entity, facility, program or into the instrumentality of the state or of a political subdivision of the state; for discharging patients, residents or participants from the entity, facility, program or from the instrumentality of the state or of a political subdivision of the state; and for handling emergency situations;
- (3)
The processes used for defining the programs of services of that entity, facility, program or of that instrumentality of the state or of a political subdivision of the state, including the method by which the program of services responds to changes in the patient's, resident's or participant's needs;
- (4)
Staffing, staff training and continuing education practices;
- (5)
Description of the physical environment, including safety and security features;
- (6)
The frequency and types of activities for patients, residents or participants;
- (7)
The involvement of the entity, facility, program or of the instrumentality of the state or of a political subdivision of the state with families and family support programs; and
- (8)
The charge structure of the specialized care, treatment or therapeutic activities, including any additional fees.
§ 68-11-1406. Verification of disclosure form by department.
- (a)
- (1)
The department may examine the disclosure form required by this part to verify its accuracy. If determined to be inaccurate, the department shall require the entity, facility, program or the instrumentality of the state or of a political subdivision to:
- (A)
Provide the specialized care, treatment or therapeutic activities listed on the disclosure form; or
- (B)
Modify the disclosure form to reflect the specialized care, treatment or therapeutic activities actually being offered.
- (2)
The entity, facility, program or the instrumentality of the state or of a political subdivision of the state shall make the decision of which alternative to pursue. Action by the department in pursuit of this subsection (a) shall not affect the licensing process for any entity, facility, program or the instrumentality of the state or of a political subdivision of the state.
- (b)
For the purpose of the review and verification referred to in subsection (a), the disclosure form being provided to the public at the time of the review and verification shall be used.
- (c)
Failure to provide the disclosure required by this part is a Class B misdemeanor, punishable only by a fine of five hundred dollars ($500).
Part 15 Patient’s Privacy Protection Act
§ 68-11-1502. Rights to privacy.
-
Every patient entering and receiving care at a health care facility licensed by the board for licensing health care facilities has the expectation of and right to privacy for care received at such facility.
§ 68-11-1503. Confidentiality.
- (a)
- (1)
The name and address and other identifying information of a patient shall not be divulged, except for:
- (A)
Any statutorily required reporting to health or government authorities;
- (B)
Access by an interested third-party payer or designee, for the purpose of utilization reviews, case management, peer reviews, or other administrative functions;
- (C)
Access by health care providers from whom the patient receives or seeks care;
- (D)
If the patient does not object, any directory information, including only the name of the patient, the patient's general health status and the patient's location and telephone number. Directory information shall be released to all inquirers, only if the patient has been notified, upon admission to the hospital, of the patient's right to object to the information that may be released and has not objected; or, if the patient is in a physical or mental condition such that the patient is incapable of making an objection and the next of kin or patient representative does not come forward and object; and
- (E)
Any request by the office of inspector general or the medicaid fraud control unit with respect to an ongoing investigation. No person or entity shall be subject to any civil or criminal liability for releasing patient information in response to a request from the office of inspector general or the medicaid fraud control unit.
- (2)
Except as otherwise provided in this part, § 63-2-101, and part 3 of this chapter, a health care provider shall have in place a policy to protect the dignity of a patient, even if the patient dies or becomes incapacitated, by limiting the use and disclosure of medical records, images, videos or pictures intended to be used for appropriate medical educational purposes, even if the patient's information is de-identified. The policy shall include when and to whom it is appropriate to use and disclose the patient's information, and when a written authorization from the patient or their authorized representative is required, whenever it is reasonably possible to obtain it, prior to use or disclosure. If the patient becomes incapacitated or dies, and there is no legal representative for the patient, the patient's next of kin will be considered to be an authorized representative for the patient. When required, the written authorization will include the core elements required by 45 CFR Parts 160 and 164, “Standards for Privacy of Individually Identifiable Health Information.”
- (b)
The name and address and other identifying information shall not be sold for any purpose.
- (c)
Any violation of this section shall be an invasion of the patient's right to privacy.
- (d)
Notwithstanding this part or any other law to the contrary, it shall not be unlawful to disclose, nor shall there be any liability for disclosing, medical information in response to a subpoena, court order, or request authorized by state or federal law.
- (e)
For purposes of this part:
- (1)
“De-identified” means there is no reasonable basis to believe that the information can be used to identify an individual and there is compliance with the requirements for de-identification outlined in 45 CFR Part 164, 164.514, “Other requirements relating to uses and disclosures of protected health information”;
- (2)
“Incapacitated” means that a patient is in a physical or mental condition such that the patient is incapable of granting or denying informed consent; and
- (3)
“Medical records” means “hospital records” as that term is defined in § 68-11-302.
§ 68-11-1504. Penalties — Civil actions available.
-
The penalties and injunctions available under this chapter shall apply to this part. Civil actions for damages for invasion of privacy shall also be available to a person for violations of this part.
§ 68-11-1505. Subpoenas.
-
Nothing in this part shall be construed as prohibiting the information made confidential by this part from being subject to the subpoena of a court of competent jurisdiction.
Part 16 Tennessee Health Services and Planning Act of 2021
§ 68-11-1602. Part definitions. [Effective on July 1, 2024. See the version effective until July 1, 2024.]
-
As used in this part:
- (1)
“Board” means the board for licensing healthcare facilities;
- (2)
“Certificate of need” means a permit granted by the health facilities commission to a person for those services specified as requiring a certificate of need under § 68-11-1607 at a designated location;
- (3)
“Conflict of interest” means a matter before the commission in which the member or employee of the commission has a direct interest or indirect interest that is in conflict or gives the appearance of conflict with the discharge of the member's or employee's duties;
- (4)
“Department” means the department of health;
- (5)
“Direct interest” means a pecuniary interest in the persons involved in a matter before the commission, and applies to the commission member or employee, the commission member's or employee's relatives, or an individual with whom or business in which the member or employee has a pecuniary interest. As used in this subdivision (5), “relative” means a spouse, parent, child, stepparent, stepchild, grandparent, grandchild, brother, sister, half-brother, half-sister, aunt, uncle, niece, or nephew by blood, marriage, or adoption;
- (6)
“Ex parte communications” means communications in violation of § 4-5-304 or § 68-11-1607(d);
- (7)
“Facility” means real property owned, leased, or used by a healthcare institution for any purpose, other than as an investment;
- (8)
“Health facilities commission” and “commission” mean the commission created by part 2 of this chapter to develop the criteria and standards to guide the commission when issuing certificates of need; to conduct studies related to health care, including needs assessments; to administer the certificate of need program and related activities; and to license and regulate hospitals, recuperation centers, nursing homes, homes for the aged, residential HIV supportive living facilities, assisted-care living facilities, home care organizations, residential hospices, birthing centers, prescribed child care centers, renal dialysis clinics, ambulatory surgical treatment centers, outpatient diagnostic centers, adult care homes, and traumatic brain injury residential homes;
- (9)
“Health service” means clinically related services, such as diagnostic, treatment, or rehabilitative services, and includes those services specified as requiring a certificate of need under § 68-11-1607;
- (10)
“Healthcare institution”:
- (A)
Means an agency, institution, facility, or place, whether publicly or privately owned or operated, that provides health services and that is one (1) of the following:
- (i)
A nursing home;
- (ii)
A hospital;
- (iii)
An ambulatory surgical treatment center;
- (iv)
An intellectual disability institutional habilitation facility;
- (v)
A home care organization, or a category of service provided by a home care organization for which authorization is required under part 2 of this chapter;
- (vi)
An outpatient diagnostic center;
- (vii)
A rehabilitation facility;
- (viii)
A residential hospice; or
- (ix)
A nonresidential substitution-based treatment center for opiate addiction; and
- (B)
Does not include:
- (i)
A ground ambulance;
- (ii)
A home for the aged;
- (iii)
A premises occupied exclusively as the professional practice office of a:
- (a)
Physician licensed pursuant to title 63, chapter 6, part 2 or title 63, chapter 9; or
- (b)
Dentist licensed by this state and controlled by the physician or dentist;
- (iv)
An administrative office building of a public agency related to healthcare institutions;
- (v)
A Christian Science sanatorium operated, or listed and certified, by the First Church of Christ Scientist, Boston, Massachusetts;
- (vi)
A mental health residential treatment facility; or
- (vii)
A mental health hospital;
- (11)
“Home care organization” means an entity licensed as such by the commission that is staffed and organized to provide “home health services” or “hospice services,” as defined by § 68-11-201, to patients in either the patient's regular or temporary place of residence;
- (12)
“Indirect interest” means a personal interest in the persons involved in a matter before the commission that is in conflict with the discharge of the commission member's or employee's duties;
- (13)
“Letter of intent” means the form prescribed by the commission that requires a brief project description, location, estimated project cost, owner of the project, and description of services to be performed;
- (14)
“Licensed beds” means the number of beds licensed by the commission having licensing jurisdiction over the facility in which the beds are located;
- (15)
“Needs assessment” means an annual report that measures access to health care in this state, particularly as to emergency and primary care; identifies access gaps; and serves to inform the criteria and standards for the issuance of certificates of need;
- (16)
“Nonresidential substitution-based treatment center for opiate addiction” includes, but is not limited to, stand-alone clinics offering methadone, products containing buprenorphine such as Subutex and Suboxone, or products containing any other formulation designed to treat opiate addiction by preventing symptoms of withdrawal;
- (17)
“Nursing home” has the same meaning as defined in § 68-11-201;
- (18)
“Nursing home bed” means:
- (A)
A licensed bed within a nursing home, regardless of whether the bed is certified for medicare or medicaid services; and
- (B)
A bed at a healthcare institution used as a swing bed under 42 CFR 485.645;
- (19)
“Patient” includes, but is not limited to, a person who has an acute or chronic physical or mental illness or injury; who is convalescent, infirm, or has an intellectual or physical disability; or who is in need of obstetrical, surgical, medical, nursing, psychiatric, or supervisory care;
- (20)
“Pediatric patient” means a patient who is fourteen (14) years of age or younger;
- (21)
“Person”:
- (A)
Means an individual, a trust or an estate, a firm, a partnership, an association, a stockholder, a joint venture, a corporation or other form of business organization, the state of Tennessee and its political subdivisions or parts of political subdivisions, and any combination of persons specified in this subdivision (21), public or private; and
- (B)
Does not include the United States or an agency or instrumentality of the United States, except in the case of voluntary submission to the rules established pursuant to this part;
- (22)
“Planning division” and “state health planning division” mean the state health planning division of the department, which is created by this part to develop the state health plan and conduct other related studies;
- (23)
“Rehabilitation facility” means an inpatient or residential facility that is operated for the primary purpose of assisting in the rehabilitation of physically disabled persons through an integrated program of medical and other services that is provided under professional supervision;
- (24)
“Review cycle” means the timeframe set for the review and initial decision on applications for certificate of need applications that have been deemed complete, with the fifteenth day of the month being the first day of the review cycle; and
- (25)
“State health plan” means the plan that is developed by the state health planning division pursuant to this part.
§ 68-11-1602. Part definitions. [Effective until July 1, 2024. See the version effective on July 1, 2024.]
-
As used in this part:
- (1)
“Board” means the board for licensing healthcare facilities;
- (2)
“Certificate of need” means a permit granted by the health facilities commission to a person for those services specified as requiring a certificate of need under § 68-11-1607 at a designated location;
- (3)
“Conflict of interest” means a matter before the commission in which the member or employee of the commission has a direct interest or indirect interest that is in conflict or gives the appearance of conflict with the discharge of the member's or employee's duties;
- (4)
“Department” means the department of health;
- (5)
“Direct interest” means a pecuniary interest in the persons involved in a matter before the commission, and applies to the commission member or employee, the commission member's or employee's relatives, or an individual with whom or business in which the member or employee has a pecuniary interest. As used in this subdivision (5), “relative” means a spouse, parent, child, stepparent, stepchild, grandparent, grandchild, brother, sister, half-brother, half-sister, aunt, uncle, niece, or nephew by blood, marriage, or adoption;
- (6)
“Ex parte communications” means communications in violation of § 4-5-304 or § 68-11-1607(d);
- (7)
“Facility” means real property owned, leased, or used by a healthcare institution for any purpose, other than as an investment;
- (8)
“Health facilities commission” and “commission” mean the commission created by this part to develop the criteria and standards to guide the commission when issuing certificates of need; to conduct studies related to health care, including needs assessments; to administer the certificate of need program and related activities; and to license and regulate hospitals, recuperation centers, nursing homes, homes for the aged, residential HIV supportive living facilities, assisted-care living facilities, home care organizations, residential hospices, birthing centers, prescribed child care centers, renal dialysis clinics, ambulatory surgical treatment centers, outpatient diagnostic centers, adult care homes, and traumatic brain injury residential homes;
- (9)
“Health service” means clinically related services, such as diagnostic, treatment, or rehabilitative services, and includes those services specified as requiring a certificate of need under § 68-11-1607;
- (10)
“Healthcare institution”:
- (A)
Means an agency, institution, facility, or place, whether publicly or privately owned or operated, that provides health services and that is one (1) of the following:
- (i)
A nursing home;
- (ii)
A hospital;
- (iii)
An ambulatory surgical treatment center;
- (iv)
An intellectual disability institutional habilitation facility;
- (v)
A home care organization, or a category of service provided by a home care organization for which authorization is required under part 2 of this chapter;
- (vi)
An outpatient diagnostic center;
- (vii)
A rehabilitation facility;
- (viii)
A residential hospice; or
- (ix)
A nonresidential substitution-based treatment center for opiate addiction; and
- (B)
Does not include:
- (i)
A ground ambulance;
- (ii)
A home for the aged;
- (iii)
A premises occupied exclusively as the professional practice office of a:
- (a)
Physician licensed pursuant to title 63, chapter 6, part 2 or title 63, chapter 9; or
- (b)
Dentist licensed by this state and controlled by the physician or dentist;
- (iv)
An administrative office building of a public agency related to healthcare institutions;
- (v)
A Christian Science sanatorium operated, or listed and certified, by the First Church of Christ Scientist, Boston, Massachusetts;
- (vi)
A mental health residential treatment facility; or
- (vii)
A mental health hospital;
- (11)
“Home care organization” means an entity licensed as such by the commission that is staffed and organized to provide “home health services” or “hospice services,” as defined by § 68-11-201, to patients in either the patient's regular or temporary place of residence;
- (12)
“Indirect interest” means a personal interest in the persons involved in a matter before the commission that is in conflict with the discharge of the commission member's or employee's duties;
- (13)
“Letter of intent” means the form prescribed by the commission that requires a brief project description, location, estimated project cost, owner of the project, and description of services to be performed;
- (14)
“Licensed beds” means the number of beds licensed by the commission having licensing jurisdiction over the facility in which the beds are located;
- (15)
“Needs assessment” means an annual report that measures access to health care in this state, particularly as to emergency and primary care; identifies access gaps; and serves to inform the criteria and standards for the issuance of certificates of need;
- (16)
“Nonresidential substitution-based treatment center for opiate addiction” includes, but is not limited to, stand-alone clinics offering methadone, products containing buprenorphine such as Subutex and Suboxone, or products containing any other formulation designed to treat opiate addiction by preventing symptoms of withdrawal;
- (17)
“Nursing home” has the same meaning as defined in § 68-11-201;
- (18)
“Nursing home bed” means:
- (A)
A licensed bed within a nursing home, regardless of whether the bed is certified for medicare or medicaid services; and
- (B)
A bed at a healthcare institution used as a swing bed under 42 CFR 485.645;
- (19)
“Patient” includes, but is not limited to, a person who has an acute or chronic physical or mental illness or injury; who is convalescent, infirm, or has an intellectual or physical disability; or who is in need of obstetrical, surgical, medical, nursing, psychiatric, or supervisory care;
- (20)
“Pediatric patient” means a patient who is fourteen (14) years of age or younger;
- (21)
“Person”:
- (A)
Means an individual, a trust or an estate, a firm, a partnership, an association, a stockholder, a joint venture, a corporation or other form of business organization, the state of Tennessee and its political subdivisions or parts of political subdivisions, and any combination of persons specified in this subdivision (21), public or private; and
- (B)
Does not include the United States or an agency or instrumentality of the United States, except in the case of voluntary submission to the rules established pursuant to this part;
- (22)
“Planning division” and “state health planning division” mean the state health planning division of the department, which is created by this part to develop the state health plan and conduct other related studies;
- (23)
“Rehabilitation facility” means an inpatient or residential facility that is operated for the primary purpose of assisting in the rehabilitation of physically disabled persons through an integrated program of medical and other services that is provided under professional supervision;
- (24)
“Review cycle” means the timeframe set for the review and initial decision on applications for certificate of need applications that have been deemed complete, with the fifteenth day of the month being the first day of the review cycle; and
- (25)
“State health plan” means the plan that is developed by the state health planning division pursuant to this part.
§ 68-11-1603. Policy.
-
It is declared to be the public policy of this state that the establishment and modification of healthcare institutions, facilities, and services must be accomplished in a manner that promotes access to necessary, high quality, and cost-effective services for the health care of the people of this state. To this end, this section applies equitably to all healthcare entities, regardless of ownership or type, except those owned and operated by the United States government.
§ 68-11-1604. Health facilities commission — Creation — Composition — Appointments — Terms — Compensation — Officers — Meetings — Conflict of interest. [Repealed effective July 1, 2024. See the version effective on July 1, 2024.]
- (a)
There is created a health facilities commission that has jurisdiction and powers relating to the certificate of need program; the development of the criteria and standards to guide the commission when issuing certificates of need; conducting of studies related to health care, which must include a needs assessment; related reporting of healthcare institutions subject to this chapter; management and oversight of the staff of the board for licensing healthcare facilities; and the licensing and regulation of healthcare facilities through the board for licensing healthcare facilities, as described in § 68-11-202.
- (b)
- (1)
The commission consists of eleven (11) members, including:
- (A)
The comptroller of the treasury, or an employee of the office of the comptroller of the treasury designated by the comptroller;
- (B)
The state director of TennCare, or its successor, or an employee of the division of TennCare, or its successor, designated by the director;
- (C)
The commissioner of commerce and insurance, or an employee of the department of commerce and insurance designated by the commissioner;
- (D)
One (1) consumer member appointed by the speaker of the senate;
- (E)
One (1) consumer member appointed by the speaker of the house of representatives; and
- (F)
Six (6) members appointed by the governor, to include:
- (i)
One (1) person who has recent experience as an executive officer of a hospital or hospital system who may be appointed from lists of qualified persons submitted by interested hospital groups, including, but not limited to, the Tennessee Hospital Association;
- (ii)
One (1) representative of the nursing home industry who may be appointed from lists of qualified persons submitted by interested healthcare groups, including, but not limited to, the Tennessee Health Care Association;
- (iii)
One (1) duly licensed physician who may be appointed from lists of qualified persons submitted by interested medical groups, including, but not limited to, the Tennessee Medical Association;
- (iv)
One (1) representative of the home care industry who may be appointed from lists of qualified persons submitted by interested home care groups, including, but not limited to, the Tennessee Association for Home Care. The initial term for the home care industry representative is two (2) years. Upon the expiration of that term, the home care industry representative is appointed for a three-year term pursuant to subsection (c);
- (v)
One (1) consumer member; and
- (vi)
One (1) representative of the ambulatory surgical treatment center industry.
- (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 with the commission.
- (3)
In making appointments to the health facilities commission, the governor and the speakers shall strive to ensure that racial minorities, females, persons sixty (60) years of age and older, and the three (3) grand divisions are represented.
- (4)
The consumer members must be persons who are knowledgeable of health needs and services and who are further knowledgeable by training or experience in healthcare facility design or construction, financing of healthcare services or construction, reimbursement of healthcare services, or general healthcare economics. The consumer members shall not be a direct provider of healthcare goods or services.
- (5)
The governor shall designate one (1) individual as an alternate commission member for each appointment made pursuant to subdivisions (b)(1)(F)(i)-(vi) to serve when the alternate member's respective regularly appointed member is unable to participate in a matter before the commission due to the member's absence or because of the member's recusal due to a conflict of interest. Each alternate commission member is subject to the same qualifications that apply to the appointment of the alternate member's respective regularly appointed member, as described in subdivisions (b)(1)(F)(i)-(vi).
- (c)
- (1)
A member of the commission shall not serve beyond the expiration of the member's term, whether or not a successor has been appointed by the governor or the speakers of the senate and the house of representatives.
- (2)
Except for the comptroller of the treasury, the commissioner of commerce and insurance, and the director of TennCare, or their respective designees, commission members are appointed for three-year terms, and a member shall not serve more than two (2) consecutive three-year terms.
- (3)
If a member is absent from three (3) consecutive, regularly scheduled public meetings of the commission, then the individual's membership is automatically terminated, and the position is considered as vacant.
- (d)
- (1)
Each member of the commission shall receive fifty dollars ($50.00) per diem when actually engaged in the discharge of the member's official duties, and in addition, shall be reimbursed for all travel and other necessary expenses. However, commission members who are state employees shall not receive per diem, but must be reimbursed for all travel and other necessary expenses.
- (2)
Expenditures must be claimed and paid in accordance with the comprehensive travel regulations as promulgated by the department of finance and administration, and approved by the attorney general and reporter.
- (e)
- (1)
At the first meeting in each fiscal year, the commission shall elect officers. The chair of the commission must be a consumer member to serve a term of two (2) years. A member of the commission may serve as vice chair, which is a term of one (1) year. A member shall not serve more than two (2) consecutive terms as vice chair.
- (2)
Meetings of the commission must be held as frequently as its duties may require.
- (3)
Six (6) members constitute a quorum, but a vacancy on the commission does not impair its power to act.
- (4)
An action of the commission is not effective unless the action is concurred in by a majority of commission members present and voting.
- (5)
In the event of a tie vote, the action is considered disapproved.
- (6)
The commission shall record by name the votes taken on all actions of the commission.
- (7)
- (A)
All commission members shall annually review and sign a statement acknowledging the statute, rules, and policies concerning conflicts of interest.
- (B)
- (i)
A member, upon determining that a matter scheduled for consideration by the commission results in a conflict with a direct interest, shall immediately notify the executive director and is recused from any deliberation of the matter, from making any recommendation, from testifying concerning the matter, or from voting on the matter. The member shall join the public during the proceedings.
- (ii)
A member with an indirect interest shall publicly acknowledge such interest.
- (iii)
All members shall make every reasonable effort to avoid even the appearance of a conflict of interest. If a member is uncertain whether the relationship justifies recusal, then the member shall follow the determination by the legal counsel for the commission.
- (iv)
A determination by the commission or a court that a member of the commission with a direct interest failed to provide notice and be recused from deliberations of the matter, from making any recommendation, from testifying concerning the matter, or from voting on the matter, results in the member's automatic termination from the commission and the position is considered vacant. The member is not eligible for appointment to any agency, board, or commission of this state for a period of two (2) years.
- (v)
The executive director, upon determining that a conflict exists for the executive director or a member of the staff, shall notify the chair of the commission and take such action as the chair prescribes and pursuant to this part.
§ 68-11-1605. Powers and duties of commission.
-
In addition to the powers granted elsewhere in this part, the commission has the duty and responsibility to:
- (1)
Develop criteria and standards to guide the commission when issuing certificates of need that are:
- (A)
Based, in whole or in part, upon input the commission received during development of the criteria and standards from the division of TennCare, or its successor; the departments of health, mental health and substance abuse services, and intellectual and developmental disabilities; the health and welfare committee of the senate; and the health committee of the house of representatives;
- (B)
Evaluated and updated not less than once every five (5) years; and
- (C)
Developed by rule in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5;
- (2)
Receive and consider applications for certificates of need, to review recommendations on certificates of need, and to grant or deny certificates of need on the basis of the merits of the applications within the context of the local, regional, and state health needs, including, but not limited to, the criteria and standards developed in accordance with this part;
- (3)
Conduct studies related to health care, including a needs assessment that must be updated at least annually;
- (4)
Promulgate rules and policies deemed necessary by the commission for the fulfillment of its duties and responsibilities under this part, including a procedure for the issuance of a certificate of need upon an emergency application if an unforeseen event necessitates the issuance of a certificate of need to protect the public health, safety, and welfare, and if the public health, safety, and welfare would be unavoidably jeopardized by compliance with the procedures established under this part;
- (5)
Contract when necessary for the development of criteria and standards to guide the commission when issuing certificates of need and for the implementation of the certificate of need program described in this part;
- (6)
Weigh and consider access to quality health care and the healthcare needs of consumers, particularly those in underserved communities; those who are uninsured or underinsured; women and racial and ethnic minorities; TennCare or medicaid recipients; and low-income groups whenever the commission performs its duties or responsibilities assigned by law; and
- (7)
Issue exemptions from the voiding of a certificate of need and an activity authorized by the certificate of need pursuant to § 68-11-1609(i), if the actions the certificate of need authorizes are not performed for a continuous period of one (1) year after the date the certificate of need is implemented.
§ 68-11-1606. Executive director of commission — Appointment — Salary — Duties — Delegation of authority — Review. [Repealed effective July 1, 2024.]
- (a)
The commission shall appoint an executive director qualified by education and experience. The executive director must demonstrate knowledge and experience in the areas of public administration and health policy development.
- (b)
The executive director is the chief administrative officer of the commission, exercising general supervision over all persons employed by the commission. The commission's staff is subject to personnel rules and policies that are applicable to state employees in general, including leave, compensation, classification, and travel rules and policies. The commission shall fix the salary of the executive director. The commission has the sole authority to appoint, terminate, and control the work of the executive director. The executive director has the exclusive authority to appoint, terminate, and control staff employees. The commission's employees are executive service and serve at the pleasure of the executive director.
- (c)
The executive director has the following duties:
- (1)
Administering the development of criteria and standards to guide the commission when issuing certificates of need;
- (2)
Administering the certificate of need program;
- (3)
Conducting studies related to health care;
- (4)
Representing the commission before the general assembly;
- (5)
Overseeing the issuance of responses to requests for determination regarding the applicability of this part;
- (6)
Issuing exemptions from the requirement that a certificate of need be obtained for the relocation of existing or certified facilities providing healthcare services and healthcare institutions under § 68-11-1607(a)(4);
- (7)
Keeping a written record of proceedings and transactions of the commission, which must be open to public inspection during regular office hours;
- (8)
Preparing the agenda, including consent and emergency calendars, and notice to the general public of all meetings and public hearings of the commission;
- (9)
Employing personnel, within the commission's budget, to assist in carrying out this part;
- (10)
Carrying out policies and rules that are promulgated by the commission and supervising the expenditure of funds;
- (11)
Submitting an annual report, no later than January 15 of each year, to the chairs of the health and welfare committee of the senate and the health committee of the house of representatives that includes, but is not limited to, a comparison of the actual payer mix and uncompensated care provided by certificate of need holders with the projections the holders submitted in the holder's certificate of need application;
- (12)
Submitting to the chairs of the health and welfare committee of the senate and health committee of the house of representatives no later than January 1, 2023, a plan:
- (A)
Developed by the executive director;
- (B)
To consolidate into a health facilities commission the powers and duties of the commission with those of the board for licensing health care facilities established under part 2 of this chapter; and
- (C)
For which agencies of this state shall provide assistance to the executive director following a request by the executive director; and
- (13)
Management and oversight of the staff of the board for licensing healthcare facilities and of the licensing and regulation activities of the board, as described in § 68-11-202.
- (d)
In addition to the duties provided in subsection (c), the commission has the authority to delegate, and it is the intent of the general assembly that the commission exercise the authority to delegate the following responsibilities and duties to the executive director:
- (1)
Granting deferral of applications for certificates of need in accordance with § 68-11-1609; and
- (2)
Granting approval or denial of modifications, changes of conditions or ownership, and extensions of certificates of need in accordance with this part.
- (e)
A delegation of authority pursuant to subsection (d) continues until specifically revoked by the commission as a result of a determination that revocation is necessary to ensure the proper and orderly operation of the commission.
- (f)
The executive director shall notify the commission of an action taken pursuant to a delegation of authority under subsection (d) at the commission's next regularly scheduled meeting.
- (g)
- (1)
The commission shall review an action by the executive director, if:
- (A)
The executive director receives a written request for commission review; or
- (B)
A commission member requests commission review.
- (2)
- (A)
If a request for commission review pursuant to subdivision (g)(1) is received within fifteen (15) days of the date the executive director provides notice of the action pursuant to subsection (f), then the action does not become final until the commission has rendered its final decision.
- (B)
If a request for commission review is not received pursuant to subdivision (g)(1), then the executive director's action becomes final as if the action was taken by the commission.
- (h)
- (1)
A commission review of an action taken by the executive director must be conducted at the next regularly scheduled commission meeting that is scheduled for a date no less than two (2) weeks after the date the request for review is received pursuant to subsection (g).
- (2)
Commission review of an action by the executive director is de novo.
- (3)
The commission shall use the then-current edition of Robert's Rules of Order as the rules of parliamentary procedure applicable to a commission review of an action taken by the executive director.
§ 68-11-1607. Certificate of need — Applications — Exemptions — Registration of equipment — Critical access hospital designation.
- (a)
A person shall not perform the following actions in this state, except after applying for and receiving a certificate of need for the action:
- (1)
The construction, development, or other establishment of a type of healthcare institution as described in this part;
- (2)
In the case of a healthcare institution, a change in the bed complement, regardless of cost, that:
- (A)
Increases by one (1) or more the number of nursing home beds;
- (B)
Redistributes beds from any category to acute, rehabilitation, or long-term care, if at the time of redistribution, the healthcare institution does not have beds licensed for the category to which the beds will be redistributed; or
- (C)
Relocates beds to another facility or site;
- (3)
Initiation of the following healthcare services:
- (A)
Burn unit;
- (B)
Neonatal intensive care unit;
- (C)
Open heart surgery;
- (D)
Organ transplantation;
- (E)
Cardiac catheterization;
- (F)
Linear accelerator;
- (G)
Home health;
- (H)
Hospice; or
- (I)
Opiate addiction treatment provided through a nonresidential substitution-based treatment center for opiate addiction;
- (4)
- (A)
Except as provided in subdivision (a)(4)(D), a change in the location of existing or certified facilities providing healthcare services and healthcare institutions. However, the executive director may issue an exemption for the relocation of existing healthcare institutions and approved services if the executive director determines that:
- (i)
At least ninety-five percent (95%) of patients to be served are reasonably expected to reside in the same zip codes as the existing patient population;
- (ii)
The relocation will not reduce access to consumers, particularly those in underserved communities; those who are uninsured or underinsured; women and racial and ethnic minorities; TennCare or medicaid recipients; and low-income groups; and
- (iii)
The payor mix will not include an increase in commercial insurance;
- (B)
The executive director must notify the commission of an exemption granted pursuant to subdivision (a)(4)(A) at the next regularly scheduled commission meeting;
- (C)
An exemption granted or denied by the executive director pursuant to subdivision (a)(4)(A) is subject to commission review in the same manner as described in § 68-11-1606(g) and (h) [repealed effective July 1, 2024]; and
- (D)
The relocation of the principal office of a home health agency or hospice within its licensed service area does not require a certificate of need;
- (5)
Except as otherwise provided in subdivision (m)(2) and subsection (u), the following actions in a county with a population of one hundred seventy-five thousand (175,000) or less, according to the 2010 federal census or a subsequent federal census:
- (A)
Initiation of magnetic resonance imaging services; or
- (B)
Increasing the number of magnetic resonance imaging machines, except for replacing or decommissioning an existing machine;
- (6)
The establishment of a satellite emergency department facility or a satellite inpatient facility by a hospital at a location other than the hospital's main campus; and
- (7)
Except as otherwise provided in subsection (u), the initiation of positron emission tomography in a county with a population of one hundred seventy-five thousand (175,000) or less, according to the 2010 federal census or a subsequent federal census.
- (b)
An agency of this state, or of a county or municipal government, shall not approve a grant of funds for, or issue a license to, a healthcare institution for a portion or activity of the healthcare institution that is established, modified, relocated, changed, or resumed, or that constitutes a covered healthcare service, in violation of this part. If an agency of this state, or of a county or municipal government, approves a grant of funds for, or issues a license to, a person or institution for which a certificate of need was required but was not granted, then the license is void and the person or institution shall refund the funds to the state within ninety (90) days. The health facilities commission has the authority to impose civil penalties and petition a circuit or chancery court having jurisdiction to enjoin a person who is in violation of this part.
- (c)
- (1)
For each application, a letter of intent must be filed between the first day of the month and the fifteenth day of the month prior to the application's submission. At the time of filing, the applicant shall cause the letter of intent to be published in a newspaper of general circulation in the proposed service area of the project. The published letter of intent must contain a statement that any:
- (A)
Healthcare institution wishing to oppose the application must file written notice with the commission no later than fifteen (15) days before the commission meeting at which the application is originally scheduled; and
- (B)
Other person wishing to oppose the application may file a written objection with the commission at or prior to the consideration of the application by the commission, or may appear in person to express opposition.
- (2)
Persons desiring to file a certificate of need application seeking a simultaneous review regarding a similar project for which a letter of intent has been filed shall file with the commission a letter of intent between the sixteenth day of the month and the last day of the month of publication of the first filed letter of intent. A copy of a letter of intent filed after the first letter of intent must be mailed or delivered to the first filed applicant and must be published in a newspaper of general circulation in the proposed service area of the first filed applicant. The health facilities commission shall consider and decide the applications simultaneously. However, the commission may refuse to consider the applications simultaneously if it finds that the applications do not meet the requirements of “simultaneous review” under the rules of the commission.
- (3)
Applications for a certificate of need, including simultaneous review applications, must be filed by the first business day of the month following the date of publication of the letter of intent.
- (4)
If there are two (2) or more applications to be reviewed simultaneously in accordance with this part and the rules of the commission, and one (1) or more of those applications are not deemed complete by the deadline to be considered at the next commission meeting, then the other applications that are deemed complete by the deadline must be considered at the next commission meeting. The application or applications that are not deemed complete by the deadline to be considered at the next commission meeting will not be considered with the applications deemed complete by the deadline to be considered at the next commission meeting.
- (5)
Review cycles begin on the fifteenth day of each month. Review cycles are thirty (30) days. The first meeting at which an application can be considered by the commission is the meeting following the application's review cycle. If an application is not deemed complete within sixty (60) days after initial written notification is given to the applicant by commission staff that the application is deemed incomplete, then the application is void. If the applicant decides to resubmit the application, then the applicant shall comply with all procedures as set out by this part and pay a new filing fee when submitting the application. Prior to deeming an application complete, the executive director shall ensure independent review and verification of information submitted to the commission in applications, presentations, or otherwise. The purpose of the independent review and verification is to ensure that the information is accurate, complete, comprehensive, timely, and relevant to the decision to be made by the commission. The independent review and verification must be applied, but not necessarily be limited, to applicant-provided information as to the number of available beds within a region, occupancy rates, the number of individuals on waiting lists, the demographics of a region, the number of procedures, and other critical information submitted or requested concerning an application; and staff examinations of data sources, data input, data processing, and data output, and verification of critical information.
- (6)
An application filed with the commission must be accompanied by a nonrefundable examination fee fixed by the rules of the commission.
- (7)
Information provided in the application or information submitted to the commission in support of an application must be true and correct. Substantive amendments to the application, as defined by rule of the commission, are not allowed.
- (8)
An applicant shall designate a representative as the contact person for the applicant and shall notify the commission, in writing, of the contact person's name, address, and telephone number. The applicant shall immediately notify the commission in writing of a change in the identity or contact information of the contact person. In addition to other methods of service permitted by law, the commission may serve by registered or certified mail a notice or other legal document upon the contact person at the person's last address of record in the files of the commission. Notwithstanding a law to the contrary, service in the manner specified in this subdivision (c)(8) constitutes actual service upon the applicant.
- (9)
- (A)
Within ten (10) days of the filing of an application for a nonresidential substitution-based treatment center for opiate addiction with the commission, the applicant shall send a notice to the county mayor of the county in which the facility is proposed to be located; the state representative and senator representing the house district and the senate district in which the facility is proposed to be located; and the mayor of the municipality, if the facility is proposed to be located within the corporate boundaries of a municipality, by certified mail, return receipt requested, informing those officials that an application for a nonresidential substitution-based treatment center for opiate addiction has been filed with the commission by the applicant.
- (B)
If an application involves a healthcare facility in which a county or municipality is the lessor of the facility or real property on which it sits, then, within ten (10) days of filing the application, the applicant shall notify the chief executive officer of the county or municipality of the filing, by certified mail, return receipt requested.
- (C)
An application subject to the notification requirements of this subdivision (c)(9) is not complete if the applicant has not provided proof of compliance with this subdivision (c)(9) to the commission.
- (d)
Communications with the members of the commission are not permitted once the letter of intent initiating the application process is filed with the commission. Communication between commission members and commission staff is not prohibited. Communication received by a commission member from a person unrelated to the applicant or party opposing the application must be reported to the executive director, and a written summary of the communication must be made part of the certificate of need file.
- (e)
For purposes of this part, commission action is the same as administrative action defined in § 3-6-301.
- (f)
- (1)
Notwithstanding this section to the contrary, Tennessee state veterans' homes under title 58, chapter 7, are not required to obtain a certificate of need pursuant to this section.
- (2)
Notwithstanding this section to the contrary, the beds located in a Tennessee state veterans' home pursuant to title 58, chapter 7, must not be considered by the health facilities commission when granting a certificate of need to a healthcare institution due to a change in the number of licensed beds, redistribution of beds, or relocation of beds pursuant to this section.
- (g)
After a person holding a certificate of need has completed the actions for which the certificate of need was granted, the time to complete activities authorized by the certificate of need expires.
- (h)
The owners of the following types of equipment shall register the equipment with the health facilities commission: computerized axial tomographers, magnetic resonance imagers, linear accelerators, and positron emission tomography. The registration must be in a manner and on forms prescribed by the commission and must include ownership, location, and the expected useful life of the equipment. Registration must occur within ninety (90) days of acquisition of the equipment. All such equipment must be filed on an annual inventory survey developed by the commission. The survey must include, but not be limited to, the identification of the equipment and utilization data according to source of payment. The survey must be filed no later than thirty (30) days following the end of each state fiscal year. The commission may impose a penalty not to exceed fifty dollars ($50.00) for each day the survey is late.
- (i)
Notwithstanding this section to the contrary, an entity, or its successor, that was formerly licensed as a hospital, and that has received from the executive director a written determination that it will be eligible for designation as a critical access hospital under the medicare rural hospital flexibility program, is not required to obtain a certificate of need to establish a hospital qualifying for that designation, if it meets the requirements of this subsection (i). In order to qualify for the exemption set forth in this subsection (i), the entity proposing to establish a critical access hospital shall publish notice of its intent to do so in a newspaper of general circulation in the county where the hospital will be located and in contiguous counties. The notice must be published at least twice within a fifteen-day period. The written determination from the executive director and proof of publication required by this subsection (i) must be filed with the commission within ten (10) days after the last date of publication. If no healthcare institution within the same county or contiguous counties files a written objection to the proposal with the commission within thirty (30) days of the last publication date, then the exemption set forth in this subsection (i) applies. However, this exemption applies only to the establishment of a hospital that qualifies as a critical access hospital under the medicare rural flexibility program and not to another activity or service. If a written objection by a healthcare institution within the same county or contiguous counties is filed with the commission within thirty (30) days from the last date of publication, then the exemption set forth in this subsection (i) does not apply.
- (j)
- (1)
Notwithstanding subdivision (a)(2)(A) or (a)(4), a nursing home may increase its total number of licensed beds by the lesser of ten (10) beds or ten percent (10%) of its licensed capacity no more frequently than one (1) time every three (3) years without obtaining a certificate of need. The nursing home shall provide written notice of the increase in beds to the commission on forms provided by the commission prior to the request for licensing by the board for licensing healthcare facilities.
- (2)
For new nursing homes, the ten-bed or ten-percent increase cannot be requested until one (1) year after the date all of the new beds were initially licensed.
- (3)
When determining projected county nursing home bed need for certificate of need applications, all notices filed with the commission pursuant to subdivision (j)(1) must be considered with the total of licensed nursing home beds, plus the number of beds from approved certificates of need, but yet unlicensed.
- (k)
This part does not require a certificate of need for a home care organization that is authorized to provide only professional support services as defined in § 68-11-201.
- (l)
Except as provided in subsection (v), a home care organization may only initiate hospice services after applying for and receiving a certificate of need for providing hospice services.
- (m)
- (1)
A person who provides magnetic resonance imaging services shall file with the commission an annual report no later than thirty (30) days following the end of each state fiscal year that details the mix of payers by percentage of cases for the prior calendar year for its patients, including private pay, private insurance, uncompensated care, charity care, medicare, and medicaid.
- (2)
In a county with a population in excess of one hundred seventy-five thousand (175,000), according to the 2010 federal census or a subsequent federal census, a person who initiates magnetic resonance imaging services shall notify the commission in writing that imaging services are being initiated and shall indicate whether magnetic resonance imaging services will be provided to a patient who is fourteen (14) years of age or younger on more than five (5) occasions per year.
- (n)
- (1)
An application for a certificate of need for organ transplantation must separately:
- (A)
Identify each organ to be transplanted under the application; and
- (B)
State, by organ, whether the organ transplantation recipients will be adult patients or pediatric patients.
- (2)
After an initial application for transplantation has been granted, the addition of a new organ to be transplanted or the addition of a new recipient category requires a separate certificate of need. The application must:
- (A)
Identify the organ to be transplanted under the application; and
- (B)
State whether the organ transplantation recipients will be adult patients or pediatric patients.
- (3)
- (A)
For the purposes of certificate of need approval for organ transplantation programs under this part, a program submitted to the United Network for Organ Sharing (UNOS) by January 1, 2017, is not required to obtain a certificate of need.
- (B)
If the organ transplantation program ceases to be a UNOS-approved program, then a certificate of need is required.
- (o)
- (1)
Within two (2) years after the date of receiving a certificate of need, an outpatient diagnostic center must become accredited by the American College of Radiology in the modalities provided by that facility as a condition of receiving the certificate of need.
- (2)
An outpatient diagnostic center that fails to comply with the accreditation requirement of subdivision (o)(1) is subject to licensure sanction under § 68-11-207 as a violation of part 2 of this chapter or of the rules, regulations, or minimum standards issued pursuant to part 2 of this chapter.
- (p)
- (1)
Notwithstanding this title to the contrary, a certificate of need is not required for a hospital to operate a nonresidential substitution-based treatment center for opiate addiction if the treatment center is located on the same campus as the operating hospital and the hospital is licensed under title 33 or this title.
- (2)
For purposes of this subsection (p), “campus” has the same meaning as defined in 42 CFR 413.65.
- (q)
- (1)
This part does not require a certificate of need for actions in a county that:
- (A)
Is designated as an economically distressed eligible county by the department of economic and community development pursuant to § 67-6-104, as updated annually; and
- (B)
Has no hospital that is actively licensed under this title located within the county.
- (2)
- (A)
A person that provides positron emission tomography services or magnetic resonance imaging services pursuant to this subsection (q) must be accredited by The Joint Commission or the American College of Radiology in the modalities provided by that person and submit proof of the accreditation to the commission within two (2) years of the initiation of service.
- (B)
A person that provides positron emission tomography services or magnetic resonance imaging services pursuant to this subsection (q) and that fails to comply with the accreditation requirement of subdivision (q)(2)(A) is subject to licensure sanction under § 68-11-207 as a violation of part 2 of this chapter or of the rules, regulations, or minimum standards issued pursuant to part 2 of this chapter.
- (3)
A person that provides a service other than those described in subdivision (q)(2), or establishes a healthcare institution shall submit proof of accreditation by an appropriate external peer-review organization for the service or facility to the commission within two (2) years of the date of initiation of service or licensure of the healthcare institution.
- (r)
- (1)
This part does not require a certificate of need to establish a home health agency limited to providing home health services under the federal Energy Employees Occupational Illness Compensation Program Act of 2000 (EEOICPA) (42 U.S.C. § 7384, et seq.), or a subsequent amendment, revision, or modification to the EEOICPA. A license issued by the commission pursuant to this subsection (r) for services under the EEOICPA must be limited to the provision of only those services. A home health agency providing home health services without a certificate of need pursuant to this subsection (r) must be accredited by The Joint Commission, the Community Health Accreditation Partner, or the Accreditation Commission for Health Care and submit proof of such accreditation to the commission within two (2) years of the initiation of service.
- (2)
A home health agency that provides home health services without a certificate of need pursuant to this subsection (r) and that fails to comply with the accreditation requirement of subdivision (r)(1) is subject to licensure sanction under § 68-11-207 as a violation of part 2 of this chapter or of the rules, regulations, or minimum standards issued pursuant to part 2 of this chapter.
- (s)
- (1)
This part does not require a certificate of need to establish a home health agency limited to providing home health services to patients less than eighteen (18) years of age. A license issued by the commission pursuant to this subsection (s) for the provision of home health services to patients under eighteen (18) years of age must be limited to the provision of only those services.
- (2)
The commission may permit a home health agency providing home health services to patients under eighteen (18) years of age to continue providing home health services to the patient until the patient reaches twenty-one (21) years of age if:
- (A)
The patient received home health services from the home health agency prior to the date the patient reached eighteen (18) years of age; and
- (B)
The home health services are provided under a TennCare program.
- (3)
- (A)
A home health agency that provides home health services without a certificate of need pursuant to this subsection (s) must, within two (2) years of the initiation of service, be accredited by and submit proof to the commission of the accreditation from:
- (i)
An accrediting organization with deeming authority from the federal centers for medicare and medicaid services;
- (ii)
The Joint Commission;
- (iii)
The Community Health Accreditation Partner; or
- (iv)
The Accreditation Commission for Health Care.
- (B)
A home health agency that provides home health services without a certificate of need pursuant to this subsection (s) and that fails to comply with the accreditation requirement of subdivision (s)(3)(A) is subject to licensure sanction under § 68-11-207 as a violation of part 2 of this chapter or of the rules, regulations, or minimum standards issued pursuant to part 2 of this chapter.
- (t)
This part does not require a certificate of need in order for an existing hospital licensed by the department of mental health and substance abuse services to become licensed by the commission as a satellite of an affiliated general acute care hospital as provided by § 33-2-403(b)(8)(B).
- (u)
- (1)
This part does not require a certificate of need to establish or operate the following in a county with a population in excess of one hundred seventy-five thousand (175,000), according to the 2010 federal census or a subsequent federal census:
- (A)
Initiation of magnetic resonance imaging services, or increasing the number of magnetic resonance imaging machines used, as long as magnetic resonance imaging services are not provided to a patient who is fourteen (14) years of age or younger on more than five (5) occasions per year; or
- (B)
Initiation of positron emission tomography.
- (2)
- (A)
A provider of positron emission tomography established without a certificate of need pursuant to this subsection (u) must become accredited by the American College of Radiology and provide to the commission proof of the accreditation within two (2) years of the date of licensure.
- (B)
A provider of positron emission tomography established without a certificate of need pursuant to this subsection (u) and that fails to comply with the accreditation requirement of subdivision (u)(2)(A) is subject to licensure sanction under § 68-11-207 as a violation of part 2 of this chapter or of the rules, regulations, or minimum standards issued pursuant to part 2 of this chapter.
- (v)
- (1)
This part does not require a certificate of need to establish a home care organization or residential hospice limited to providing hospice services, as defined in § 68-11-201, to patients under the care of a healthcare research institution, as defined in § 68-11-1901.
- (2)
A license issued by the commission pursuant to the exception created by subdivision (v)(1) must be limited to the provision of services only to the patients of the healthcare research institution, as defined in § 68-11-1901, or the patients of a hospital or clinic that has its principal place of business located in this state and that is affiliated with the healthcare research institution.
- (3)
A home care organization or residential hospice that provides hospice services without a certificate of need pursuant to subdivision (v)(1) must, within twelve (12) months of the date the home care organization is granted a license by the commission, be accredited by The Joint Commission, the Community Health Accreditation Partner (CHAP), DNV GL Healthcare, or the Accreditation Commission for Health Care (ACHC), in order to continue to qualify for the exception created by subdivision (v)(1).
- (w)
No later than July 1, 2023, the commission shall implement and make available for use by applicants an electronic certificate of need application system.
§ 68-11-1608. Placement of applications on consent or emergency calendar — Emergency certificate of need.
- (a)
The executive director may place applications to be considered on a consent or emergency calendar established in accordance with commission rule.
- (b)
The rule must provide that, in order to qualify for the consent calendar, an application must not be opposed by a person with legal standing to oppose and the application must appear to be necessary to provide needed health care in the area to be served, provide health care that meets appropriate quality standards, and demonstrate that the effects attributed to competition or duplication would be positive for consumers. If opposition is stated in writing prior to the application being formally considered by the commission, then the application must be taken off the consent calendar and placed on the next regular agenda, unless waived by the parties.
- (c)
- (1)
If an unforeseen event necessitates action of a type requiring a certificate of need, and the public health, safety, or welfare would be unavoidably jeopardized by compliance with the standard procedures for the application for and granting of a certificate of need, then the commission may issue an emergency certificate of need.
- (2)
An emergency certificate of need may be issued upon request of the applicant if the executive director and officers of the commission concur, after consultation with the appropriate licensing agency. Prior to an emergency certificate of need being granted, the applicant must publish notice of the application in a newspaper of general circulation, and commission members must be notified by commission staff of the request.
- (3)
A decision regarding whether to issue an emergency certificate of need must be considered at the next regularly scheduled commission meeting unless the applicant's request is necessitated by an event that has rendered its facility, equipment, or service inoperable. In that case, the commission's chair and vice chair may act immediately, on behalf of the commission, to consider the application for an emergency certificate of need.
- (4)
An emergency certificate of need is valid for a period not to exceed one hundred twenty (120) days. However, if the applicant has applied for a certificate of need under standard commission procedures, then an extension of the emergency certificate of need may be granted.
§ 68-11-1609. Decision on application.
- (a)
The commission shall, upon consideration of an application and review of the evaluation and other relevant information:
- (1)
Approve part or all of the application and grant a certificate of need, upon lawful conditions that the commission deems appropriate and enforceable on the grounds that those parts of the proposal appear to meet applicable criteria. However:
- (A)
A condition that is placed on a certificate of need, and that appears on the face of the certificate of need when issued, must also be made a condition of any corresponding license issued by the commission or department of mental health and substance abuse services. Notwithstanding a law to the contrary, the condition survives the expiration of the certificate of need and remains effective until removed or modified by the commission. The condition becomes a requirement of licensure and must be enforced by the respective licensing entity; and
- (B)
The holder of a license or certificate of need that has a condition placed on it by the commission may subsequently request that the condition be removed or modified, for good cause shown. The commission shall consider the request and determine whether or not to remove or modify the condition. The procedure for requesting a determination must be done as provided by commission rules. If the holder of the license or certificate of need is aggrieved by the commission's decision, then the holder may request a contested case hearing as permitted by this part;
- (2)
Disapprove part or all of the application and deny a certificate of need on the grounds that the applicant has not affirmatively demonstrated that those parts of the proposal meet the applicable criteria; or
- (3)
Defer making a decision for no more than ninety (90) days to obtain a clarification of information concerning applications properly before the commission, if there are no simultaneous review applications being concurrently considered by the commission with the deferred application.
- (b)
A certificate of need shall not be granted unless the action proposed in the application is necessary to provide needed health care in the area to be served, will provide health care that meets appropriate quality standards, and the effects attributed to competition or duplication would be positive for consumers. In making these determinations, the commission shall use as guidelines the goals, objectives, criteria, and standards adopted to guide the commission in issuing certificates of need. Until the commission adopts its own criteria and standards by rule, those in the state health plan apply. Additional criteria for review of applications must also be prescribed by the rules of the commission.
- (c)
Activity authorized by a certificate of need must be completed within a period not to exceed three (3) years for hospital and nursing home projects, and two (2) years for all other projects, from the date of its issuance and after such time the certificate of need authorization expires. However, the commission may, in granting the certificate of need, allow longer periods of validity for certificates of need for good cause shown. Subsequent to granting the certificate of need, the commission may extend a certificate of need for a period upon application and good cause shown, accompanied by a nonrefundable reasonable filing fee, as prescribed by rule. A certificate of need authorization that has been extended expires at the end of the extended time period. The decision whether to grant an extension is within the sole discretion of the commission and is not subject to review, reconsideration, or appeal.
- (d)
If the time period authorized by a certificate of need has expired, then the certificate of need authorization is void. A revocation proceeding is not required. A license or occupancy approval shall not be issued by the commission or the department of mental health and substance abuse services for an activity for which a certificate of need has become void.
- (e)
The commission's decision to approve or deny an application is final and shall not be reconsidered after the adjournment of the meeting in which the matter was considered. This subsection (e) does not limit the right to file a petition for a contested case hearing pursuant to § 68-11-1610, nor does it limit the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, pertaining to contested case hearings.
- (f)
Written notice of the commission decision approving, disapproving, or deferring an application, or parts of an application, must be transmitted to the applicant, simultaneous review applicants, the department of health, the department of mental health and substance abuse services, the department of intellectual and developmental disabilities, and others upon request.
- (g)
- (1)
A healthcare institution wishing to oppose a certificate of need application must be located within a thirty-five-mile radius of the location of the action proposed, and must have served patients within that radius within the three hundred sixty-five (365) days immediately preceding the date of filing the certificate of need application. A healthcare institution wishing to oppose an application for the establishment of a home care organization, the modification of a certificate of need issued to a home care organization, or the addition of counties to the licensed service area of an existing home care organization must have served patients in at least one (1) of the counties in the application's proposed service area within the seven hundred thirty (730) days immediately preceding the filing date of the certificate of need application, rather than demonstrate proximity within a thirty-five-mile radius of the location.
- (2)
Subject to subdivision (g)(1), a healthcare institution wishing to oppose a certificate of need application must file a written objection with the commission specifying reasons why one (1) or more of the criteria of subsection (b) are not satisfied. A healthcare institution wishing to oppose a certificate of need application must serve a copy to the contact person for the applicant, not later than fifteen (15) days before the commission meeting at which the application is originally scheduled. An application for which the commission has received opposition must be designated on the commission's agenda as an opposed application.
- (3)
- (A)
Subject to subdivision (g)(1), a healthcare institution wishing to oppose a certificate of need application may appear before the commission and express opposition to the application as long as the healthcare institution has submitted written opposition in accordance with subdivision (g)(2).
- (B)
This subsection (g) does not prohibit an individual acting in the individual's capacity as a private citizen from appearing before the commission and expressing opposition to an application.
- (4)
A healthcare institution or other person expressing opposition to an application does not have a veto over an application. The merits of opposition may be considered by the commission while determining whether to approve or deny a certificate of need application in whole or in part.
- (h)
The commission shall maintain continuing oversight over a certificate of need that it approves on or after July 1, 2016. Oversight by the commission includes requiring annual reports for the first three (3) years of the implementation of the certificate of need concerning appropriate quality measures as determined by the commission. The commission may impose conditions on a certificate of need that require the demonstration of compliance with quality measures as long as the conditions for quality measures are not more stringent than those measures identified by the applicant in the applicant's submitted application.
- (i)
- (1)
- (A)
Notwithstanding a law to the contrary, and except as provided in subdivision (i)(2), a certificate of need and activity the certificate authorizes become void if the actions the certificate authorizes have not been performed for a continuous period of two (2) years after the date the certificate of need is implemented. A revocation proceeding is not required. The commission and the department of mental health and substance abuse services shall not issue or renew a license for an activity for which certificate of need authorization has become void.
- (B)
With respect to a home care organization, this subsection (i) applies to whether the home care organization provides home health services anywhere within its service area, and not on the basis of each county for which the home care organization is licensed.
- (2)
- (A)
The commission may issue a temporary exemption to subdivision (i)(1) upon finding that sufficient cause for the temporary cessation of the activity has been presented to the commission along with a plan to resume the activity in the future.
- (B)
The commission shall prescribe the procedures for issuing temporary exemptions by rule.
- (C)
The commission's approval or denial of a temporary exemption is a final commission decision subject to appeal in the chancery court of Davidson County.
- (3)
This subsection (i) does not apply to the establishment of a healthcare institution or a healthcare institution's number of licensed beds if the healthcare institution has a license issued under this title, whether active or inactive.
- (j)
If an applicant's application is denied by the commission, then the commission shall provide to the applicant written documentation with an explanation of the factual and legal basis upon which the commission denied the certificate of need.
§ 68-11-1610. Contested case hearings — Petition — Procedure — Arbitration and mediation alternatives — Orders — Costs.
- (a)
Within fifteen (15) days of the approval or denial by the commission of an application, an applicant, a healthcare institution that satisfied the requirements set forth in § 68-11-1609(g), or another person who objected to the application pursuant to § 68-11-1609(g)(2) or (g)(3), may petition the commission in writing for a hearing. The petition must be filed with the executive director. Notwithstanding another law, all persons are barred from filing a petition for a contested case hearing after the fifteen-day period, and the commission has no jurisdiction to consider a late-filed petition. Upon receipt of a timely filed petition, the commission shall initiate a contested case proceeding as provided in this section. At the hearing, no issue may be raised or evidence considered concerning the merits of an applicant considered by simultaneous review, unless the applicant met the requirements of this part, of concurrent consideration with the application that is the subject of the hearing.
- (b)
The contested case hearing required by this section must be conducted in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, except as otherwise provided in this section.
- (c)
Contested cases initiated pursuant to this section must be heard by an administrative law judge sitting alone. Petitions for contested cases received by the commission must be forwarded immediately to the administrative division of the secretary of state's office for assignment to an administrative law judge.
- (d)
The administrative law judge to whom a case has been assigned shall convene the parties for a scheduling conference within fifteen (15) days of the date the petition for contested case is filed. At the scheduling conference, the parties shall state their respective positions on the mediation alternative described in this section. If the parties are unable to agree on a mediation alternative, then the scheduling order for the contested case adopted by the administrative law judge must establish a schedule that results in a hearing completed within one hundred eighty (180) days of the date on which the petition for contested case was received by the commission, with the initial order to be entered within sixty (60) days of the date the hearing is completed. Extensions of time or variances from the scheduling order must be granted sparingly, and only because of unforeseen developments that would cause substantial prejudice to a party.
- (e)
As an alternative to the contested case process described in subsection (c), the parties may agree to mediation of the issues raised in the contested case. The mediator shall be designated by mutual agreement of the parties. The parties may designate a mediator who is not listed as a qualified Supreme Court Rule 31 mediator, but such mediator shall observe the standards of professional conduct set forth in Appendix A to Supreme Court Rule 31, to the extent applicable. The mediator's fee must be shared equally among the parties, except that the state is not required to contribute to payment of the mediator's fee. If mediation results in agreement of the parties, then the agreement must be memorialized in the order terminating the contested case. A mediation proceeding under this subsection (e) is not subject to the scheduling order requirements set forth in subsection (d).
- (f)
The general assembly declares the public policy of this state to be that certificate of need contested cases should be resolved through mediation, and the parties to such proceedings are encouraged to pursue this alternative.
- (g)
Judicial review of the commission's final order in a contested case is as provided by law.
- (h)
Costs of the contested case proceeding and appeals, including the administrative law judge's costs, deposition costs, expert witness fees, and reasonable attorney's fees, must be assessed against the losing party in the contested case. If there is more than one (1) losing party, then the costs must be divided equally among the losing parties. Costs must not be assessed against the commission. Costs must not be assessed against a party if the commission's decision to approve that party's certificate of need application is being appealed in the contested case.
- (i)
This section governs all contested cases relative to approval or denial decisions by the commission.
- (j)
If a person, who is not the applicant or the commission, seeks review of a decision in a contested case, then that person shall file an appeal fee equal to twenty-five percent (25%) of the examination fee for the application that was filed in the case.
§ 68-11-1611. Review of progress — Revocation of certificate.
-
The commission shall, at least annually, review progress on a project covered by an issued certificate of need, and may require a showing by the holder of the certificate of substantial and timely progress to implement the project. If, in the opinion of the executive director, progress is lacking, then the executive director may present a petition for revocation of the certificate of need for the commission's consideration. The commission may revoke the certificate of need based upon a finding that the holder has not proceeded to implement the project in a timely manner.
§ 68-11-1612. Enjoining violations — Jurisdiction.
- (a)
The commission, in addition to the powers and duties expressly granted by this part, is authorized and empowered to petition a circuit or chancery court having jurisdiction to enjoin a person who is performing any of the actions specified in this part without possessing a valid certificate of need.
- (b)
Jurisdiction is conferred upon the circuit and the chancery courts of this state to hear and determine such causes as chancery causes, and to exercise full and complete jurisdiction in such injunctive proceedings.
§ 68-11-1613. Appropriation/expenditures impact statement.
-
The division of TennCare or its successor, by the fifteenth of each month, shall submit to the chairs of the finance, ways and means committees of the senate and the house of representatives and to the office of legislative budget analysis a statement reflecting the estimated impact on future state appropriations or expenditures of applications approved by the commission the preceding month.
§ 68-11-1614. Information submitted to commission by commissioners of health, mental health and substance abuse services, and intellectual and developmental disabilities.
- (a)
The commissioner of health shall provide the commission with aggregate data from the hospital discharge database and ambulatory surgical treatment center discharge database within seven (7) business days from the commissioner's receipt of a request. The information must include aggregate data by state, county, or zip code, as requested. The information must not include patient identifiers that would lead to a patient's identity, such as name or street address. Information received pursuant to this section must be available for public disclosure by the commission, as long as it does not contain patient identifiers.
- (b)
The commissioner of mental health and substance abuse services shall provide the commission with aggregate data about nonresidential substitution-based treatment centers for opiate addiction licensed in this state within seven (7) business days from the commissioner's receipt of a request. The information must include aggregate data about patient origin by state, county, or zip code, as requested, at licensee treatment centers in this state. The information must not include patient identifiers that would lead to a patient's identity, such as name or street address. Information received pursuant to this section must be available for public disclosure by the commission, as long as it does not contain patient identifiers.
- (c)
The commissioners of health, mental health and substance abuse services, and intellectual and developmental disabilities may submit written reports or statements and they may also send representatives to testify before the commission to inform the commission with respect to applications.
§ 68-11-1616. Violations — Penalties.
- (a)
The commission has the power and authority, after notice and an opportunity for a hearing, to impose a civil monetary penalty against a person who performs, offers to perform, or holds such person out as performing an activity for which a certificate of need is required, without first obtaining a valid certificate of need.
- (b)
The executive director shall initiate a civil penalty proceeding by filing a petition with the commission. The proceeding must be conducted as a contested case hearing in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, part 3.
- (c)
The civil penalty is in an amount not less than one hundred dollars ($100) nor more than five hundred dollars ($500) per day of continued activity or operation. Once a civil penalty has been imposed, the violator has the burden of submitting verifiable evidence satisfactory to the commission that the violator has discontinued the activity for which the civil penalty was imposed. The penalty begins to accrue on the date the commission notified the violator of the violation or violations, and continues to accrue until such evidence of discontinuance is received at the commission office.
- (d)
An appeal of a final order imposing a civil penalty must be conducted in accordance with the Uniform Administrative Procedures Act.
- (e)
In determining whether to impose a civil penalty and the amount of the penalty, the commission may consider the following factors:
- (1)
The economic benefits gained from the activities in question. The commission does not have to show that the violator would not have been granted a certificate of need had one been sought;
- (2)
Whether the civil penalty and the amount of the penalty will be a substantial economic deterrent to the violator and others;
- (3)
The circumstances leading to the violation, and whether the violator had notice that the activity was in violation of the certificate of need laws or commission regulations;
- (4)
The financial resources of the violator, and the violator's ability to pay the penalty; and
- (5)
The failure to meet a quality standard applicable to the violator.
§ 68-11-1617. Revocation of certificate of need — Grounds.
-
In addition to other grounds for revocation provided by other statutes, rule of law, or equity, the commission has the power to revoke a certificate of need whenever the following has occurred:
- (1)
The holder of a certificate of need has not made substantial and timely progress toward the completion of the project or acquisition of the equipment;
- (2)
The acquisition or project as described in the person's application has been changed or altered in a manner that significantly deviates from the acquisition or project approved by the commission when the certificate of need was granted;
- (3)
The decision to issue a certificate of need was based, in whole or in part, on information or data in the application which was false, incorrect, or misleading, whether intentional or not;
- (4)
The holder of the certificate of need has committed fraud in obtaining the certificate of need or has committed fraud upon the commission after the certificate of need was issued. For purposes of this section, “fraud” means a form of deceit, trickery, misrepresentation, or subterfuge, including, but not limited to, the following actions:
- (A)
Making a knowingly false statement, orally or in writing, in connection with a certificate of need application or project subject to the jurisdiction of the commission;
- (B)
Intentionally withholding or suppressing information that the person knows, or reasonably should know, is relevant to a certificate of need application or project subject to the jurisdiction of the commission; or
- (C)
Altering, forging, or otherwise modifying, with fraudulent intent, a document submitted to the commission in connection with a certificate of need application or project subject to the jurisdiction of the commission; or
- (5)
The violation of a condition placed upon a certificate of need by the commission, prior to licensure by the commission or department of mental health and substance abuse services.
§ 68-11-1618. Nontransferability of certificate of need.
- (a)
Except as provided in this section, the transfer of a certificate of need renders the certificate of need and all rights under it void. As used in this section, “transfer” means the sale, assignment, lease, conveyance, purchase, grant, donation, gift, or other direct or indirect transfer of any nature whatsoever of a certificate of need. However, this section does not prohibit the transfer of a certificate of need in the following circumstances:
- (1)
If the transfer has been approved by the commission after the commission determines that the new holder of the certificate of need would provide health care that meets appropriate quality standards, and that the transfer would not reduce access to consumers, particularly those in underserved communities; those who are uninsured or underinsured; women and racial and ethnic minorities; TennCare or medicaid recipients; and low-income groups; and
- (2)
If the certificate of need is transferred as part of the transfer of ownership of a licensed healthcare institution.
- (b)
- (1)
With regard to a certificate of need for the establishment of a proposed new healthcare institution, a change of control of the entity prior to completion or licensing renders the certificate of need and all rights under it null and void. “Change of control” means:
- (A)
In the case of a partnership, the termination of interest of a general partner;
- (B)
In the case of a limited liability company or limited liability partnership, a change in the composition of members or partners to the extent that the management or membership control is different than that described in the certificate of need application; and
- (C)
In the case of a corporation, the termination of interest of a shareholder or shareholders controlling more than fifty percent (50%) of the outstanding voting stock of the corporation.
- (2)
Subdivision (b)(1) does not prohibit change of control as described in subdivision (b)(1), if the commission determines, upon petition of the prospective owner or owners of the entity, that the prospective owner or owners demonstrate that the owner or owners will provide health care that meets appropriate quality standards, and that the transfer would not reduce access to consumers, particularly those in underserved communities; those who are uninsured or underinsured; women and racial and ethnic minorities; TennCare or medicaid recipients; and low-income groups.
- (c)
A certificate of need, and the rights under the certificate of need, are null and void if it is the subject of a development contract or agreement to sell or lease the facility that was not fully disclosed in the application.
§ 68-11-1619. Application for medicare skilled nursing facility (SNF) beds.
- (a)
During each fiscal year after June 30, 2020, until June 30, 2025, the commission shall not issue certificates of need for new nursing home beds, including the conversion of hospital beds to nursing home beds or swing beds, other than one hundred twenty-five (125) beds per fiscal year, to be certified as medicare skilled nursing facility (SNF) beds as authorized in this section.
- (b)
The number of medicare SNF beds issued under this section shall not exceed thirty (30) for each applicant. The applicant shall specify in the application the skilled services to be provided and how the applicant intends to provide the skilled services. In reviewing applications, the commission shall consider the application without regard as to whether the applicant currently has medicare SNF beds. If the pool of one hundred twenty-five (125) medicare SNF beds created by this section is not depleted prior to June 30 of the fiscal year, then the beds remaining in the pool must be considered to be available to applicants who apply before June 30 of each fiscal year, even though review may occur after June 30 of that year.
§ 68-11-1620. Fees and civil penalties.
- (a)
Fees and civil penalties authorized by the certificate of need program established by this part must be paid by the health facilities commission or the collecting agency to the state treasurer and deposited in the state general fund and credited to a separate account for the commission's expenses incurred administering the implementation and enforcement of the certificate of need laws. Fees include, but are not limited to, fees for the application of certificates of need, subscriptions, project cost overruns, copying, and contested cases. Disbursements from that account may only be made for the purpose of defraying expenses incurred in the implementation and enforcement of the certificate of need program established by this part by the commission. Funds remaining in the account at the end of a fiscal year do not revert to the general fund but remain available for expenditure in accordance with law.
- (b)
The commission shall prescribe fees by rule as authorized by the certificate of need program established by this part. The fees must be in an amount that, in addition to the fees prescribed in subsection (c), provides for the cost of administering the implementation and enforcement of the certificate of need program established by this part by the commission. The commission shall adjust the prescribed fees as necessary to provide that the account is fiscally self-sufficient and that revenues from fees do not exceed necessary and required expenditures.
- (c)
The commission shall annually collect the following schedule of fees from healthcare providers, and the fees must be paid to the state treasurer and deposited in the state general fund and credited to the commission's separate account. The following schedule applies:
- (1)
Residential hospice $100 per license;
- (2)
Nursing homes 1-50 beds $500 per license;
- (3)
Nursing homes 51-100 beds $1,500 per license;
- (4)
Nursing homes 101+ beds $2,500 per license;
- (5)
Hospitals 1-100 beds $2,000 per license;
- (6)
Hospitals 101-200 beds $3,500 per license;
- (7)
Hospitals 201+ beds $5,000 per license;
- (8)
Ambulatory surgical treatment centers $2,000 per license;
- (9)
Outpatient diagnostic centers $2,000 per license;
- (10)
Home care organizations authorized to provide home health services or hospice services $500 per license;
- (11)
Birthing Centers$50 per license;
- (12)
Nonresidential substitution-based treatment centers for opiate addiction $500 per license;
- (13)
Mental health residential treatment facilities$100 per license;
- (14)
Intellectual disability institutional habilitation facilities $100 per license.
§ 68-11-1621. Participation by local governing body in hearing for certificate of need application.
-
At a hearing conducted by the commission for a certificate of need application, if a local governing body requests to participate in the hearing, then the officials of the local governing body may appear before the commission and express support or opposition to the granting of a certificate of need to the applicant. The testimony of such officials is informational and advisory to the commission, and the support of the local governing body is not a requirement for the granting of a certificate of need by the commission.
§ 68-11-1622. State health planning division of the department of health.
- (a)
There is created the state health planning division of the department of health. It is the purpose of the planning division to create a state health plan that is evaluated and updated at least annually. The plan guides the state in the development of healthcare programs and policies and in the allocation of healthcare resources in this state.
- (b)
It is the policy of this state that:
- (1)
Every citizen should have reasonable access to emergency and primary care;
- (2)
The state's healthcare resources should be developed to address the needs of Tennesseans while encouraging competitive markets, economic efficiencies, and the continued development of the state's healthcare industry;
- (3)
Every citizen should have confidence that the quality of health care is continually monitored and standards are adhered to by healthcare providers; and
- (4)
The state should support the recruitment and retention of a sufficient and quality healthcare workforce.
- (c)
The planning division is administratively staffed by the department of health in a manner that the department deems necessary for the performance of the planning division's duties and responsibilities, which may include contracting for the services provided by the division through a private person or entity.
- (d)
The duties and responsibilities of the planning division include:
- (1)
To develop and adopt a state health plan, which must include, at a minimum, guidance regarding allocation of this state's healthcare resources;
- (2)
To submit the state health plan to the governor for approval and adoption;
- (3)
To hold public hearings as needed;
- (4)
To review and evaluate the plan at least annually;
- (5)
To respond to requests for comment and recommendations for healthcare policies and programs;
- (6)
To conduct an ongoing evaluation of this state's resources for accessibility, including, but not limited to, financial, geographic, cultural, and quality of care;
- (7)
To review the health status of Tennesseans as presented annually to the planning division by the department of health, the department of mental health and substance abuse services, and the department of intellectual and developmental disabilities;
- (8)
To review and comment on federal laws and regulations that influence the healthcare industry and the healthcare needs of Tennesseans;
- (9)
To involve and coordinate functions with state entities as necessary to ensure the coordination of state health policies and programs in this state;
- (10)
To prepare an annual report for the general assembly and recommend legislation for their consideration and study; and
- (11)
To establish a process for timely modification of the state health plan in response to changes in technology, reimbursement, and other developments that affect the delivery of health care.
§ 68-11-1623. Replacement facility applications — Certificates of need for nursing home beds.
- (a)
A replacement facility application is an application that proposes to replace one (1) or more currently licensed nursing homes with one (1) single licensed nursing home.
- (b)
An application or portion of a replacement facility application that does not increase the number of licensed beds over the number of beds in the existing facility or facilities being replaced must be reviewed and considered by the commission pursuant to the criteria in § 68-11-1609(b), and shall not be considered new nursing home beds. In reviewing the application, the commission shall give preference to projects that propose replacement facilities because of building or life safety standard issues. The criteria of § 68-11-1619 do not apply to replacement facility applications.
- (c)
If a replacement facility application seeks to increase the number of licensed beds over the number of beds in the existing facility or facilities being replaced, then that portion of the application that increases the number of beds must comply with § 68-11-1619, and is considered new nursing home beds. The remaining part of the application relative to the replacement of the facility or facilities must be reviewed and considered under the criteria set out in subsection (b). In reviewing such an application, the commission shall give preference to projects that propose replacement facilities because of building or life safety standard issues.
- (d)
With regard to a certificate of need to replace a nursing home that has ceased operations, the original facility is not required to maintain its license after the certificate of need has been approved for the replacement facility.
§ 68-11-1625. Development of measures for assessing quality of entities receiving certificate of need — Failure to meet quality measures — Penalties.
- (a)
In consultation with the department of health, the department of mental health and substance abuse services, and the department of intellectual and developmental disabilities, and subject to § 68-11-1609(h), the commission shall develop by rule measures for assessing quality for entities that, on or after July 1, 2016, receive a certificate of need under this part. In developing quality measures, the commission may seek the advice of stakeholders with respect to certificates of need for specific institutions or services.
- (b)
If the commission determines that an entity has failed to meet the quality measures developed under this section, then the commission shall refer that finding to the board for licensing health care facilities or the department of mental health and substance abuse services, whichever is appropriate, for appropriate action on the license of the entity under part 2 of this chapter.
- (c)
If the commission determines that an entity has failed to meet a quality measure imposed as a condition for a certificate of need by the commission, then the commission may impose penalties pursuant to § 68-11-1616 or revoke a certificate of need pursuant to § 68-11-1617.
§ 68-11-1626. Renewal of license for closed hospitals in rural or distressed counties.
- (a)
Notwithstanding this part, a certificate of need is not required for the establishment of a hospital licensed under this title if:
- (1)
The hospital was previously licensed under this title or another hospital was previously licensed under this title at the proposed location;
- (2)
The hospital is located in a county:
- (A)
Designated by the commission of economic and community development as a tier 2, tier 3, or tier 4 enhancement county pursuant to § 67-4-2109; or
- (B)
With a population less than forty-nine thousand (49,000), according to the 2010 federal census or a subsequent census;
- (3)
The last date of operations at the hospital, the hospital site service area, or proposed hospital site service area was no more than fifteen (15) years prior to the date on which the party seeking to establish the hospital submits information to the commission pursuant to subsection (b); and
- (4)
The party seeking to establish the hospital applies for a certificate of need from the agency within twelve (12) months of the date on which the party submits information to the commission pursuant to subsection (b).
- (b)
- (1)
Notwithstanding this part, the commission may renew a license for a hospital meeting the criteria in subdivisions (a)(1)-(3) upon application by the party seeking to establish the hospital and finding that the hospital will operate in a manner that is substantially similar to the manner authorized under the previous hospital's license at the time of the previous hospital's closure.
- (2)
The commission shall review and make a determination on an application submitted pursuant to subdivision (b)(1) and notify the applicant in writing of the determination within sixty (60) days of the date the applicant submits a completed application to the commission. If the commission determination is to deny the application, then the commission must also provide to the applicant a written explanation detailing the reasons for the denial.
§ 68-11-1627. Transfer of administrative rules.
-
All administrative rules in effect on July 1, 2022, that were promulgated by the board for licensing healthcare facilities while attached to the department of health are transferred to the health facilities commission on July 1, 2022.
Part 17 Disabled Nursing Home Volunteers
§ 68-11-1701. Legislative intent.
- (a)
The general assembly finds that:
- (1)
A disabled volunteer may be able to provide assistance in improving the services provided by Tennessee's nursing homes; and
- (2)
The use of a disabled volunteer in a nursing home could greatly benefit the volunteer as well.
- (b)
It is the intent of the general assembly in enacting this part to determine what roles and responsibilities a volunteer with a disability could effectively assume in a nursing home and to provide for the establishment of a demonstration project to confirm the value of a disabled volunteer in a long term care facility.
§ 68-11-1702. Demonstration project.
- (a)
The commissioner of health is authorized to develop, in conjunction with representatives of the Tennessee Health Care Association, the Tennessee Disability Coalition and the Tennessee commission on aging and disability, a framework that delineates the functions that a disabled volunteer could safely assume in a nursing home, to establish appropriate goals and objectives for a demonstration project and to implement and evaluate a twelve-month demonstration project.
- (b)
The commissioner is further authorized to identify one (1) nursing home willing to implement the demonstration project. The commissioner shall report on the effectiveness of the demonstration project to the general welfare, health and human resources committee of the senate and the health and human resources committee of the house of representatives, no later than March 1, 2006.
Part 18 Tennessee Health Care Decisions Act
§ 68-11-1802. Part definitions.
- (a)
As used in this part, unless the context clearly otherwise requires:
- (1)
“Advance directive” means an individual instruction or a written statement relating to the subsequent provision of health care for the individual, including, but not limited to, a living will or a durable power of attorney for health care;
- (2)
“Agent” means an individual designated in an advance directive for health care to make a health care decision for the individual granting the power;
- (3)
“Capacity” means an individual's ability to understand the significant benefits, risks, and alternatives to proposed health care and to make and communicate a health care decision;
- (4)
“Designated physician” means a physician designated by an individual or the individual's agent, guardian, or surrogate, to have primary responsibility for the individual's health care or, in the absence of a designation or if the designated physician is not reasonably available, a physician who undertakes such responsibility;
- (5)
“Guardian” means a judicially appointed guardian or conservator having authority to make a health care decision for an individual;
- (6)
“Health care” means any care, treatment, service or procedure to maintain, diagnose, treat, or otherwise affect an individual's physical or mental condition, and includes medical care as defined in § 32-11-103;
- (7)
“Health care decision” means consent, refusal of consent or withdrawal of consent to health care;
- (8)
“Health care institution” means a health care institution as defined in § 68-11-1602;
- (9)
“Health care provider” means a person who is licensed, certified or otherwise authorized or permitted by the laws of this state to administer health care in the ordinary course of business in practicing of a profession;
- (10)
“Individual instruction” means an individual's direction concerning a health care decision for the individual;
- (11)
“Person” means an individual, corporation, estate, trust, partnership, association, joint venture, government, governmental subdivision, agency, or instrumentality, or any other legal or commercial entity;
- (12)
“Personally informing” means a communication by any effective means from the patient directly to a health care provider;
- (13)
“Physician” means an individual authorized to practice medicine or osteopathy under title 63, chapter 6 or 9;
- (14)
“Power of attorney for health care” means the designation of an agent to make health care decisions for the individual granting the power;
- (15)
“Reasonably available” means readily able to be contacted without undue effort and willing and able to act in a timely manner considering the urgency of the patient's health care needs. Such availability shall include, but not be limited to, availability by telephone;
- (16)
“State” means a state of the United States, the District of Columbia, the Commonwealth of Puerto Rico, or a territory or insular possession subject to the jurisdiction of the United States;
- (17)
“Supervising health care provider” means the designated physician or, if there is no designated physician or the designated physician is not reasonably available, the health care provider who has undertaken primary responsibility for an individual's health care;
- (18)
“Surrogate” means an individual, other than a patient's agent or guardian, authorized under this part to make a health care decision for the patient; and
- (19)
“Treating health care provider” means a health care provider who at the time is directly or indirectly involved in providing health care to the patient.
- (b)
The terms “principal,” “individual” and “patient” may be used interchangeably in this part, unless the context otherwise requires.
§ 68-11-1803. Oral or written individual instructions — Advance directive for health care — When effective — Decisions based on best interest assessment — Out-of-state directives — Construction.
- (a)
An adult or emancipated minor may give an individual instruction. The instruction may be oral or written. The instruction may be limited to take effect only if a specified condition arises.
- (b)
An adult or emancipated minor may execute an advance directive for health care, which may authorize the agent to make any health care decision the principal could have made while having capacity. The advance directive must be in writing and signed by the principal. The advance directive must either be notarized or witnessed by two (2) witnesses. An advance directive remains in effect notwithstanding the principal's last incapacity and may include individual instructions. For the purposes of this section, a witness shall be a competent adult, who is not the agent, and at least one (1) of whom is not related to the principal by blood, marriage, or adoption and would not be entitled to any portion of the estate of the principal upon the death of the principal under any will or codicil made by the principal existing at the time of execution of the advance directive or by operation of law then existing. A written advance directive shall contain an attestation clause that attests that the witnesses comply with the requirements of this subsection (b).
- (c)
Unless otherwise specified in an advance directive, the authority of an agent becomes effective only upon a determination that the principal lacks capacity, and ceases to be effective upon a determination that the principal has recovered capacity.
- (d)
A determination that an individual lacks or has recovered capacity, or that another condition exists that affects an individual instruction or the authority of an agent, must be made by the designated physician. In making such determination, a designated physician is authorized to consult with such other persons as the physician may deem appropriate.
- (e)
An agent shall make a health care decision in accordance with the principal's individual instructions, if any, and other wishes to the extent known to the agent. Otherwise, the agent shall make the decision in accordance with the agent's determination of the principal's best interest. In determining the principal's best interest, the agent shall consider the principal's personal values to the extent known to the agent.
- (f)
A health care decision made by an agent for a principal is effective without judicial approval.
- (g)
An advance directive may include the individual's nomination of a guardian of the person.
- (h)
An advance directive that is executed outside of this state by a nonresident of this state at the time of execution shall be given effect in this state, if that advance directive is in compliance with either this part or the laws of the state of the principal's residence.
- (i)
No health care provider or institution, and no health care service plan, insurer issuing disability insurance, self-insured employee welfare benefit plan, or nonprofit hospital plan, shall require the issuance, execution or revocation of an organ donation consent form or advance directive as a condition for being insured for, or receiving health care.
- (j)
Any living will, durable power of attorney for health care, or other instrument signed by the individual, complying with the terms of title 32, chapter 11, and a durable power of attorney for health care complying with the terms of title 34, chapter 6, part 2, shall be given effect and interpreted in accord with those respective acts. Any advance directive that does not evidence an intent to be given effect under those acts, but that complies with this part may be treated as an advance directive under this part.
§ 68-11-1804. Revocation of the designation of agent — Revocation of advance directive — Spouses as agent — Conflicts.
- (a)
An individual having capacity may revoke the designation of an agent only by a signed writing or by personally informing the supervising health care provider.
- (b)
An individual having capacity may revoke all or part of an advance directive, other than the designation of an agent, at any time and in any manner that communicates an intent to revoke.
- (c)
A decree of annulment, divorce, dissolution of marriage, or legal separation revokes a previous designation of a spouse as agent, unless otherwise specified in the decree or in an advance directive.
- (d)
An advance directive that conflicts with an earlier advance directive revokes the earlier directive to the extent of the conflict.
§ 68-11-1805. Model forms — Rules and regulations.
- (a)
The board for licensing health care facilities shall develop and issue appropriate model forms for advance directives that are consistent with this part.
- (b)
The board for licensing health care facilities is authorized to promulgate rules and regulations in order to implement this part, in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.
§ 68-11-1806. Designation of surrogate.
- (a)
An adult or emancipated minor may designate any individual to act as surrogate by personally informing the supervising health care provider. The designation may be oral or written.
- (b)
A surrogate may make a health care decision for a patient who is an adult or emancipated minor, if, and only if:
- (1)
The patient has been determined by the designated physician to lack capacity; and
- (2)
No agent or guardian has been appointed or the agent or guardian is not reasonably available.
- (c)
- (1)
In the case of a patient who lacks capacity, has not appointed an agent, has not designated a surrogate, and does not have a guardian, or whose agent, surrogate, or guardian is not reasonably available, the patient's surrogate shall be identified by the supervising health care provider and documented in the current clinical record of the institution or institutions at which the patient is then receiving health care.
- (2)
The patient's surrogate shall be an adult who has exhibited special care and concern for the patient, who is familiar with the patient's personal values, who is reasonably available, and who is willing to serve. No person who is the subject of a protective order or other court order that directs that person to avoid contact with the patient shall be eligible to serve as the patient's surrogate.
- (3)
Consideration may be given, in order of descending preference for service as a surrogate, to:
- (A)
The patient's spouse, unless legally separated;
- (B)
The patient's adult child;
- (C)
The patient's parent;
- (D)
The patient's adult sibling;
- (E)
Any other adult relative of the patient; or
- (F)
Any other adult who satisfies the requirements of subdivision (c)(2).
- (4)
The following criteria shall be considered in the determination of the person best qualified to serve as the surrogate:
- (A)
Whether the proposed surrogate reasonably appears to be better able to make decisions, either in accordance with the known wishes of the patient, or in accordance with the patient's best interests;
- (B)
The proposed surrogate's regular contact with the patient prior to and during the incapacitating illness;
- (C)
The proposed surrogate's demonstrated care and concern;
- (D)
The proposed surrogate's availability to visit the patient during the patient's illness; and
- (E)
The proposed surrogate's availability to engage in face-to-face contact with health care providers for the purpose of fully participating in the decision-making process.
- (5)
If none of the individuals eligible to act as a surrogate under this subsection (c) are reasonably available, the designated physician may make health care decisions for the patient after the designated physician either:
- (A)
Consults with and obtains the recommendations of an institution's ethics mechanism; or
- (B)
Obtains concurrence from a second physician who is not directly involved in the patient's health care, does not serve in a capacity of decision-making, influence, or responsibility over the designated physician, and is not under the designated physician's decision-making, influence, or responsibility.
- (6)
In the event of a challenge, there shall be a rebuttable presumption that the selection of the surrogate was valid. Any person who challenges the selection shall have the burden of proving the invalidity of that selection.
- (d)
A surrogate shall make a health care decision in accordance with the patient's individual instructions, if any, and other wishes to the extent known to the surrogate. Otherwise, the surrogate shall make the decision in accordance with the surrogate's determination of the patient's best interest. In determining the patient's best interest, the surrogate shall consider the patient's personal values to the extent known to the surrogate.
- (e)
A surrogate who has not been designated by the patient may make all health care decisions for the patient that the patient could make on the patient's own behalf, except that artificial nutrition and hydration may be withheld or withdrawn for a patient upon a decision of the surrogate only when the designated physician and a second independent physician certify in the patient's current clinical records that the provision or continuation of artificial nutrition or hydration is merely prolonging the act of dying and the patient is highly unlikely to regain capacity to make medical decisions.
- (f)
A health care decision made by a surrogate for a patient is effective without judicial approval.
- (g)
- (1)
Except as provided in subdivision (g)(2):
- (A)
Neither the treating health care provider nor an employee of the treating health care provider, nor an operator of a health care institution nor an employee of an operator of a health care institution may be designated as a surrogate; and
- (B)
A health care provider or employee of a health care provider may not act as a surrogate, if the health care provider becomes the principal's treating health care provider.
- (2)
An employee of the treating health care provider or an employee of an operator of a health care institution may be designated as a surrogate, if:
- (A)
The employee so designated is a relative of the principal by blood, marriage, or adoption; and
- (B)
The other requirements of this section are satisfied.
- (h)
A health care provider may require an individual claiming the right to act as surrogate for a patient to provide a written declaration under penalty of perjury, stating facts and circumstances reasonably sufficient to establish the claimed authority.
§ 68-11-1808. Determination of capacity — Compliance by health care provider or institution.
- (a)
A designated physician who makes or is informed of a determination that a patient lacks or has recovered capacity, or that another condition exists that affects an individual instruction or the authority of an agent, guardian, or surrogate, shall promptly record the determination in the patient's current clinical record and communicate the determination to the patient, if possible, and to any person then authorized to make health care decisions for the patient.
- (b)
Except as provided in subsections (c), (d), and (e), a health care provider or institution providing care to a patient shall:
- (1)
Comply with an individual instruction of the patient and with a reasonable interpretation of that instruction made by a person then authorized to make health care decisions for the patient; and
- (2)
Comply with a health care decision for the patient made by a person then authorized to make health care decisions for the patient to the same extent as if the decision had been made by the patient while having capacity.
- (c)
A health care provider may decline to comply with an individual instruction or health care decision for reasons of conscience.
- (d)
A health care institution may decline to comply with an individual instruction or health care decision, if the instruction or decision:
- (1)
Is contrary to a policy of the institution that is based on reasons of conscience; and
- (2)
The policy was timely communicated to the patient or to a person then authorized to make health care decisions for the patient.
- (e)
A health care provider or institution may decline to comply with an individual instruction or health care decision that requires medically inappropriate health care or health care contrary to generally accepted health care standards applicable to the health care provider or institution.
- (f)
A health care provider or institution that declines to comply with an individual instruction or health care decision pursuant to subsections (c), (d), or (e) shall:
- (1)
Promptly so inform the patient, if possible, and any person then authorized to make health care decisions for the patient;
- (2)
Provide continuing care to the patient until a transfer can be effected or until the determination has been made that transfer cannot be effected;
- (3)
Unless the patient or person then authorized to make health care decisions for the patient refuses assistance, immediately make all reasonable efforts to assist in the transfer of the patient to another health care provider or institution that is willing to comply with the instruction or decision; and
- (4)
If a transfer cannot be effected, the health care provider or institution shall not be compelled to comply.
§ 68-11-1810. Liability.
- (a)
A health care provider or institution acting in good faith and in accordance with generally accepted health care standards applicable to the health care provider or institution is not subject to civil or criminal liability or to discipline for unprofessional conduct for:
- (1)
Complying with a health care decision of a person apparently having authority to make a health care decision for a patient, including a decision to withhold or withdraw health care;
- (2)
Declining to comply with a health care decision of a person based on a belief that the person then lacked authority; or
- (3)
Complying with an advance directive and assuming that the directive was valid when made and that it had not been revoked or terminated.
- (b)
An individual acting as agent or surrogate under this part is not subject to civil or criminal liability or to discipline for unprofessional conduct for health care decisions made in good faith.
- (c)
A person identifying a surrogate under this part is not subject to civil or criminal liability or to discipline for unprofessional conduct for such identification made in good faith.
§ 68-11-1811. Violations — Intentional misconduct — Penalties.
- (a)
A health care provider or institution that intentionally violates this part is subject to liability to the aggrieved individual for damages of two thousand five hundred dollars ($2,500), or actual damages resulting from the violation, whichever is greater, plus reasonable attorney's fees and costs.
- (b)
A person who intentionally falsifies, forges, conceals, defaces, or obliterates an individual's advance directive or a revocation of an advance directive without the individual's consent, or who coerces or fraudulently induces an individual to give, revoke, or not to give an advance directive, is subject to liability to that individual for damages of two thousand five hundred dollars ($2,500), or actual damages resulting from the action, whichever is greater, plus reasonable attorney's fees and costs.
§ 68-11-1812. Presumption of capacity.
- (a)
This part does not affect the right of an individual to make health care decisions while having capacity to do so.
- (b)
An individual is presumed to have capacity to make a health care decision, to give or revoke an advance directive, and to designate or disqualify a surrogate.
§ 68-11-1814. No presumptions created — Death does not constitute suicide, euthanasia, homicide, mercy killing, or assisted suicide.
- (a)
This part does not create a presumption concerning the intention of an individual who has not made or who has revoked an advance directive.
- (b)
Death resulting from the withholding or withdrawal of health care in accordance with this part does not for any purpose constitute a suicide or homicide or legally impair or invalidate a policy of insurance or an annuity providing a death benefit, notwithstanding any term of the policy or annuity to the contrary.
- (c)
The withholding or withdrawal of medical care from a patient in accordance with this part shall not, for any purpose, constitute a suicide, euthanasia, homicide, mercy killing, or assisted suicide.
- (d)
This part does not authorize a surrogate to give consent for, or take any action on behalf of, a patient on any matter governed by title 33.
§ 68-11-1815. Court jurisdiction.
-
On petition of a patient, the patient's agent, guardian, or surrogate, a health care provider or institution involved with the patient's care, or an individual described in § 68-11-1806(c)(5), a court of competent jurisdiction may enjoin or direct a health care decision or order other equitable relief. A proceeding under this section shall be expedited on the court's civil dockets.
Part 19 Immunity for Healthcare Research Institutions
§ 68-11-1901. Part definitions.
-
As used in this part, unless the context otherwise requires:
- (1)
“Countermeasure” means a vaccine or the component parts used in the design, development, clinical testing or investigation or manufacture of a vaccine, including seed stocks, cell lines and plasmids, used to diagnose, mitigate, prevent, treat, cure or otherwise limit the harm of an infectious disease that is:
- (A)
Approved or cleared under Chapter V of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. § 351 et seq.), or licensed under § 351 of the federal Public Health Service Act (42 U.S.C. § 262);
- (B)
The object of research for possible use as described in subdivision (1)(A) and is the subject of an exemption under § 505(i) of the Federal Food, Drug and Cosmetic Act (21 U.S.C. § 355(i)); or
- (C)
Authorized for emergency use in accordance with § 564 of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. § 360bbb-3);
- (2)
“Healthcare research institution” means any non-governmental, nonprofit research institution with its principal place of business in this state, that is, or that is affiliated with, a hospital or clinic for the treatment of pediatric patients, that does not seek payment for treatment provided to patients in the absence of insurance coverage for the treatment. “Healthcare research institution” includes any or all of the parents, subsidiaries, affiliates, successors and assigns of the institution, and any or all individual trustees, officers, directors, employees, and agents of the institution; and
- (3)
“Willful misconduct” means an act or omission that is taken:
- (A)
Intentionally to achieve a wrongful purpose;
- (B)
Knowingly without legal or factual justification; and
- (C)
In disregard of a known or obvious risk that is so great as to make it highly probable that the harm will outweigh the benefit.
§ 68-11-1902. Immunity.
- (a)
A healthcare research institution shall be immune from suit and any liability under state law with respect to all claims for loss caused by, arising out of, relating to, or resulting from the administration to, or use by, an individual, including claims from loss caused by, arising out of, relating to, or resulting from the design, development, clinical testing or investigation or manufacture of any countermeasure, unless the loss can be determined to have resulted from the willful misconduct of the healthcare research institution or its employees in accordance with subsection (b).
- (b)
In any action arising under subsection (a), the plaintiff shall have the burden of proving, by clear and convincing evidence, willful misconduct by each healthcare research institution, or employee, against which a claim has been asserted and that the willful misconduct caused death or serious physical injury.
Part 20 Indwelling Catheters
§ 68-11-2001. Part definitions.
-
As used in this part:
- (1)
“Drug abuse” means a condition characterized by the continuous or episodic use of a drug or drugs that results in social impairment, vocational impairment, psychological dependence, or pathological patterns of use;
- (2)
“Health care institution” means any publicly or privately owned or operated institution, facility, center, or place licensed by the department of health that provides health services for patients that engage in drug abuse;
- (3)
“Health care provider” means a person licensed under title 63 or this title to provide health care or related services; and
- (4)
“Indwelling catheter” means a proprietary indwelling device that is inserted under a patient's skin to provide long-term IV access for administering blood products, prescribed medication, high-dose chemotherapy, or other treatments.
§ 68-11-2002. Liability for misuse of indwelling catheters.
- (a)
Notwithstanding any law to the contrary, a health care institution or health care provider shall be immune from suit and any liability under state law with respect to all claims for loss caused by, arising out of, relating to, or resulting from misuse of an indwelling catheter that the health care provider placed in a patient if:
- (1)
The misuse occurs after placement of the indwelling catheter, after the patient is discharged from the health care institution, or after both; and
- (2)
The health care institution provides written notice of such immunity to the patient at the time of or subsequent to the placement of the indwelling catheter, but in all cases prior to the patient's discharge from the health care institution.
- (b)
For purposes of this section, misuse of an indwelling catheter means that an individual, other than an employee of the health care institution or health care provider:
- (1)
Introduces any drug as defined in title 39, chapter 17, part 4 into the indwelling catheter;
- (2)
Introduces any medication not prescribed by the health care provider into the indwelling catheter; or
- (3)
Introduces any other substance harmful to the patient into the indwelling catheter.
Part 21 Stroke Treatment
§ 68-11-2101. Part definitions.
-
As used in this part:
- (1)
“Board” means the board for licensing health care facilities;
- (2)
“Capable of providing neuroendovascular treatment” means the capacity to:
- (A)
Properly assess, diagnose using advanced imaging devices, and treat stroke patients with complex cases of ischemic stroke, including emergent large vessel occlusion causing the loss of blood supply to a part of the brain and requiring immediate treatment at a facility with a trained team of neurointerventional surgeons, vascular neurologists, and assisting medical personnel; and
- (B)
Perform a mechanical thrombectomy twenty-four (24) hours per day, seven (7) days per week;
- (3)
“Department” means the department of health; and
- (4)
“Stroke-related designation” means a designation including, but not limited to, a comprehensive stroke center, primary stroke center, acute stroke-ready hospital, or other stroke-related designation approved by rule by the board in consultation with the emergency medical services board.
§ 68-11-2102. Recognition of hospitals with stroke-related designations.
- (a)
The board shall promulgate rules establishing a procedure for recognizing hospitals that have stroke-related designations.
- (b)
The board shall recognize a stroke-related designation for a hospital if the hospital has an active certification as a comprehensive stroke center, primary stroke center, or acute stroke-ready hospital from a department-approved nationally recognized certifying body or a corresponding certification from a department-approved nationally recognized certifying body recognizing the hospital as capable of providing neuroendovascular treatment. The hospital must maintain such certification in order to maintain recognition of its stroke-related designation.
- (c)
If a hospital does not comply with the procedure established by the board, then the board shall remove any reference to the facility's stroke-related designation from the board's website along with any materials demonstrating the facility's stroke-related designation.
Part 22 Topical Medical Waste Reduction Act of 2023
§ 68-11-2203 Part definitions.
-
As used in this part:
- (1)
“Facility” means a hospital operating room or hospital emergency room department;
- (2)
“Facility-provided medication” means a topical antibiotic, anti-inflammatory, dilation, or glaucoma drop or ointment that a facility employee has on standby or that is retrieved from a dispensing system for a specified patient for use during a procedure or visit; and
- (3)
“Prescriber” means an individual authorized by law to prescribe drugs.
§ 68-11-2204. Provision of facility-provided medication.
-
If a facility-provided medication is ordered at least twenty-four (24) hours in advance for surgical procedures and is administered to a patient at the facility, then an unused portion of the facility-provided medication may be offered to the patient upon discharge when it is required for continuing treatment.
§ 68-11-2205. Labeling requirements.
-
A facility-provided medication must be labeled consistent with labeling requirements under the Tennessee Pharmacy Practice Act of 1996, compiled in title 63, chapter 10, parts 2-5.
§ 68-11-2206. Patient education requirements.
-
If a facility-provided medication is used in an operating room or emergency department setting, then the prescriber shall counsel the patient on its proper use and administration and the requirement of pharmacist counseling is waived.
Part 23 Temporary Healthcare Staffing Agencies
§ 68-11-2301. Part definitions.
-
As used in this part:
- (1)
“Commission” means the health facilities commission;
- (2)
“Controlling person” means:
- (A)
A business entity, officer, program administrator, or director whose responsibilities include the direction of the management or policies of a temporary healthcare staffing agency; and
- (B)
An individual who, directly or indirectly, beneficially owns an interest in a corporation, partnership, or other business association that is a controlling person;
- (3)
“Direct care staff”:
- (A)
Means an individual who:
- (i)
Is a medication aide, medication technician, certified nursing assistant, licensed practical nurse, or registered nurse; and
- (ii)
Contracts with or is employed by a temporary healthcare staffing agency to provide direct care services to residents or patients in a healthcare facility; and
- (B)
Does not include:
- (i)
An individual who is engaged in the practice of medicine and surgery or osteopathic medicine and surgery and who is licensed under title 63, chapter 6 or 9; or
- (ii)
The practice of nursing by a certified nurse practitioner or an advanced practice registered nurse certified or registered under title 63, chapter 7;
- (4)
“Executive director” means the executive director of the health facilities commission;
- (5)
“Healthcare facility” means a nursing home or an assisted-care living facility as those terms are defined by § 68-11-201;
- (6)
“Person” means an individual, firm, corporation, partnership, or association; and
- (7)
“Temporary healthcare staffing agency” or “agency”:
- (A)
Means a person, or other business entity:
- (i)
Engaged in whole or in part in the business of providing or procuring temporary employment in healthcare facilities for direct care staff; or
- (ii)
That operates a digital website or digital smartphone application that facilitates the provision of the engagement of direct care staff and accepts requests from healthcare facilities for direct care staff through its digital website or digital smartphone application; and
- (B)
Does not include:
- (i)
An individual who engages, only on the individual's own behalf, to provide the individual's services on a temporary basis to a healthcare facility without the use or involvement of a temporary healthcare staffing agency; or
- (ii)
An agency operated by a hospital, assisted-care living facility, or nursing home as those terms are defined by § 68-11-201, or an affiliate of a hospital, assisted-care living facility, or nursing home, if the purpose of the agency is solely procuring, furnishing, or referring temporary or permanent direct care staff for employment at that healthcare provider, or any affiliates under common ownership.
§ 68-11-2302. Minimum requirements and record retention.
- (a)
A temporary healthcare staffing agency shall:
- (1)
Retain documentation that each direct care staff contracted with or employed by the agency meets all licensing, certification, training, and continuing education standards for the position in which the direct care staff will be working, in compliance with any federal, state, or local requirements;
- (2)
In response to a request by a healthcare facility to whom direct care staff are supplied to work, provide documentation that each direct care staff meets the requirements of subdivision (a)(1);
- (3)
Comply with all pertinent requirements relating to the health and other qualifications of personnel employed in a healthcare facility;
- (4)
Carry an employee dishonesty bond in an amount not less than ten thousand dollars ($10,000) per occurrence;
- (5)
Maintain coverage for workers' compensation for all direct care staff; and
- (6)
Retain all records for five (5) calendar years and make all records immediately available to the commission upon request.
- (b)
A temporary healthcare staffing agency shall provide any records, unless otherwise privileged, pertinent to an investigation conducted by any of the following:
- (1)
A representative of adult protective services actively involved in the conduct of an investigation pursuant to title 71, chapter 6;
- (2)
The department of health or its representatives, designees, or employees under § 68-11-117, in the same manner that a healthcare provider must make records available;
- (3)
The health facilities commission if related to a violation of this part or any law or regulation of the board for licensing healthcare facilities relating to a healthcare facility with which the agency contracts; and
- (4)
Any law enforcement agency conducting a criminal investigation, including, but not limited to, the medicaid fraud control unit.
- (c)
No later than December 31, 2023, a temporary healthcare staffing agency presently doing business in this state shall provide notice to the health facilities commission identifying its business entity and any controlling person.
§ 68-11-2303. Prohibited contractual provisions.
- (a)
A temporary healthcare staffing agency shall not:
- (1)
Restrict in any manner the employment opportunities of any direct care staff that is contracted with or employed by the agency, including, but not limited to, using contract buy-out provisions or contract non-compete clauses;
- (2)
Require the payment of liquidated damages, employment fees, or other compensation in any contract with direct care staff or a healthcare facility, if the direct care staff is hired as a permanent employee of the healthcare facility; or
- (3)
Solicit or recruit the current staff of a healthcare facility, or require, as a condition of employment, assignment, or referral, that the agency direct care staff recruit new employees for the agency from among the current employees of the healthcare facility to which the agency direct care staff are employed, assigned, or referred.
- (b)
The provisions of a contract between a temporary healthcare staffing agency and either direct care staff or a healthcare facility that violate this part are void and unenforceable in a court of law.
§ 68-11-2304. Requirement for registration. [Effective July 1, 2024.]
- (a)
A temporary healthcare staffing agency shall not be operated, maintained, or advertised in this state without registering with the commission. Each separate location of a temporary healthcare staffing agency shall register and obtain a separate registration.
- (b)
Each application to operate a temporary healthcare staffing agency must be made on forms adopted by the commission. The commission shall promulgate rules in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, to establish the application process for temporary healthcare staffing agency registration. The application must include:
- (1)
The names and addresses of any controlling person;
- (2)
The names and addresses of any owner who does not meet the definition of a controlling person. If the owner is a corporation, then the application must include copies of the corporation's articles of incorporation and current bylaws, and the names and addresses of its officers and directors;
- (3)
The names and addresses of the person or persons under whose management or supervision the temporary healthcare staffing agency will be operated;
- (4)
Satisfactory proof that the temporary healthcare staffing agency will maintain compliance with this part;
- (5)
A policy and procedure that describes how the temporary healthcare staffing agency's records will be immediately available to the commission upon request; and
- (6)
Any other relevant information the commission determines is necessary to properly evaluate an application for registration.
- (c)
The commission may establish a registration fee in an amount sufficient to fund the projected costs of administering registration of temporary healthcare staffing agencies, but in no case may such fee exceed five thousand dollars ($5,000).
- (d)
The commission shall deny an application for temporary healthcare staffing agency registration for failure to provide the information required by this section.
- (e)
A registration issued by the commission to an agency is effective for a period of one (1) year from the date of its issuance unless the registration is revoked for noncompliance with this section. If a controlling person changes, the temporary healthcare staffing agency is sold, or management is transferred, then the registration of the agency is voided and the new controlling person, owner, or manager may apply for a new registration.
§ 68-11-2305. Reports. [Effective July 1, 2024.]
- (a)
A temporary healthcare staffing agency shall submit biannual reports to the commission.
- (b)
The commission shall promulgate rules in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, to establish requirements for temporary healthcare staffing agencies to submit biannual reports. The biannual reports must include, but are not limited to, the following:
- (1)
The name, professional licensure or certification, and assigned healthcare facility for each direct care staff;
- (2)
The length of time the direct care staff has been assigned to each healthcare facility and the total hours worked;
- (3)
A detailed listing of the average amount charged during each reporting period to a healthcare facility for each category of direct care staff providing services to the healthcare facility;
- (4)
A detailed listing of the average amount paid during each reporting period to direct care staff for their services for each category of direct care staff providing services to the healthcare facility;
- (5)
The agency's certification that each direct care staff contracted to a healthcare facility during the reporting period had a current, unrestricted license or certification in good standing and met the training and continuing education standards for the position with the healthcare facility throughout the entirety of the reporting period; and
- (6)
The agency's certification that each direct care staff contracted to a healthcare facility had successfully completed all background and abuse registry checks required by federal and state law and rule relating to the position and healthcare facility in which the direct care staff was placed or assigned during the reporting period.
- (c)
Biannual reports required by this section are considered proprietary information that is confidential and not subject to public inspection pursuant to title 10, chapter 7, part 5. However, the commission shall annually prepare reports of aggregate data that does not identify any data specific to any temporary healthcare staffing agency.
§ 68-11-2306. Penalties. [Effective July 1, 2024.]
- (a)
The commission shall revoke the registration of a temporary healthcare staffing agency that knowingly provides to a healthcare facility a direct care staff with an illegally or fraudulently obtained or issued diploma, registration, license, certificate, criminal records check, or other item required for employment by a healthcare facility. The commission shall immediately notify the agency that its registration will be revoked in thirty (30) days.
- (b)
The commission shall not issue or renew a temporary healthcare staffing agency registration if a controlling person's registration has been revoked due to noncompliance with requirements in this section within five (5) years from the date of nonrenewal or revocation.
- (c)
If a temporary healthcare staffing agency fails to comply with the reporting requirements in § 68-11-2305, then the commission shall assess a penalty of one hundred dollars ($100) for each day such agency is not in compliance. The commission may waive, in whole or in part, any penalty upon a determination that there is good cause for such a waiver.
- (d)
The commission may suspend or revoke the registration of, or impose a fine not to exceed five thousand dollars ($5,000) per violation, against a temporary healthcare staffing agency that fails to comply with this part, or the rules promulgated by the commission in accordance with this part.
- (e)
A temporary healthcare staffing agency may request a contested case hearing to appeal a denial of an application for registration, revocation of registration, or an imposed monetary penalty.
- (f)
The contested case hearing required by this section must be conducted in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, except as otherwise provided in this section.
- (g)
Contested cases initiated pursuant to this section must be heard by an administrative law judge sitting alone. Petitions for contested cases received by the commission must be forwarded immediately to the administrative division of the secretary of state's office for assignment to an administrative law judge.
- (h)
Judicial review of the executive director's final order in a contested case is as provided by law.
§ 68-11-2307. Disciplinary proceedings — Payment of investigation and prosecution costs. [Effective July 1, 2024.]
- (a)
If the commission imposes sanctions on a temporary healthcare staffing agency following a disciplinary proceeding, then the commission may require a temporary healthcare staffing agency to pay the actual and reasonable costs of the investigation and prosecution of the disciplinary proceeding, which include, but are not limited to, the following:
- (1)
All costs absorbed by the commission in connection with the investigation and prosecution of the matter, including all investigator time, travel, and lodging incurred during the prosecution;
- (2)
All costs absorbed by the commission for the use of facilities and personnel for prosecution of the matter;
- (3)
All costs assessed against the commission for the appearance fees, transcripts, time, travel, and lodging of administrative law judges, court reporters, and witnesses required in the prosecution of the matter; and
- (4)
All costs attributed to and assessed against the commission in connection with the prosecution of the matter, including all attorney and paralegal time, travel, and lodging incurred during the prosecution of the matter.
- (b)
The commission shall include in any order in which the payment of costs has been assessed an amount that is the maximum amount owed by the temporary healthcare staffing agency at the time the order is entered. Prior to the expiration of sixty (60) days from the effective date of the order, the commission shall send to the temporary healthcare staffing agency, by certified mail, return receipt requested, and by regular United States mail, a final costs assessment that does not exceed the maximum amount in the order.
- (c)
All fines, costs, and registration fees paid to the commission under this part remain with the commission, and must be used to fund the projected costs of administering the registration of temporary healthcare staffing agencies.
§ 68-11-2308. Authority to promulgate rules.
-
The executive director shall promulgate rules to effectuate this part no later than September 1, 2023. The rules must be promulgated in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, and may be promulgated as emergency rules pursuant to § 4-5-208.
Chapter 12 Treatment of Disabled Children
§ 68-12-101. Clinics for children with physical disabilities authorized — State after-care program.
- (a)
In order to provide proper care, advice and approved medical and surgical treatment for children with physical disabilities, the department of health is empowered to organize and conduct local public diagnostic and operative clinics for such children, in cooperation with local lawful authorities, medical societies, social welfare, public health, or private agencies, designed to give such children expert diagnosis and advice near their homes.
- (b)
Such diagnosis and advice shall be rendered by orthopedic surgeons and other experts in the different parts of the state who have been approved and designated by the department.
- (c)
The department is further empowered to include and carry on a state program of convalescent care and follow-up work, providing after-care for the health of such children as part of its general program of health work.
§ 68-12-102. “Child with a physical disability” — Defined.
- (a)
For the purposes of this chapter, a “child with a physical disability” is one under twenty-one (21) years of age who is deemed to have a physical disability by any reason, whether congenital or acquired, as a result of accident, or disease, that requires medical, surgical, or dental treatment and rehabilitation, and who is or may be totally or partially incapacitated for the receipt of a normal education or for self-support.
- (b)
This definition does not include those children whose sole diagnosis is blindness or deafness; nor does this definition include children who are diagnosed as psychotic.
- (c)
This definition does not prohibit children's special services from accepting for treatment children with acute conditions such as, but not necessarily limited to, fractures, burns and osteomyelitis.
§ 68-12-103. Treatment and care of indigent children — Eligibility — Procedure.
- (a)
In order to provide care and suitable and approved medical and surgical treatment, as provided in this chapter for children with a physical disability whose parents or guardians or other persons in whose care they may be, fail, or are financially unable in whole or in part to provide the necessary treatment, the department of health is empowered to accept the responsibility for the treatment of these children for the purpose of providing such medical, surgical, dental, hospital, outpatient clinic service, rehabilitation or domiciliary care, or any service needed to assist such children to minimize the effects of the disability for which they are being treated.
- (b)
- (1)
A determination of financial eligibility for service for each of these children shall be made by the director of children's special services of the department.
- (2)
In making a determination, the director of children's special services shall take into consideration the family income, the number of dependents in the family, the probable total cost of treatment and the other financial responsibilities of the family.
- (3)
Such determination shall be based on regulations promulgated by the commissioner and approved by the [former] Tennessee public health council [repealed].
§ 68-12-104. Expenses of care and treatment — Payment.
-
The necessary expenses of such care and treatment, including maintenance, personal necessities, artificial limbs, appliances and accessories and their upkeep, and of conveyance to and from the places designated for such services, shall be borne in whole or in part by the parent or guardian if financially able, or as funds are available by the department of health; provided, that the department may charge to the county in which such children with a physical disability reside a portion of the cost, the portion to be determined by the formula as authorized in § 68-12-107(4).
§ 68-12-105. Placement for administering care and treatment.
-
The department of health shall arrange for the care and treatment provided for in this chapter, at such children's homes, orthopedic or other hospitals or institutions or schools or homes, public or private, as may be approved by the department.
§ 68-12-106. Enforcement of chapter — Advisory committee for children's special service created — Members.
- (a)
The department of health is charged with the duty of carrying out this chapter.
- (b)
The commissioner of health, with the approval of the governor, may appoint an advisory committee to be known as the advisory committee for children's special services, and such committee, if appointed, shall advise the department relative to the children's special services, as requested by the commissioner.
- (c)
- (1)
The advisory committee shall consist of seven (7) members, and due consideration shall be given to the geographic distribution of the members so as to have general representation throughout the state.
- (2)
- (A)
At the expiration of the initial terms of appointment, each succeeding appointment shall be for a period of four (4) years. The commissioner may remove any member for cause.
- (B)
Any member may be reappointed, and each member shall serve until such member's successor is appointed.
- (C)
A vacancy in the committee occurring for any cause shall be filled by the commissioner, and the person so appointed shall serve until the expiration of the term for which such person's predecessor had been appointed.
- (3)
- (A)
The members of the committee shall serve without compensation, but shall be entitled to be reimbursed for actual and necessary travel expenses while in attendance at official meetings of the committee.
- (B)
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.
§ 68-12-107. Powers of department — Special fund — Collection and disbursement of moneys.
-
The department of health is authorized and empowered to:
- (1)
Accept gifts, donations or bequests from either public or private sources made or placed in trust to assist in carrying out the purposes of this chapter; provided, that such funds shall be placed in the care of the state treasurer and shall be designated as the “special private fund for children with a physical disability”; and provided further, that any donation or gift, if expressly specified by the donor, may be used to supplement the salary of any person engaged in work for children with a physical disability, whether such person is an employee of the state or not;
- (2)
Collect payments, in cooperation with local courts and specially appointed local representatives, from parents or guardians who are able to pay, in whole or in part, for the care of their children and wards;
- (3)
Pay the costs of children's special services, including the costs of care and treatment for the children, the payment to be made out of the funds available for that purpose through state legislative appropriations, federal grant-in-aid, or gifts or donations, or funds paid in by parents or guardians, or by counties, as reimbursements; provided, that no part of the funds coming by way of gift, donation, bequests or reimbursements made to the department for the care of children shall be used for administration, unless given expressly for that purpose; and
- (4)
Charge to the proper fiscal officers of counties in which such certified or committed children have their legal residences, such part of the costs, exclusive of the cost of administration, incurred by the department in treating and caring for such children as may be determined by a formula to be devised by the [former] public health council [repealed] of the department. The formula shall take into consideration, among other items, counties' appropriation made specifically for children's special services in relation to total population of the county, availability of state and other funds available for matching county funds, ability of the county to appropriate funds for all county services, and special needs in public health and related fields.
§ 68-12-108. Enumeration of physically disabled children by department of education.
- (a)
- (1)
The department of education shall furnish to the department of health a list of all persons enumerated in the school census who have a physical disability.
- (2)
Such children of school age or younger shall be listed, together with the nature of their disabilities, on a separate enumeration blank provided for that purpose.
- (b)
- (1)
For listing each such child below school age the sum of ten cents (10¢) shall be allowed the enumerator.
- (2)
It is the duty of the county board of education and of the city board of education in cities maintaining separate school systems to have enumerated all children with a physical disability of school age or younger residing within their respective jurisdictions, and to furnish to the department of education a list of such persons.
§ 68-12-109. Special schools and classes to be provided.
-
The department of education is empowered to provide, and to cooperate with other school authorities in providing, special schools and special classes in the public elementary and high schools, in private schools, in hospitals, in convalescent institutions, and also home and bedside instruction, and transportation to and from school for children with physical or visual disabilities.
§ 68-12-110. Funds for care or education.
-
All funds made available by appropriation or otherwise, and unexpended, for the care, treatment or education of children with physical disabilities, are for the carrying out of this chapter.
§ 68-12-111. Appropriations available for use.
-
Such part of the sums appropriated for the administration and maintenance of the general work of the department of health and of the department of education as may be necessary for the carrying out of the duties imposed on these departments by this chapter are made available for the carrying out of the purposes of this chapter.
Chapter 14 Hotels, Food Service Establishments and Swimming Pools
Part 3 Hotel and Public Swimming Pool Inspection Act
§ 68-14-302. Part definitions.
-
As used in this part, unless the context otherwise requires:
- (1)
“Alteration” shall be defined by rule, but shall not mean function replacement that equals or makes better the existing operation of the facility;
- (2)
“Commissioner” means the commissioner of health, the commissioner's duly authorized representative, and in the event of the commissioner's absence or vacancy in the office of commissioner, the deputy commissioner;
- (3)
“Critical items” means those aspects of operation or conditions of facilities or equipment that, if in violation, constitute the greatest hazards to health and safety, including imminent health hazards. Critical items shall include, but are not limited to, the following:
- (A)
Restriction of employees with infection — (hotels, pools);
- (B)
Proper cleanliness and good hygiene practices of employees — (hotels);
- (C)
Proper sanitizing of utensils and equipment — (hotels);
- (D)
Approved water supply, hot and cold running water under pressure — (hotels, pools);
- (E)
Sewage, liquid waste disposal — (hotels, pools);
- (F)
No cross connection, backsiphonage — (hotels, pools);
- (G)
Toilet and hand washing facilities for employees — (hotels);
- (H)
Insects and rodents — (hotels);
- (I)
Toxic items properly stored and labeled — (hotels);
- (J)
Fire safety — (hotels);
- (K)
Safety — (pools);
- (L)
Excessive turbidity — (pools);
- (M)
Total absence of approved sanitizing residuals — (pools);
- (N)
Failure or lack of filtration, sanitizing and cleaning equipment and chemicals — (pools); and
- (O)
Absence or lack of required supervisory personnel — (pools);
- (4)
“Department” means the department of health;
- (5)
“Homeowners' association” means a nonprofit corporation that manages or contracts for the management of the common areas of a residential multi-family housing development. A homeowners' association is governed by a board of directors elected by a majority vote of the individual homeowners;
- (6)
“Hotel” means any building or establishment kept, used, or maintained as, or advertised as, or offered to the public to be, a place where sleeping accommodations are furnished for pay to transients or travelers, whether or not meals are served to transients or travelers; “hotel” does not include a short-term rental unit, as defined in § 13-7-602;
- (7)
“Imminent health hazard” means any condition, deficiency, or practice that, if not corrected, is very likely to result in illness, injury, or loss of life to any person;
- (8)
“Multi-family residential housing” means condominiums, subdivisions, and individual residential housing developments that share common grounds, parking facilities, tennis courts, swimming pools and similar recreational facilities that are operated by a homeowners' association;
- (9)
“Multi-family residential housing swimming pool” means a private swimming pool maintained by a homeowners' association solely for the use and benefit of the members of the homeowners' association and their guests;
- (10)
“Person” means any individual, partnership, firm, corporation, agency, municipality, state or political subdivision, or the federal government and its agencies and departments; and
- (11)
“Public swimming pools” means a structure of man-made materials, located either indoors or outdoors, used for bathing or swimming, or for instructional purposes in swimming, diving, or other aquatic activities by humans, together with buildings, appurtenances, and equipment used in connection with the structure. “Public swimming pools” also includes spa-type, wading, special purpose pools or water recreation attractions including, but not limited to, those operated at or in camps, child care facilities, cities, clubs, subdivisions, apartment buildings, counties, institutions, schools, motels, hotels, and mobile home parks to which admission may be gained with or without payment of a fee.
§ 68-14-303. Authority of commissioner.
-
The commissioner is authorized to:
- (1)
Carry out or cause to be carried out this part;
- (2)
Collect all fees established in this part and apply the fees in accordance with the procedures of the department of finance and administration to the necessary and incidental costs of administration of this part. Nothing in this subdivision (2) shall be construed to prohibit the department from receiving by way of general appropriation such sums as may be required to fund adequately the implementation of this part, as recommended in the annual budget by the governor to the general assembly;
- (3)
Prescribe rules and regulations governing the alteration, construction, sanitation, safety and operation of hotels, and public swimming pools, as may be necessary to protect the health and safety of the public, and enforce compliance with these rules and regulations by every hotel and public swimming pool, and grant variances and waivers for public swimming pools from the requirements of this part or applicable rules and regulations; provided, that such variance or waiver shall not constitute a health or safety hazard as determined by the commissioner. The commissioner shall not prescribe any such rules and regulations that are in conflict with the minimum statewide building construction standards established by the state fire marshal pursuant to § 68-120-101;
- (4)
Inspect or cause to be inspected at least once every six (6) months, and as often as the commissioner may deem necessary, every hotel in the state, and inspect or cause to be inspected at least once per month, and as often as the commissioner deems necessary, every public swimming pool in the state to determine compliance with this part and with rules and regulations;
- (5)
Issue or cause to be issued, suspend and revoke permits to operate hotels and public swimming pools as provided in this part;
- (6)
Notify the owner, proprietor, or agent in charge of any hotel or public swimming pool of such changes or alterations as may be necessary to effect compliance with this part and with rules and regulations governing the construction, alteration, and operation of the facilities, and close the facilities for failure to comply within specified times as provided in this part and in rules and regulations;
- (7)
Enter into an agreement or contract with county health departments whereby the departments would implement this part or its equivalent in their respective areas of jurisdiction, if the commissioner deems it to be appropriate; provided, that the following conditions shall apply:
- (A)
State reporting requirements shall be met by the county health department or departments;
- (B)
The county health department program standards shall be at least as stringent as those of state law and of rules and regulations;
- (C)
The commissioner shall retain the right to exercise oversight and evaluation of performance of the county health department or departments and terminate the agreement or contract for cause immediately or otherwise upon reasonable notice;
- (D)
The commissioner may set such other fiscal, administrative, or program requirements as the commissioner deems necessary to maintain consistency and integrity of the statewide program;
- (E)
Staffing and resources shall be adequate to implement and enforce the program in the local jurisdiction;
- (F)
All permit fees, fines, and penalties shall be deposited directly into the state treasury;
- (G)
Beginning with fiscal year 2004-2005, all fees under this chapter shall be reviewed biennially to determine the appropriateness and amount relative to the overall cost of the program; and
- (H)
- (i)
Ninety-five percent (95%) of permit fees collected within a contract county pursuant to §§ 68-14-312 — 68-14-314 shall be conveyed by contract to the respective county health department to assist the county health department in implementing the program in the local jurisdiction. This amount shall be calculated based upon fees collected in the contract county during the state's fiscal year multiplied by ninety-five percent (95%);
- (ii)
No contract county shall charge a local permit fee. By July 30 of each year, each contract county shall provide a report to the commissioner for the preceding fiscal year documenting the total cost relative to carrying out the contract and the amount of state and local permit fees collected. The report shall be on a form provided by the commissioner.
§ 68-14-304. Hotels, food service establishments and swimming pools fund — Unexpended balance.
-
All moneys coming into the state treasury under this part from fees, fines, and penalties shall be appropriated to the department of health for the payment of necessary expenses incident to the administration of this part, as determined by the commissioner. Any unexpended balance of such fund in any fiscal year shall be retained by the department to be used to provide and/or expand training for food service operators and the department's environmentalists.
§ 68-14-305. Permits — Expiration — Transfer of permit not allowed — Posting.
- (a)
No person shall operate a hotel who does not hold a valid permit issued to the person by the commissioner on or before July 1 of each year.
- (b)
No person shall operate a public swimming pool who does not hold a valid permit issued to the person by the commissioner on or before April 1 of each year.
- (c)
Every person now engaged in the business of operating a hotel or public swimming pool, and every person who, upon July 1, 2015, shall engage in such a business, shall procure a permit from the commissioner for each hotel or public swimming pool so operated or proposed to be operated.
- (d)
Each permit for hotels shall expire on June 30 next following its issuance.
- (e)
Each permit for public swimming pools shall expire on March 31 next following its issuance.
- (f)
No permit shall be transferred from one (1) location or person to another.
- (g)
Permits shall be posted in a conspicuous manner.
§ 68-14-306. Application for permit — Inspection — Renewal.
- (a)
- (1)
Any person planning to operate a hotel or public swimming pool shall first make written application for a permit on forms provided by the commissioner. The application shall be completed and returned to the commissioner with the proper permit fee.
- (2)
Prior to the approval of the application for a permit, the commissioner shall inspect the proposed facility to determine if the person applying for the permit is in compliance with the requirements of this part, and with applicable rules and regulations. The commissioner shall issue a permit to the applicant if the inspection reveals that the facility is in compliance with such requirements.
- (b)
Applications for renewal of permits for existing hotels will be issued to operators prior to July 1 of each year. Applications for renewal of permits for existing public swimming pools shall be issued to operators prior to April 1 of each year. When completed applications and the proper permit fees are returned to the commissioner, the commissioner shall issue new permits to applicants.
§ 68-14-307. Suspension of permits.
- (a)
The commissioner has the authority to suspend any permit to operate a hotel or public swimming pool issued pursuant to this part, if the commissioner has reasonable cause to believe that the permittee is not in compliance with this part; provided, that the permittee shall be given the opportunity to correct violations as provided in § 68-14-317.
- (b)
There shall be two (2) types of suspensions as follows:
- (1)
A Class 1 suspension with an opportunity for a hearing prior to the effective date of the suspension; and
- (2)
A Class 2 suspension to be effective immediately with an opportunity for a hearing after the effective date of the suspension.
- (c)
Notice of either type of suspension may be given by the inspector on the inspector's regular inspection form or by written notification from the commissioner. When a permit suspension is effective, all operations shall cease. Such suspensions may only be made if an imminent health hazard exists.
- (d)
A written request for a hearing on either type of suspension shall be filed by the permittee within ten (10) days of the receipt of notice. This ten-day period may run concurrently with the ten-day period set forth in § 68-14-317(b). If a hearing is requested, it shall commence within a reasonable time of the request. If no request for a hearing is made within ten (10) days of the receipt of notice, the suspension becomes final and is not subject to review.
- (e)
The commissioner may end the suspension at any time if reasons for the suspension no longer exist.
§ 68-14-308. Permit revocation.
- (a)
The commissioner may, after providing opportunity for hearing, revoke a permit for serious or repeated violations of requirements of this part or for interference with the commissioner in the performance of the commissioner's duty.
- (b)
Prior to revocation, the commissioner shall notify, in writing, the permittee of the specific reason or reasons for which the permit is to be revoked, and that the permit shall be revoked at the end of ten (10) days following service of such notice, unless a written request for a hearing is filed with the commissioner within the ten-day period. If no request for hearing is filed within the ten-day period, the revocation of the permit becomes final.
§ 68-14-309. Service of notice.
-
A notice provided for in this part is properly served when it is delivered to the permittee or person in charge, or when it is sent by certified mail, return receipt requested, to the last known address of the permittee. A copy of the notice shall be filed in the records of the commissioner.
§ 68-14-310. Hearings.
- (a)
The hearings provided for in this part shall be conducted by the commissioner in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.
- (b)
Appeals from any final decision after a hearing shall be pursued in accordance with the Uniform Administrative Procedures Act.
- (c)
Subsections (a) and (b) do not apply in a county in which the health department is operating a program under § 68-14-303(7) that meets the minimum requirements of due process; provided, that appeals from final decisions made under such programs may be made to the commissioner, for the limited purpose of determining whether a material error of law was made at the county level. Such appeal to the commissioner shall not be de novo, but shall be limited to a review of the record of the hearing at the county level.
§ 68-14-312. Permit fee for hotels.
- (a)
The permit fee to operate a hotel shall be in accordance with the following schedules:
-
- (b)
If the permit fee is delinquent for more than thirty (30) calendar days, a penalty fee of one-half (½) the permit fee shall be added to the permit fee. If a check is returned for any reason, a penalty of one-half (½) the permit fee shall be added to the permit fee. Each permit fee plus any penalty must be paid before the permit is issued.
- (c)
The permit fee, plus any penalty shall be paid to the commissioner before the permit is issued. The permit shall be kept and displayed, in a conspicuous manner, properly framed, in the office or lobby of the hotel for which it is issued.
§ 68-14-313. Permit fees for swimming pools — Display of permit.
- (a)
- (1)
The permit fee to operate a public swimming pool shall be three hundred forty dollars ($340).
- (2)
If the permit fee is delinquent for more than thirty (30) calendar days, a penalty of one-half (½) the permit fee shall be assessed in addition to the permit fee. If a check is returned for any reason, a penalty of one-half (½) the permit fee shall be assessed in addition to the permit fee. The permit fee, plus any penalty, shall be paid to the commissioner before the permit is issued.
- (b)
The permit shall be kept and displayed in a conspicuous manner, properly framed, at the pool for which it was issued. The permit fee shall not be collected by the commissioner if the permit is not issued in the calendar year in which the swimming pool is operated.
§ 68-14-314. Exemptions from payment of permit fees.
-
Institutions and organizations that have received a determination of exemption from the internal revenue service under 26 U.S.C. § 501(c)(19) of the Internal Revenue Code, and that are currently operating under such exemption shall be exempt from the payment of the permit fees required for a public swimming pool. The exemption is expressly limited to the payment of fees and does not exempt these organizations from any other provisions of this part.
§ 68-14-315. Fractional permit fees.
- (a)
When application is made for a permit to operate any hotel after January 1 of any year, the fee charged for the permit shall be one-half (½) the annual rate.
- (b)
When application is made for a permit to operate any public swimming pool after October 1 of any year, the fee charged for the permit shall be one-half (½) the annual rate.
- (c)
When the hotel was subject to permit requirements prior to January 1 of any year, or where the public swimming pool was subject to permit requirements prior to April 1 of any year, no such fractional rate shall be allowed.
§ 68-14-316. Inspection recording and scoring.
- (a)
Inspection results for hotels and swimming pools shall be recorded on standard departmental forms that summarize the requirements of the law and of rules and regulations.
- (b)
- (1)
The scoring system for inspections shall include a weighted point value for each requirement in which critical requirements are assigned values of four (4) and five (5) points, with less critical items having assigned values of one (1) and two (2) points.
- (2)
The rating score of the facilities shall be the total of the weighted point values for all violations subtracted from one hundred (100).
- (c)
A copy of the completed inspection report shall be furnished to the person in charge of the facility at the conclusion of the inspection.
§ 68-14-317. Correction of violations.
- (a)
- (1)
The completed inspection report shall specify a reasonable period of time for correction of violations found.
- (2)
If, after the first reinspection, the item or items noted in violation remain in violation, according to the inspection report, the department shall provide for the supervisor of the employee making the prior inspections to accompany the employee for the second and any subsequent reinspections required for the same continuing item or items in violation.
- (3)
The correction of violations shall be accomplished within the time periods specified below:
- (A)
If an imminent health hazard exists, sewage back-up into the facility, or contaminated water supply, the facility shall immediately cease operations until authorized to reopen by the commissioner;
- (B)
All violations of critical items shall be corrected as soon as possible and in any event within ten (10) days following inspection. A follow-up inspection may be made for confirmation;
- (C)
All other items shall be corrected as soon as possible, but no later than the time of the next routine inspection;
- (D)
When the overall rating score of any facility is less than seventy (70) on forms prepared pursuant to § 68-14-316, the facility shall initiate corrective action on all identified violations within forty-eight (48) hours. One (1) or more inspections shall be conducted at reasonable intervals to assure correction.
- (b)
The inspection report shall state that failure to comply with any time limits specified by the commissioner for correction may result in cessation of operations. An opportunity for a hearing on the ordered corrective action shall be provided if a written request is filed with the commissioner within ten (10) days following cessation of operations. If a request for a hearing is received, a hearing shall be held within a reasonable time after receipt of the request.
- (c)
Whenever a facility is required under this section to cease operations, it shall not resume operations until it is shown on reinspection that conditions responsible for the order to cease operations no longer exist. Opportunity for reinspection shall be offered within a reasonable time.
§ 68-14-318. Review and approval of plans and specifications.
-
Whenever a hotel or swimming pool is constructed or extensively remodeled, or whenever an existing structure is converted to use as a hotel, plans and specifications shall be submitted to the commissioner for review and approval before construction, remodeling, or conversion is begun. The plans and specifications shall indicate the proposed layout, arrangement, mechanical plans, construction materials and work areas, and the type and model of proposed fixed equipment and facilities. The commissioner shall approve the plans and specifications, if they meet the requirements of this part and rules and regulations. No hotel or swimming pool shall be constructed, extensively remodeled, or converted except in accordance with plans and specifications approved by the commissioner.
§ 68-14-319. Employee health.
-
When the commissioner has reasonable cause to suspect possible disease transmission by an employee of the facility, the commissioner may obtain information about any recent illness of the employee or make other investigations as may be indicated. The commissioner may require any of the following:
- (1)
The immediate exclusion of the employee from employment in the hotel or public pool;
- (2)
The immediate closing of the facility until, in the commissioner's opinion, no further danger of disease outbreak exists;
- (3)
Restricting the employee's service to some area of the facility where there would be little likelihood of transmitting disease; or
- (4)
Adequate medical and laboratory examinations of the employee and of other employees.
§ 68-14-320. Penalties.
-
Any person operating a hotel or public swimming pool who fails or refuses to comply with any provision of this part or with rules and regulations, obstructs or hinders the regulatory authority in the discharge of the regulatory authority's duties, or otherwise operates a hotel or swimming pool in violation of this part or of rules and regulations commits a Class C misdemeanor. Each day of operation after notice of non-compliance of violation has been given and such violation has not been corrected constitutes a separate offense.
§ 68-14-321. Injunctions.
-
When the commissioner has reason to believe that a person is causing, is about to cause, or has caused a violation of this part or of the rules and regulations promulgated under this part, the commissioner may initiate proceedings in either the chancery court of Davidson County or the chancery court of the county where the violation is occurring for injunctive relief to prevent the continuance of the violation or to correct the conditions resulting in, or about to result in, the violation.
§ 68-14-323. Commissioner — Rules and regulations — Waivers.
-
The commissioner may grant waivers from rules and regulations governing public swimming pools in excess of fifty thousand square feet (50,000 sq. ft.), or may promulgate additional rules and regulations governing such pools. Waivers or regulations shall be designed to protect the health, safety, and welfare of patrons when adequate standards do not exist to provide sufficient guidance regarding preventive maintenance, pool structure, operating systems, water turnover, circulatory systems, or innovative designs due to the size of the public swimming pools or due to the source of water supply for such pools.
Part 4 Swimming Pools
§ 68-14-401. Flotation devices in swimming pools.
-
No person shall prohibit the use of a flotation device in a public or private swimming pool by an individual who, as evidenced by a statement signed by a licensed physician, suffers from a physical disability or condition that necessitates the use of such a device.
§ 68-14-402. Life guard stations.
- (a)
Notwithstanding any rule or regulation of the department of health to the contrary, if a public owned swimming pool, owned by a public entity, is more than thirty thousand square feet (30,000 sq. ft.) in size, the owner or operator of the pool shall install one (1) lifeguard station for each six thousand square feet (6,000 sq. ft.), or major portion thereof, that is available for public use, and shall staff each such station at all times the area covered by such station or major portion thereof is open.
- (b)
The commissioner of health may, in the commissioner's discretion, increase the amount of pool square footage that may lawfully be covered by a single lifeguard station.
- (c)
This section does not apply in counties having a metropolitan form of government and a population of not less than four hundred seventy thousand (470,000) nor more than five hundred thousand (500,000), according to the 1980 federal census or any subsequent federal census.
§ 68-14-403. Inspection — Notice.
- (a)
Swimming pools owned and operated by multi-family residential housing homeowner's associations shall be subject to rules and regulations promulgated by the department of health. Such rules and regulations shall be promulgated by the department to prescribe minimal sanitation and safety standards for multi-family residential housing swimming pools.
- (b)
- (1)
If an inspection of a swimming pool owned and operated by a multi- family residential housing homeowner's association results in a finding that minimum standards are not met, the homeowners' association is required to post notice within ten (10) days from the date of the inspection that the swimming pool does not comply with the minimum standards required by the department.
- (2)
The notice shall be posted by the homeowners' association in a conspicuous manner at each place of ingress and egress. “Conspicuous manner” means at a place designated by the inspector at the time of inspection.
- (3)
The notice shall be in the form of a sign of durable construction. The sign shall be printed in letters of at least one inch (1″) in height with the exception of the word “NOTICE”, which shall be printed in letters a minimum of two inches (2″) in height and in a color contrasting to the background. The notice shall include, but not be limited to, the following:
-
-
The swimming pool does not comply with the minimum standards required by the Tennessee Department of Health.
- (4)
Failure to post the notice as provided in this subsection (b) shall subject the homeowners' association to a civil penalty in an amount set by the commissioner for each day the notice is not posted.
- (c)
No local governmental agency may prescribe or enforce standards that are more stringent than the standards promulgated by the department of health.
- (d)
No governmental agency shall have the power or authority to require the closing of a multi-family residential housing swimming pool owned and operated by a homeowners' association for the failure to meet minimum safety and sanitation requirements.
- (e)
If a multi-family residential housing swimming pool fails to meet state safety and sanitation standards, and the homeowners' association posts the notice required by subsection (b) and keeps such swimming pool in operation, the homeowners' association shall assume all liability for any risk to health that may occur as a result of operating the swimming pool.
- (f)
It is the intent of the general assembly that the department promulgate rules and regulations pursuant to the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, to effectuate the purposes of this section. It is further the intent of the general assembly that such rules and regulations shall not be more stringent than those safety and sanitation rules and regulations promulgated for public swimming pools in 1985.
- (g)
This section does not apply to any swimming pool owned or operated by a homeowners' association that is constructed after June 12, 1995.
Part 5 Bed and Breakfast Establishment Inspection Act of 1990
§ 68-14-501. Short title.
-
This part shall be known and may be cited as the “Bed and Breakfast Establishment Inspection Act of 1990.”
§ 68-14-502. Part definitions.
-
As used in this part, unless the context otherwise requires:
- (1)
- (A)
“Bed and breakfast establishment,” referred to in this part as the “establishment,” means a private home, inn or other unique residential facility offering bed and breakfast accommodations and one (1) daily meal and having four (4), but not more than twelve (12), guest rooms furnished for pay, with guests staying not more than fourteen (14) days, and where the innkeeper resides on the premises or property or immediately adjacent to it. Guest rooms shall be established and maintained distinct and separate from the innkeeper's quarters;
- (B)
“Bed and breakfast homestay,” referred to in this part as the “homestay,” means a private home, inn or other unique residential facility offering bed and breakfast accommodations and one (1) daily meal and having less than four (4) guest rooms furnished for pay, with guests staying not more than fourteen (14) days, and where the innkeeper resides on the premises or property or immediately adjacent to it. Guest rooms shall be established and maintained distinct and separate from the innkeeper's quarters;
- (2)
“Commissioner” means the commissioner of health, the commissioner's duly authorized representative, and in the event of the commissioner's absence or a vacancy in the office of commissioner, the deputy commissioner;
- (3)
“Critical items” means those aspects of operation or conditions of facilities or equipment that, if in violation, constitute the greatest hazards to health and safety, including imminent health hazards. These include:
- (A)
Approved food sources with no spoilage;
- (B)
Approved temperatures for potentially hazardous food;
- (C)
Facilities to maintain proper food temperature;
- (D)
No reservice of unwrapped or potentially hazardous food;
- (E)
Restriction of employees with infection;
- (F)
Proper cleanliness and good hygiene practices of employees;
- (G)
Proper sanitizing of utensils and equipment;
- (H)
Approved water supply, hot and cold running water under pressure;
- (I)
Sewage, liquid waste disposal;
- (J)
No cross connection or backsiphonage;
- (K)
Toilet and handwashing facilities for employees;
- (L)
Insects and rodents;
- (M)
Toxic items properly stored and labeled; and
- (N)
Fire safety;
- (4)
“Department” means the department of health;
- (5)
“Imminent health hazard” means any condition, deficiency or practice that, if not corrected, is very likely to result in illness, injury or loss of life to any person; and
- (6)
“Person” means any individual, partnership, firm, corporation, agency, municipality, state or political subdivision.
§ 68-14-503. Authority of commissioner — Bed and breakfast homestay exemptions.
-
The commissioner is authorized to:
- (1)
Carry out or cause to be carried out all provisions of this part;
- (2)
Collect all fees provided for in this part and apply the fees in accordance with the procedures of the department of finance and administration to the necessary and incidental costs of administration of this part. Nothing in this part shall be construed to prohibit the department of health from receiving by way of general appropriation such sums as may be required to fund adequately the implementation of this part, as recommended in the annual budget by the governor to the general assembly;
- (3)
- (A)
Prescribe rules and regulations governing the alteration, construction, sanitation, safety and operation of establishments, as may be necessary to protect the health and safety of the public, and to require every bed and breakfast establishment to comply with these rules and regulations; provided, that the commissioner shall not prescribe any such rules and regulations in conflict with the minimum statewide building construction standards established by the state fire marshal pursuant to § 68-120-101;
- (B)
- (i)
Homestays shall be exempt from the rules and regulations applicable to bed and breakfast establishments, and the commissioner shall not be required to inspect or issue permits for such facilities. Homestays shall be regulated by the state fire marshal in accordance with the minimum statewide building construction standards applicable to residential property composed of one- and two-family units, in the same manner as such property would be regulated if it were not used as a bed and breakfast homestay;
- (ii)
This subdivision (3)(B) shall only apply to homestays located in a structure of historical significance. For the purposes of this subdivision (3)(B), a “structure of historical significance” is a structure listed on the National Register of Historic Places, or is determined by the state historical commission to be eligible to be placed on the National Register of Historic Places, or is a structure that is within an area designated by the local governing body as a historical or conservation district;
- (4)
Inspect or cause to be inspected at least once every six (6) months, or as often as the commissioner deems necessary, every establishment in the state to determine compliance with this part and rules and regulations;
- (5)
Issue or cause to be issued, suspend and revoke permits to operate establishments as provided in this part;
- (6)
Notify the owner, proprietor or agent in charge of any establishment of the changes or alterations that may be necessary to effect complete compliance with this part and rules and regulations governing the construction, alteration and operation of the facilities, and to close the facilities for failure to comply within specified times as provided in this part and rules and regulations; and
- (7)
Enter into an agreement or contract with county health departments whereby the departments would implement this part or its equivalent in their respective areas of jurisdiction if the commissioner deems it to be appropriate; provided, that the following conditions shall apply:
- (A)
State reporting requirements shall be met by the county health department or departments;
- (B)
The county health department's program standards shall be at least as stringent as those of the state law and regulations;
- (C)
The commissioner shall retain the right to exercise oversight and evaluation of performance of the county health department or departments and to terminate the agreement or contract for cause immediately, or otherwise upon reasonable notice;
- (D)
The commissioner may set such other fiscal, administrative or program requirements as the commissioner deems necessary to maintain consistency and integrity of the statewide program; and
- (E)
Staffing and resources shall be adequate to implement and enforce the program in the local jurisdiction.
§ 68-14-504. Permit required — Expiration — Transfer — Posting.
- (a)
No person shall operate an establishment who does not hold a valid permit issued to the person by the commissioner on or before July 1 of each year. Every person, now engaged in the business of operating an establishment, and every person, who shall thereafter engage in such a business, shall procure a permit from the commissioner for each establishment so operated or proposed to be operated.
- (b)
Each permit for bed and breakfast establishments shall expire on June 30 next following its issuance.
- (c)
No permit shall be transferred from one (1) location or individual to another.
- (d)
Permits shall be posted in a conspicuous manner.
§ 68-14-505. Permit application — Inspection — Renewal.
- (a)
- (1)
Any person planning to operate a bed and breakfast establishment shall make written application for a permit on forms provided by the department.
- (2)
Such applications shall be completed and returned to the department with the proper permit fee.
- (3)
Prior to approval of the application for a permit, the commissioner shall inspect the proposed facility to determine compliance with requirements of this part and rules and regulations.
- (4)
The commissioner shall issue a permit to the applicant if the inspection reveals that the facility is in compliance with the requirements of this part and rules and regulations.
- (b)
Applications for renewal of permits for existing establishments shall be mailed to the operators prior to July 1 of each year. When completed applications and the proper permit fees are returned, the commissioner shall issue new permits to applicants.
§ 68-14-506. Suspension of permit — Hearing.
- (a)
The commissioner has the authority to suspend any permit to operate a bed and breakfast establishment issued pursuant to this part, if the commissioner has reasonable cause to believe that the permittee is not in compliance with this part; provided, that the permittee shall be given opportunity to correct violations as provided in § 68-14-507.
- (b)
Suspension of permits shall be of two (2) types, one (1) with an opportunity for a hearing prior to the effective time, and one (1) to be effective immediately with an opportunity for a hearing afterward.
- (c)
Notice of either type of suspension may be given by an environmentalist on the environmentalist's regular inspection form or by letter from the commissioner.
- (d)
When a permit suspension is effective, all operations must cease.
- (e)
- (1)
Suspensions to be effective immediately upon receipt of notice prior to any hearing may only be made if an imminent health hazard exists.
- (2)
A written request for a hearing on either type of suspension must be filed by the permittee within ten (10) days of receipt of notice.
- (3)
This ten-day period may run concurrently with the ten-day period set forth in § 68-14-507.
- (4)
If a hearing is requested, it shall be commenced within a reasonable time of the request.
- (5)
If no request for a hearing is made within ten (10) days of receipt of notice, the suspension becomes final and not subject to review.
- (f)
The commissioner may end the suspension at any time if reasons for suspension no longer exist.
§ 68-14-507. Revocation of permit.
- (a)
The commissioner may, after providing opportunity for a hearing, revoke a permit for serious or repeated violations of the requirements of this part or for interference with the commissioner in the performance of the commissioner's duty.
- (b)
- (1)
Prior to revocation, the commissioner shall notify the permittee, in writing, of the specific reason or reasons for which the permit is to be revoked, and that the permit shall be revoked at the end of ten (10) days following service of such notice, unless a written request for a hearing is filed with the commissioner within such ten-day period.
- (2)
If no request for hearing is filed within the ten-day period, the revocation of the permit becomes final.
§ 68-14-508. Required notice.
- (a)
A notice provided for in this part is properly served when it is delivered to the permittee or person in charge, or when it is sent by certified mail, return receipt requested, to the last known address of the permittee.
- (b)
A copy of the notice shall be filed in the records of the department.
§ 68-14-509. Hearing and appeal procedure.
- (a)
The hearings provided for in this part shall be conducted by the commissioner in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.
- (b)
Appeals from any final decision after a hearing shall be pursued in accordance with the Uniform Administrative Procedures Act.
- (c)
Subsections (a) and (b) do not apply to a county whose health department is operating a program under § 68-14-503(7) that meets the minimum requirements of due process; provided, that appeals from final decisions made under such programs may be made to the commissioner, for the limited purpose of determining whether a material error of law was made at the county level. Such appeal to the commissioner shall not be de novo, but shall be limited to a review of the record of the hearing at the county level.
§ 68-14-511. Permit fee — Delinquency — Display of permit.
- (a)
The permit fee to operate a bed and breakfast establishment shall be one hundred forty dollars ($140).
- (b)
If the permit fee is delinquent for more than thirty (30) calendar days, a penalty of one-half (½) the permit fee shall be added to the permit fee. If a check is returned for any reason, a penalty of one-half (½) the permit fee shall be added to the permit fee. The permit fee plus any penalty must be paid to the commissioner before the permit is issued.
- (c)
Ninety-five percent (95%) of permit fees, fines, and penalties collected within a contract county pursuant to this part shall be conveyed by contract to the respective county health department to assist such county health department in implementing the program in the local jurisdiction. This amount shall be calculated based upon fees collected in the contract county during the state's fiscal year multiplied by ninety-five percent (95%).
- (d)
The permit shall be kept and displayed, in a conspicuous manner, in the office or lobby of the establishment for which it is issued.
§ 68-14-512. Permit fee — Reduced rate.
-
When application is made for a permit to operate any bed and breakfast establishment after January 1 of any year, the fee charged for such permit shall be one-half (½) the annual rate. However, where the bed and breakfast establishment was subject to permit requirements prior to January 1 of any year, no such fractional rate shall be allowed.
§ 68-14-513. Inspection report — Rating score — Posting.
- (a)
Inspection results for establishments shall be recorded on standard departmental forms that summarize the requirements of the law and rules and regulations.
- (b)
The rating score of the facilities shall be the total of the weighted point values for all violations subtracted from one hundred (100).
- (c)
A copy of the completed inspection report shall be furnished to the person in charge of the facility at the conclusion of the inspection.
- (d)
The most current inspection report furnished to the operator or person in charge of the establishment shall be posted in a conspicuous place at the facility.
§ 68-14-514. Notice and correction of violations.
-
The completed inspection report shall specify a reasonable period of time for correction of violations found. Correction of violations shall be accomplished within the period specified in accordance with the following:
- (1)
If an imminent health hazard exists, such as sewage back-up into the facility or contaminated water supply, the facility shall immediately cease operations until authorized to reopen by the commissioner;
- (2)
All violations of critical items shall be corrected as soon as possible and in any event, within ten (10) days following inspection. Within fifteen (15) days after inspection, the permittee shall notify the commissioner stating that critical item violations have been corrected. A follow-up inspection may be made for confirmation;
- (3)
All other items should be corrected as soon as possible; and
- (4)
- (A)
When the overall rating score of any facility is less than seventy (70) on forms prepared pursuant to § 68-14-513, the facility shall initiate corrective action on all identified violations within forty-eight (48) hours. One (1) or more inspections shall be conducted at reasonable intervals to assure corrections.
- (B)
The inspection report shall state that failure to comply with any time limits specified by the commissioner for correction may result in cessation of operations. An opportunity for hearing on the ordered corrective action shall be provided if a written request is filed with the commissioner within ten (10) days following cessation of operations. If a request for a hearing is received, a hearing shall be held within a reasonable time after receipt of the request.
- (C)
Whenever a facility is required under this section to cease operations, it shall not resume operations until it is shown on reinspection that conditions responsible for the order to cease operations no longer exist. Opportunity for reinspection shall be offered within a reasonable time.
§ 68-14-515. Construction, remodeling or conversion — Approval required.
- (a)
Whenever a bed and breakfast establishment is constructed, extensively remodeled and whenever an existing structure is converted to use as an establishment, plans and specifications shall be submitted to the commissioner for review and approval before construction, remodeling or conversion is begun.
- (b)
The plans and specifications shall indicate the proposed layout, arrangement, and mechanical plans, and construction materials and work areas, and the type and model of proposed fixed equipment and facilities.
- (c)
The commissioner shall approve the plans and specifications, if they meet the requirements of this part and rules and regulations.
- (d)
No bed and breakfast establishment shall be constructed, extensively remodeled or converted except in accordance with plans and specifications approved by the commissioner.
§ 68-14-516. Containment of disease transmission by employees.
- (a)
When the commissioner has reasonable cause to suspect possible disease transmission by an employee of the facility, the commissioner may secure a morbidity history of the employee or make other investigations as may be indicated.
- (b)
The commissioner may require any of the following:
- (1)
The immediate exclusion of the employee from employment in the establishment;
- (2)
The immediate closing of the facility until in the commissioner's opinion no further danger of disease outbreak exists;
- (3)
Restricting the employee's service to some area of the facility where there would be little likelihood of transmitting disease; or
- (4)
Adequate medical and laboratory examinations of the employee and of other employees.
§ 68-14-517. Penalties.
-
Any person operating an establishment who fails or refuses to comply with any of the provisions of this part or rules and regulations, or obstructs or hinders the regulatory authority in the discharge of its duties, or otherwise operates a bed and breakfast establishment in violation of this part or rules and regulations, commits a Class C misdemeanor for each offense. Each day after sufficient notice has been given constitutes a separate offense.
§ 68-14-518. Injunctive relief.
-
When the commissioner has reason to believe that a person is causing or is about to cause or has caused a violation of this part or the rules and regulations promulgated under this part, the commissioner may initiate proceedings in either the chancery court of Davidson County or the chancery court of the county where the violation is occurring for injunctive relief to prevent the continuance of such violation or to correct the conditions resulting in, or about to result in, such violation.
§ 68-14-519. Applicability of chapter to this part.
- (a)
The provisions of part 3 of this chapter that pertain to food service establishments and hotels do not apply to this part.
- (b)
The provisions of parts 3 and 4 of this chapter that pertain to public swimming pools do apply to this part.
Part 6 Guests of Lodging Establishments
§ 68-14-601. Part definitions.
-
As used in this part, unless the context otherwise requires:
- (1)
“Alcoholic beverages” has the meaning given in § 57-3-101;
- (2)
“Controlled substance” has the meaning given in the Tennessee Drug Control Act of 1989, compiled in title 39, chapter 17, part 4;
- (3)
“Controlled substance analogue” has the meaning given in § 39-17-454;
- (4)
“Innkeeper” means the owner, operator, manager or keeper of a lodging establishment;
- (5)
“Lodging establishment” means any structure or space, or any portion of a structure or space, that is occupied or intended or designed for occupancy by guests of the lodging establishment for dwelling, lodging or sleeping purposes, and includes any hotel, inn, tourist camp, tourist court, tourist cabin, motel, bed and breakfast establishment or any place in which rooms, lodgings or accommodations are furnished to guests for a consideration; and
- (6)
“Minor” means an unemancipated person under eighteen (18) years of age; provided, however, that, as used in this part relative to provisions concerning alcoholic beverages, “minor” has the meaning given in § 1-3-113(b).
§ 68-14-602. Right to refuse use of lodging establishment — Grounds.
- (a)
An innkeeper has the right to refuse or deny any accommodations, facilities or privileges of a lodging establishment to:
- (1)
Any person who is unwilling or unable to pay for accommodations and services of the lodging establishment. The innkeeper has the right to require the prospective guest to demonstrate the person's ability to pay by cash, valid credit card or a validated check. The innkeeper may require a parent of a minor to:
- (A)
Accept, in writing, liability of the guest room costs, taxes, all charges by the minor and any damages to the guest room or its furnishings caused by the minor while a guest at the lodging establishment; and
- (B)
Provide the innkeeper with a valid credit card number to cover the guest room costs, taxes, charges by the minor and any damages to the guest room or its furnishings caused by the minor; or
- (C)
If the credit card is not an option, give the innkeeper:
- (i)
An advance cash payment to cover the guest room costs and taxes for all room nights reserved for the minor; plus
- (ii)
A fifty-dollar cash deposit towards the payment of any charges by the minor or any damages to the guest room or its furnishings, which cash deposit will be refunded to the extent not used to cover any such charges or any damages as determined by the innkeeper following room inspection at check-out;
- (2)
Any person who is visibly intoxicated and who is disorderly so as to create a public nuisance;
- (3)
Any person whom the innkeeper reasonably believes is seeking accommodations for any unlawful purpose, including the unlawful possession or use of controlled substances or controlled substance analogues by such person in violation of the Tennessee Drug Control Act of 1989, compiled in title 39, chapter 17, part 4, or the use of the premises for the consumption of alcoholic beverages by any person under twenty-one (21) years of age in violation of § 1-3-113(b);
- (4)
Any person whom the innkeeper reasonably believes is bringing into the lodging establishment items or substances that may be dangerous to other persons, such as firearms or explosives; or
- (5)
Any person when the lodging establishment is acting to restrict the number of persons who shall occupy any particular guest room in the lodging establishment.
- (b)
The innkeeper refusing or denying accommodations, facilities or privileges of a lodging establishment for any of the reasons specified in subsection (a) shall not be liable in any civil or criminal action or for any fine or penalty based upon such refusal or denial, except that such accommodation, facilities or privilege of a lodging establishment shall not be refused or denied based upon the person's race, creed, color, national origin, religion, sex, disability, marital status or age, other than as provided in this part.
§ 68-14-603. Prohibited acts — Penalties.
- (a)
Any person who does one (1) or more of the following acts on the premises or property of a lodging establishment, or any person who rents or leases a room in a lodging establishment for the purpose of allowing the room to be used by another person to do one (1) or more of the following acts, commits an offense:
- (1)
Use or possession of a controlled substance or controlled substance analogue in violation of title 39, chapter 17, part 4;
- (2)
Consumption or possession of alcoholic beverages in violation of § 1-3-113(b); or
- (3)
Intentionally damages a lodging establishment room or its furnishings.
- (b)
In a case under this section involving damage to a lodging establishment room or its furnishings, a court may order the person renting or leasing the lodging establishment room and/or the person causing such damage to:
- (1)
Pay restitution for any damages suffered by the owner or operator of the lodging establishment, which damages may include, but shall not necessarily be limited to, the lodging establishment's loss of revenue resulting from the hotel's inability to rent or lease the room during the period of time the lodging establishment room is being repaired; and
- (2)
Pay damages or restitution to any other person who is injured in person or property. In the case of a minor, the parents of the minor shall be liable for acts of the minor in violation of this section who causes damages to the lodging establishment room or furnishings or causes injury to persons or property.
- (c)
An offense under this section is a Class C misdemeanor punishable by a fine only, and in addition to, or in lieu of the fine, may be required to perform community service; provided, that in the case of a minor under eighteen (18) years of age, a violation of this section shall be a delinquent act under title 37, chapter 1.
- (d)
An offense set out in this section shall be considered separate from any other offense such conduct may constitute. Nothing in this part shall be construed as prohibiting the prosecution and conviction of a person for any other offense committed by the person in addition to the offenses under this part. Nothing in this part shall be construed to affect criminal penalties for use or possession of a controlled substance or controlled substance analogue in violation of title 39, chapter 17, part 4, the consumption or possession of alcoholic beverages in violation of § 1-3-113(b), or any other offense prescribed by law.
§ 68-14-604. Guest registration.
-
The innkeeper of a lodging establishment shall keep, for a period of one (1) year, a guest register, which shall show the name, residence, date of arrival and departure of hotel guests. Every guest shall register, and the registering guest may be required by the innkeeper to produce a valid driver license, or other identification satisfactory to the innkeeper, containing a photograph of the guest and setting forth the name and residence of the guest. If the guest is a minor, the innkeeper may also require a parent of the guest to register and to accept, in writing, liability for the guest room costs, taxes, all charges by such minor, and any damages to the guest room or its furnishings caused by such minor while a guest at the lodging establishment. The guest register may be kept within the meaning of this section when reproduced on any photographic, photostatic, microfilm, microcard, miniature photographic or other process that actually reproduces the original record.
§ 68-14-605. Ejectment from premises.
-
An innkeeper may eject a person from the lodging establishment premises for any of the following reasons:
- (1)
Nonpayment of the lodging establishment's charges for accommodations or services;
- (2)
The person is visibly intoxicated, or the person is disorderly so as to create a public nuisance;
- (3)
The innkeeper reasonably believes that the person is using the premises for unlawful purposes, including the unlawful use or possession of controlled substances or controlled substance analogues by the person in violation of the Tennessee Drug Control Act of 1989, compiled in title 39, chapter 17, part 4, or the use of the premises for the consumption of alcohol by any person under twenty-one (21) years of age in violation of § 1-3-113(b);
- (4)
The innkeeper reasonably believes that the person has brought property into the lodging establishment premises that may be dangerous to other persons, such as firearms or explosives;
- (5)
A violation of any federal, state or local laws or regulations relating to the lodging establishment; or
- (6)
A violation of any rule of the lodging establishment that is posted in a conspicuous place and manner in the lodging establishment in accordance with § 68-14-606; provided, that no such rule may authorize the innkeeper to eject or to refuse or deny service or accommodations to a person because of race, creed, color, national origin, religion, sex, disability, marital status or age other than as provided in this part.
§ 68-14-606. Posting of copies.
-
The innkeeper shall post a copy of §§ 68-14-601 — 68-14-605, together with all rules of the lodging establishment, in a conspicuous place at or near the guest registration desk and inside each guest room at the lodging establishment.
§ 68-14-607. Conflict with other law.
-
If any of the provisions of this part are in conflict with any other law, including, but not limited to, title 4, chapter 21, part 5 or title 62, chapter 7, part 1, this part shall control.
Part 7 Tennessee Food Safety Act
§ 68-14-702. Purposes of part.
- (a)
It is the purpose of this part to ensure that foods served for public consumption in Tennessee are safe as prepared, served and delivered.
- (b)
- (1)
It is the further purpose of this part that, notwithstanding any law to the contrary, and except as provided under subdivision (b)(2), this state is the exclusive regulator of food and drink, food and drink content, amount of food and drink content, and food and drink ingredients in this state, and a local government, as that term is defined in § 7-51-2001, shall not impose a tax, fee, or otherwise regulate the wholesale or retail sale, manufacture, or distribution of any food or drink, food or drink content, amount of food or drink content, or food or drink ingredients, except as authorized under title 67, chapter 6, or § 67-4-504, or pursuant to a contract with the department of agriculture.
- (2)
This subsection (b) does not:
- (A)
Prohibit a local government from regulating zoning, building codes, locations, hours of operation, or the issuance of permits, or from performing any other local governmental functions as authorized by existing state law, with respect to food and drink sellers and vendors, vending machine operators, food establishments, and food service establishments; or
- (B)
Prohibit a local department of health from enforcing existing state laws and rules pursuant to a contract with the state department of health.
§ 68-14-703. Part definitions. [Effective on January 1, 2024. See the version effective until January 1, 2024.]
-
As used in this part:
- (1)
“Alteration” shall be defined by rule, but shall not mean function replacement that equals or makes better the existing operation of the facility;
- (2)
“Auxiliary food service operation” means a designated area located within or adjacent to a food service establishment sharing common ownership or management, and whose primary purpose is serving beverages. For determining the amount of the permit fee for the food service establishment associated with the auxiliary food service operation, all seating in the auxiliary food service operation shall be included in the seating count of the primary food service establishment;
- (3)
“Commissioner” means the commissioner of health, the commissioner's duly authorized representative, and in the event of the commissioner's absence or vacancy in the office of commissioner, the deputy commissioner;
- (4)
“Demonstration of knowledge” means the ability to demonstrate knowledge of food safety principles as applicable to establishments regulated in accordance with this part. For the purposes of this part, “demonstration of knowledge” may be accomplished by one (1) or more of the following means:
- (A)
Completing an inspection that reflects no priority item violation;
- (B)
Employing at least one (1) person certified as a food protection manager who has shown proficiency of food protection information through passing a test that is part of a certification program evaluated and listed by an accrediting agency recognized by the Conference for Food Protection as conforming to the Conference for Food Protection Standards for Accreditation of Food Protection Manager Certification Programs; or
- (C)
Responding correctly to food protection questions related to the specific food operation. A person responding to the questions may be aided by the utilization of food safety procedures posted prominently for employees who may use the procedures as reference guides. The commissioner shall assist establishments that request information relative to risks associated to their specific food operation, which may be posed as questions during the inspection;
- (5)
“Department” means the department of health;
- (6)
“Employee” means a person:
- (A)
In charge of a food establishment;
- (B)
Engaged in the preparation of food or drink;
- (C)
Engaged in service of food to the establishment's guests or clientele; or
- (D)
Engaged in ware washing;
- (7)
“Extensive remodeling” means the repair, construction, alteration or installation of new equipment, modification of existing equipment or fixtures, changes in floor plan layout, addition of new processes, expansion to new space, or significant changes to use of space or equipment;
- (8)
“Farmers market”:
- (A)
Means a public market with the purpose of connecting and mutually benefiting farmers, communities, and shoppers while promoting and selling products grown and raised by participating farmers, and that:
- (i)
Has set hours of operation and operates on a regular schedule; and
- (ii)
Has, and follows, a set of rules that:
- (a)
Governs the operation of the farmers market; and
- (b)
Assures the primary purpose of the farmers market as providing a direct marketing opportunity for farmers, foresters, fisheries, food businesses, and other producers;
- (B)
Includes other businesses that serve the public or make the market more convenient, efficient, profitable, or successful, including food service, baked goods, and non-food retail;
- (9)
“Farmers market food unit” means a stationary food service establishment that:
- (A)
Prepares, sells, or services unpackaged time/temperature control for safety food in conjunction with one (1) or more farmers markets; and
- (B)
Has improvised, rather than permanent, facilities or equipment for accomplishing functions, such as handwashing, food preparation and protection, food temperature control, warewashing, providing drinking water, waste retention and disposal, and insect and rodent control;
- (10)
“Food Code” means the 2009 Food Code as published by the United States department of health and human services, public health service, food and drug administration;
- (11)
- (A)
“Food service establishment” means any establishment, place or location, whether permanent, temporary, seasonal or itinerant, other than retail food stores, where food is prepared and the public is offered to be served or is served food, including, but not limited to, foods, vegetables, or beverages not in an original package or container, food and beverages dispensed at soda fountains and delicatessens, sliced watermelon, ice balls, or water mixtures;
- (B)
“Food service establishment” includes places identified in subdivision (9)(A) regardless of whether there is a charge for the food;
- (C)
“Food service establishment” does not include private homes where food is prepared or served and not offered for sale, retail food store operations, food service establishments located within a retail food store, the location of vending machines, and supply vehicles;
- (D)
“Food service establishment” does not include churches, temples, synagogues or other religious institutions, civic, fraternal, or veteran's organizations where food is prepared, served, transported, or stored by volunteer personnel only on non-consecutive days. However, the storage of unopened, commercially canned food, packaged bulk food that is not potentially hazardous, and dry goods shall not apply for these purposes;
- (E)
“Food service establishment” does not include grocery stores that may, incidentally, make infrequent casual sales of uncooked foods for consumption on the premises, or any establishment whose primary business is other than food service, that may, incidentally, make infrequent casual sales of coffee or prepackaged foods, or both, for consumption on the premises. For the purposes of this subdivision (11)(E), “infrequent casual sales” means sales not in excess of one hundred fifty dollars ($150) per day on any particular day;
- (F)
“Food service establishment” does not include a location from which casual, occasional food sales are conducted solely in connection with youth-related amateur athletic or recreational activities or primary or secondary school-related clubs by volunteer personnel and that are in operation for twenty-four (24) consecutive hours or less;
- (G)
“Food service establishment” does not include a catering business that employs no regular, full-time employees, the food preparation for such business is solely performed within the confines of the principal residence of the proprietor, and the catering business makes only “occasional sales” during any thirty-day period; and
- (H)
“Food service establishment” does not include a house or other residential structure where seriously ill or injured children and their families are provided temporary accommodations in proximity to their treatment hospitals and where food is prepared, served, transported or stored by volunteer personnel; provided, that the house or structure is supported by a § 501(c)(3) organization, as defined in 26 U.S.C. § 501(c)(3), that has as a component of its mission the support of programs that directly improve the health and well-being of children;
- (12)
“Imminent health hazard” means any condition, deficiency, or practice that, if not corrected, is very likely to result in illness, injury, or loss of life to any person;
- (13)
“Person” means any individual, partnership, firm, corporation, agency, municipality, state or political subdivision, or the federal government and its agencies and departments;
- (14)
“Person in charge” means an individual present at a food service establishment who is responsible for the operation at the time of inspection. A person in charge shall be present at the establishment during food preparation and handling, and may put instructions in place for cleaning or preparing the establishment prior to the preparation of any food or beverage;
- (15)
“Public market”:
- (A)
Means a building, structure, or place, operated on a not-for-profit basis in the public interest for the buying, selling, or keeping for sale farm and food products at retail or wholesale; and
- (B)
Includes a farmers market;
- (16)
“Quick fast food establishment” means those food establishments that only prepare food to be eaten off premises and that provide delivery services for such food but provide no set up, serving, or clean-up services; and
- (17)
“Temporary food service establishment” means a food service establishment that operates at a fixed location in conjunction with an organized temporary event for more than one (1) day and not more than fourteen (14) consecutive days.
§ 68-14-703. Part definitions. [Effective until January 1, 2024. See the version effective on January 1, 2024.]
-
As used in this part:
- (1)
“Alteration” shall be defined by rule, but shall not mean function replacement that equals or makes better the existing operation of the facility;
- (2)
“Auxiliary food service operation” means a designated area located within or adjacent to a food service establishment sharing common ownership or management, and whose primary purpose is serving beverages. For determining the amount of the permit fee for the food service establishment associated with the auxiliary food service operation, all seating in the auxiliary food service operation shall be included in the seating count of the primary food service establishment;
- (3)
“Commissioner” means the commissioner of health, the commissioner's duly authorized representative, and in the event of the commissioner's absence or vacancy in the office of commissioner, the deputy commissioner;
- (4)
“Demonstration of knowledge” means the ability to demonstrate knowledge of food safety principles as applicable to establishments regulated in accordance with this part. For the purposes of this part, “demonstration of knowledge” may be accomplished by one (1) or more of the following means:
- (A)
Completing an inspection that reflects no priority item violation;
- (B)
Employing at least one (1) person certified as a food protection manager who has shown proficiency of food protection information through passing a test that is part of a certification program evaluated and listed by an accrediting agency recognized by the Conference for Food Protection as conforming to the Conference for Food Protection Standards for Accreditation of Food Protection Manager Certification Programs; or
- (C)
Responding correctly to food protection questions related to the specific food operation. A person responding to the questions may be aided by the utilization of food safety procedures posted prominently for employees who may use the procedures as reference guides. The commissioner shall assist establishments that request information relative to risks associated to their specific food operation, which may be posed as questions during the inspection;
- (5)
“Department” means the department of health;
- (6)
“Employee” means a person:
- (A)
In charge of a food establishment;
- (B)
Engaged in the preparation of food or drink;
- (C)
Engaged in service of food to the establishment's guests or clientele; or
- (D)
Engaged in ware washing;
- (7)
“Extensive remodeling” means the repair, construction, alteration or installation of new equipment, modification of existing equipment or fixtures, changes in floor plan layout, addition of new processes, expansion to new space, or significant changes to use of space or equipment;
- (8)
“Food Code” means the 2009 Food Code as published by the United States department of health and human services, public health service, food and drug administration;
- (9)
- (A)
“Food service establishment” means any establishment, place or location, whether permanent, temporary, seasonal or itinerant, other than retail food stores, where food is prepared and the public is offered to be served or is served food, including, but not limited to, foods, vegetables, or beverages not in an original package or container, food and beverages dispensed at soda fountains and delicatessens, sliced watermelon, ice balls, or water mixtures;
- (B)
“Food service establishment” includes places identified in subdivision (9)(A) regardless of whether there is a charge for the food;
- (C)
“Food service establishment” does not include private homes where food is prepared or served and not offered for sale, retail food store operations, food service establishments located within a retail food store, the location of vending machines, and supply vehicles;
- (D)
“Food service establishment” does not include churches, temples, synagogues or other religious institutions, civic, fraternal, or veteran's organizations where food is prepared, served, transported, or stored by volunteer personnel only on non-consecutive days. However, the storage of unopened, commercially canned food, packaged bulk food that is not potentially hazardous, and dry goods shall not apply for these purposes;
- (E)
“Food service establishment” does not include grocery stores that may, incidentally, make infrequent casual sales of uncooked foods for consumption on the premises, or any establishment whose primary business is other than food service, that may, incidentally, make infrequent casual sales of coffee or prepackaged foods, or both, for consumption on the premises. For the purposes of this subdivision (9)(E), “infrequent casual sales” means sales not in excess of one hundred fifty dollars ($150) per day on any particular day;
- (F)
“Food service establishment” does not include a location from which casual, occasional food sales are conducted solely in connection with youth-related amateur athletic or recreational activities or primary or secondary school-related clubs by volunteer personnel and that are in operation for twenty-four (24) consecutive hours or less;
- (G)
“Food service establishment” does not include a catering business that employs no regular, full-time employees, the food preparation for such business is solely performed within the confines of the principal residence of the proprietor, and the catering business makes only “occasional sales” during any thirty-day period; and
- (H)
“Food service establishment” does not include a house or other residential structure where seriously ill or injured children and their families are provided temporary accommodations in proximity to their treatment hospitals and where food is prepared, served, transported or stored by volunteer personnel; provided, that the house or structure is supported by a § 501(c)(3) organization, as defined in 26 U.S.C. § 501(c)(3), that has as a component of its mission the support of programs that directly improve the health and well-being of children;
- (10)
“Imminent health hazard” means any condition, deficiency, or practice that, if not corrected, is very likely to result in illness, injury, or loss of life to any person;
- (11)
“Person” means any individual, partnership, firm, corporation, agency, municipality, state or political subdivision, or the federal government and its agencies and departments;
- (12)
“Person in charge” means an individual present at a food service establishment who is responsible for the operation at the time of inspection. A person in charge shall be present at the establishment during food preparation and handling, and may put instructions in place for cleaning or preparing the establishment prior to the preparation of any food or beverage;
- (13)
“Quick fast food establishment” means those food establishments that only prepare food to be eaten off premises and that provide delivery services for such food but provide no set up, serving, or clean-up services; and
- (14)
“Temporary food service establishment” means a food service establishment that operates at a fixed location in conjunction with an organized temporary event for more than one (1) day and not more than fourteen (14) consecutive days.
§ 68-14-704. Authority of commissioner.
-
The commissioner is authorized to:
- (1)
Carry out or cause to be carried out all provisions of this part;
- (2)
Collect all fees established pursuant to this part and apply the fees in accordance with the procedures of the department of finance and administration to the necessary and incidental costs of the administration of this part. Nothing in this subdivision (2) shall be construed to prohibit the department from receiving by way of general appropriation such sums as may be required to fund adequately the implementation of this part, as recommended in the annual budget by the governor to the general assembly;
- (3)
Prescribe rules and regulations, including emergency rules, governing the alteration, construction, sanitation, safety of food and operation of food service establishments as may be necessary to protect the health and safety of the public, and require food service establishments to comply with these rules and regulations. A non-elected body of any municipality, county, or metropolitan government shall not enact any ordinance or issue any rule or regulation pertaining to food safety or the provision of nutritional information related to food or drink, or otherwise regulate menus at food service establishments. If, upon July 1, 2015, the federal government takes action regarding the provision of food nutritional information at food service establishments, and the federal action specifically authorizes state agencies to enforce such action, then the department of health shall be the department that is primarily responsible for the implementation and supervision of any new requirements and shall have the authority to promulgate rules and regulations, pursuant to the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, as are necessary to effectuate the purposes of such requirements. The rules and regulations prohibiting live animals in the presence of dining facilities shall be waived if an adequately engineered forced air exhaust system is installed for the permitted facility. The rules and regulations requiring that food be obtained from sources that comply with all laws relating to food and food labeling shall be waived for churches, temples, synagogues and other religious institutions, civic, fraternal or veterans' organizations, if the food is served only to the homeless and the food is prepared in a church, temple, synagogue or other religious institution, civic, fraternal, or veterans' organization or in a private home or homes by persons who have successfully completed a training course of at least two (2) hours, conducted by the department, and the consumer is informed by a clearly visible placard, readily understandable to the average person, stating that the food may have been prepared in a facility that is not subject to regulation or inspection by the department. The commissioner shall not prescribe any such rules and regulations in conflict with the minimum statewide building construction standards established by the state fire marshal pursuant to § 68-120-101. The rules with respect to food temperature shall be specific with respect to the types of food prepared and the risks presented by those foods. Except as specifically provided herein, the commissioner may adopt, by rule and regulation, all or part of the Food Code;
- (4)
Inspect or cause to be inspected as often as the commissioner, in the commissioner's discretion, may deem necessary, every food service establishment in the state as authorized by this part, with the exception of those food service establishments licensed by the department of mental health, to determine compliance with this part and with rules and regulations;
- (5)
Issue or cause to be issued, suspend, and revoke permits to operate food service establishments as provided in this part;
- (6)
Notify the owner, proprietor, or agent of any food service establishment of such changes or alterations as may be necessary to effect complete compliance with this part and with rules and regulations governing the construction, alteration, and operation of the facilities, and close the facilities for failure to comply within specified times as provided in this part and rules and regulations;
- (7)
Enter into agreements or contracts with county health departments for the departments to implement this part or its equivalent in their areas of jurisdiction, if the commissioner deems it to be appropriate; provided, that the following conditions shall apply:
- (A)
State reporting requirements shall be met by the county health department or departments;
- (B)
The county health department program standards shall be identical to those of the state law and to rules and regulations;
- (C)
The commissioner shall retain the right to exercise oversight and evaluation of performance of the county health department or departments and terminate the agreement or contract for cause immediately or otherwise upon reasonable notice;
- (D)
The commissioner may set such other fiscal, administrative, or program requirements as the commissioner deems necessary to maintain consistency and integrity of the statewide program;
- (E)
Staffing and resources shall be adequate to implement and enforce the program in the local jurisdiction; and
- (F)
Contract county health departments that collect the applicable permit fees from food establishments located within the county shall retain one hundred percent (100%) of the permit fees and penalty fees. Contract counties that utilize the services of the department for the collection of permit fees shall receive ninety-five percent (95%) of permit fees collected within a contract county pursuant to §§ 68-14-705 — 68-14-707. This amount shall be calculated based upon fees collected in the contract county during the state's fiscal year multiplied by ninety-five percent (95%);
- (8)
- (A)
Upon the application of a food service establishment for a variance based on a showing of good cause and an affirmative demonstration that the risks to the public attendant to the limited activities have been mitigated, the commissioner shall grant the establishment a variance from the limitations in the Food Code regarding restrictions pertaining to bare hand contact. A request for a variance shall be granted or denied within sixty (60) days of the commissioner's receipt of the application for variance. A request for a variance shall include the following information:
- (i)
A listing of the specific ready-to-eat foods that are touched by bare hands;
- (ii)
Diagrams and other information showing that hand washing facilities are located and equipped as prescribed by the applicable provisions of the Food Code;
- (iii)
An employee health policy documenting that the food service establishment complies with:
- (a)
The person in charge requirements; and
- (b)
Requirements for monitoring the health of food service employees;
- (iv)
Documentation that food service employees have received training on the:
- (a)
Risks of contacting ready-to-eat foods with bare hands;
- (b)
Proper hand washing;
- (c)
Proper fingernail maintenance;
- (d)
Prohibition on jewelry;
- (e)
Good hygienic practices; and
- (B)
Documentation that food employees contacting ready-to-eat foods with bare hands used two (2) or more of the following control measures:
- (i)
Double hand washing;
- (ii)
Nail brushes;
- (iii)
A hand antiseptic after hand washing;
- (iv)
Incentive programs that assist or encourage food service employees not to work when they are ill; or
- (v)
Other control measures approved by the commissioner; and
- (C)
Notwithstanding any provision of the Food Code to the contrary, the commissioner shall not require any further documentation for the granting of a variance other than those contained in this section.
§ 68-14-705. Appropriation of moneys.
-
All moneys coming into the state treasury pursuant to this part from fees, fines, and penalties shall be appropriated to the department of health for the payment of necessary expenses incident to the administration of this part, as determined by the commissioner. Any unexpended balance of the fund in any fiscal year shall be retained by the department to be used to provide or expand training for food service operators and the department's environmentalists.
§ 68-14-706. Permits.
- (a)
No person shall operate a food service establishment who does not hold a valid permit issued to the person by the commissioner on or before July 1 of each year or as the commissioner may otherwise provide by rule and regulation.
- (b)
Every person now engaged in the business of operating a food service establishment, and every person who, upon July 1, 2015, engages in such a business, shall procure a permit from the commissioner for each food service establishment so operated or proposed to be operated.
- (c)
Each permit for food service establishments shall expire on June 30 next following its issuance or as the commissioner may otherwise provide by rule.
- (d)
No permit shall be transferred from one location or person to another.
- (e)
The permit shall be kept and displayed in a conspicuous manner and visible to the public in the food service establishment for which it is issued.
§ 68-14-707. Application for permit.
- (a)
- (1)
Any person planning to operate a food service establishment shall first submit an application for a permit on forms provided by the commissioner. The application shall be completed and submitted to the commissioner with the proper permit fee.
- (2)
Prior to the approval of the application for a permit, the commissioner shall inspect the proposed facility to determine if the person applying for the permit is in compliance with the requirements of this part and with applicable rules and regulations. The commissioner shall issue a permit to the applicant if the inspection reveals that the facility is in compliance with such requirements.
- (b)
Applications for renewal of permits for existing food service establishments will be issued to the operators prior to July 1 of each year or as the commissioner may provide by rule. When completed applications and the proper permit fees are returned to the commissioner, the commissioner shall issue new permits to applicants.
§ 68-14-708. Suspension of permit.
- (a)
The commissioner has the authority to suspend any permit to operate a food service establishment issued pursuant to this part if the commissioner has reasonable cause to believe that the permittee is not in compliance with this part; provided, that the permittee shall be given the opportunity to correct violations as provided in § 68-14-709.
- (b)
Suspension of permits, other than those for temporary food service establishments shall be of two (2) types:
- (1)
A Class 1 suspension, which provides an opportunity for a hearing prior to the effective date of the suspension; and
- (2)
A Class 2 suspension, which provides an opportunity for a hearing after the effective date of the suspension, and is effective immediately.
- (c)
Notice of either type of suspension may be given by the inspector on the inspector's regular inspection form or by written notification from the commissioner. When a permit suspension is effective, all operations shall cease. Class 2 suspensions shall only be issued if an imminent health hazard exists.
- (d)
A written request for a hearing on either type of suspension shall be filed by the permittee within ten (10) days of the receipt of notice. This ten-day period may run concurrently with the ten-day period set forth in § 68-14-709. If a hearing is requested, it shall be commenced within a reasonable time of the request. If no request for a hearing is made within ten (10) days of the receipt of notice, the suspension becomes final and is not subject to review.
- (e)
The commissioner may end the suspension at any time if reasons for suspension no longer exist.
§ 68-14-709. Revocation of permit.
- (a)
The commissioner may, after providing opportunity for a hearing, revoke a permit for serious or repeated violations of requirements of this part or for interference with the commissioner in the performance of the commissioner's duty.
- (b)
Prior to revocation, the commissioner shall notify, in writing, the permittee of the specific reason or reasons for which the permit is to be revoked, and that the permit shall be revoked at the end of ten (10) days following service of such notice, unless a written request for a hearing is filed with the commissioner within the ten-day period. If no request for hearing is filed within the ten-day period, the revocation of the permit becomes final.
§ 68-14-710. Notice.
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A notice provided for in this part is properly served when it is delivered to the permittee or person in charge, or when it is sent by certified mail, return receipt requested, to the last known address of the permittee. A copy of the notice shall be filed in the records of the commissioner.
§ 68-14-711. Hearing — Appeals — Applicability.
- (a)
The hearings provided for in this part shall be conducted by the commissioner in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.
- (b)
Appeals from any final decision after a hearing shall be pursued in accordance with the Uniform Administrative Procedures Act.
- (c)
Subsections (a) and (b) shall not apply in a county in which the health department is operating a program pursuant to § 68-14-704(7) that meets the minimum requirements of due process; provided, that appeals from final decisions made under such programs may be made to the commissioner, for the limited purpose of determining whether a material error of law was made at the county level. Such appeal to the commissioner shall not be de novo, but shall be limited to a review of the record of the hearing at the county level.
§ 68-14-713. Permit fees — Applicability. [Effective on January 1, 2024. See the version effective until January 1, 2024.]
- (a)
- (1)
The permit fee to operate a food service establishment shall be in accordance with the following schedule:
-
-
0-50$210
-
51 or more seats$360
- (2)
Auxiliary food service operations shall pay a permit fee of one hundred dollars ($100);
- (3)
Temporary food service establishments shall pay a permit fee of thirty dollars ($30.00);
- (4)
Child care center food service establishments and congregate meal sites funded through the commission on aging and disability that are food service establishments shall pay according to the following schedule:
-
-
0-50$50.00
-
51 or more seats$80.00
- (5)
School food services establishments shall pay a permit fee of eighty dollars ($80.00);
- (6)
Farmers market food units shall pay a permit fee of three hundred dollars ($300). The permit fee is due once an inspection has been conducted and compliance established pursuant to § 68-14-728(a).
- (b)
This section shall not apply to family child care homes, as defined in § 71-3-501.
- (c)
If the permit fee is delinquent for more than thirty (30) calendar days, a penalty fee of one-half (½) the permit fee shall be assessed, in addition to the permit fee. If a check is returned for any reason, a penalty fee of one-half (½) the permit fee shall be assessed in addition to the permit fee. The permit fee, plus any penalty, shall be paid before the permit is issued.
- (d)
When an institution operates several group homes within close proximity to each other, the permit fee established in this section shall be assessed only against the institution and not against each individual group home.
- (e)
This section shall not apply to a blind vendor subject to § 71-4-501.
§ 68-14-713. Permit fees — Applicability. [Effective until January 1, 2024. See the version effective on January 1, 2024.]
- (a)
- (1)
The permit fee to operate a food service establishment shall be in accordance with the following schedule:
-
-
0-50$210
-
51 or more seats$360
- (2)
Auxiliary food service operations shall pay a permit fee of one hundred dollars ($100);
- (3)
Temporary food service establishments shall pay a permit fee of thirty dollars ($30.00);
- (4)
Child care center food service establishments and congregate meal sites funded through the commission on aging and disability that are food service establishments shall pay according to the following schedule:
-
-
0-50$50.00
-
51 or more seats$80.00
- (5)
School food services establishments shall pay a permit fee of eighty dollars ($80.00).
- (b)
This section shall not apply to family child care homes, as defined in § 71-3-501.
- (c)
If the permit fee is delinquent for more than thirty (30) calendar days, a penalty fee of one-half (½) the permit fee shall be assessed, in addition to the permit fee. If a check is returned for any reason, a penalty fee of one-half (½) the permit fee shall be assessed in addition to the permit fee. The permit fee, plus any penalty, shall be paid before the permit is issued.
- (d)
When an institution operates several group homes within close proximity to each other, the permit fee established in this section shall be assessed only against the institution and not against each individual group home.
- (e)
This section shall not apply to a blind vendor subject to § 71-4-501.
§ 68-14-714. Exemptions from fees — Fractional permit fees.
- (a)
Churches, schools, civic, fraternal or veterans' organizations serving food are exempt from the payment of food service establishment permit fees; provided, that food is served on no more than fifty-two (52) separate days in one (1) fiscal year. The exemption is expressly limited to the payment of fees and shall not exempt these organizations from any other provisions of this part.
- (b)
In addition to the exemption established in subsection (a), churches involved in the sale of food at a four-day, multi-regional event sponsored by a local chamber of commerce, whose primary purpose is to generate economic interest in the regions, shall further be exempt from the payment of food service establishment permit fees for the event.
- (c)
A bona fide charitable or nonprofit organization that operates a food bank and an on-site feeding program for the free distribution of food to combat poverty and hunger shall be exempt from the payment of food service establishment permit fees.
- (d)
When application is made for a permit to operate any food service establishment after January 1 of any year, or such other date as the commissioner may establish by rule and regulation, the fee charged for the permit shall be one-half (½) the annual rate; provided, however, that where the establishment was subject to permit requirements prior to January 1 or such other date as the commissioner may establish by rule and regulation, of any year, no such fractional rate shall be allowed.
§ 68-14-715. Inspection reports.
- (a)
Inspection results for food service establishments shall be recorded on standard departmental forms that summarize the requirements of the law and rules and regulations.
- (b)
A copy of the completed inspection report shall be furnished in a manner prescribed by the commissioner to the person in charge of the facility at the conclusion of the inspection.
- (c)
The most current inspection report furnished to the operator or person in charge of the establishment shall be posted in a conspicuous manner. If any violation noted on the report is required to be corrected within ten (10) days of the issuance of the report and the department determines that the violation has been corrected within the period of time, then a final report without notation of the violation shall be furnished to the operator or person in charge of the food service establishment and the report shall be posted in lieu of the original report.
§ 68-14-716. Correction of violations — Cessation of operations — Hearing on ordered corrective action — Resumption of operations. [Effective until January 1, 2024. See the version effective on January 1, 2024.]
- (a)
The completed inspection report shall specify a reasonable period of time for correction of violations found.
- (b)
Corrections of violations shall be accomplished within the following periods:
- (1)
If an imminent health hazard exists, the facility shall immediately cease operations until authorized to reopen by the commissioner;
- (2)
All violations of priority items shall be corrected as soon as possible and in any event within ten (10) days following inspection. A follow-up inspection may be made for confirmation;
- (3)
All other items should be corrected as soon as possible, but in any event by the time of the next routine inspection; and
- (4)
In the case of temporary food service establishments, all violations shall be corrected within twenty-four (24) hours. If violations are not corrected within twenty-four (24) hours, the establishment shall immediately cease food service operations until authorized to resume by the commissioner.
- (c)
The inspection report shall state that failure to comply with any time limits specified by the commissioner for correction may result in cessation of operations. An opportunity for a hearing on the ordered corrective action shall be provided if a written request is filed with the commissioner within ten (10) days following cessation of operations. If a request for a hearing is received, a hearing shall be held within a reasonable time after receipt of the request.
- (d)
Whenever a facility is required under this section to cease operations, it shall not resume operations until it is shown on reinspection that conditions responsible for the order to cease operations no longer exist. Opportunity for reinspection shall be offered within a reasonable time.
§ 68-14-717. Examination or sampling of food — Hold order.
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Food may be examined or sampled by the commissioner as deemed necessary for the enforcement of this part. The commissioner may place a hold order on any food that the commissioner believes is in violation of this part or of rules and regulations, upon written notice to the operator specifying particular reasons for the hold order. The commissioner shall tag, label, or otherwise identify any food subject to a hold order. No food subject to a hold order shall be used, served, sold, or moved from the establishment. The hold order may state that the food be held while confirmation is obtained that the condition violates this part or rules or regulations. The hold order may also order the operator to destroy food that violates this part or rules or regulations. The commissioner shall permit storage of the food under the conditions specified in the hold order, unless storage is not possible without risk to the health of the public, in which case immediate destruction shall be ordered and accomplished. The hold order shall state that a request for a hearing may be filed within ten (10) days. If a request for a hearing is received, the hearing shall be held within a reasonable time after receipt of the request. On the basis of evidence produced at the hearing, the hold order may be rescinded, or the owner or person in charge may be directed by written order to denature or destroy such food or to bring it into compliance with this part.
§ 68-14-718. Review and approval of plans and specifications.
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Whenever a food service establishment is constructed or extensively remodeled, and whenever an existing structure is converted to use as a food service establishment, plans and specifications shall be submitted to the commissioner for review and approval before construction, remodeling, or conversion is begun. The plans and specifications shall indicate the proposed layout, arrangement, mechanical plans, and construction materials and work areas, and the type and model of proposed fixed equipment and facilities. The commissioner shall approve the plans and specifications if they meet the requirements of this part and of rules and regulations. No food service establishment shall be constructed, extensively remodeled, or converted, except in accordance with plans and specifications approved by the commissioner. Any deviation from the submitted plans and specifications previously approved by the commissioner discovered during an inspection that would not compromise the safety of food products shall not delay the issuance of a permit to operate a food service establishment.
§ 68-14-719. Containment of disease transmission by employees.
- (a)
When the commissioner has reasonable cause to suspect possible disease transmission by an employee of the facility, the commissioner may obtain information about any recent illness of the employee or make other investigations as may be indicated. The commissioner may require any of the following:
- (1)
The immediate exclusion of the employee from employment in the food service establishment;
- (2)
The immediate closing of the facility until, in the commissioner's opinion, no further danger of disease outbreak exists;
- (3)
Restricting the employee's service to some area of the facility where there would be little likelihood of transmitting disease; or
- (4)
Adequate medical and laboratory examinations of the employee and of other employees.
- (b)
A person in charge, having been provided by the employee with written documentation from a person who practices in a medical profession in accordance with title 63 that the employee has been diagnosed with a condition set forth in chapter 2, § 2-201.11(B)(2) of the Food Code shall have an affirmative duty to notify the commissioner or the commissioner's designee. A person in charge shall not be required to obtain medical records from a prospective employee prior to hiring such individual as an employee.
§ 68-14-720. Penalties.
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Any person operating a food service establishment who fails or refuses to comply with any of this part or with rules and regulations, obstructs or hinders the regulatory authority in the discharge of the regulatory authority's duties, or otherwise operates a food service establishment in violation of this part or rules and regulations commits a Class C misdemeanor. Each day of operation after notice of noncompliance of violation has been given and such violation has not been corrected constitutes a separate offense.
§ 68-14-721. Injunctions.
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When the commissioner has reason to believe that a person is causing, is about to cause, or has caused a violation of this part or of the rules and regulations promulgated under this part, the commissioner may initiate proceedings in either the chancery court of Davidson County or the chancery court of the county where the violation is occurring, for injunctive relief to prevent the continuance of the violation or to correct the conditions resulting in, or about to result in, the violation.
§ 68-14-722. Sales by children.
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Notwithstanding this part to the contrary, children eighteen (18) years of age or less do not need a license or permit to sell bakery goods, homemade or otherwise, soft drinks, or other similar food commodities at public events.
§ 68-14-723. Quick fast food establishment delivery vehicles.
- (a)
Every quick fast food establishment delivery vehicle, whether owned by the establishment or not, that is used in the delivery of prepared food shall be clearly marked with the name and logo of the quick fast food establishment.
- (b)
If the quick fast food establishment or one (1) of its delivery employees reasonably believes that providing delivery services to an address would expose delivery personnel to a risk of harm, the name or logo may be temporarily removed.
§ 68-14-725. Maintenance of employee records — Fines for violations.
- (a)
Every quick fast food establishment shall maintain accurate and current files on each employee hired to provide delivery services that verify the employee has met the requirements of this part. Such files shall be open for inspection by the commissioner of health or the commissioner's authorized agent.
- (b)
A fine not to exceed two hundred fifty dollars ($250) for each violation as defined in subsection (a) shall be assessed by the commissioner or the commissioner's authorized agent after providing an opportunity for a hearing; provided, that in addition to assessing such fines, the commissioner or the commissioner's authorized agent may revoke a permit for repeated violations of the requirements of this part or for interference with the commissioner or the commissioner's agent in the performance of the official's duty.
§ 68-14-726. Maintenance of required files — Requirements if contracting with company that provides drivers.
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The files required to be maintained in accordance with this part shall be kept by all quick fast food establishments that employ drivers or that contract with drivers or contract with companies that provide drivers for the delivery of food. If a quick fast food service establishment contracts with a company that provides drivers for the delivery of food, the company shall provide to the food service establishment proof of financial responsibility for each of the company's employees providing the driving services under the contract.
§ 68-14-727. Food samples at farmers markets — Requirements. [Effective on January 1, 2024.]
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Notwithstanding this part to the contrary, a vendor at a farmers market is not required to obtain a license or permit to offer samples for consumption on the premises of the farmers market. Samples may include fresh produce; value-added products; foods prepared in a licensed and inspected kitchen; foods produced pursuant to §§ 53-1-102, 53-1-118, and 53-1-204; and hot food prepared on site by a farmers market food unit, if the vendor complies with the following requirements:
- (1)
Samples must be prepared on clean surfaces;
- (2)
Food must be in good, sound condition, free from spoilage, filth, or other contamination;
- (3)
Food must be honestly presented and safe for human consumption;
- (4)
Cut produce should be discarded after two (2) hours;
- (5)
Persons preparing or dispensing samples must wash their hands frequently or have and use disposable gloves;
- (6)
A barrier must be maintained between hands and food, such as gloves, tongs, toothpicks, or napkins; and
- (7)
Sneeze guards or plastic or glass coverings are required to protect open food products from contamination, such as insects, dirt, and customers.
§ 68-14-728. Farmers market food unit permits — Requirements. [Effective on January 1, 2024.]
- (a)
The department shall issue, or cause to be issued, a farmers market food unit permit to a qualified applicant who pays the permit fee and successfully completes a pre-operational inspection to determine compliance with the applicable rules of the department for food service establishments. A pre-operational inspection for a farmers market food unit permit applicant must be conducted at a local health department at a pre-scheduled time and date. When an inspection is complete, compliance is verified, and the permit fee paid, the department shall issue a permit.
- (b)
Subject to the following and subsection (d), this part, and rules promulgated pursuant to this part concerning permitting and regulation of a temporary food service establishment, apply to a farmers market food unit:
- (1)
A farmers market food unit shall not operate in conjunction with an organized temporary event, unless the permittee obtains a temporary food service establishment permit for the temporary event;
- (2)
Section 68-14-706 applies to a farmers market food unit permit, and there is no limit on the number of days that a farmers market food unit may operate during the period that the permit is valid;
- (3)
Suspension of permits, as described in § 68-14-708(b)(1) and (2), applies to a farmers market food unit;
- (4)
The time period for correction of violations in § 68-14-716(b)(4) does not apply to a farmers market food unit; however, § 68-14-716(b)(1), (3), and (5) do apply to a farmers market food unit; and
- (5)
This chapter, or a rule of the department, does not require the operator of a farmers market food unit to disassemble or remove the equipment used in the operation of the farmers market food unit from the premises of a farmers market at the conclusion of an operational day. This subdivision (b)(5) does not prohibit a farmers market operator from establishing rules for the removal of equipment from the premises of a farmers market.
- (c)
If a person operates more than one (1) farmers market food unit simultaneously, then the person must possess a separate permit for each farmers market food unit.
- (d)
This part does not prohibit a person from applying for, and being issued, a farmers market food unit permit and a temporary food service establishment permit for the same food service establishment; however, if the person operates as a temporary food service at a temporary event, then subsection (b) does not apply and the person shall comply with all requirements of this part, and the rules promulgated pursuant to this part, concerning permitting and regulation of a temporary food service establishment.
- (e)
A physical copy of a farmers market food unit permit must be present in the physical space occupied by the farmers market food unit at all times the farmers market food unit is in operation.
- (f)
A municipal or county legislative body, or local health department, by ordinance or otherwise, shall not impose a regulation or requirement for the permitting and operation of a farmers market food unit that is more stringent than the requirements of this part.
Part 8 Katie Beth's Law [Pool Alarms]
§ 68-14-802. Part definitions.
-
For purposes of this part, unless the context otherwise requires:
- (1)
“Pool alarm” means a device which emits a sound of at least fifty decibels (50 dB) when a person or an object weighing fifteen pounds (15 lbs.) or more enters the water in a swimming pool, but shall not include swimming protection alarm devices designed for individual use, such as an alarm attached to a child that sounds when the child exceeds a certain distance or becomes submerged in water;
- (2)
“Residential dwelling” means a one-family or two-family dwelling structure; and
- (3)
“Swimming pool” means any structure that is intended for swimming or recreational bathing and contains water over thirty-six inches (36″) deep, including, but not limited to, in-ground, aboveground, and on-ground swimming pools, hot tubs and nonportable spas.
§ 68-14-804. Alarm requirement in pools.
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Each person, enterprise, agency or entity that purchases or acquires a swimming pool to be installed after January 1, 2011, shall install and maintain a pool alarm before using or making available for use such swimming pool.
§ 68-14-805. Alarm installation required for final approval of electrical wiring and for building permit — Offense.
- (a)
When an electrical inspection is required for approval of the wiring of a swimming pool, the electrical inspector shall not give final approval for such electrical wiring unless a hard-wired swimming pool alarm has been properly installed or the person, enterprise, agency or entity who has acquired the pool provides written proof that a battery operated pool alarm has been purchased.
- (b)
- (1)
No local government shall issue a building permit for the construction or substantial alteration of a swimming pool located at a residential dwelling unless the project calls for a functioning swimming pool alarm to be installed prior to the completion of the construction project.
- (2)
It is an offense for any person, firm, association or corporation to knowingly accept a building permit for a swimming pool located at a residential dwelling unless a functioning swimming pool alarm will be installed prior to the completion of the construction project.
§ 68-14-806. Violations — Punishment.
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A violation of this part is a Class C misdemeanor, punishable by a fine only not to exceed one hundred dollars ($100). Second and subsequent offenses shall be punishable by a fine only of not more than five hundred dollars ($500).
Chapter 15 Miscellaneous Sanitary Regulations
Part 2 Bedding Materials
§ 68-15-201. Part definitions.
-
As used in this part, unless the context clearly requires otherwise:
- (1)
“Bedding” means any mattress, mattress pad, mattress protector pad, box spring, upholstered spring, upholstered sofa bed, quilted pad, comforter, bolster, cushion, pillow, featherbed, sleeping bag, or any other bag, case, or covering that is:
- (A)
Made of leather, textile, or other material;
- (B)
Stuffed or filled with any soft material or substance; and
- (C)
Designed or made for sleeping or reclining purposes, or designed or made to be an integral part of a bed or couch or other device used for sleeping or reclining purposes;
- (2)
“Comfort exchange policy” means a policy offered by a mattress manufacturer, wholesaler or retailer to a mattress buyer authorizing the buyer to exchange the mattress for a different firmness or for other reasons, within a certain period;
- (3)
“Filling material” means:
- (A)
Hair;
- (B)
Down;
- (C)
Feathers;
- (D)
Wool;
- (E)
Cotton;
- (F)
Kapok;
- (G)
Plant fibers; or
- (H)
Any other soft material used in the manufacture of and the filling or stuffing of articles of bedding;
- (4)
“Mattress” means any quilted pad, mattress, mattress pad, bunk quilt or cushion, stuffed and filled with wool, hair or other soft material, to be used on a couch or other bed for sleeping or reclining purposes;
- (5)
“New” means an article of bedding or filling material that has not been previously used for any purpose; however, manufacturing processes shall not be deemed a prior use;
- (6)
“Secondhand” means any article of bedding or material, or part of bedding or material, of which prior use of any kind has been made, including, but not limited to, a mattress that has been returned by a buyer to a manufacturer, wholesaler, or retailer pursuant to a comfort exchange policy; and an article of bedding shall be deemed to be secondhand if the article contains any previously used material in whole or in part; and
- (7)
“Sold” or “sale” includes any of the following activities, or any combination of them:
- (A)
Sell;
- (B)
Offer;
- (C)
Expose for sale;
- (D)
Barter;
- (E)
Trade;
- (F)
Lend;
- (G)
Deliver;
- (H)
Give away;
- (I)
Rent;
- (J)
Consign;
- (K)
Lease;
- (L)
Possess with the intent to sell; or
- (M)
Dispose of in any other commercial manner.
§ 68-15-202. Tagging required for new articles of bedding.
-
Each new article of bedding, sold in this state, must have securely and permanently attached to it a substantial white cloth tag that:
- (1)
Is visible on the outside covering, with the visible part being not less than six (6) square inches in size;
- (2)
Will not flake when abraded; and
- (3)
Is indelibly stamped or printed in the English language a statement or statements:
- (A)
Describing the kind of materials used in filling the article of bedding;
- (B)
Stating that the materials are new;
- (C)
Disclosing the name and address of the manufacturer, distributor, or vendor; and
- (D)
For articles of bedding containing mixtures of material from animal or fowl, indicating the percentage by weight of each kind of material contained in the article of bedding.
§ 68-15-203. Tag required for articles of bedding containing secondhand materials.
- (a)
Each article of bedding containing any secondhand material, sold in this state, must have securely and permanently attached to it the white cloth tag required by § 68-15-202 as well as a securely and permanently attached substantial yellow cloth tag upon which is stamped or printed, in the same manner as required in § 68-15-202, a statement or statements:
- (1)
Describing the kind of materials used in filling the article of bedding; and
- (2)
Indicating that the article of bedding itself is secondhand or that certain specified material contained in the bedding is secondhand.
- (b)
Subsection (a) shall also apply to all secondhand mattresses sold in this state.
§ 68-15-205. Restriction of terms used on tags.
-
The terms used on the tag to describe filling materials shall be restricted to those defined in rules promulgated by the department of health. A trade or substitute term may not be used, and no additional information may be contained in the statement. The description of the filling material and the statement of whether new or previously used shall be in plain type not less than one-eighth inch (⅛″) in height.
§ 68-15-206. Offenses — Penalties.
- (a)
A person who knowingly omits or falsifies information required for inclusion on a tag required by this part commits a Class C misdemeanor punishable by a fine only. Each such deficient tag shall constitute a separate offense.
- (b)
A person who knowingly includes misleading information on a tag required by this part commits a Class C misdemeanor punishable by a fine only. Each such deficient tag shall constitute a separate offense.
- (c)
A person who knowingly sells in this state an article of bedding or item of filling material without the required tag or tags properly affixed to it commits a Class C misdemeanor punishable by a fine only. Each such omitted tag shall constitute a separate offense.
- (d)
Notwithstanding any provision of this section to the contrary, a first offense for selling a secondhand mattress in violation of § 68-15-203(b) is a Class C misdemeanor, punishable by a fine only of fifty dollars ($50.00); a second offense is a Class B misdemeanor, punishable by a fine only of five hundred dollars ($500); and a third or subsequent offense is a Class A misdemeanor, punishable by a fine only of two thousand five hundred dollars ($2,500).
§ 68-15-207. Exceptions.
-
This part does not apply to:
- (1)
The sale by a householder of bedding that was owned and used by the householder or the householder's family and was not acquired for the purpose of resale;
- (2)
The repair or renovation of any article of bedding by or for the owner for the owner's own use, or for the purpose of a casual and isolated sale by the owner; provided, however, that:
- (A)
The same or new material is used, or sterilized material is used and that fact is indicated on a label prescribed by the department; and
- (B)
The person who receives the article of bedding for repair or renovation securely and permanently attaches, at the time received, a red cloth tag on which the date of receipt and the name and address of the owner are indelibly and legibly written; or
- (3)
Any article of bedding sold under court order.
Part 3 Public Restrooms
§ 68-15-301. Required posting.
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Each person, enterprise, agency or entity that maintains publicly-owned restroom facilities available to the general public shall post in a prominent place within each such restroom a sign, at least six inches (6″) high and fourteen inches (14″) wide, that reads as follows:
-
-
§ 68-15-302. Penalty.
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Each failure to post the sign pursuant to § 68-15-301 shall subject the person, enterprise, agency or entity to a civil fine of fifty dollars ($50.00).
§ 68-15-303. Restroom Access Act.
- (a)
This section shall be known and may be cited as the “Restroom Access Act.”
- (b)
As used in this section:
- (1)
“Customer” means an individual who is lawfully on the premises of a retail establishment;
- (2)
“Eligible medical condition” means Crohn's disease, ulcerative colitis, any other inflammatory bowel disease, irritable bowel syndrome, or any other medical condition that requires immediate access to a toilet facility; and
- (3)
“Retail establishment” means a place of business open to the general public for the sale of goods or services.
- (c)
A retail establishment that has a toilet facility for its employees shall allow a customer to use that facility during normal business hours if all of the following conditions are met:
- (1)
The customer requesting the use of the employee toilet facility suffers from an eligible medical condition or utilizes an ostomy device;
- (2)
Three (3) or more employees of the retail establishment are working at the time the customer requests use of the employee toilet facility;
- (3)
The retail establishment does not normally make a restroom available to the public;
- (4)
The employee toilet facility is not located in an area where providing access would create an obvious health or safety risk to the customer or an obvious security risk to the retail establishment; and
- (5)
A public restroom is not immediately accessible to the customer.
- (d)
A retail establishment or an employee of a retail establishment is not civilly liable for any act or omission in allowing a customer to use an employee toilet facility that is not a public restroom if the act or omission meets all of the following:
- (1)
It is not willful or grossly negligent;
- (2)
It occurs in an area of the retail establishment that is not accessible to the public; and
- (3)
It results in an injury to or death of the customer or any individual other than an employee accompanying the customer.
- (e)
A retail establishment is not required to make any physical changes to an employee toilet facility under this section.
- (f)
A retail establishment or an employee of a retail establishment that violates subsection (c) commits a Class C misdemeanor and is only subject to a fine of not more than fifty dollars ($50.00).
- (g)
When requesting access to an employee toilet facility, a customer shall present to an employee of the retail establishment proof of an eligible medical condition. The proof shall take the form of a document issued by a licensed physician or the Crohn's & Colitis Foundation of America identifying the presenter of the document and citing the appropriate statutory authority.
Chapter 24 Alcohol and Drug Treatment
Part 3 Overdose Reports
§ 68-24-301. Drug overdose by student.
- (a)
Every physician or other medical professional who makes a diagnosis of or treats a person who is believed to be enrolled in school in a kindergarten through grade twelve (K-12) for a drug overdose, and every chief administrative officer of a hospital, clinic, or dispensary in which there is a case of drug overdose of such a person, shall report such cases to public school officials under rules of the department of health adopted to ensure that such reports are not in violation of federal or state laws requiring confidentiality in treatment of drug abusers. The reports shall contain nothing more than the type of the drug, the school in which the student was enrolled, and the name and address of the reporter. School officials shall share such reports with law enforcement agencies when the school officials deem it necessary as a means of controlling drug problems in the schools involved.
- (b)
“Drug,” as used in this section, means any of the substances treated as controlled substances or controlled substance analogues under the Tennessee Drug Control Act of 1989, compiled in title 39, chapter 17, part 4.
- (c)
Any person who fails to perform the duties imposed by this section is guilty of professional misconduct and for that failure is subject to professional discipline by the licensing agency or employment disciplinary action by the employer.
Part 6 Licensing of Alcohol and Drug Abuse Counselors
§ 68-24-601. Board created — Membership — Expenses — Officers — Meetings.
- (a)
There is created the board of alcohol and drug abuse counselors.
- (b)
- (1)
The board shall consist of five (5) members who are residents of this state, and who shall be appointed by the governor.
- (2)
Initial appointments to the board shall be as follows: two (2) nationally certified master alcohol and drug abuse counselors licensed by the department of health shall serve for terms of one (1) year and four (4) years respectively; one (1) person, who is not directly or indirectly engaged in the alcohol and drug abuse profession shall serve for a term of two (2) years; and two (2) nationally certified alcohol and drug abuse counselors licensed by the department of health shall serve for terms of four (4) years and five (5) years respectively.
- (3)
- (A)
Members of the board may be appointed from lists of qualified persons submitted by interested alcohol and drug abuse counseling groups including, but not limited to, the Tennessee chapter of the National Association of Alcohol and Drug Abuse Counselors.
- (B)
In making appointments to the board, the governor shall consult with interested alcohol and drug abuse counseling groups including, but not limited to, the organizations listed in subdivision (b)(3)(A) to determine qualified persons to fill the positions.
- (4)
All board members, except the member who is not directly or indirectly engaged in the alcohol and drug abuse counseling profession, shall be duly licensed or eligible to be licensed by the board. Subsequent appointees to the board shall possess the professional qualifications required by their predecessors as required by this part and shall be appointed to five-year terms.
- (5)
Members shall serve until their successors are appointed and qualified. Any vacancy occurring on the board shall be filled by the governor for the balance of the unexpired term. A board member who has served a five-year term is not eligible for reappointment during the one-year period following the appointment of the member's successor.
- (6)
In making appointments to the board, the governor shall strive to ensure that at least one (1) person serving on the board is sixty (60) years of age or older and that at least one (1) person serving on the board is a member of a racial minority.
- (7)
In making appointments to the board, the governor shall ensure that at least two (2) of the members are females.
- (c)
For each day engaged in business of the board, members shall receive fifty dollars ($50.00) as compensation and shall also receive actual expenses to be paid in accordance with the comprehensive travel regulations promulgated by the commissioner of finance and administration and approved by the attorney general and reporter.
- (d)
The members of the board shall annually elect a chair and secretary.
- (e)
The board shall meet as frequently as necessary to implement this part. Three (3) or more members of the board constitute a quorum for the purpose of transacting board business.
- (f)
For administrative purposes, the board shall be attached to the division of health related boards as defined in § 63-1-102, referred to as the “division” in this part.
§ 68-24-602. Licensing of alcohol and drug abuse counselors — Rules.
- (a)
The board may license the minimal competence of alcohol and drug abuse counselors based on satisfactory completion of its licensure process, including passing examinations, maintaining competence and professional standards and paying reasonable fees.
- (b)
The board shall promulgate rules to effectuate the purposes of this part including, but not be limited to:
- (1)
Application and licensure fees;
- (2)
Examination and licensure procedures;
- (3)
Standards of practice and qualifications for licensure;
- (4)
Disciplinary procedures; and
- (5)
Supervision of applicants.
- (c)
- (1)
When the board receives a completed application for initial licensure or a completed application for licensure from an applicant who is licensed in another state or territory of the United States or in the District of Columbia, then the board shall, within sixty (60) days from the date the board receives the completed application:
- (A)
Render a decision on the application; or
- (B)
Inform the applicant of the need to appear before the board.
- (2)
As used in this subsection (c), “completed application” means an application that satisfies all statutory and board rule requirements.
§ 68-24-603. Renewal — Fees — Rules and regulations.
- (a)
A license shall be renewable biennially on the birth date of the licensee.
- (b)
The board, by rule, shall establish reasonable and necessary fees so that the fees, in the aggregate produce sufficient revenue to cover the cost of administering this part.
- (c)
The board shall promulgate rules and regulations in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, to implement this part.
§ 68-24-604. Practice of medicine or other professions not authorized.
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Nothing in this part shall be construed as permitting any person licensed as an alcohol or drug abuse counselor to engage in the practice of medicine, or to engage in the practice of a licensed psychologist, licensed psychological examiner, licensed senior psychological examiner, certified psychological assistant, licensed social worker, licensed professional counselor, licensed marriage and family therapist, or psychiatric nurse. Persons licensed as alcohol and drug abuse counselors shall not be authorized by this part to dispense or prescribe drugs. Nothing in this part shall be construed to constrict or limit the practice of medicine, the certification and licensing of social workers, the licensing of nurses, the licensing of psychologists, or the licensing of professional counselors and marriage and family therapists. In addition, nothing in this part shall be construed to prevent qualified members of such professions from advertising that such persons diagnose and treat alcohol and drug disorders within the scope of their respective professions or from actually diagnosing and treating alcohol and drug disorders within the scope of their respective professions.
§ 68-24-605. Scope of counseling activities.
- (a)
Alcohol and other drug abuse counseling includes the following:
- (1)
The evaluation and treatment of problems and misconceptions of persons who abuse mood-altering chemicals within the context of individual, group, familial and significant other systems;
- (2)
The evaluation and treatment of those persons who have had their lives significantly impacted by another person's use of alcohol or other abuse of drugs. Alcohol and other drug abuse counseling includes the provision of the primary functions which may be performed by licensed alcohol and drug abuse counselors; and
- (3)
The evaluation and treatment of those persons who have had their lives significantly impacted by compulsive gambling disorder; provided, however, that to evaluate or treat a person significantly impacted by compulsive gambling disorder, a counselor shall have not less than sixty (60) additional hours of specialized education relating to compulsive gambling disorder. The education shall be in the form of formal classroom hours or annual continuing educational hours, or a combination of such hours; provided further, that an applicant for license as a part of the applicant’s clinically supervised counseling experience shall have experience with not less than ten (10) patients impacted by compulsive gambling disorder. A qualified supervisor shall have not less than sixty (60) formal classroom hours of instruction related to compulsive gambling disorder to supervise a counselor relative to the evaluation and treatment of compulsive gambling disorder.
- (b)
Nothing in this part shall be construed as permitting any person licensed as an alcohol and drug abuse counselor to perform psychological testing intended to measure and/or diagnose mental illness. Consistent with each counselor's formal education and training, licensed alcohol and drug abuse counselors may administer and use appropriate assessment instruments which identify elements of perceptual inability to recognize empirical facts, problems of appropriately displaying emotions, and inappropriate responses to the environment of individuals, couples and families as part of the alcohol and other drug abuse therapy process or in the development of a treatment plan in the context of chemical abuse systems.
§ 68-24-606. Adoption of nationally recognized and accepted professional practice domains.
- (a)
The purpose of this section is to adopt nationally recognized and accepted professional practice domains for licensed alcohol and drug abuse counselors.
- (b)
The professional practice domains and transdisciplinary competencies in which licensed alcohol and drug abuse counselors may engage are as follows:
- (1)
Clinical evaluation;
- (2)
Treatment planning;
- (3)
Referral;
- (4)
Service coordination;
- (5)
Counseling;
- (6)
Client, family, and community education;
- (7)
Documentation; and
- (8)
Professional and ethical responsibilities.
Part 7 Native American Alcohol and Drug Treatment
§ 68-24-701. Evaluation of need.
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Acting in consultation with the Tennessee commission of Indian affairs, the commissioner of mental health and substance abuse services shall appoint an individual who shall serve as head of a volunteer community network to evaluate the needs of Native Americans and their families for effective alcohol and drug treatment in two (2) communities designated by the commissioner. In selecting those communities, the commissioner shall give priority to those locations that would provide accessibility to the greatest number of Native American families residing in Tennessee. In implementing this study program, to the maximum extent reasonably feasible, the commissioner shall strive to assure that Native Americans actually participate in the evaluation of needs and in the recommendations that are made for providing the designated services to Native Americans. As part of the evaluation, study shall be made of funding sources, both governmental and private, that may be available for the provision of alcohol and drug services to Native Americans.
Chapter 29 Tennessee Medical Laboratory Act
§ 68-29-102. Purpose of chapter.
- (a)
It is the purpose of this chapter to protect the public health, safety, and welfare of the people of this state from the hazards of improper performance by medical laboratories. Medical laboratories provide essential services to the patient by furnishing the medical practitioner with vital information that is essential to a determination of the nature, cause, extent, and condition involved, and the people of this state are entitled to receive the highest level of competency, reliability, and accuracy that may be expected from medical laboratories. Unreliable and inaccurate reports may cause unnecessary anxiety, suffering, financial burdens, and even contribute directly to death. It is the intent of this chapter to safeguard the people of this state by regulating the operation of medical laboratories.
- (b)
The further purpose of this chapter is to authorize the commissioner to enter into agreements with other states pursuant to the Interlocal Cooperation Act, compiled in title 12, chapter 9, for services to be provided by the department's division of laboratories.
§ 68-29-103. Chapter definitions.
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As used in this chapter, unless the context otherwise requires:
- (1)
“Analytic testing” means that phase of medical laboratory testing, as defined by the board, that can impact the reliability of the results reported;
- (2)
“Board” means the medical laboratory board, created by § 68-29-109;
- (3)
“Collection station” means any place or entity that has as its primary purpose either the collection of specimens directly from patients or the bringing together of specimens after collection for the purpose of referral to a medical laboratory where testing is performed;
- (4)
“Commissioner” means the commissioner of health;
- (5)
“Council” means the [former] public health council [repealed], as defined in [former] § 68-1-501 [repealed];
- (6)
“Department” means the state department of health, including the [former] public health council [repealed];
- (7)
“Designated Entity” means an entity that performs actions or functions on behalf of the provider, payer or patient for the purposes of creating an electronic health record;
- (8)
“Independent laboratory” means a medical laboratory performing patient tests that is independent both of attending and consulting physicians' offices and independent of a hospital;
- (9)
“Medical laboratory” means any institution, building, or place in which operations and procedures for the microbiological, serological, chemical, hematological, immunohematological, or biophysical examination of specimens taken from the human body are performed to obtain information for diagnosis, prophylaxis, or treatment or where any examination, determination, or test is made on any sample used as a basis for health advice, or where any sample is collected for the purpose of transfusion or processing of blood or blood fractions, or for the training of medical laboratory personnel;
- (10)
“Medical laboratory director” means a person who is responsible for the administration of the technical and scientific operation of a medical laboratory, including supervision of procedures for testing and the reporting of results;
- (11)
“Medical laboratory evaluation program” means a program of evaluating the proficiency of medical laboratories by the department;
- (12)
“Medical laboratory owner” means a person or agency in whom is vested the rights of control, possession, and dominion of a medical laboratory, and, for the purposes of this chapter, includes a county, municipality, or any other owner of an institution operating a medical laboratory;
- (13)
“Medical laboratory personnel” includes the medical laboratory director, supervisor, technologist, or technician, but does not include medical laboratory assistants, trainees, or other persons employed by a medical laboratory to perform clerical or other administrative responsibilities involving no laboratory test;
- (14)
“Medical laboratory supervisor” means a person who, under the general supervision of a medical laboratory director, supervises technical personnel, performs tests requiring special scientific skills, and, in the absence of the director, is held responsible for the proper performance of all medical laboratory procedures and the reporting of results;
- (15)
“Medical laboratory technician” means any person other than the medical laboratory director, supervisor, technologist, or trainee who functions under the supervision of a medical laboratory director, supervisor, or technologist and performs only those medical laboratory procedures that require limited skill, responsibility, and a minimal exercise of independent judgment;
- (16)
“Medical laboratory technologist” means a person who performs tests that require the exercise of independent judgment and responsibility with minimal supervision by the director or supervisor, in only those specialties or subspecialties in which the technologist is qualified by education, training, and experience;
- (17)
“Medical laboratory trainee” is a person enrolled in a program accredited by an accrediting agency accepted by the board; or who, in a limited laboratory specialty or specialties for which there is no accredited program available, works and trains under the supervision of a director, supervisor or technologist qualified in the specialty or specialties. A trainee may perform procedures only under direct and responsible supervision of a duly licensed director, supervisor or technologist, but may not report test results;
- (18)
“Person” means any individual, firm, partnership, association, corporation, municipality, political subdivision, or any other entity whether organized for profit or not;
- (19)
“Pharmacy” means a pharmacy licensed by the board of pharmacy pursuant to title 63, chapter 10;
- (20)
“Physician” means any doctor of medicine or doctor of osteopathy duly licensed to practice the doctor's profession in Tennessee;
- (21)
“Point of care laboratory testing” means those tests performed by health care professionals, not licensed by this chapter, upon approval by the board; provided, that the testing is performed outside the duly licensed laboratory, and under the auspices of a laboratory required to be licensed by the division of health care facilities in the department of health, pursuant to this chapter;
- (22)
“Private laboratory”:
- (A)
Means a medical laboratory that is required to be licensed under this title performing patient tests not affiliated with state government and owned by a private entity; and
- (B)
Includes hospital-based laboratories;
- (23)
“Special analyst” means any person performing a singular or limited type of medical laboratory test or group of tests, such as, but not limited to, blood gases or pH tests, on human specimens, but who is not trained to perform the broad range of tests required of licensed medical laboratory personnel; and
- (24)
“Waived” means those laboratory tests systems cleared by the United States food and drug administration (FDA) for home use and those tests approved for waiver under the federal Clinical Laboratory Improvement Amendments of 1988 (CLIA) (42 U.S.C. § 263a).
§ 68-29-104. Application of chapter.
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This chapter applies to all medical laboratories and medical laboratory personnel within the state, except:
- (1)
An official medical laboratory operated by the United States public health service, the department of veterans affairs and the armed forces;
- (2)
A laboratory operated by a duly licensed physician or optometrist for the sole purpose of testing samples collected from their own patients; provided, however, that if samples for testing are received from other sources, all of this chapter shall apply;
- (3)
Laboratories operated and maintained exclusively for research and teaching purposes, involving no patient or public health services whatsoever. Schools operated to train medical laboratory personnel are not included in this exception;
- (4)
Medical laboratory personnel or other persons specifically exempt by rules promulgated under authority of this chapter; provided, that such rules shall specifically exempt each duly licensed physician holding a valid certificate of waiver issued by the United States secretary of health and human services, pursuant to the Clinical Laboratory Improvement Act of 1988 (42 U.S.C. § 263a), whenever and wherever the physician is engaged in the performance or supervision of laboratory examinations and procedures included within the scope of the certificate of waiver;
- (5)
Any postsecondary school accredited by an agency recognized or approved by the Council on Postsecondary Accreditation (COPA), unless the postsecondary school operates a “medical laboratory” as defined in § 68-29-103. Postsecondary schools that train medical laboratory personnel are included in the definition. However, this chapter does not apply to schools that teach medical assistants; provided, that such schools teach only basic, simple laboratory tests as one (1) component of the overall curriculum, and the tests are taught by a licensed medical laboratory technologist. The list of tests that can be taught shall be approved by the board and published in the regulations promulgated under the authority of this chapter. The schools shall not include in their advertisement any statement indicating that they train persons for employment in medical laboratories either in this state or any other state; further, the schools shall expressly state in their catalogs that the curriculum does not train the student for employment in medical laboratories either in this state or any other state;
- (6)
Screening programs conducted by for-profit hospitals or nonprofit organizations or in conjunction with conferences sponsored by an established or recognized association of elected state government officials, staff of elected state government officials or both officials and staff, or any other group or association that is an umbrella organization for such officials, staff, or both officials and staff and if the state pays membership dues to such conference; provided, that these programs are under the direct supervision of a physician licensed pursuant to title 63, chapter 6 or 9, and a letter of exemption has been issued to the organization by the board. However, screening program test results from conferences, conducted by an established or recognized association of elected state government officials, staff of elected state government officials or both officials and staff, or any other group or association that is an umbrella organization for such officials, staff, or both officials and staff and if the state pays membership dues to such conference, may be submitted to the individual;
- (7)
Licensed nurses and licensed respiratory care therapists, technicians and assistants employed by a licensed home care organization, with respect to procedures that:
- (A)
Are performed pursuant to the written order of a licensed physician;
- (B)
Involve the use of devices approved for home use by the food and drug agency; and
- (C)
Are included within the scope of a valid certificate of waiver or other certificate issued to a licensed home care organization by the secretary of health and human services, pursuant to the Clinical Laboratory Improvement Act of 1988;
- (8)
Laboratories under the jurisdiction of county health departments in the state of Tennessee and such other laboratories as defined by the board;
- (9)
Laboratories operated for the sole purpose of providing medical services in student health programs as approved by the board;
- (10)
Laboratories operated for the sole purpose of providing medical services to support employees in the workplace environment, in an occupational health program, as approved by the board;
- (11)
Public health laboratory testing personnel employed by the department, while they are performing work at a medical laboratory operated by the state;
- (12)
A pharmacy possessing an active Clinical Laboratory Improvement Amendments of 1988 (CLIA) Certificate of Waiver; and
- (13)
Medical personnel employed by and performing testing at a private laboratory.
§ 68-29-105. Rules and regulations.
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The board is authorized to adopt, promulgate and publish rules and regulations to effectuate the purposes and provisions of this chapter, which shall include, but not be limited to, the following subject matters:
- (1)
The licensure of all medical laboratories and personnel and/or special analysts meeting the licensure requirements of this chapter;
- (2)
The determination of the qualification of medical laboratory personnel and/or special analysts by written, oral or practical examination;
- (3)
The operation of a medical laboratory evaluation program and the establishment of standards of performance in the examination of specimens. As part of the medical laboratory evaluation program, the board may require medical laboratory personnel or special analysts or both to analyze test samples submitted to them by the board or by an agency approved by the board and report on the results of the analysis;
- (4)
The establishment of standards for construction of new, or modification of existing medical laboratories, including plumbing, heating, lighting, ventilation, electrical services and similar conditions, that shall ensure the conduct and operation of the laboratory in a manner that will protect the public health;
- (5)
The establishment of standards relating to sanitary conditions within the medical laboratory and its surroundings, including water supply, sewage, the handling of specimens, and general hygiene that shall ensure the protection of the public health;
- (6)
The establishment of standards for medical laboratory equipment essential to proper conduct and operation of a medical laboratory;
- (7)
The training of medical laboratory personnel and/or special analysts;
- (8)
The definition and performance of waived tests;
- (9)
The establishment of standards for licensed health care facilities to perform point of care testing; and
- (10)
The establishment of continuing educational requirements for medical laboratory personnel and special analysts, which requirements shall not exceed twenty-five (25) hours per year, including, but not limited to, the review and approval of programs and courses.
§ 68-29-106. Inspection of medical laboratories.
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The board is authorized to require the inspection of the premises and operations of all medical laboratories subject to licensure under this chapter, for the purpose of studying and evaluating the operation, supervision, and procedures of the facilities, and to determine their effect on the health and safety of the people of this state. For this purpose, authorized personnel of the department have the right to enter upon such premises during working hours. Any person obstructing such entry shall be in violation of this chapter.
§ 68-29-107. Laboratories to report infectious diseases.
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The board shall require reporting by owners or directors of laboratories of infectious diseases for the protection of the public health. The reports shall not be construed as constituting a diagnosis, nor shall any medical laboratory making such report be held liable under the laws of this state for having violated a trust or confidential relationship. The reports submitted shall be deemed confidential and not subject to public inspection.
§ 68-29-108. Reports of medical laboratory operations.
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The board shall require medical laboratory directors to submit such reports concerning medical laboratory operations as may be necessary to administer this chapter, such as, but not limited to, changes of personnel, services or programs.
§ 68-29-109. Medical laboratory board.
- (a)
There is created the Tennessee medical laboratory board, which shall consist of thirteen (13) members.
- (b)
The governor shall appoint qualified board members on the dates indicated so that the membership of the board shall be as follows:
- (1)
A pathologist who is licensed as a physician and certified in clinical and anatomical pathology by the American Board of Pathology and who is associated with a medical laboratory personnel education program (January 1, 1990);
- (2)
A pathologist who is licensed as a physician and certified in clinical and anatomical pathology by the American Board of Pathology (January 1, 1993);
- (3)
A hospital administrator (January 1, 1990);
- (4)
An independent laboratory management/administration representative (January 1, 1993);
- (5)
A hospital laboratory manager/administrative director who is licensed as a nonphysician medical laboratory supervisor (January 1, 1990);
- (6)
A licensed medical technologist generalist (January 1, 1993);
- (7)
A pathologist who is licensed as a physician and certified in clinical and anatomical pathology by the American Board of Pathology (January 1, 1991);
- (8)
A licensed physician who is not a pathologist (January 1, 1991);
- (9)
An educator in a medical technology or medical laboratory technician program who is licensed as a medical laboratory technologist or as a nonphysician laboratory supervisor (January 1, 1991);
- (10)
A licensed nonphysician medical laboratory supervisor (January 1, 1992);
- (11)
A licensed medical technologist generalist (January 1, 1992);
- (12)
A licensed cytotechnologist (July 1, 1996); and
- (13)
A private citizen consumer to represent the public interest (July 1, 1996).
- (c)
To be eligible for appointment to the board, a person shall:
- (1)
Have been a resident of the state of Tennessee for at least two (2) years immediately preceding the appointment;
- (2)
If required to be licensed under subsection (b), be licensed in good standing in the state of Tennessee;
- (3)
Be actively engaged in the practice of such person's profession; and
- (4)
Have had no fewer than five (5) years of experience in the person's profession, at least three (3) of which immediately precede the appointment.
- (d)
The members of the board may be selected from lists of qualified persons submitted to the governor from interested medical groups, including, but not limited to, the professional organizations as provided in this subsection (d).
- (1)
The following organizations and other interested medical groups, excluding those listed in subdivisions (d)(3)(A)-(E), may submit names for each appointment in the categories listed:
- (A)
Tennessee Medical Association, in consultation with the Tennessee Society of Pathologists, giving due regard to geographic distribution — pathologist members;
- (B)
Tennessee Medical Association — non-pathologist physician member; and
- (C)
Tennessee Hospital Association — hospital administrator member and hospital laboratory manager/administrative director member.
- (2)
All interested medical groups including, but not limited to, the organizations listed in this subsection (d) may submit names for the independent laboratory representative.
- (3)
The following organizations and other interested medical groups, excluding those associations listed in subdivisions (d)(1)(A)-(C) may submit names for each appointment of members listed in subsection (b), with the exception of the pathologists, non-pathologist physician, and hospital administrator:
- (A)
Tennessee Society for Medical Technology;
- (B)
Tennessee State Society of American Medical Technologists;
- (C)
Tennessee chapter — Clinical Laboratory Management Association;
- (D)
Tennessee Association of Blood Banks; and
- (E)
Tennessee chapter — Southern Association for Clinical Microbiology.
- (4)
Lists of qualified persons shall be submitted at least forty-five (45) days prior to the expiration of the term of office of any member.
- (5)
The governor shall consult with interested medical groups including, but not limited to, the organizations as provided in this subsection (d), to determine qualified persons to fill the positions.
- (e)
- (1)
- (A)
Appointments to the board by the governor shall be for a term of four (4) years.
- (B)
Appointments made to fill vacancies shall be for the duration of the unexpired term and from the same category represented by the outgoing member.
- (2)
A member shall hold over after the expiration of such member's term until a successor is appointed and qualified. No member may serve more than two (2) consecutive four-year terms.
- (f)
The board shall hold at least one (1) regular meeting each year and such other meetings as the board may determine. Seven (7) members of the board shall constitute a quorum.
- (g)
The members of the board shall annually elect one (1) member to serve as chair and one (1) member to serve as vice chair. The board may also create such other offices as may be necessary for its efficient operation.
- (h)
Each member of the board when actually engaged in the discharge of such member's official duties shall be reimbursed for all travel and other necessary expenses. All expenses shall be claimed and paid in accordance with the comprehensive travel regulations as promulgated by the department of finance and administration and approved by the attorney general and reporter.
- (i)
The governor may remove any member of the board for inefficiency, neglect of duty, or violation of any provision of this chapter.
- (j)
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.
- (k)
A permanent personnel and education licensure committee shall be formed, which shall consist of the medical technologist members, the one (1) cytotechnologist member, and the one (1) pathologist educator member of the board. The committee shall annually elect one (1) member to serve as chair. The committee shall have the full jurisdiction to oversee all matters pertaining to the licensure of medical laboratory personnel and of medical laboratory education programs. There shall be an education advisory committee, appointed by the chair of the personnel and education licensure committee. The advisory committee shall be appointed on a yearly basis with members representing major areas of laboratory scientific disciplines and educational levels. The advisory committee shall serve without compensation.
- (l)
All regulations promulgated by the board shall require a two-thirds (⅔) vote of the board members present.
§ 68-29-110. Schools for training laboratory personnel — Application fees.
- (a)
The board shall approve medical laboratories or medical laboratory training facilities to operate schools for training laboratory personnel and to employ medical laboratory trainees for training purposes, upon presentation of satisfactory evidence that such laboratories are staffed by qualified personnel and properly equipped and operated to provide training in medical laboratory techniques adequate to prepare individuals to meet the requirements for licensure under this chapter.
- (b)
No person shall conduct, maintain or operate a school or schools for the training of laboratory personnel unless approved by the board. All schools that train medical laboratory personnel shall make application for a certificate of approval on forms provided by the board. A fee, in the form of a check or money order, shall accompany the application. Such fee, not to exceed two hundred dollars ($200), will be determined annually by the board. Approval of the school shall be valid for the year for which it is issued. Each certificate of approval shall be renewed on January 1 of each year, by making application on forms provided by the board and the remittance of a fee of one hundred dollars ($100).
§ 68-29-111. License required to operate a medical laboratory.
-
No person shall conduct, maintain, or operate a medical laboratory in this state unless a license has been obtained from the board, except laboratories exempt under § 68-29-104. Unless specifically authorized by the board, an individual shall not be permitted to direct more than one (1) medical laboratory. A separate license shall be obtained for each location.
§ 68-29-112. Joint license where laboratory owner is not director — Limitation on application of license.
- (a)
A license to conduct a medical laboratory, where the owner is not the director, shall be issued jointly to the owner and the director for the purposes stated in the application, and they shall be separately and jointly responsible to the board for the maintenance and conduct of the laboratory or for any violations of this chapter and the regulations promulgated under this chapter.
- (b)
A license shall be valid only in the hands of the person or persons to whom it is issued and shall not be the subject of sale, assignment or transfer, voluntary or involuntary, nor shall a license be valid for any premises other than those for which issued.
- (c)
A new license may be secured for the new location, director or owner prior to the actual change; provided, that the contemplated change is in compliance with this chapter and the regulations promulgated under this chapter.
§ 68-29-113. Application for laboratory license — Fee — Term — Renewal.
- (a)
An application for a medical laboratory license shall be made under oath, by the owner and director of the medical laboratory or public official responsible for the operation of a city or county medical laboratory or institution that contains a medical laboratory, upon forms provided by the board; provided, that the laboratory is in compliance with the regulations promulgated under the authority of this chapter. The board may issue a temporary license, at no charge to the applicant, which shall be valid for a period of not longer than three (3) months from the date the application is received by the board. After expiration of the three-month period, the applicant shall be issued a permanent license, but, if the laboratory is not in compliance, it shall not be granted a license to operate. A license shall be issued authorizing the performance of one (1) or more medical laboratory procedures or one (1) or more categories of such procedures.
- (b)
- (1)
A fee, in the form of a check or money order, shall accompany the application. The fee will be set by the board.
- (2)
The board shall also set fees for license renewal as required by § 9-4-5117.
- (3)
Each license shall be renewed by making application on forms provided by the department and submission of the fee as set by the board.
- (4)
If the licensee fails or neglects to renew the license by the prescribed time, the license may be restored by paying all registration fees due, plus a late monetary penalty and upon finding there are no outstanding violations attributed to the licensee.
§ 68-29-114. Issuance of laboratory licenses — Restrictions — Qualifications.
- (a)
A license shall be issued to a medical laboratory to perform only those medical laboratory procedures and tests that are within the specialties or subspecialties in which the medical laboratory director and supervisors are qualified.
- (b)
A license shall not be issued, unless the board determines that the medical laboratory is adequately staffed and equipped to operate in conformity with the requirements of this chapter and the regulations promulgated under this chapter.
§ 68-29-115. Contents of laboratory license — Display.
-
A medical laboratory license shall specify, on the face of the license, the names of the owner and director, the procedures or categories of procedures authorized, the period for which it is valid, and the location at which such procedures must be performed. The license shall be displayed at all times in a prominent place where it may be viewed by the public.
§ 68-29-116. Licenses required for medical laboratory personnel — Supervision of employees.
- (a)
No person shall act as a medical laboratory director, supervisor, technologist, technician, laboratory trainee or special analyst and accept a specimen for laboratory examination, unless such person has obtained a license and is registered to act in such capacity by the board; provided, that this section shall not apply to pathologists certified or eligible for certification by the American Board of Pathology, or any other person recognized by the board as having special qualifications and who is duly licensed and registered to practice medicine in the state of Tennessee.
- (b)
Persons who collect specimens or report the results of an examination shall be under the supervision of a licensed medical laboratory director, medical laboratory supervisor, or medical laboratory technologist or other persons so designated by the regulations promulgated under authority of this chapter.
- (c)
Medical laboratory directors may monitor medical laboratory personnel remotely.
§ 68-29-117. Applications for licenses for laboratory personnel — Fees — Issuance of license — Temporary licenses.
- (a)
An application for a license as a medical laboratory director, supervisor, technologist, technician or special analyst shall be made under oath on forms provided by the board.
- (b)
The following fees shall apply to this section:
- (1)
A nonrefundable application fee shall be set annually by the board; and
- (2)
An examination fee in the form of a check or money order, which shall accompany the application. Such fee will be set annually by the board. This fee shall not exceed the cost incurred by the board in purchasing the examination. This fee is only applicable when an examination is required by the regulations governing this chapter. If the applicant does not pass the examination, the applicant shall be assessed the cost of each subsequent examination taken. The examination fee may be refunded if the applicant does not take an examination; provided, that the request for a refund is made in writing by the applicant in question.
- (c)
A license shall be issued authorizing the performance of one (1) or more categories after the applicant has met the requirements for a license as indicated in the regulations governing this chapter. An individual who was serving as a director of a medical laboratory on May 26, 1967, may continue to direct the medical laboratory; provided, that the laboratory meets all requirements of the regulations governing this chapter.
- (d)
- (1)
The board may issue a temporary license as a medical technician, medical technologist, special analyst, or medical laboratory director, to an applicant who has successfully completed the academic course work, clinical training, and all board designated requirements for the license sought, and who is scheduled to take the next available board approved examination.
- (2)
If an applicant passes the examination, the temporary license shall remain valid until the board grants or denies the license application.
- (3)
If the applicant fails the examination, the temporary license shall remain valid only until the results of the examination are available to the board.
- (4)
If the applicant fails to take the scheduled examination, the temporary license becomes void on the day of examination. In cases of severe hardship, the board may, in its discretion, and upon application, issue a second temporary license, which, if granted, shall remain valid until the results of the second examination are available to the board.
- (5)
No individual may be issued more than one (1) temporary license, except as provided by subdivision (d)(4).
- (6)
The recipient of a temporary license issued under this subsection (d) shall work only under the direct supervision of licensed medical laboratory personnel appointed by the laboratory supervisor as preceptor to the temporary licensee. This preceptor shall hold a license equal to or higher than the temporary licensee's level of licensure.
§ 68-29-118. Minimal qualifications for medical laboratory personnel and special analysts.
- (a)
The board shall prescribe minimum qualifications for medical laboratory personnel, to include generalists, specialty and subspecialty categories as dictated by current laboratory practices, and special analysts in microbiology, serology, biochemistry, hematology, immunohematology and biophysics.
- (b)
The board shall issue a license to any person who meets the minimum qualifications and who demonstrates that such person possesses the character, training and ability to qualify in those areas for which the license is sought.
- (c)
Persons who perform analytic testing or report the results of an examination shall be under the supervision of a licensed medical laboratory director, medical laboratory supervisor, or medical laboratory technologist, or other person so designated by the rules and regulations promulgated under the authority of this chapter and the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.
§ 68-29-119. License renewal — Fees — Penalties.
-
Each licensee must renew the licensee's license on forms provided by the board and pay a fee as set by the board. The fee, in the form of a check or money order, shall accompany the renewal application. If a licensee fails or neglects to register such licensee's license by the prescribed time, the licensee's license shall be automatically revoked. The license may be restored by paying all registration fees due, plus a penalty fee. Such penalty fee shall be set by the board.
§ 68-29-120. Registration of laboratory trainees.
- (a)
The board shall register as a laboratory trainee, at no cost, each qualified person who desires trainee status in any laboratory that is approved for training by the board.
- (b)
Registration of a medical laboratory trainee shall not be valid for a period in excess of two (2) years.
§ 68-29-121. Examination of human specimens — Reports of examinations.
- (a)
No person, except patients who are performing tests on themselves by order of their physician, shall examine human specimens without the written request of a physician, an intern or resident in an American Medical Association approved training program, a duly licensed optometrist, a duly licensed dentist, a duly licensed chiropractic physician, or other health care professional legally permitted to submit to a medical laboratory a written request for tests appropriate to that professional's practice, or the written request of a law enforcement officer acting in accordance with § 55-10-406.
- (b)
The results of a test shall be reported directly to the physician, optometrist, dentist, chiropractic physician, designated entity or other health care professional who requested it. The report shall include the name of the director and the name and address of the medical laboratory in which the test was actually performed.
- (c)
All specimens accepted by medical laboratory personnel and/or special analysts shall be tested on the premises, except that specimens for infrequently performed tests may be forwarded for examination to another medical laboratory licensed under this chapter or licensed or exempt under the federal Clinical Laboratory Improvement Act of 1967 (42 U.S.C. § 263a). This shall not be construed as prohibiting the referral of specimens to a medical laboratory excepted under § 68-29-104. However, the medical laboratory director of the referring medical laboratory shall assume complete responsibility.
- (d)
Notwithstanding § 68-29-104(13), this section applies to medical personnel employed by and performing testing at a private laboratory.
§ 68-29-122. Collection of specimens — Restrictions — Licensing of collection stations.
- (a)
The medical laboratory board shall be responsible for the establishment of the procedures and standards to be used for the proper collection, handling and preanalytic processing of laboratory samples and may promulgate the necessary rules and regulations for such procedures and standards.
- (b)
When blood is withdrawn from a patient in a home for the aged, nursing home residential hospice or recuperation center, or from a patient of a home care organization as these terms are defined in § 68-11-201, the procedure shall be performed by a trained phlebotomist or a person who has been properly trained to draw blood and has been licensed in this state by the appropriate board for the respective health care profession of such person.
- (c)
Collection stations owned and operated as part of a laboratory licensed in Tennessee do not require an additional license. Collection stations owned and operated by laboratories in other states are required to have a Tennessee license. Collection stations shall comply with rules and regulations prescribed by the board.
§ 68-29-123. Representation of unlicensed laboratory prohibited — Requirements for collection, transportation and preservation of specimens prescribed by board.
- (a)
No person shall represent, or maintain an office or specimen collection station or other facilities for the representation of any medical laboratory situated in this state or any other state, that makes examinations in connection with the diagnosis and control of diseases, unless the medical laboratory is licensed in accordance with this chapter.
- (b)
The board may, from time to time, determine which tests may be performed on specimens shipped through the mails and may prescribe requirements for collection, transportation and preservation of such specimens.
- (c)
A medical laboratory located in another state, which provides services to patients in this state, shall be subject to § 68-29-129(7) and any other requirements deemed necessary by the board pursuant to this chapter to protect the health and safety of patients in this state.
§ 68-29-124. Records of medical laboratory services.
-
Records involving medical laboratory services and copies of requests and reports of laboratory tests shall be kept for a period of time and in a manner prescribed by the board. They shall be made available to authorized personnel of the board during regular operation hours of the laboratory for inspection.
§ 68-29-125. Quality control programs.
-
Each medical laboratory director shall establish the director's own quality control program acceptable to the board, including use of, where applicable, reference or control sera and other biological samples, concurrent calibration standards, and control charts recording.
§ 68-29-126. Suspension, revocation or denial of medical laboratory license — Grounds.
-
The board has the power to suspend or revoke a medical laboratory license or to deny the issuance or renewal of a license or deny approval whenever a medical laboratory owner or director or owner of a medical laboratory training facility commits any of the following offenses:
- (1)
Making false statements on an application for a medical laboratory license or any other documents required by the board;
- (2)
Permitting unauthorized persons to perform technical procedures or to issue or sign reports;
- (3)
Demonstrating incompetence or making consistent errors in the performance of medical laboratory examinations and procedures;
- (4)
Reporting that is erroneous;
- (5)
Performing a test and rendering a report on a test to a person not authorized by law to receive such services;
- (6)
Referring a specimen for examination to a medical laboratory which has not been licensed under this chapter, with exceptions noted in § 68-29-104;
- (7)
Rendering a report on medical laboratory work actually performed in another medical laboratory without designating the name of the director and the name and address of the medical laboratory in which the test was performed;
- (8)
Having professional connection with or lending the use of the name of the licensed medical laboratory or its director to an unlicensed medical laboratory;
- (9)
Making statements, in writing or orally, of a character tending to deceive or mislead physicians, dentists or hospitals;
- (10)
Performing cytological and anatomical pathological examinations in a medical laboratory not under the direction of a pathologist certified or eligible for certification by the American Board of Pathology, licensed to practice medicine in the state of Tennessee;
- (11)
Violating or aiding and abetting in the violation of any provision of this chapter or the rules and regulations promulgated under this chapter;
- (12)
Failing to file any request or report required by this chapter or the rules and regulations promulgated under this chapter; or
- (13)
Fraudulent advertising for patronage of the general public by means of bills, posters, circulars, letters, newspapers, magazines, directories, radio, television, or any other medium.
§ 68-29-127. Suspension, revocation or denial of personnel licenses — Grounds.
-
The board has the power to suspend or revoke the licenses of medical laboratory personnel or special analysts or to deny the issuance of a license or a registration certificate whenever medical laboratory personnel or special analysts commit any of the following offenses:
- (1)
Making a false statement on an application for a license or any other document required by the board;
- (2)
Engaging or attempting to engage or representing oneself as entitled to perform any medical laboratory procedure or category of procedures not authorized in such person's license;
- (3)
Demonstrating incompetence or making consistent errors in the performance of medical laboratory examinations or procedures;
- (4)
Reporting that is erroneous;
- (5)
Performing a test and rendering a report on a test to a person not authorized by law to receive such services;
- (6)
Having been convicted of a felony or of any crime involving moral turpitude under the laws of any state or of the United States. The record of conviction or a certified copy of the record shall be conclusive evidence of such conviction;
- (7)
Providing professional services while mentally incompetent, or under the influence of alcohol, a narcotic, or other controlled, dangerous substance that is in excess of therapeutic amounts or without valid medical indication;
- (8)
Violating or aiding and abetting in the violation of any provisions of this chapter or the rules or regulations promulgated under this chapter;
- (9)
Immoral or unethical conduct; or
- (10)
Fraudulent advertising for patronage of the general public by means of bills, posters, circulars, letters, newspapers, magazines, directories, radio, television, or any other medium.
§ 68-29-129. Violations of chapter.
-
It is a violation of this chapter for any person to:
- (1)
Operate, maintain, direct or engage in the business of operating a medical laboratory, unless such person has obtained a medical laboratory license from the board, or is exempt under § 68-29-104;
- (2)
Operate, maintain, direct or engage in the business of operating a medical laboratory during a suspension of a license or after revocation of a license;
- (3)
Conduct, maintain, or operate a medical laboratory, unless such medical laboratory is under the direct and responsible supervision and direction of a person licensed under this chapter or is exempt under § 68-29-116;
- (4)
Allow any person to perform medical laboratory procedures, except individuals licensed and registered under this chapter;
- (5)
Accept specimens for tests from, and make reports to, persons who are not legally qualified or authorized to submit specimens to medical laboratories and to receive such reports. However, this does not prohibit the referral of specimens from one (1) licensed medical laboratory to another licensed under this chapter or to a laboratory named in § 68-29-104; provided, that the report indicates clearly the medical laboratory performing the test and the name of the director of such medical laboratory;
- (6)
Make any test or examination in a medical laboratory, unless the person is licensed or authorized to make such tests under this chapter;
- (7)
Solicit the referral of specimens to the person's or another medical laboratory or contract to perform medical laboratory examinations of specimens in a manner that offers or implies an offer of rebates to any person submitting specimens, other fee-splitting inducements, participation in fee-splitting arrangements, or other unearned remuneration. Notwithstanding § 68-29-104(13), this subdivision (7) applies to medical personnel employed by and performing testing at a private laboratory;
- (8)
Violate or aid and abet in the violation of any provision of this chapter or the rules and regulations promulgated under this chapter; or
- (9)
Operate, maintain, direct or engage in the business of operating a medical laboratory school, unless such school has been issued a certificate of approval by the board.
§ 68-29-131. Injunctive relief.
-
The board, through the attorney general and reporter, in addition to the powers and duties expressed in this chapter with respect to the denial of a license, denial of a certificate of registration, and suspension or revocation of a license, is empowered to petition any chancery court having jurisdiction of any person within this state, who is conducting a medical laboratory without a license or is performing as medical laboratory personnel without a license, or to whom a license has been denied, or to whom a certificate of registration has been denied, or whose license has been suspended or revoked, to enjoin such person or persons from continuing to violate this chapter or to enjoin the future operation or maintenance of a medical laboratory until compliance with this chapter or the rules and regulations promulgated under this chapter has been demonstrated to the satisfaction of the board.
§ 68-29-132. Disposition of fees.
-
All fees for licensing and registration provided for under this chapter shall be credited to the board and used by the board for the administration of this chapter in accordance with § 9-4-5117.
§ 68-29-133. Agreements to perform laboratory tests for other states.
-
The commissioner is authorized to enter into agreements pursuant to the Interlocal Cooperation Act, compiled in title 12, chapter 9, with the commissioner's official counterpart in other states to perform on behalf of another state, examinations or tests upon specimens collected in that state, when it is determined by the commissioner that performing the examinations or tests would result in a cost savings in the operation of the division of laboratories or otherwise benefit the citizens of Tennessee.
§ 68-29-135. Medical laboratory directors — Restricted licenses — Qualifications.
- (a)
In addition to other persons permitted by law or rule to be a medical laboratory director, a person shall be qualified to serve as a medical laboratory director with a restricted license for a hospital licensed under this title for thirty (30) beds or fewer if the person is a physician licensed under title 63, chapter 6 or 9, and is otherwise qualified as determined by the board. A physician serving as a medical laboratory director pursuant to this section is authorized to delegate day-to-day operation of the laboratory to a medical laboratory supervisor.
- (b)
In addition to other persons permitted by law or rule to be a medical laboratory supervisor, a person shall be qualified to serve as a medical laboratory supervisor with a restricted license for a hospital licensed under this title for thirty (30) beds or fewer if the person possesses at least a three-year undergraduate degree in any medical science, plus one (1) year of training in medical laboratory science, and is otherwise qualified as a medical laboratory supervisor as determined by the board.
- (c)
The board is authorized to issue limited medical laboratory director and limited medical laboratory supervisor licenses in accordance with this section.
§ 68-29-136. Cost of prosecution — Administering oaths — Subpoenas — Hearings — Appeal — Compensation of witnesses.
- (a)
The board shall promulgate rules governing the assessment of costs against a licensee or other person found by the board to have violated any provision of this chapter. The costs assessed by the board may include only those costs directly related to the prosecution of the charges against the licensee or other person, including investigatory costs where appropriate. The board shall determine the appropriate amount of costs, if any, to be assessed in a contested case. These costs shall be reasonable and proportionate in light of the violation committed by the licensee or other person.
- (b)
- (1)
Any elected officer of the board, or any duly appointed or elected chair has the authority to administer oaths to witnesses. Upon probable cause being established, the board, by a vote of two thirds (⅔) of the members to which the board is entitled, may issue subpoenas for the attendance of witnesses and the production of documents and records.
- (2)
Service of a subpoena issued by the board shall be made by the sheriff of the county of residence of the licensee or person upon whom the subpoena is served.
- (3)
- (A)
A licensee or person served by subpoena shall have thirty (30) days to request, in writing, a hearing before the board for the sole purpose of making a special appearance to quash or modify the subpoena. The subpoena for attendance of the person or the production of books and records shall be stayed until the board votes upon the request to quash or modify the subpoena. A majority vote of the members to which the board is entitled shall be required to quash or modify a subpoena.
- (B)
A motion to appeal from a decision by the board regarding a request to quash or modify a subpoena shall be made to the chancery court in Davidson County within fifteen (15) days of such decision.
- (4)
If any witness fails or refuses to obey a subpoena issued by it, the board is authorized to make application to any court of record in this state within the jurisdiction of which the witness is found or resides, and the court shall have power to attach the body of the witness and compel the witness to appear before the board and give testimony or produce books, records or papers as ordered, and any failure to obey the court order may be punished by the court issuing the order as a civil contempt.
- (5)
Each witness who appears before the board by order of the board shall receive for attendance the compensation provided by law for attendance of witnesses in a court of record, which shall be paid from the funds of the board in the same manner as all other expenses of the board are paid.
§ 68-29-137. Licensed, certified dentists as medical laboratory directors.
-
In addition to other persons permitted by law or rule to be medical laboratory directors, a dentist licensed in this state, certified by the American Board of Oral and Maxillofacial Pathology and certified in oral pathology by the Tennessee board of dentistry shall be qualified to serve as a medical laboratory director limited to the specialty of oral pathology without obtaining medical laboratory licensure in addition to the dentist's professional license.
§ 68-29-138. Exemption for laboratories certified by certain organizations.
- (a)
Notwithstanding any provisions of official compilation Rules and Regulations of the State of Tennessee, Rule 1200-6-1, or any other rule promulgated by the medical laboratory board to the contrary, a Tennessee medical laboratory shall be licensed in accordance with the rules promulgated under authority of this chapter and as provided in this section if the laboratory:
- (1)
Is engaged in advanced esoteric applied toxicological, forensic, or biochemical laboratory analysis utilizing emerging technologies, such as chromatographic and non-chromatographic techniques coupled with mass spectrometer based detector systems and molecular diagnostic techniques; and
- (2)
Is licensed, certified, or accredited by the United States department of health and human resources substance abuse and mental health service administrations (SAMHSA), the American Society of Crime Laboratory Directors Laboratory Accreditation Board (ASCLD/LAB), the American Board of Forensic Toxicology (ABFT), the College of American Pathologists Laboratory Accreditation Program (CAP LAP), or a state that has been determined to be exempt in accordance with § 353(p) of the Public Health Services Act (42 U.S.C. § 263a), as having enacted laboratory requirements that are equal to or more stringent than the statutory and regulatory requirements of the Clinical Laboratory Improvement Amendments of 1988 (CLIA).
- (b)
A laboratory licensed under subsection (a) shall be exempt from the provisions of this chapter, including any rules promulgated under this chapter, that require persons who accept specimens for laboratory examination and perform analytical testing or report the results of a laboratory examination, be licensed as a technologist, technician, laboratory trainee, or special analyst.
- (c)
In such medical laboratories, laboratory personnel who analyze or report laboratory results shall possess a baccalaureate or advanced degree in the appropriate sciences with at least sixteen (16) semester hours of chemistry and/or biological science courses. Nothing in this section shall be construed to prohibit licensed personnel from performing the tasks for which they are appropriately licensed and trained in such medical laboratories.
- (d)
Except as provided in subsection (b), such laboratories shall be subject to all other provisions of this chapter, including any rules promulgated under this chapter.
§ 68-29-139. Clinical laboratory testing advisory board.
- (a)
As used in this section:
- (1)
“Accountable care organization” or “ACO” means the term as defined by Section 3022 of the federal Patient Protection and Affordable Care Act (Pub. L. No. 111-148), as amended; and
- (2)
“Clinical laboratory testing” means any test as defined under this section, or otherwise subject to Section 353 of the Public Health Service Act (42 U.S.C. § 263a).
- (b)
An accountable care organization that provides diagnosis and treatment for patients in this state shall establish a clinical laboratory testing advisory board to consider and recommend guidelines or protocols for clinical laboratory testing.
- (c)
- (1)
The clinical laboratory testing advisory board may make recommendations to the ACO governance board for guidelines or protocol adoption for clinical laboratory testing used for diagnostic purposes, disease management, and pathologist consultation on episodes of care.
- (2)
The ACO clinical laboratory testing advisory board may recommend guidelines or protocols for clinical laboratory testing to ensure appropriate use of testing.
- (3)
The composition of an ACO clinical laboratory testing advisory board shall be determined by the ACO; provided, however, that the ACO clinical laboratory testing advisory board shall have at least one (1) physician who is a clinical laboratory director, as defined by Section 353 of the Public Health Service Act (42 U.S.C. § 263a).
- (d)
Notwithstanding the requirement of this section to establish a clinical laboratory testing advisory board, nothing contained in this section shall be construed to require an ACO governance board to adopt a clinical laboratory testing guideline or protocol recommended by its clinical laboratory testing advisory board.
Chapter 30 Anatomical Gifts
Part 3 Pituitary Removal
§ 68-30-301. Authorization — Conditions.
-
In the case of an autopsy performed by or under the authority of the chief medical examiner, county medical examiner or coroner having jurisdiction over the decedent's body, the medical examiner or coroner's physician may, for the purpose of medical research, education or therapy, remove and retain the pituitary gland at the time of autopsy in accordance with the following conditions:
- (1)
The removal is performed in conjunction with an autopsy under such official's jurisdiction;
- (2)
The removal will not impede or interfere with the investigation that gave rise to the autopsy, and will not significantly alter post mortem appearance; and
- (3)
- (A)
No objection to the removal of the pituitary gland was evidenced by the decedent prior to the decedent's death, nor was there objection on the part of the decedent's next of kin known to the official having jurisdiction over the autopsy.
- (B)
As used in this part, “next of kin” includes, in order, the decedent's spouse; or if no competent spouse, the decedent's adult children; or if no competent spouse or adult children, the decedent's parents; or if no competent spouse, adult children, or parents, the decedent's brothers and sisters.
- (C)
The decedent's next of kin shall be contacted by telephone or otherwise, and unless there is a specific objection from such kin, a telephone confirmation shall be consent within the requirements of this part.
§ 68-30-302. Immunity from liability.
-
The chief medical examiner, county medical examiner, judge, or coroner permitting such pituitary gland removal, and any donee or agency acquiring such organ, shall be immune from civil or criminal liability incurred as a result of the removal in accordance with this part, if no objection was made by next of kin prior to the autopsy to the official having jurisdiction over the autopsy.
Chapter 31 Transplantations
§ 68-31-101. Chapter definitions.
-
As used in this chapter:
- (1)
“Ambulatory surgical treatment center” has the same meaning as defined in § 68-11-201;
- (2)
“Anatomical gift” means a donation of all or part of a human body to take effect after the donor's death for the purpose of transplantation, therapy, research, or education;
- (3)
“Auxiliary aids and services” means:
- (A)
Qualified interpreters or other effective methods of making aurally delivered materials available to individuals with hearing impairments;
- (B)
Qualified readers, taped texts, or other effective methods of making visually delivered materials available to individuals with visual impairments;
- (C)
Acquisition or modification of equipment or devices; or
- (D)
Other similar services and actions;
- (4)
“Covered entity” means:
- (A)
A healthcare provider;
- (B)
A hospital;
- (C)
An ambulatory surgical treatment center;
- (D)
A home care organization; or
- (E)
Any other entity responsible for matching anatomical gifts or organ donors to potential recipients;
- (5)
“COVID-19” means the novel coronavirus, SARS-CoV-2, and coronavirus disease 2019, commonly referred to as COVID-19, including a variant of SARS-CoV-2 or COVID-19;
- (6)
“COVID-19 vaccine” means a substance used to stimulate the production of antibodies and provide protection against COVID-19, prepared from the causative agent of COVID-19, its products, or a synthetic substitute, and treated to act as an antigen without inducing a COVID-19 infection;
- (7)
“Disability” has the same meaning as defined in 42 U.S.C. § 12102;
- (8)
“Healthcare provider” means a person licensed under title 63, chapter 6, 7, 9, or 19;
- (9)
“Home care organization” has the same meaning as defined in § 68-11-201;
- (10)
“Hospital” has the same meaning as defined in § 33-1-101 or § 68-11-201;
- (11)
“Qualified recipient” means a recipient who has a disability and meets the eligibility requirements for receipt of transplantation or anatomical gift regardless of the use of the following:
- (A)
Individuals or entities available to support and assist the recipient of an anatomical gift or transplantation;
- (B)
Auxiliary aids and services; or
- (C)
Reasonable modifications to the policies, practices, or procedures of a covered entity, including modifications that allow for:
- (i)
Communication with one (1) or more individuals or entities available to support or assist with the recipient's care after surgery or transplantation; or
- (ii)
Consideration of the availability of those individuals or entities when determining whether the recipient is able to comply with medical requirements following surgery or transplantation; and
- (12)
“Transplantation” means the transplantation or transfusion of a human body part into the body of another individual for the purpose of treating or curing a medical condition.
§ 68-31-102. Discrimination on the basis of disability prohibited.
- (a)
A covered entity shall not do any of the following solely on the basis of the disability of a qualified recipient:
- (1)
Consider a qualified recipient ineligible for transplantation or receipt of an anatomical gift;
- (2)
Deny medical or other services related to transplantation, including:
- (A)
Evaluation;
- (B)
Surgery; and
- (C)
Counseling and treatment following transplantation;
- (3)
Refuse to refer a qualified recipient to a transplant center or specialist;
- (4)
Refuse to place a qualified recipient on an organ or tissue waiting list; or
- (5)
Place a qualified recipient at a position on an organ or tissue waiting list that is lower than the position at which the qualified recipient would have been placed if not for the qualified recipient's disability.
- (b)
Subject to subsection (c), if a healthcare provider has examined an individual and determined that the individual has a disability, then a covered entity may consider, when making recommendations or decisions related to receipt of an anatomical gift or transplantation, the disability of the individual to be medically significant to the receipt of an anatomical gift or transplantation.
- (c)
A covered entity shall not consider a qualified recipient's inability to comply with medical requirements following transplantation to be medically significant if a qualified recipient has individuals or entities available to assist in complying with the medical requirements.
- (d)
A covered entity shall make reasonable modifications to its policies, practices, or procedures to allow individuals with disabilities access to transplantation-related treatment and services, except when the covered entity demonstrates that the modifications would fundamentally alter the nature of the transplantation-related treatment and services.
§ 68-31-103. Civil cause of action.
- (a)
An individual who reasonably believes that a covered entity has violated this chapter may bring a civil action for injunctive or other equitable relief against the covered entity for the purpose of enforcing compliance with this chapter.
- (b)
In an action commenced under this section, the court must:
- (1)
Schedule a hearing as soon as practicable; and
- (2)
Apply the same standards when rendering judgment as would be applied in an action brought in federal court under 42 U.S.C. § 12101 et seq.
- (c)
This section does not create a right to compensatory or punitive damages against a covered entity.
§ 68-31-104. Discrimination on the basis of COVID-19 vaccination status prohibited.
-
A covered entity shall not, solely on the basis of whether an individual has received or will receive a COVID-19 vaccine, do the following:
- (1)
Consider an individual ineligible for transplantation or receipt of an anatomical gift;
- (2)
Deny medical or other services related to transplantation, including:
- (A)
Evaluation;
- (B)
Surgery; and
- (C)
Counseling and treatment following transplantation;
- (3)
Refuse to refer an individual to a transplant center or specialist;
- (4)
Refuse to place an individual on an organ or tissue waiting list; or
- (5)
Place an individual at a position on an organ or tissue waiting list that is lower than the position at which the individual would have been placed if not for the individual's COVID-19 vaccine status.
Chapter 32 Blood Donations
§ 68-32-101. Age limits and other restrictions.
- (a)
- (1)
Any person seventeen (17) years of age or older, subject to the restrictions and provisions of this section, is acceptable as a blood donor; provided, that any person seventeen (17) years of age shall be accepted as a blood donor on a voluntary basis only. Any person seventeen (17) years of age may be accepted as a blood donor, if the person has had the disability of the person's minority removed, or if the person has the written consent of the person's parent or guardian; provided, that the person may be accepted as a blood donor in the absence of any removal or consent if the person is not compensated for the person's blood donation.
- (2)
- (A)
Notwithstanding provisions of this section to the contrary, any person under sixteen (16) years of age may be accepted as a blood donor when a medical necessity exists within the person's immediate family.
- (i)
“Blood donation,” within the scope of this section, means the donation of whole blood or blood products, including, but not limited to, platelets, red blood cells, white blood cells, or serum.
- (ii)
“Immediate family,” within the scope of subdivision (a)(2)(A), is confined to parents or whole or half siblings.
- (B)
In order to donate, any person under sixteen (16) years of age must have written consent of the person's parent or guardian and written consent of the person's personal physician dated within two (2) weeks of the date of donation.
- (3)
- (A)
Notwithstanding any provisions of this section to the contrary, a person under sixteen (16) years of age may provide autologous blood donations. The autologous blood donations shall require the written consent of the donor's parent or guardian and the written consent of the person's personal physician dated within two (2) weeks of date of donation.
- (B)
“Autologous blood donation,” within the scope of this section, means the donation of a person's own blood for future use by that person.
- (b)
Any person sixteen (16) years of age or older, subject to the restrictions and provisions of this section, is acceptable as a blood donor; provided, that any person sixteen (16) years of age shall be accepted as a blood donor on a voluntary basis only and the person has the written consent of the person's parent or guardian.
- (c)
Any person of sixty-six (66) years of age or older may be accepted as a blood donor, if such person has written consent of the person's personal physician, dated within two (2) weeks of the date of donation. The written consent of the personal physician shall not be required if the person is not compensated for the blood donation.
- (d)
All persons, regardless of age, must meet all other criteria for acceptability of blood donors as provided in the rules, regulations and policies of the [former] public health council [repealed].
§ 68-32-102. Facilities to test for AIDS — Contaminated blood — Cause of action for AIDS infection from untested blood.
- (a)
All facilities collecting fresh human blood or plasma directly from an individual donor shall have the blood or plasma tested for the potential presence of the causative agent for acquired immune deficiency syndrome (AIDS).
- (b)
Any blood shown by appropriate medical testing to be potentially contaminated by the causative agent for AIDS shall not be used for transfusions, or for any other purposes that may pose a threat of transmission of the virus.
- (c)
Any person who contracts AIDS from any contaminated blood or blood product shall have a cause of action for damages, including all medical expenses, against any facility supplying untested blood, if the person can establish that such person received any untested blood, or blood product derived from untested blood, from the supplier.
- (d)
This section shall not apply in those emergency situations where the attending physician determines that failure to transfuse will be life threatening to the patient.
§ 68-32-103. Patient's right to designate blood donor.
- (a)
The department of health shall promulgate rules and regulations in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, to provide that any individual who is treated by a health professional or health facility has the option of designating donors to provide blood or blood products to the individual that may be necessary for such individual's treatment.
- (b)
The regulations promulgated pursuant to this section do not apply in those emergency situations where the attending physician determines that failure to transfuse will be life threatening to the patient.
§ 68-32-104. Prohibition on persons with AIDS donating blood.
-
If a person knows that the person has received a confirmed positive result from the human T lymphotrophic virus type III antibody test (HTLV-III), or if a person knows that the person is suffering from a confirmed case of acquired immune deficiency syndrome (AIDS), then it is unlawful for the person to be or attempt to be a blood donor, except when deemed necessary for medical research.
§ 68-32-105. Providing information to pregnant women about the options for donating blood extracted from newborn's umbilical cord.
- (a)
As used in this section, unless the context otherwise requires:
- (1)
“Health care institution” means a hospital as described in § 68-11-201 or a birthing center as described in § 68-11-201;
- (2)
“Health care professional” means:
- (A)
A physician authorized to practice medicine and surgery under title 63, chapter 6;
- (B)
An osteopathic physician authorized to practice under title 63, chapter 9;
- (C)
A registered nurse authorized to practice under title 63, chapter 7;
- (D)
A certified professional midwife (CPM), authorized to practice under title 63, chapter 29; or
- (E)
A physician assistant authorized to practice under title 63, chapter 19; and
- (3)
“Umbilical cord blood” means the blood that remains in the umbilical cord and placenta after the birth of a newborn child.
- (b)
The department of health shall encourage principal health care professionals who provide health care services that are directly related to a woman's pregnancy to provide a woman by the end of her second trimester (26th week) with the publication described in subsection (c).
- (c)
The department of health, on its internet website, shall make available to health care professionals a printable publication that can be downloaded containing standardized, objective information about umbilical cord blood banking that is sufficient to allow a pregnant woman to make an informed decision about whether to participate in an umbilical cord blood banking program. The publication shall include all of the following information:
- (1)
The medical processes involved in the collection of umbilical cord blood;
- (2)
The medical risks of umbilical cord blood collection to the mother and the newborn child;
- (3)
The options available to a mother regarding stem cells contained in the umbilical cord blood after delivery of the mother's newborn child including, but not limited to:
- (A)
Donating the stem cells to a public umbilical cord blood bank;
- (B)
Having the stem cells stored in a private umbilical cord blood bank for use by immediate and extended family members;
- (C)
Storing the stem cells for use by the family through a family or sibling donor banking program that provides free collection, processing, and storage of the stem cells where there is a medical need; and
- (D)
Having the stem cells discarded;
- (4)
The current and potential future medical uses, risks, and benefits of umbilical cord blood collection to the mother, newborn child, and biological family;
- (5)
The current and potential future medical uses, risks, and benefits of umbilical cord blood collection to individuals who are not biologically related to the mother or newborn child;
- (6)
Any costs that may be incurred by a pregnant woman who chooses to make an umbilical cord blood donation;
- (7)
The average cost of public and private umbilical cord blood banking; and
- (8)
The option of having the umbilical cord blood discarded.
- (d)
A health care professional or health care institution is not liable for damages in a civil action, subject to prosecution in a criminal proceeding, or subject to disciplinary action by the state medical board, board of nursing, or similar board for acting in good faith pursuant to subsection (b).
Chapter 33 Prohibited Medical Procedures for Minors
§ 68-33-101. Findings.
- (a)
The legislature declares that it must take action to protect the health and welfare of minors.
- (b)
The legislature determines that medical procedures that alter a minor's hormonal balance, remove a minor's sex organs, or otherwise change a minor's physical appearance are harmful to a minor when these medical procedures are performed for the purpose of enabling a minor to identify with, or live as, a purported identity inconsistent with the minor's sex or treating purported discomfort or distress from a discordance between the minor's sex and asserted identity. These procedures can lead to the minor becoming irreversibly sterile, having increased risk of disease and illness, or suffering from adverse and sometimes fatal psychological consequences. Moreover, the legislature finds it likely that not all harmful effects associated with these types of medical procedures when performed on a minor are yet fully known, as many of these procedures, when performed on a minor for such purposes, are experimental in nature and not supported by high-quality, long-term medical studies.
- (c)
The legislature determines that there is evidence that medical procedures that alter a minor's hormonal balance, remove a minor's sex organs, or otherwise change a minor's physical appearance are not consistent with professional medical standards when the medical procedures are performed for the purpose of enabling a minor to identify with, or live as, a purported identity inconsistent with the minor's sex or treating purported discomfort or distress from a discordance between the minor's sex and asserted identity because a minor's discordance can be resolved by less invasive approaches that are likely to result in better outcomes for the minor.
- (d)
The legislature finds that medical procedures are being performed on and administered to minors in this state for such purposes, notwithstanding the risks and harms to the minors.
- (e)
The legislature finds that health authorities in Sweden, Finland, and the United Kingdom have recognized similar trends and, after conducting systematic reviews of the evidence, have found no evidence that the benefits of these procedures outweigh the risks and thus have placed severe restrictions on their use.
- (f)
The legislature finds that Dr. John Money, one of the earliest advocates for performing or administering such medical procedures on minors and a founder of the Johns Hopkins Gender Identity Clinic, abused minors entrusted to his care, resulting in the suicides of David and Brian Reimer.
- (g)
The legislature finds that such medical procedures are being performed on and administered to minors in this state with rapidly increasing frequency and that supposed guidelines advocating for such treatment have changed substantially in recent years.
- (h)
The legislature finds that minors lack the maturity to fully understand and appreciate the life-altering consequences of such procedures and that many individuals have expressed regret for medical procedures that were performed on or administered to them for such purposes when they were minors.
- (i)
The legislature finds that many of the same pharmaceutical companies that contributed to the opioid epidemic have sought to profit from the administration of drugs to or use of devices on minors for such purposes and have paid consulting fees to physicians who then advocate for administration of drugs or use of devices for such purposes.
- (j)
The legislature finds that healthcare providers in this state have sought to perform such surgeries on minors because of the financial incentive associated with the surgeries, not necessarily because the surgeries are in a minor's best interest.
- (k)
The legislature finds that healthcare providers in this state have threatened employees for conscientiously objecting, for religious, moral, or ethical reasons, to performing or administering such medical procedures.
- (l)
The legislature finds that healthcare providers in this state have posted pictures of naked minors online to advertise such surgeries.
- (m)
The legislature declares that the integrity and public respect of the medical profession are significantly harmed by healthcare providers performing or administering such medical procedures on minors. This state has a legitimate, substantial, and compelling interest in protecting minors from physical and emotional harm. This state has a legitimate, substantial, and compelling interest in protecting the ability of minors to develop into adults who can create children of their own. This state has a legitimate, substantial, and compelling interest in promoting the dignity of minors. This state has a legitimate, substantial, and compelling interest in encouraging minors to appreciate their sex, particularly as they undergo puberty. This state has a legitimate, substantial, and compelling interest in protecting the integrity of the medical profession, including by prohibiting medical procedures that are harmful, unethical, immoral, experimental, or unsupported by high-quality or long-term studies, or that might encourage minors to become disdainful of their sex.
- (n)
Therefore, it is the purpose of this chapter to prohibit medical procedures from being administered to or performed on minors when the purpose of the medical procedure is to:
- (1)
Enable a minor to identify with, or live as, a purported identity inconsistent with the minor's sex; or
- (2)
Treat purported discomfort or distress from a discordance between the minor's sex and asserted identity.
§ 68-33-102. Chapter definitions.
-
As used in this chapter:
- (1)
“Congenital defect” means a physical or chemical abnormality present in a minor that is inconsistent with the normal development of a human being of the minor's sex, including abnormalities caused by a medically verifiable disorder of sex development, but does not include gender dysphoria, gender identity disorder, gender incongruence, or any mental condition, disorder, disability, or abnormality;
- (2)
“Healthcare provider” means a healthcare professional, establishment, or facility licensed, registered, certified, or permitted pursuant to this title or title 63 and under the regulatory authority of:
- (A)
The department of health;
- (B)
An agency, board, council, or committee attached to the department of health; or
- (C)
The health facilities commission;
- (3)
“Hormone” means an androgen or estrogen;
- (4)
“Knowing” and “knowingly” have the same meaning as the term “knowing” is defined in § 39-11-302;
- (5)
“Medical procedure” means:
- (A)
Surgically removing, modifying, altering, or entering into tissues, cavities, or organs of a human being; or
- (B)
Prescribing, administering, or dispensing any puberty blocker or hormone to a human being;
- (6)
“Minor” means an individual under eighteen (18) years of age;
- (7)
“Parent” means any biological, legal, or adoptive parent or parents of the minor or any legal guardian of the minor;
- (8)
“Puberty blocker” means a drug or device that suppresses the production of hormones in a minor's body to stop, delay, or suppress pubertal development; and
- (9)
“Sex” means a person's immutable characteristics of the reproductive system that define the individual as male or female, as determined by anatomy and genetics existing at the time of birth.
§ 68-33-103. Prohibitions.
- (a)
- (1)
A healthcare provider shall not knowingly perform or offer to perform on a minor, or administer or offer to administer to a minor, a medical procedure if the performance or administration of the procedure is for the purpose of:
- (A)
Enabling a minor to identify with, or live as, a purported identity inconsistent with the minor's sex; or
- (B)
Treating purported discomfort or distress from a discordance between the minor's sex and asserted identity.
- (2)
Subdivision (a)(1) applies to medical procedures that are:
- (A)
Performed or administered in this state; or
- (B)
Performed or administered on a minor located in this state, including via telehealth, as defined in § 63-1-155.
- (b)
- (1)
It is not a violation of subsection (a) if a healthcare provider knowingly performs, or offers to perform, a medical procedure on or administers, or offers to administer, a medical procedure to a minor if:
- (A)
The performance or administration of the medical procedure is to treat a minor's congenital defect, precocious puberty, disease, or physical injury; or
- (B)
The performance or administration of the medical procedure on the minor began prior to the effective date of this act and concludes on or before March 31, 2024.
- (2)
For purposes of subdivision (b)(1)(A), “disease” does not include gender dysphoria, gender identity disorder, gender incongruence, or any mental condition, disorder, disability, or abnormality.
- (3)
For the exception in subdivision (b)(1)(B) to apply, the minor's treating physician must certify in writing that, in the physician's good-faith medical judgment, based upon the facts known to the physician at the time, ending the medical procedure would be harmful to the minor. The certification must include the findings supporting the certification and must be made a part of the minor's medical record.
- (4)
The exception in subdivision (b)(1)(B) does not allow a healthcare provider to perform or administer a medical procedure that is different from the medical procedure performed prior to the effective date of this act when the sole purpose of the subsequent medical procedure is to:
- (A)
Enable the minor to identify with, or live as, a purported identity inconsistent with the minor's sex; or
- (B)
Treat purported discomfort or distress from a discordance between the minor's sex and asserted identity.
- (c)
- (1)
It is not a defense to any legal liability incurred as the result of a violation of this section that the minor, or a parent of the minor, consented to the conduct that constituted the violation.
- (2)
This section supersedes any common law rule regarding a minor's ability to consent to a medical procedure that is performed or administered for the purpose of:
- (A)
Enabling the minor to identify with, or live as, a purported identity inconsistent with the minor's sex; or
- (B)
Treating purported discomfort or distress from a discordance between the minor's sex and asserted identity.
§ 68-33-105. Private right of action.
- (a)
- (1)
Except as otherwise provided in subdivision (a)(2), a minor, or the parent of a minor, injured as a result of a violation of this chapter, may bring a civil cause of action to recover compensatory damages, punitive damages, and reasonable attorney's fees, court costs, and expenses, against the healthcare provider alleged to have violated § 68-33-103 or any person alleged to have violated § 68-33-104.
- (2)
The parent of a minor injured as a result of a violation of this chapter shall not bring a civil cause of action against a healthcare provider or another person if the parent consented to the conduct that constituted the violation on behalf of the minor.
- (b)
The parent or next of kin of a minor may bring a wrongful death action, pursuant to title 20, chapter 5, part 1, against a healthcare provider alleged to have violated § 68-33-103, if the injured minor is deceased and:
- (1)
The minor's death is the result of the physical or emotional harm inflicted upon the minor by the violation; and
- (2)
The parent of the minor did not consent to the conduct that constituted the violation on behalf of the minor.
- (c)
If a court in any civil action brought pursuant to this section finds that a healthcare provider knowingly violated § 68-33-103, then the court shall notify the appropriate regulatory authority and the attorney general and reporter by mailing a certified copy of the court's order to the regulatory authority and the attorney general and reporter. Notification pursuant to this subsection (c) shall be made upon the judgment of the court being made final.
- (d)
For purposes of subsection (a), compensatory damages may include:
- (1)
Reasonable economic losses caused by the emotional, mental, or physical effects of the violation, including, but not limited to:
- (A)
The cost of counseling, hospitalization, and any other medical expenses connected with treating the harm caused by the violation;
- (B)
Any out-of-pocket costs of the minor paid to the healthcare provider for the prohibited medical procedure; and
- (C)
Loss of income caused by the violation; and
- (2)
Noneconomic damages caused by the violation, including, but not limited to, psychological and emotional anguish.
- (e)
Notwithstanding any law to the contrary, an action commenced under this section must be brought:
- (1)
Within thirty (30) years from the date the minor reaches eighteen (18) years of age; or
- (2)
Within ten (10) years of the minor's death if the minor dies.
- (f)
This section is declared to be remedial in nature, and this section must be liberally construed to effectuate its purposes.
§ 68-33-106. Attorney general and reporter's right of action.
- (a)
The attorney general and reporter shall establish a process by which violations of this chapter may be reported.
- (b)
The attorney general and reporter may bring an action against a healthcare provider or any person that knowingly violates this chapter, within twenty (20) years of the violation, to enjoin further violations, to disgorge any profits received due to the medical procedure, and to recover a civil penalty of twenty-five thousand dollars ($25,000) per violation. Each time a healthcare provider performs or administers a medical procedure in violation of § 68-33-103 constitutes a separate violation.
- (c)
A civil penalty collected pursuant to this section must be paid into the general fund of this state.
- (d)
The attorney general and reporter is entitled to reasonable attorney's fees, court costs, and expenses if the attorney general and reporter prevails in an action brought pursuant to this section.
- (e)
Jurisdiction for an action brought pursuant to this section is in the chancery or circuit court of Williamson County or circuit court in the county where the violation occurred.
§ 68-33-107. Healthcare provider licensing sanctions.
-
A violation of § 68-33-103 constitutes a potential threat to public health, safety, and welfare and requires emergency action by an alleged violator's appropriate regulatory authority. Upon receiving notification pursuant to § 68-33-105(c), or upon otherwise becoming aware of an alleged violation of § 68-33-103, the appropriate regulatory authority shall proceed pursuant to title 63 or this title, as applicable.
§ 68-33-108. Minor immunity.
-
A minor upon whom a medical procedure is performed or administered must not be held liable for violating this chapter.
§ 68-33-109. Application.
-
This chapter does not prohibit or restrict psychological practice regulated pursuant to title 63, chapter 11; the practice of professional counseling regulated pursuant to title 63, chapter 22; or the practice of social work regulated pursuant to title 63, chapter 23.
Chapter 34 Family Planning Act of 1971
§ 68-34-102. Chapter definitions.
-
As used in this chapter, unless the context otherwise requires:
- (1)
“Commissioner” means the commissioner of health;
- (2)
“Contraceptive procedures” means any medically accepted procedure designed to prevent conception;
- (3)
“Contraceptive supplies” means those medically approved items designed to prevent conception through chemical, mechanical or other means;
- (4)
“Department” means the department of health; and
- (5)
“Physician” means any doctor of medicine or doctor of osteopathy duly licensed to practice such physician's profession in Tennessee or the state in which such physician resides and lawfully practices such physician's profession.
§ 68-34-103. Declaration of policy.
-
It is the legislative declaration of the general assembly that:
- (1)
Continuing population growth either causes or aggravates many social, economic and environmental problems, both in this state and in the nation;
- (2)
Contraceptive procedures, supplies, and information, and information as to and procedures for voluntary sterilization, are not sufficiently available as a practical matter to many persons in this state;
- (3)
It is desirable that inhibitions and restrictions be eliminated so that all persons desiring and needing contraceptive procedures, supplies, and information shall have ready and practicable access thereto; and
- (4)
Section 68-34-104 sets forth the policy and authority of this state, its political subdivisions, and all agencies and institutions thereof, including prohibitions against restrictions, with respect to contraceptive procedures, supplies and information.
§ 68-34-104. Contraceptives — Availability — Information — Religious belief.
-
It is the policy and authority of this state that:
- (1)
All medically acceptable contraceptive procedures, supplies, and information shall be readily and practicably available to each and every person desirous of the same regardless of sex, race, age, income, number of children, marital status, citizenship or motive;
- (2)
Contraceptive procedures, including medical procedures for permanent sterilization, when performed by a physician on a requesting and consenting patient, are consistent with public policy;
- (3)
Nothing in this chapter shall inhibit a physician from refusing to furnish any contraceptive procedures, supplies or information where such refusal is for medical reasons;
- (4)
Dissemination of medically acceptable contraceptive information by duly authorized persons in state and county health and welfare departments, in medical facilities at institutions of higher learning, and at other agencies and instrumentalities of this state is consistent with public policy;
- (5)
No private institution or physician, nor any agent or employee of such institution or physician, shall be prohibited from refusing to provide contraceptive procedures, supplies, and information when such refusal is based upon religious or conscientious objection, and no such institution, employee, agent, or physician shall be held liable for such refusal; and
- (6)
To the extent that family planning funds are available, each public health agency of this state and each of its political subdivisions shall provide contraceptive procedures, supplies, and information, including voluntary sterilization procedures for male or female persons eligible for free medical service as determined by rules and regulations promulgated by the commissioner. The same service shall be available to all others who are unable to obtain the service privately, at a cost to be determined by rules and regulations promulgated by the commissioner.
§ 68-34-105. Disposition of funds — Development of program.
- (a)
The department is authorized to receive and disburse such funds as may be available to it for family planning programs in accordance with this section.
- (b)
- (1)
Notwithstanding any other law, any funds that become available to the department for family planning programs, in excess of funds needed to operate family planning programs in county or district health departments, must be awarded to eligible entities in the following order of descending priority:
- (A)
Public entities that are eligible under state and federal law to provide family planning services, including state, county, and local community health centers, and federally qualified health centers;
- (B)
Nonpublic entities that are eligible under state and federal law to provide family planning services and that provide comprehensive primary and preventative care services; and
- (C)
Nonpublic entities that are eligible under state and federal law to provide family planning services, but that do not provide comprehensive primary and preventative care services.
- (2)
For purposes of subdivisions (b)(1)(B) and (C), “comprehensive primary and preventative care services” means those services described in Sections 330(b)(1)(A)(i)(I), (II), (III)(aa)-(gg) and (IV), and 330(b)(1)(A)(ii) of the Public Health Service Act (42 U.S.C. §§ 254b(b)(1)(A)(i)(I), (II), (III)(aa)-(gg), (IV), and 42 U.S.C. § 254b(b)(1)(A)(ii)) as well as pharmaceutical services as may be appropriate for particular entities.
- (c)
Notwithstanding subsection (b), the department shall ensure, in compliance with federal law, distribution of funds for family planning services in a manner that does not severely limit or eliminate access to those services in any region of the state.
§ 68-34-107. Contraceptives for minors.
-
Contraceptive supplies and information may be furnished by physicians to any minor who is pregnant, a parent, or married, or who has the consent of the minor's parent or legal guardian, or who has been referred for such service by another physician, a clergy member, a family planning clinic, a school or institution of higher learning, or any agency or instrumentality of this state or any subdivision of the state, or who requests and is in need of birth control procedures, supplies or information.
§ 68-34-108. Sterilization for minors.
-
It is lawful for any physician or surgeon licensed in this state, when so requested by any person eighteen (18) years of age or over, or less than eighteen (18) years of age if legally married, to perform upon such person a surgical interruption of the vas deferens or fallopian tubes, as the case may be; provided, that a request in writing is made by such person prior to the performance of such surgical operation; and provided further, that prior to, or at the time of such request, a full and reasonable medical explanation is given by the physician or surgeon to such person as to the meaning and consequence of the operation.
§ 68-34-109. Physician liability for sterilization.
-
Subject to the rules of law applicable generally to negligence, no physician or surgeon licensed by this state shall be liable civilly or criminally by reason of having performed surgical interruption of vas deferens or fallopian tubes, as the case may be, authorized by this chapter upon any person in this state.
§ 68-34-111. Criminal penalties.
-
It is a Class C misdemeanor to threaten, coerce, intimidate or require any person to submit to any surgical procedure authorized by this chapter.
Chapter 35 Renal Disease
§ 68-35-101. Renal disease program.
- (a)
The department of health shall establish a program for the care and treatment of persons suffering from chronic renal disease.
- (b)
This program shall assist persons suffering from chronic renal diseases who require lifesaving care and treatment for such renal disease, but who are unable to pay for such services on a continuing basis.
§ 68-35-103. Powers and duties of department.
-
The department shall:
- (1)
Develop standards for determining eligibility for care and treatment under this program;
- (2)
Assist in the development and expansion of programs for the care and treatment of persons suffering from chronic renal diseases, including dialysis and other medical procedures and techniques that will have a lifesaving effect in the care and treatment of persons suffering from these diseases;
- (3)
Assist in the development of programs for the prevention of chronic renal diseases;
- (4)
Extend financial assistance to persons suffering from chronic renal diseases in obtaining the medical, nursing, pharmaceutical, and technical services necessary in caring for such diseases, including the renting of home dialysis equipment;
- (5)
Assist in equipping dialysis centers; and
- (6)
Institute and carry on an educational program among physicians, hospitals, public health departments, and the public concerning chronic renal diseases, including the dissemination of information and the conducting of educational programs concerning the prevention of chronic renal diseases and the methods for the care and treatment of persons suffering from these diseases.
Chapter 36 Hemophilia
§ 68-36-101. Chapter definitions.
-
As used in this chapter, unless the context otherwise requires:
- (1)
“Commissioner” means the commissioner of health or the commissioner's designated representative;
- (2)
“Department” means the department of health; and
- (3)
“Hemophilia” means a bleeding tendency resulting from a genetically determined deficiency factor in the blood.
§ 68-36-102. Program.
-
The department shall establish a program for the care and treatment of persons suffering from hemophilia. The program shall assist persons who require continuing treatment with blood and blood derivatives to avoid crippling, extensive hospitalization and other effects associated with this bleeding condition, but who are unable to pay for the entire cost of such services on a continuing basis despite the existence of various types of hospital and medical insurance.
§ 68-36-104. Powers and duties of department.
-
The department shall:
- (1)
Develop standards for determining eligibility for care and treatment under this program;
- (2)
Assist in the development and expansion of programs for the care and treatment of persons suffering from hemophilia, including self-administration, prevention and home care and other medical and dental procedures and techniques designed to provide maximum control over bleeding episodes typical of this condition;
- (3)
Extend financial assistance in order to provide diagnosis of and treatment for persons suffering from hemophilia and other related hemorrhagic disorders in obtaining blood, blood derivatives and concentrates and any other such necessary medical, surgical, dental, hospital, outpatient clinic service, rehabilitation or may participate in the cost of blood processing to the extent that such support will facilitate the supplying of blood, blood derivatives and concentrates and other efficacious agents to patients with hemorrhagic disorders;
- (4)
Employ all necessary administrative personnel as may be provided in its budget to carry out this chapter; and
- (5)
Promulgate all rules and regulations necessary to effectuate this chapter.
Chapter 37 Epilepsy and Seizure Disorders
§ 68-37-101. Care and treatment program.
-
The department of health may establish a program for the care and treatment of persons suffering from epilepsy and other seizure disorders. This program shall assist persons suffering from such conditions who require care and treatment for the disease, but who are unable to pay for services on a continuing basis.
§ 68-37-103. Duties of department.
- (a)
The department of health has the following duties, among others, in order to care for persons suffering from epilepsy and other seizure disorders:
- (1)
Develop standards for determining eligibility for care and treatment under this program, with the advice of the [former] epilepsy advisory committee [repealed];
- (2)
Assist in the development and expansion of programs for the care and treatment of persons suffering from epilepsy and other seizure disorders;
- (3)
Extend financial assistance to persons suffering from epilepsy and other seizure disorders in obtaining the medical, nursing, pharmaceutical, and technical services necessary in caring for such diseases;
- (4)
Institute and carry on an educational program among physicians, hospitals, public health departments, schools, police departments and the public concerning epilepsy and other seizure disorders, including the dissemination of information and the conducting of educational programs concerning the recognition, emergency care, and continuing treatment of persons suffering from these diseases;
- (5)
Promulgate all rules and regulations necessary to effectuate the purposes of this chapter; and
- (6)
Employ personnel as positions are funded to implement this chapter.
- (b)
Subject to such additional funds as may be made available by the general assembly in the general appropriations act, the chronic disease office of the department shall provide community epilepsy education and needed support services to the rural areas of Tennessee. The department may contract with the Epilepsy Foundation of America to provide such services.
Chapter 57 Surgical Technologists
§ 68-57-101. Qualifications for employment of surgical technologists.
- (a)
Individuals employed as surgical technologists shall:
- (1)
Hold current national certification established by the National Board of Surgical Technology and Surgical Assisting (NBSTSA);
- (2)
Have completed a program for surgical technology accredited by the Commission on Accreditation of Allied Health Education Programs (CAAHEP);
- (3)
Have completed an appropriate training program for surgical technologists in the armed forces or at a CAAHEP accredited hospital or CAAHEP accredited ambulatory surgical treatment center program. For the purposes of this chapter, “armed forces” means the army, navy, air force, marine corps, coast guard, or public health service of the United States; or
- (4)
Successfully complete the surgical technologists NBSTSA certifying exam.
- (b)
Any student who completes a surgical technology program that is in the process of becoming CAAHEP accredited on July 1, 2006, shall be considered a graduate of a CAAHEP accredited program.
- (c)
Persons qualified to be employed as a surgical technologist pursuant to subsection (a) shall complete fifteen (15) hours of continuing education or contact hours annually to remain qualified for employment and shall submit verification of having completed such continuing education or contact hours requirements to their employers. The submission of current certification by the NBSTSA shall satisfy the requirements of this subsection (c).
- (d)
This section and § 68-57-102 shall not constitute a requirement to be assessed during any inspection under chapter 11, part 2 of this title.
§ 68-57-102. Alternative qualifications for employment — Exemption of federal employees.
- (a)
In addition to individuals identified in § 68-57-101, a person may be employed upon providing sufficient evidence that, prior to May 21, 2007, the person was at any time employed as a surgical technologist for not less than eighteen (18) months in the three (3) years preceding May 21, 2007, in a hospital, medical office, surgery center, or an accredited school of surgical technology, as defined by this chapter. An individual who has begun the appropriate training to be a surgical technologist as defined by this section, prior to May 21, 2007, shall be eligible for employment as a surgical technologist; provided, that the training is completed by May 21, 2010. Persons qualified to be employed as surgical technologists pursuant to this subsection (a) shall complete fifteen (15) hours of continuing education or contact hours annually to remain qualified for employment and shall submit verification of having completed such continuing education or contact hours requirements to their employers. The submission of current certification by the NBSTSA shall satisfy this requirement.
- (b)
Notwithstanding any law to the contrary, a surgical technologist in the service of the federal government is exempt from this chapter while performing duties related to such employment.
§ 68-57-103. Penalties.
-
The license of a hospital, ambulatory surgical treatment center, or other such entity that violates any provision of this chapter may be subject to penalties imposed by the board for licensing healthcare facilities pursuant to § 68-11-207.
§ 68-57-104. Waiver.
-
A hospital, ambulatory surgical treatment center, or other such entity may petition the director of health care facilities of the department for a waiver from this chapter if such entity is unable to employ a sufficient number of surgical technologists who meet the requirements of this chapter. The hospital, ambulatory surgical treatment center, or other such entity must demonstrate to the director that a diligent and thorough effort has been made to employ surgical technologists who meet the requirements of this chapter. The director shall refuse to grant a waiver upon finding that a diligent and thorough effort has not been made. A waiver shall exempt a facility from this chapter for not more than six (6) months. Additional waivers may be granted, but all exemptions greater than twelve (12) consecutive months must be approved by the board.
§ 68-57-105. Scope of practice of surgical technologists.
-
For the purposes of this chapter, “surgical technologist” means one who works under supervision to facilitate the safe and effective conduct of invasive surgical procedures. This individual is usually employed by a hospital, medical office, or surgical center and supervised during the surgical procedure according to institutional policy and procedure to assist in providing a safe operating room environment that maximizes patient safety by performing certain tasks, including, but not limited to:
- (1)
Preparation of the operating room and the sterile field for surgical procedures by preparing sterile supplies, instruments, and equipment using sterile technique;
- (2)
Preparation of the operating room for surgical procedures by ensuring that surgical equipment is functioning properly and safely; and
- (3)
Passing instruments, equipment or supplies to a surgeon, sponging or suctioning an operative site, preparing and cutting suture material, holding retractors, transferring but not administering fluids or drugs, assisting in counting sponges, needles, supplies, and instruments, and performing other similar tasks as directed during a surgical procedure.
Chapter 59 Tennessee Trauma Center Funding Law of 2007
§ 68-59-102. Chapter definitions.
-
As used in this chapter, unless the context otherwise requires:
- (1)
“Advisory council” means the Tennessee trauma care advisory council, formerly known as the trauma task force;
- (2)
“Comprehensive regional pediatric center” means any pediatric inpatient hospital licensed by the commission pursuant to chapter 11, part 2 of this title, and Tenn. Comp. R. & Regs. R. 1200-8-30-.01(4);
- (3)
“Coordinator” means the person designated by the commissioner pursuant to § 68-59-104;
- (4)
“Executive director” means the executive director of the health facilities commission;
- (5)
“Health facilities commission” or “commission” means the health facilities commission created by § 68-11-1604;
- (6)
“Trauma center” means any Level I, Level II, Level III or Level IV institution licensed by the commission pursuant to chapter 11, part 2 of this title;
- (7)
“Trauma patient” means a patient who is on the state trauma registry or the National Trauma Registry of the American College of Surgeons;
- (8)
“Trauma service codes” means a subset of the ICD-10-CM diagnosis codes, or the most relevant versions of the International Classification of Diseases and Related Health Problems (ICD) required by the centers for medicare and medicaid services, for coding hospital discharges designated as trauma service codes by the American College of Surgeons committee on trauma;
- (9)
“Trauma system” means:
- (A)
All designated Level I, II, III, IV trauma centers;
- (B)
All designated comprehensive regional pediatric centers; and
- (C)
All other acute care hospitals that provide levels of treatment for trauma patients that are at least as great as the lowest level provided by a designated trauma center; and
- (10)
“Uncompensated care” means either:
- (A)
Care provided by a facility defined as part of the trauma system to a trauma patient who:
- (i)
Has no medical insurance, including Medicare Part B coverage;
- (ii)
Has no medical coverage for trauma through workers' compensation, automobile insurance, or any third party, including any settlement or judgment resulting from such coverage; and
- (iii)
Has not paid for the trauma care provided by the trauma provider after documented attempts by the provider to collect payment; or
- (B)
The uncompensated cost to the provider for care provided by a facility defined as part of the trauma system to a trauma patient who is covered by TennCare in the event that TennCare payment to the trauma provider does not fully compensate the provider for the actual cost of trauma services rendered.
§ 68-59-103. Annual report — Recommendations for development.
- (a)
The advisory council shall submit an annual report to the health committee of the house of representatives and the health and welfare committee of the senate, including, but not limited to, the incidence and status of traumatic injuries in the state, based on the definitions of trauma patient and trauma services codes provided in § 68-59-102, the administration of the office of the coordinator, and recommendations for improving the collection and distribution of funds designated for trauma centers, comprehensive regional pediatric centers, and other acute care hospitals functioning as a part of the trauma system as defined under § 68-59-102.
- (b)
The advisory council shall evaluate and recommend criteria concerning the development of the state trauma system and trauma centers.
§ 68-59-104. Development of recommendations.
-
The trauma care advisory council shall be responsible for the development of recommendations to the executive director for payment of any available trauma system funds based on the following principles:
- (1)
Designated trauma centers of all levels and comprehensive regional pediatric centers shall be recommended to receive a grant or payment based upon the documented costs associated with maintaining required standards for designation;
- (2)
Uncompensated care costs associated with trauma patients and the trauma service codes shall be the basis for recommended payments made to designated trauma centers and comprehensive regional pediatric centers and to other acute care hospitals functioning as a part of the trauma system;
- (3)
Payments related to uncompensated care costs shall be made on a proportional basis related to actual patient volume and losses incurred; and
- (4)
The readiness costs associated with a documented risk of achieving or losing designation as a designated trauma center of any level shall be recommended if determined appropriate by the advisory council.
§ 68-59-105. General fund reserve.
-
There is established a general fund reserve to be allocated by the general appropriations act, which shall be known as the “trauma system fund,” referred to as the “fund” in this section. From the revenues deposited in the fund, the health facilities commission is authorized to provide funding to eligible hospitals within the trauma center system in accordance with this chapter. In addition to providing funds for the trauma centers, moneys from the fund may be expended to fund other expenditures consistent with this chapter. Any revenues deposited in this reserve shall remain in the reserve until expended for purposes consistent with this chapter, and shall not revert to the general fund on any June 30. Any excess revenues shall not revert on any June 30, but shall remain available for appropriation in subsequent fiscal years. Any appropriation from the reserve shall not revert to the general fund on any June 30, but shall remain available for expenditure in subsequent fiscal years.
Chapter 60 Asthma
§ 68-60-101. Asthma — Study of prevalence and severity — Pilot project.
- (a)
The department of health is directed to study the prevalence and severity of asthma in this state. This study shall include, but not be limited to, an analysis of data from the hospital discharge data system to identify patterns of asthma prevalence in this state and opportunities to improve care quality and health outcomes. In carrying out the requirements of this section, the department is authorized to contract with outside experts, consultants, and other entities as it deems appropriate. Any costs associated with this study shall be provided through existing funding.
- (b)
From its study, the department of health shall determine whether a pilot project in a Tennessee municipality with a high incidence of asthma should be developed. The goal of the pilot project shall be the reduction of asthma and asthma-related illnesses in the municipality and shall include accessibility and compliance with medication protocols.
Safety (Chapters 101-143)
Chapter 101 Miscellaneous Safety and Environmental Regulations
§ 68-101-101. Storage of gunpowder or other explosives.
- (a)
The corporate authorities of every city and incorporated town may, from time to time, designate some suitable place, at such distance from the limits of the corporation as may be deemed safe, to build magazines for the storage and safekeeping of gunpowder or other explosive materials, which order shall be entered on the corporation records.
- (b)
They may also prescribe the rules, regulations, and restrictions under which explosive materials shall be kept stored, and the mode in which the magazines or storehouses shall be constructed and maintained so as, in their opinion, best secures the community from danger.
§ 68-101-102. Public theatrical buildings.
- (a)
It is the duty of the corporate authorities of any city or town, in which there is located any public hall for theatrical purposes, or other house kept open for public entertainment, thoroughly to examine the same, and ascertain if such buildings are provided with all the necessary safeguards against accident by fire or panic, including suitable appliances for the prompt extinguishment of fires, and sufficient passages, inlets and outlets to the building.
- (b)
Whenever, in the opinion of the corporate authorities, any building in use, or that may be erected, is deficient in any particular deemed essential to the preservation of life or property, it is the duty of the authorities to require the owners or proprietors of the buildings to make such alterations as will be promotive of the public safety.
- (c)
It is the duty of all persons proposing to erect such buildings first to submit to the proper municipal authorities the plan and specifications of the proposed structure.
- (d)
If, in the opinion of the authorities, the same shall be considered dangerous, it shall be lawful for the authorities to withhold a permit for the erection of the building until the proper precautionary measures shall have been adopted.
- (e)
Any owner or proprietor of any theater or other public building used for public entertainment, who fails or refuses to make the necessary alterations in the building, or who fails to provide the proper protection against fire or panic, after having been duly notified so to do, in writing, shall forfeit such owner's or proprietor's license, and it shall be lawful for the corporate authorities to close the house until the law shall have been observed.
§ 68-101-103. Parking garages and bus terminals.
- (a)
It is lawful to construct and maintain a public storage garage for automobiles and other motor vehicles as part of any building used or occupied for habitational purposes, including the basement or cellar thereof; provided, that there is compliance with the following requirements, that:
- (1)
All parts of such buildings used or occupied for habitational purposes adjacent to the portion of such building constructed, maintained or used as a public storage garage, and for a height of three (3) stories above the same, are fireproof in construction;
- (2)
The portion of such building constructed, maintained or used as a public storage garage be separated from the remainder of such building by a fireproof wall, partitions and/or floors;
- (3)
Any opening in walls forming such separation be protected by approved fusible-link fireproof doors and all outside openings be of approved automatic-closing fusible-link fireproof shutters;
- (4)
The walls, ceilings and floors in such portion of such building constructed, maintained or used as a public storage garage be fireproof in construction;
- (5)
The portion of such building constructed, maintained or used as a public storage garage be equipped and maintained with an approved automatic sprinkler system with an approved automatic reverse sprinkler installation which would permit sprays to play against the ceiling of that portion of such building constructed, maintained or used as a public storage garage, such sprinkler system to be directly connected with a private water supply system having a storage capacity of at least five thousand (5,000) gallons, and to be cross connected with the city water supply system, the valves controlling such connection to be outside of such portion of the building constructed, maintained or used as a public storage garage, and such sprinkler system to be further directly connected from the outside of that portion of the building constructed, maintained or used as a public storage garage either on street or alley sides, with standard fire hose connections as used in the city where such building is located so that the sprinkler system can be directly connected with the fire engine pumps;
- (6)
All openings in such portion of such building constructed, maintained or used as a public storage garage be equipped with slotted openings connected with the sprinkler system which would permit a curtain of water to play on the inside of such openings in case of fire;
- (7)
The entrance for automobiles into such portion of such building constructed, maintained or used as a public storage garage be from the outside either from the street or a public alley and not through the remainder of such building, and that the entrance doors be of approved fireproof construction; and
- (8)
Such portion of such building constructed, maintained or used as a public storage garage shall be used only for the storage of automobiles and other motor vehicles and for the washing thereof, but shall not be used to operate or maintain a motor vehicle repair shop, to vulcanize tires or to store or dispense gasoline or oil or other volatile and inflammable fluid.
- (b)
It is lawful to construct and maintain a terminal station for automobile buses engaged in the transportation of passengers as part of any building used or occupied for habitational purposes; provided, that where such terminal station for automobile buses is used solely for the ingress and egress of automobile buses for unloading and loading of passengers and is not used for the storage of such buses, this section shall not apply to the construction and maintenance of such terminal station for such automobile buses.
- (c)
Nothing in this section shall abrogate, limit, abridge or restrict or be construed to abrogate, limit, abridge or restrict the powers, duties, and rights conferred by statutes on the cities, towns and taxing districts of the state, or inherent in municipalities under the common law and the police power.
§ 68-101-104. Electric safety code for electric-supply stations and lines — Standards for equipment that delivers electricity to power distribution grid — Inspection — Disconnecting safety mechanisms.
- (a)
The American National Standard Electrical Safety Code, edition dated August 1, 2016, prepared and published by the Institute of Electrical and Electronics Engineers, Inc., 445 Hoes Lane, Piscataway, NJ 08854 or www.ieee.org, is adopted by the general assembly for application for all processes within the state of Tennessee as the official electrical safety code, to provide a standard for safeguarding of persons from hazards arising from the installation, operation, or maintenance of:
- (1)
Conductors and equipment in electric-supply stations; and
- (2)
Overhead and underground electric-supply and communication lines, and work rules for the construction, maintenance, and operation of electric-supply and communication lines and equipment, and the provisions of such National Electrical Safety Code are adopted herein by reference and shall not be copied in the codified sections or provisions of the Tennessee Code.
- (b)
Future revisions or additions to the National Electrical Safety Code as may be adopted, deleted, revised or changed by the Institute of Electrical and Electronics Engineers, Inc., may be adopted, deleted, revised, or amended by the general assembly as and when the general assembly may elect to adopt any such revisions, additions, deletions, modifications or changes in the National Electrical Safety Code.
- (c)
A copy of the American National Standard Electrical Safety Code edition dated August 1, 2016, is available for viewing by the public at the office of the electrical inspection section in the department of commerce and insurance in the Davy Crockett Tower, 500 James Robertson Parkway, Nashville, Tennessee, during regular state office hours.
- (d)
Any person, as defined in § 65-25-102, installing, operating, or otherwise using equipment that delivers electricity to the point of interconnection with a power distribution grid, long-distance power transmission grid, or other facility by and through which the electricity is distributed or transmitted to one (1) or more customers must comply with all relevant national standards, including those established by the Institute of Electrical and Electronic Engineers, Underwriters Laboratories, and the National Electrical Safety Code.
- (e)
Any equipment that delivers electricity to the point of interconnection with a power distribution grid, long-distance power transmission grid, or other facility by and through which the electricity is distributed or transmitted to one (1) or more customers is subject to the inspection of a state-certified electrical inspector.
- (f)
Any person, as defined in § 65-25-102, installing, operating, or otherwise using equipment that delivers electricity to the point of interconnection with a power distribution grid, long-distance power transmission grid, or other facility by and through which the electricity is distributed or transmitted to one (1) or more customers shall:
- (1)
Install:
- (A)
A manually operating and visible load-breaking disconnect switch on the exterior of the property between the equipment that delivers electricity to the point of interconnection with a power distribution grid, long-distance power transmission grid, or other facility by and through which the electricity is distributed or transmitted to one (1) or more customers that is readily accessible to and may be locked by the applicable non-consumer owned electric system, as defined in § 65-34-102, or public electric system, as defined in § 65-34-102; or
- (B)
Other disconnecting safety mechanisms approved by the applicable non-consumer owned electric system, as defined in § 65-34-102, or public electric system, as defined in § 65-34-102; and
- (2)
Notify the applicable non-consumer owned electric system, as defined in § 65-34-102, or public electric system, as defined in § 65-34-102, prior to interconnection with a power distribution grid, long-distance power transmission grid, or other facility by and through which electricity is transmitted to one (1) or more customers so that the applicable non-consumer owned electric system or public electric system may be present for testing that verifies that all disconnects are fully functional and in proper working order.
- (g)
Any non-consumer owned electric system, as defined in § 65-34-102, or public electric system, as defined in § 65-34-102, is not liable for fines, penalties, injuries, or damages arising out of any person's, as defined in § 65-25-102, installation, operation, or use of equipment that delivers electricity to the point of interconnection with a power distribution grid, long-distance power transmission grid, or other facility by and through which the electricity is distributed or transmitted to one (1) or more customers.
- (h)
Copies of the standards of the Institute of Electrical and Electronic Engineers and the National Electrical Safety Code are available for viewing by the public at the office of the electrical inspection section in the department of commerce and insurance during regular state office hours.
§ 68-101-105. Gas storage tanks near railroad track prohibited — Exceptions.
- (a)
It is unlawful for any person, firm, corporation, association or governmental agency to construct or cause to be constructed any liquefied petroleum gas, flammable gas or nonflammable compressed gas storage tank within two hundred feet (200′) of any main line railroad track classified by the federal railroad administration as either Class III, IV, or V, and that has a speed limit of over thirty miles per hour (30 mph).
- (b)
This section does not apply to:
- (1)
Intra- or inter-plant trackage owned or leased by private manufacturing operations;
- (2)
Railroad service tanks;
- (3)
Storage tank facilities or sites in existence prior to July 1, 1980;
- (4)
Storage tanks with a capacity of two thousand gallons (2,000 gal.) or less; or
- (5)
Railroad yards.
§ 68-101-106. Antenna installation and removal.
- (a)
As used in this section, unless the context otherwise requires:
- (1)
“Antenna” means any tower, wire, pole, circuit, rod, tubing, equipment or instrument that transmits or receives data or information by means of electromagnetic waves or impulses of any kind whatsoever;
- (2)
“Code” means any of the following:
- (A)
The National Electrical Code, as amended, and adopted by the National Fire Protection Association, Boston, Massachusetts and as in effect on April 27, 1981; or
- (B)
The National Electrical Safety Code, as incorporated by reference in § 68-101-104;
- (3)
“Electrical contact” means the transmission of electric current, other than through or into an electrical device or electrical appliance in accordance with the design and intended use of that electrical device or electrical appliance;
- (4)
“Electrical device” means any wire, line, cable, pole, conduit, switch, transformer or other equipment or accessory used for or in connection with the transmission of electricity or electrical energy, but does not include any electrical power line, wire or cable located within the structure of any building. “Electrical device” does not include any service drop line that a person fails to maintain in accordance with the requirements of the code; and
- (5)
“Person” means any individual, firm, partnership, trust, association, joint venture, corporation or other business organization, or any like entity, or any agency, unit, or instrumentality of any government, including any publicly owned corporation or utility.
- (b)
It is unlawful for any person, while causing or aiding in the installation or removal of any antenna, to engage in any activity as a result of which an antenna comes into electrical contact with any electrical device constructed or erected in compliance with the code, except by the express permission of the person by whom the electrical device is owned or operated, which permission shall not be unreasonably withheld.
- (c)
This section shall be supplemental to and shall not supersede any building code or permit requirement of any state agency, municipality, or county, or the more stringent requirement of any statute.
§ 68-101-107. Sale of metal beverage containers with detachable opening devices prohibited — Exceptions.
- (a)
For the purpose of this section, “beverage” means drinks in liquid form intended for human consumption.
- (b)
No person shall sell or offer for sale any metal beverage container so designed and constructed that a part of the container is detachable in opening the container.
- (c)
Nothing in this section shall prohibit the sale of fruit juices, fruit-ade and vegetable juices in containers the only detachable part of which is a piece of nonmetallic tape.
- (d)
Nothing in this section shall prohibit the sale of metal beverage containers with detachable opening devices for milk-based products, soy-based products or similar products, which require heat and pressure in the canning process.
§ 68-101-108. Limitations on release of balloons into the atmosphere — Exemptions.
- (a)
No person, including an officer or employee of this state or any political subdivision of the state, shall knowingly release into the atmosphere more than twenty-five (25) balloons that are:
- (1)
- (A)
Made of a nonbiodegradable material; or
- (B)
Made of a biodegradable material that requires more than several minutes of contact with air or water to degrade; and
- (2)
Filled with helium or another substance that causes the balloons to rise or float in the atmosphere.
- (b)
Any person violating subsection (a) is subject to a civil penalty of two hundred fifty dollars ($250). Each balloon released in a single day, in excess of the limit imposed in subsection (a), constitutes a separate violation.
- (c)
This section does not apply to weather balloons that are used for the purpose of carrying scientific instruments during the performance of an experiment or testing procedure.
- (d)
This section does not apply to any county having a population, according to the 1980 federal census or any subsequent federal census, of:
-
-
24,60024,700
-
28,50028,560
-
28,69028,750
-
49,27549,375
-
51,02551,125
-
58,07558,175
-
770,000780,000
-
§ 68-101-109. Labeling of plastic containers.
- (a)
As used in this section, unless the context otherwise requires:
- (1)
“Container,” unless otherwise specified, refers to “rigid plastic container” or “plastic bottle,” as those terms are defined in this section;
- (2)
“Department” means the department of environment and conservation;
- (3)
“Label” means a molded, imprinted or raised symbol on or near the bottom of a plastic container or bottle;
- (4)
“Person” means an individual, sole proprietor, partnership, association, corporation or other legal entity;
- (5)
“Plastic” means any material made of polymeric organic compounds and additives that can be shaped by flow;
- (6)
“Plastic bottle” means a plastic container that has a neck that is smaller than the body of the container, accepts a screw-type, snap cap or other closure and has a capacity of sixteen fluid ounces (16 fl. oz.) or more, but less than five gallons (5 gal.); and
- (7)
“Rigid plastic container” means any formed or molded container, other than a bottle, intended for single use, composed predominantly of plastic resin, and having a relatively inflexible finite shape or form with a capacity of eight ounces (8 oz.) or more but less than five gallons (5 gal.).
- (b)
- (1)
This section and any rules or regulations adopted under this section shall be interpreted to conform with nationwide plastics industry standards.
- (2)
No person shall distribute, sell or offer for sale in this state any plastic bottle or rigid plastic container, unless such container is labeled with a code identifying the appropriate resin type used to produce the structure of the container. The code shall consist of a number placed within three (3) triangulated arrows and letters placed below the triangle of arrows. The triangulated arrows shall be equilateral, formed by three (3) arrows with the apex of each point of the triangle at the midpoint of each arrow, rounded with a short radius. The pointer or arrowhead of each arrow shall be at the midpoint of each side of the triangle with a short gap separating the pointer from the base of the adjacent arrow. The triangle, formed by the three (3) arrows curved at their midpoints shall depict a clockwise path around the code number. The numbers and letters used shall be as follows:
-
1. = PETE (polyethylene terephthalate)
-
2. = HDPE (high density polyethylene)
-
3. = V (vinyl)
-
4. = LDPE (low density polyethylene)
-
5. = PP (polypropylene)
-
6. = PS (polystyrene)
-
7. = OTHER
- (3)
The department shall maintain a list of the label codes provided in subdivision (b)(2) and shall provide a copy of that list to any person upon request.
- (c)
After being notified by the department that plastic containers were distributed, sold or offered for sale in this state not in compliance with subsection (b), a person who, after receiving such notification from the department, distributes, sells or offers for sale in this state plastic containers that are not in compliance with the notification, is subject to a civil penalty of fifty dollars ($50.00) for violating such notification, and may be enjoined from such violations.
Chapter 102 Fire Prevention and Investigation
Part 1 General Provisions
§ 68-102-102. Specific duties of commissioner of commerce and insurance.
-
It is the duty of the commissioner of commerce and insurance, or the commissioner's deputies or assistants, to enforce the laws and this chapter in the counties, relating to the:
- (1)
Prevention of fires;
- (2)
Storage, sale and use of combustibles and explosives;
- (3)
Installation and maintenance of automatic or other fire alarm systems and fire extinguishing equipment;
- (4)
Construction, maintenance and regulation of fire escapes; and
- (5)
Means and adequacy of exit, in case of fire, from factories, asylums, hospitals, churches, schools, halls, theaters, amphitheaters, and all other places in which numbers of persons live, work or congregate, from time to time, for any purpose or purposes.
§ 68-102-104. Deputies — Appointment — Salaries.
-
The commissioner of commerce and insurance is authorized to appoint such deputy marshals as the commissioner deems necessary to enforce this chapter, and shall fix their salaries with the approval of the commissioner of human resources.
§ 68-102-108. Assistants to commissioner of commerce and insurance.
- (a)
The commissioner shall be aided in the performance of the commissioner's duties under this chapter by assistants designated in this section. Such assistants shall be subject to the duties and obligations imposed by this chapter, and shall be subject to the directions of the commissioner in the execution of those duties and obligations.
- (b)
The following persons shall be assistants to the commissioner:
- (1)
In an incorporated city or place having both a fire marshal and a fire department, either the fire marshal or the chief of the fire department, whomever such city or place appoints;
- (2)
In an incorporated city or place having either a fire marshal or a fire department, but not both, such fire marshal or the chief of such fire department;
- (3)
The chief of every private fire company organized within a municipality pursuant to title 7, chapter 38;
- (4)
The mayor of each incorporated place having no fire marshal, fire department, or private fire company;
- (5)
Within the bounds of any county, but outside any municipality contained in the county, the chief of any county-wide fire department authorized by title 5, chapter 17;
- (6)
Within the bounds of any county, but outside any municipality contained in the county, the chief of any incorporated fire department whose geographic fire response district has been established and approved by the county mayor of such county; and
- (7)
In an incorporated city or other place that has no fire marshal, a fire marshal from another local government.
- (c)
Every person who is or becomes an assistant pursuant to this section shall, within thirty (30) days after obtaining that status, submit to the commissioner the person's name, address and adequate documentation to establish the person's claim of office. Upon receipt of such information, the commissioner shall issue to the officer a certificate that evidences the officer's status as an assistant. On or after June 20, 2006, and within one (1) year from the date of the certificate, the assistant must complete a sixteen-hour course presented by the Tennessee fire service and codes enforcement academy. The Tennessee fire service and codes enforcement academy shall instruct new assistants on fire incident reporting, fire cause determination, legal requirements for fire chiefs, basic management skills, fire service agencies and associations, and fire service requirements in the state of Tennessee. The recipient shall surrender the certificate to the commissioner within ten (10) days after vacating the office by virtue of which this section designates such person as an assistant.
§ 68-102-109. Assistant appointed — Removal of subordinate officers.
- (a)
If there is no officer as provided for in § 68-102-108 in any city or place, or in case such officer declines to serve, the commissioner may appoint an assistant instead.
- (b)
All subordinate officers working under the commissioner, including the commissioner's deputies and assistants, may be removed for cause, and their successors appointed by the commissioner.
§ 68-102-110. Instructions and forms to be furnished to assistants.
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The commissioner of commerce and insurance shall prepare instructions to the assistants designated in this chapter and forms for their use in the reports required by this chapter and cause them to be printed and sent, together with a copy of this chapter, to each such officer located within the state.
§ 68-102-111. Assistants to investigate every fire — Reports — Demolition of structures beyond repair.
- (a)
The assistants to the commissioner, as provided in §§ 68-102-101 — 68-102-110, shall investigate the cause, origin, and circumstance of every fire occurring in any city or place in this state by which property has been destroyed or damaged, and so far as it is possible, determine whether the fire was the result of carelessness or design. The investigation shall be begun immediately upon the occurrence of the fire by the assistant in whose territory the fire has occurred, and if it appears to the officer making the investigation that the fire is of suspicious origin, the commissioner shall be immediately notified of the fact. Every fire so occurring shall be reported, in writing, to the commissioner, within ten (10) days after the occurrence of the fire, by the officer so designated, in whose jurisdiction the fire has occurred. The report shall be in the form prescribed by the commissioner and shall contain a statement of all facts relating to the cause and origin of the fire that can be ascertained, the extent of damages and the amount of insurance on the property, and such other information as may be required. A person or entity that reports information in accordance with this section is immune from civil liability for reporting such information; provided, that the person or entity acted in good faith and without malice.
- (b)
Whenever any assistant determines, in the course of an investigation required by subsection (a), that a building or other structure has been damaged so extensively that repair is not a feasible alternative, the assistant shall order the remains of the building or structure demolished, materials removed, and all dangerous conditions remedied. The order shall be delivered with written notice to the person responsible for the building or structure and shall state that the person must comply with the order within six (6) months or, if an insurance claim is pending on such building or structure, then the person must comply with the order within six (6) months after settlement of such claim. The person responsible for the building or structure may appeal the order, for which purpose §§ 68-102-118 — 68-102-120 shall apply. If the person fails to comply with the order, or with the modified order if applicable, the assistant shall cause the building or structure to be demolished, materials removed and all dangerous conditions remedied, the expense to be borne by the person. Should the person fail or neglect to repay the expenses within thirty (30) days after all dangerous conditions are so remedied, §§ 68-102-122 — 68-102-125 shall apply.
- (c)
For purposes of subsection (b) only, “assistant” means:
- (1)
Within the boundaries of an incorporated place, a person appointed under the authority of § 68-102-108 or § 68-102-109; or
- (2)
Outside the boundaries of an incorporated place but within a county, a person appointed by the legislative body of the county, under the authority hereby extended, to perform the duties established by subsection (b). Any such legislative body that so appoints a person may fix the person's rate of compensation, which shall be paid from the county general fund.
§ 68-102-113. Regulations of state fire marshal — Subjects covered — Penalties.
- (a)
The state fire marshal shall make regulations consistent with statutory provisions for safeguarding to a reasonable degree of life and property from the hazards of fire and explosion arising from the storage, handling and use of hazardous substances, materials and devices, and from conditions hazardous to life or property in the use of buildings, structures or premises.
- (b)
All regulations of the state fire marshal shall be indexed and published, kept up to date, and made available for either sale or public inspection; however, published nationally recognized codes approved by the parent code groups, published amendments to nationally recognized codes approved by the parent code groups and published lists of acceptable materials and items tested and approved by a nationally recognized testing agency or laboratory are exempt from this provision.
- (c)
- (1)
The regulations shall specifically govern the following: automobile tire rebuilding plants, automobile wrecking yards, junk yards and waste material handling plants; bowling establishments; cellulose nitrate motion picture film; cellulose nitrate plastics (pyroxylin); combustible fibers; compressed gases; dry cleaning plants; prevention of dust explosions; maintenance of exit ways; explosives, ammunition and blasting agents; fireworks; fire protection equipment; application of flammable finishes; flammable and combustible liquids; fruit ripening processes; fumigation and thermal insecticidal fogging; garages; hazardous chemicals; liquefied petroleum gases; lumber yards and woodworking plants; magnesium; oil burning equipment; manufacture of organic coatings; ovens and furnaces; places of assembly; general precautions against fire; tents; welding or cutting, acetylene generators and calcium carbide.
- (2)
Notwithstanding any rule or regulation adopted by the state fire marshal, pursuant to this section, the delivery nozzles for dispensing class I liquids at self-service gas stations may contain latch-open devices.
- (d)
The regulations shall also govern:
- (1)
The materials, installation and use of facilities, equipment, devices and appliances conducting, conveying, consuming and using electrical energy or gas (natural, artificial or liquid petroleum) in, or in connection with, any building, structure or on any premises located in this state;
- (2)
The material, design and construction of chimneys, flues and vents in any building or structure located in this state; and
- (3)
The number, type, design, capacity and location of fire extinguishers and fire extinguishing systems in buildings, structures, on vehicles or in other places where required for safety.
- (e)
In the making of such regulations, the state fire marshal may accept or adopt as required minimum standards for such installation, materials, facilities, equipment, devices, appliances, safety measures and methods of handling, the standards recommended by any recognized organization or testing laboratory, including the standards of the Southern Building Code Congress, Birmingham, Alabama; the National Fire Codes of the National Fire Protection Association, Boston, Massachusetts; the National Electrical Safety Code, a publication of the National Bureau of Standards, Washington, D.C.; and including lists of materials tested and meeting standards for equipment, devices and appliances and other materials as published by Underwriters' Laboratories, Inc., of Chicago, Illinois; and the American Gas Association, Inc. Laboratories lists of certified appliances and accessories, Cleveland, Ohio; and may make regulations for items not included in the above standards.
- (f)
- (1)
The statewide minimum electrical standard promulgated by the state fire marshal pursuant to the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, shall have precedence over all conflicting local electrical codes in counties or cities having multiple code jurisdictions. In the event of a disputed interpretation of a code section or standard, the ruling of the state fire marshal or the fire marshal's designee shall prevail.
- (2)
Subdivision (f)(1) does not apply to a municipality that conducts its own inspection for compliance with electrical standards.
- (g)
The regulations of the state fire marshal have the force and effect of law, if not in conflict with express statutory provisions, and any person, firm, corporation, association, or syndicate, including architects, contractors, builders, mechanics, electricians or other persons engaged in erecting, installing or otherwise dealing with any of the materials, installations, facilities, equipment, devices or appliances mentioned in this section, who fails to comply with the regulations promulgated as authorized by this section, commits a Class C misdemeanor.
§ 68-102-114. Fire insurance companies to make annual reports of fires — Contents.
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Every fire insurance company transacting business in this state is required to report to the commissioner, through the secretary or other representative of the insurance company, all fire losses on all property insured by such companies within the state, showing the owner and occupant of the premises burned, the date of fire, location, cause of fire, occupancy, amount of insurance, sound value of the property, and the amount of loss paid. The report shall be made to the commissioner annually, on or before February 1, covering the year ending December 31 preceding such report.
§ 68-102-115. Cooperation of insurance companies and authorized fire officials in cases of suspected arson.
- (a)
As used in this section, unless the context otherwise requires:
- (1)
“Authorized agency” means the state fire marshal, or any person acting on the state fire marshal's behalf, or any prosecuting attorney responsible for prosecutions in the county where the fire occurred, or any law enforcement officer responsible for investigating fire losses, and, solely for the purpose of subsection (c), means:
- (A)
The federal bureau of investigation or any other federal agency;
- (B)
The United States attorney's office when involved in an investigation or prosecution involving the fire in question; and
- (C)
The Tennessee bureau of investigation;
- (2)
“Insurance company” means any corporation, partnership, association, person or other legal entity that sells or has sold a contract of insurance, as defined in § 56-7-101, within this state or that is doing business in this state as an insurance company under the requirements of title 56, chapter 2; and
- (3)
“Relevant” means information that proves, or has a tendency to prove or disprove, the existence or nonexistence of any fact that is of consequence to the investigation that suggests future behavior tendencies of a person of interest, including a propensity for violence, that may assist an insurance company in determining a fact or motive of a person of interest, or both.
- (b)
When an insurance company after investigation, has reason to believe that a fire loss in which it has an interest may be of other than accidental cause, then, for the purpose of notification and for having such fire loss investigated, the company shall give written notice to the state fire marshal and to such other authorized agency as it has reason to believe appropriate to expedite the investigation. The written notice shall include, but not be limited to, the name of the owner and the occupant of any building burned, the owner of any personal property burned, the date and location of the fire, and any other facts and circumstances then known to the company that tend to establish the cause or origin of the fire. The report shall be in addition to and not in lieu of any reports that the company may be required to make by any law of the state to the commissioner of commerce and insurance or other state official.
- (c)
Any authorized agency involved in the investigation may request any insurance company investigating a fire loss of real or personal property to release to the requesting agency any relevant information or evidence deemed important to the authorized agency that the company may have in its possession, relating to the fire itself. The company shall release the information and cooperate with any official authorized to request the information pursuant to this section. Relevant information may include, but not be limited to:
- (1)
Pertinent insurance policy information relevant to any fire loss under investigation and any application for the policy;
- (2)
Policy premium payment records that are available;
- (3)
History of previous claims made by the insured for fire loss; and
- (4)
Material relating to the investigation of the loss, including statements of any person, proof of loss, and any other evidence relevant to the investigation.
- (d)
In the absence of malice, no authorized agency, and no insurance company, or person who furnishes information on behalf of either, shall be liable for damages in a civil action or subject to criminal prosecution for any oral or written statement made or any other action taken to supply information pursuant to this section. However, this section applies only to oral and written statements, provided under subsection (c), to the state fire marshal and any other authorized agency.
- (e)
Any authorized agency or insurance company that receives any information furnished pursuant to this section shall hold the information in confidence and not release the information, except as provided in this section, until such time as its release is required pursuant to a criminal or civil proceeding. Any authorized agency, or its personnel, may be required to testify in any litigation in which the insurance company at interest is named as a party.
- (f)
- (1)
Any authorized agency provided with information pursuant to subsection (b) and in furtherance of its own purposes, or at the request of any other authorized agency, may release or provide such information to any other authorized agencies.
- (2)
Any insurance company providing information to an authorized agency or agencies pursuant to subsection (b) may request relevant information obtained in an investigation from such authorized agency and must receive, within a reasonable time, not to exceed thirty (30) days, the information requested. The authorized agency may withhold information deemed sensitive to a non-arson criminal investigation with the approval of the supervising agent. The Tennessee bureau of investigation, however, may withhold any investigative document that the bureau believes would compromise the integrity of a criminal investigation.
- (g)
This section shall not be construed to affect or repeal any ordinance of any municipality relating to fire prevention or the control of arson, but the jurisdiction of the fire marshal and any prosecuting attorney in such municipality is to be concurrent with that of municipal and county authorities. With the exception of subsection (d), all other provisions of this section shall not be construed to impair any existing statutory or common law rights.
- (h)
This section must not be construed to inhibit the investigative rights of any insurance company. An authorized agency involved in an investigation pursuant to this section shall allow the reporting insurance company to concurrently conduct its own, independent investigation without obstruction, in accordance with the direction of and in the presence of the agency.
§ 68-102-116. Inspection of buildings and premises.
-
The commissioner, or the commissioner's deputies or assistants, shall, subject to availability and efficient utilization of time, personnel and resources, inspect buildings or premises within their jurisdiction upon the written complaint of any citizen, or whenever the commissioner, or the commissioner's deputies or assistants, deem it necessary. In the event that the commissioner is unable to make any inspection under this section, the commissioner shall transmit the complaint to the local authorities having jurisdiction.
§ 68-102-117. Buildings inherently dangerous or containing inflammable matter — Dangerous or defective conditions — Removal or remedies — Noncompliance with orders — Penalties.
- (a)
- (1)
When any officer referenced in § 68-102-116 finds any building or other structure that for want of repairs, lack of sufficient fire escapes, automatic or other fire alarm apparatus or fire-extinguishing equipment, or by reason of age or dilapidated condition, or from any other cause, is especially liable to fire, or constitutes any other dangerous or defective conditions, and that is situated so as to endanger life or property, and whenever such officer shall find in any building combustible or explosive matter or inflammable conditions dangerous to the safety of such buildings, the officer shall order the dangerous or defective conditions removed or remedied, and the order shall be immediately complied with by the owner or occupant of such premises or buildings, or by any architect, contractor, builder, mechanic, electrician or other person who shall be found to be responsible for the dangerous or defective conditions. Subdivision (a)(1) applies to any building or other structure that is being erected, constructed or altered, and to any building that has been erected, constructed or altered.
- (2)
- (A)
If compliance with the order is not expedient and does not permanently remedy the condition, after giving written notice, then the officer has the authority to issue a citation for the violation, requiring the person found to be responsible for the dangerous or defective conditions to appear in court at a specified date and time. In issuing a citation, the officer shall:
- (i)
Prepare a written order, which shall include the name and address of the cited person, the name of the officer issuing the citation, the offense charged, the address of the building found to be dangerous or in a defective condition and the time and place of appearance; and
- (ii)
Have the offender sign the original and duplicate copy of the citation.
- (B)
The officer shall deliver one (1) copy to the offender and retain the other.
- (3)
A violation of subdivision (a)(2) is a Class B misdemeanor.
- (4)
If the person cited fails to appear in court on the date and time specified, the court shall issue a bench warrant for the person's arrest.
- (5)
Whenever a citation has been prepared, delivered and filed with the appropriate court, a duplicate copy of the citation constitutes a complaint to which the defendant shall answer. The duplicate copy shall be sworn to by the issuing officer before any person authorized by law to administer oaths.
- (6)
Any person who intentionally, knowingly or willfully fails to appear in court on the date and time specified on the citation, or who knowingly gives a false or assumed name or address, commits a Class C misdemeanor, regardless of the disposition of the charge for which such person was originally cited. Proof that the defendant failed to appear when required constitutes prima facie evidence that the failure to appear is willful.
- (7)
- (A)
Each citation issued pursuant to this section shall have printed on it in large, conspicuous block letters the following:
-
NOTICE: FAILURE TO APPEAR IN COURT ON THE DATE ASSIGNED BY THIS CITATION WILL RESULT IN YOUR ARREST FOR A SEPARATE CRIMINAL OFFENSE, WHICH IS PUNISHABLE BY A JAIL SENTENCE OF UP TO THIRTY (30) DAYS AND/OR A FIFTY DOLLAR ($50.00) FINE.
- (B)
Each person receiving a citation under this section shall sign this citation indicating the knowledge of the notice listed in subdivision (a)(7)(A). The signature of each person creates an inference of knowledge of the notice and inference of intent to violate this section if the person should not appear as required by the citation.
- (b)
In addition to any other remedy available, if an officer finds that the safety and welfare of the public may be threatened, then the officer or district attorney may file a petition for injunction in the appropriate court against any person responsible for the dangerous or defective conditions for the purpose of enjoining any such violation. It is not necessary to allege or prove that there is no adequate remedy at law.
- (c)
If it is found by any person, association or corporation supplying electrical energy or gas (natural, artificial or liquid petroleum) to equipment or installations in any building or structure or on any premises located in this state, or if it is found by any official making an inspection pursuant to this chapter that such facilities or equipment are defective so as to be especially liable to fire or hazard to life and property, or to have been installed in violation of laws or regulations, then such person, association or corporation may discontinue the supplying of such electrical energy or gas until the defective or unlawful conditions have been corrected.
- (d)
A supplier of electrical energy or gas to such installations having defective or unlawful conditions, as defined in this section or enumerated by a written report of any official making an inspection pursuant to this chapter, shall be furnished a copy of any order or orders issued by an official or inspector insofar as such order or orders relate to the supplier, electrical defects to electrical suppliers, and gas defects to gas suppliers. If the defective or unlawful conditions have not been corrected within the thirty-day period, then such suppliers, either electrical or gas, shall discontinue service until the defective or unlawful conditions have been corrected. Any person, firm, association or corporation failing to comply with such notice or order shall be liable to the penalties provided in this chapter.
§ 68-102-118. Appeal from order of deputy or assistant to the commissioner.
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If an order pursuant to § 68-102-117 is made by a deputy or assistant to the commissioner, the owner or occupant may, within twenty-four (24) hours, appeal to the commissioner, who shall, within ten (10) days, review the order and file the commissioner's decision on the appeal, and, unless by the commissioner's authority the order is revoked or modified, the order shall remain in full force and be complied with within the time fixed in the order or decision of the commissioner.
§ 68-102-119. Review of order of commissioner and of judgment of circuit court.
-
Any owner or occupant who feels aggrieved by the order or affirmed order may, within five (5) days after the making or affirming of the order by the commissioner, file a petition for certiorari and supersedeas with the circuit court of the county in which the property is located, praying a review of the order. It is the duty of the court to hear the petition on the first convenient day, and to make the order in the premises as right and justice may require. In case the owner or occupant is not satisfied with the order or judgment of the circuit court, the owner or occupant may file a petition for certiorari and supersedeas in the appellate court to review the order or judgment.
§ 68-102-120. Bond for certiorari and supersedeas.
-
Parties that file a petition for certiorari and supersedeas in the circuit court to review an order shall file with the court a bond in an amount to be fixed by the court, in no case to be less than two hundred fifty dollars ($250), with at least two (2) sufficient sureties, to be approved by the court, conditioned to pay all the costs on the petition for certiorari and supersedeas, in case the appellant fails to sustain the petition, or the petition is dismissed for any cause, together with all damages that may be occasioned on account of the failure of the owner or occupant to comply with the order of the commissioner, in case the order of the commissioner is sustained or the petition dismissed for any cause.
§ 68-102-121. Officer may remedy dangerous conditions at expense of owners.
-
If any party fails to comply with the order as modified on appeal by the court or the commissioner, and within the time fixed by either of them, then the officer is empowered to cause the building or premises to be repaired, torn down, demolished, materials removed and all dangerous conditions remedied, as the case may be, at the expense of the party or parties.
§ 68-102-122. Expense not paid by parties to be certified and paid.
-
If a party fails, neglects, or refuses to repay the officer the expense incurred by the officer within thirty (30) days after the occurrence, the officer may immediately place a lien upon the property for the expenses incurred pursuant to § 68-102-121, together with a twenty-five percent (25%) penalty. The lien shall be a lien on the property, including the real estate on which the property is located, and the lien shall be superior and prior to all other liens on the property, except a lien for taxes assessed and due the state, county and city in which the property is located, and vendors' liens.
§ 68-102-123. State fire permit for mobile food units — Inspection of mobile units — Appeals.
- (a)
As used in this section:
- (1)
“Mobile food unit” means a food service establishment designed to be readily moveable;
- (2)
“NFPA 10” means the National Fire Protection Association publication entitled “Standard for Portable Fire Extinguishers,” 2022 edition or a subsequent edition that has been adopted by the state fire marshal by rule; and
- (3)
“NFPA 96” means the National Fire Protection Association publication entitled “Standard for Ventilation Control and Fire Protection of Commercial Cooking Operations,” 2021 edition or a subsequent edition that has been adopted by the state fire marshal by rule.
- (b)
The state fire marshal shall create a state fire permit that mobile food units may obtain annually to demonstrate fire safety and electrical code compliance to local governments.
- (c)
A local government shall recognize the state fire permit in its jurisdiction and shall not require a mobile food unit with a state fire permit to hold a local fire permit or pass a local fire inspection.
- (d)
The state fire marshal may charge a reasonable fee for the permit.
- (e)
The state fire marshal shall issue a state fire permit if a mobile food unit meets the following standards, as applicable:
- (1)
Cooking equipment that produces grease-laden vapors that may be a source of ignition of grease in the hood, grease removal device, or duct area protected with fire-extinguishing equipment in accordance with NFPA 96, or portable fire extinguishers are selected and installed in kitchen areas and comply with the NFPA 10, as adopted by reference by the state fire marshal;
- (2)
The fire extinguishing systems, exhaust hoods, and exhaust systems have been regularly maintained at least every six (6) months in accordance with NFPA 96;
- (3)
The exhaust system is not contaminated with deposits of grease-laden vapors exceeding the amount permitted by NFPA 96;
- (4)
Records for commercial kitchen hood cleanings are maintained in accordance with the International Fire Code, as adopted by the state fire marshal;
- (5)
Solid fuel cooking appliances are protected by listed fire extinguishing equipment and comply with NFPA 96;
- (6)
All electrical appliances, equipment, and wiring comply with the National Electric Code, as adopted by the state fire marshal; and
- (7)
The main shutoff valve of each gas container is readily accessible, so that no fire hazards or defects have developed after the initial inspection.
- (f)
The state fire marshal may inspect a mobile food unit once per calendar year to ensure compliance with the standards set forth in subsection (e). The state fire marshal shall provide written notice to the mobile food unit of code violations identified in the mobile food unit and order the unit to correct the violations within a thirty-day period following the issuance of the notice. If the code violations have not been corrected within the thirty-day period, then such unit shall discontinue service until the violations have been corrected. The state fire marshal or a local government that has obtained the exemption authorized by § 68-120-101(b)(2) may conduct additional inspections if necessary to address code violations or an observation of unlawful conditions in violation of the standards in subsection (e). A mobile food unit failing to comply with such order is liable for the penalties provided in this chapter.
- (g)
A mobile food unit may appeal an order to the commissioner. The mobile food unit may, within forty-eight (48) hours of receipt of the order, appeal to the commissioner, who shall, within ten (10) days, review the order and file the commissioner's decision on the appeal, and, unless by the commissioner's authority the order is revoked or modified, the order must remain in full force and be complied with within the time fixed in the order or decision of the commissioner.
- (h)
A mobile food unit aggrieved by the order or affirmed order under subsection (g) of this section may, within five (5) days after the making or affirming of the order by the commissioner, file a petition for certiorari and supersedeas with the circuit court of the county in which the mobile food unit is located, praying for a review of the order. The court shall hear the petition as soon as practicable and issue an order or judgment as right and justice may require. A mobile food unit aggrieved by the order or judgment of the circuit court may file a petition for certiorari and supersedeas in the appellate court to review the order or judgment.
- (i)
This section does not:
- (1)
Prevent a local government from requiring a mobile food unit that does not hold a state fire permit to submit to local fire inspections and to obtain local fire permits; or
- (2)
Require a mobile food unit to obtain a state fire permit.
§ 68-102-125. Registration of order to make lien effective.
- (a)
In order to make the lien against the property valid and binding, the officer, officer's assistant, or other person entitled to assert the lien shall immediately upon serving the order provided in § 68-102-117, upon any party or parties, including any lienholders of record, file a copy of the order in the register's office in the county in which the property is located and cause the copy of the order to be registered.
- (b)
For the registration of the order, the register of any county shall receive a fee authorized for the recording of the documents, such fee to be added to the cost and expense of executing the order.
- (c)
The copy of the order shall be filed in the register's office of the county in which the property is located, before or at any time the order is served upon the owner or occupant of the premises, and the order when so filed shall be notice to all parties.
§ 68-102-126. Penalty for failure to comply with order.
- (a)
Any owner or occupant failing to comply with an order pursuant to § 68-102-117 within thirty (30) days after the order has been made final commits a Class C misdemeanor for each day's neglect thereafter. An action may be brought in any court having jurisdiction, including the court of general sessions of the county in which the property is located, in the name of the state of Tennessee, upon the relation of the commissioner of commerce and insurance.
- (b)
If defective or unlawful conditions, as defined in § 68-102-117 have resulted from the failure of any architect, contractor, builder, mechanic, electrician or other person to comply with the requirements of laws and regulations relating to the installation of facilities, appliances and equipment for the use of electrical energy or gas (natural, artificial or liquid petroleum) in any building, structure or on premises located in this state, then the architect, contractor, builder, mechanic, electrician or other person shall be required to comply with any order or orders issued by an officer or inspector insofar as the order or orders may relate to the failure. Upon failure to comply with the order or orders within thirty (30) days, the architect, builder, contractor, mechanic, electrician or other person commits a Class C misdemeanor.
§ 68-102-127. Police powers of commissioner and deputies and municipal fire investigators.
- (a)
The commissioner of commerce and insurance and the commissioner's deputies have police powers and have the right to make arrests when necessary to preserve the law in this department, and may, in addition to investigations made by any of the commissioner's assistants, at any time make further investigations as to the origin or circumstances of any fire occurring in this state, by the appointment of special assistants or the employment of other means necessary in the commissioner's discretion.
- (b)
Municipal fire investigators who have been authorized by the chief of the municipal fire department or the director of fire services to conduct investigations relative to the cause and origin of fires and/or arson investigations shall also have police powers and shall have the right to make arrests when necessary to preserve the laws of this state or their respective municipalities relative to cases of arson or suspected arson.
- (c)
Salaried county fire investigators who have been authorized by the chief of the county-wide fire department or the director of fire services to conduct investigations relative to the cause and origin of fires or arson investigations have police powers and have the right to make arrests when necessary to preserve the laws of this state or their respective jurisdiction relative to cases of arson or suspected arson.
§ 68-102-128. Power to summon and swear witnesses — False swearing as perjury.
-
The commissioner, the commissioner's deputies and assistants, including full-time arson investigators, have the power to summon witnesses and to compel them to attend before them, or either of them, and to testify under oath in relation to any matter that is by this chapter a subject of inquiry and investigation, and may require the production of any book, paper, document or other matter whatsoever deemed pertinent or necessary to the inquiry. They also have the power to administer oaths and affirmations to any person appearing as a witness before them, and false swearing in any matter shall be deemed perjury, and shall be punishable as such.
§ 68-102-129. If crime suspected, testimony and other facts presented to district attorney general.
-
If, after examination of witnesses or any investigation, the commissioner, or any of the commissioner's deputies or assistants, is of the opinion that the facts in relation to a fire indicate that a crime has been committed, the commissioner shall present the testimony taken on examination, together with any other data in the commissioner's possession, to the district attorney general of the county in which the crime has been committed, and the district attorney general shall call especially to the attention of the grand jury such testimony, and if the facts warrant an indictment, no prosecutor shall be required.
§ 68-102-131. Fees of witnesses and officers.
-
Every person, summoned and testifying before the commissioner, the commissioner's deputies or assistants, shall receive from the funds for the maintenance of the department, on the certificate of the commissioner, for witness fees and mileage, such sum or sums as provided for witnesses testifying in the circuit courts of this state, and officers serving subpoenas and rendering other services to the commissioner shall be paid as for like services in such courts.
§ 68-102-132. Record of fires kept — Open to public — Information may be withheld.
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The commissioner shall keep in the commissioner's office a record of all fires occurring in this state and of all the facts concerning the fires occurring in the state, including statistics as to the extent of the fires and the damage caused by the fires, and whether such losses were covered by insurance, and, if so, in what amount. Such records shall be made daily from the reports made to the commissioner by the commissioner's assistants under this chapter. All such records shall be public, except any information secured in an investigation under this chapter, which the commissioner, in the commissioner's discretion, may withhold from the public.
§ 68-102-133. Report of commissioner — Amendment of laws.
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The commissioner shall, annually, on or before February 15, transmit to the governor a full report of the commissioner's proceedings under this chapter, and such statistics as the commissioner may wish to include in the report, for the year previous. The commissioner shall also recommend any amendments to the law that, in the commissioner's judgment, are deemed advisable. The report of the commissioner shall include a full and complete report of all collections made and all expenditures and for what purposes they were made and to whom paid.
§ 68-102-134. Acts of witness punishable as for contempt of court.
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Any witness who refuses to obey a summons of the commissioner, or the commissioner's deputies or assistants, or who refuses to be sworn or testify, or who disobeys any lawful order of the commissioner, or the commissioner's deputies or assistants, in relation to any investigation instituted by the commissioner or such deputies or assistants, or who fails or refuses to produce any book, paper or document, or other matter touching any matter under investigation or examination, or who is guilty of any contemptuous act, after being summoned to appear before either of them, to give testimony in relation to any matter under examination or investigation, may be punished as for contempt of court, and for this purpose application may be made to any court of record within whose jurisdiction the contempt in question took place, and for which purpose the courts are given jurisdiction.
§ 68-102-137. Public and private schools — Institutions — Fire drills — Doors to be kept unlocked — Safety drills.
- (a)
It is the duty of the commissioner, or the commissioner's deputies and assistants, to require fire drills in educational and institutional occupancies.
- (b)
Fire drills requiring full evacuation in educational occupancies where such occupancies constitute the major occupancy of a building shall be held at least one (1) time every thirty (30) school days, with two (2) fire drills occurring during the first thirty (30) full days of the school year. Additionally, four (4) fire safety educational announcements will be conducted throughout the year. The LEA will develop the content of the educational announcements. Fire drills requiring full evacuation shall be held at least once every two (2) months in institutional occupancies where such occupancies constitute the major occupancy of a building. A record of all fire drills, including the time and date, shall be kept in the respective school or institutional offices, and shall be made available upon request to the state fire marshal, or the state fire marshal's deputies or assistants, for inspection and review.
- (c)
In educational occupancies, fire drills shall include complete evacuation of all persons from the building. In institutional occupancies, fire drills shall be conducted to familiarize operating personnel with their assigned position of emergency duty. Complete evacuation of occupants from the building at the time of the fire drill shall be required only where it is practicable and does not involve moving or disturbing persons under medical care.
- (d)
The state fire marshal, or the state fire marshal's deputies and assistants, shall avail themselves for the training of owners, tenants or their employees in methods of fire drills, to ensure the efficient and safe use of exit facilities in buildings and to prevent panic and in the coordination of the drills with fire alarm systems.
- (e)
All doors serving as an exit shall be kept unlocked during the periods that a building is occupied.
- (f)
In addition to the fire drills required by this section in educational occupancies, safety drills not requiring full evacuation of all persons from the building shall be conducted at least three (3) times during each school year. A record of all safety drills, including the time and date, shall be kept in the respective school offices, and shall be made available upon request to the state fire marshal, or the state fire marshal's deputies or assistants for inspection and review.
§ 68-102-142. Tax on net premium receipts of fire insurance companies to defray expenses of enforcement.
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For the maintenance of the division of fire prevention and the payment of expenses incident thereto, and for the maintenance of the fire investigations section transferred to the Tennessee bureau of investigation pursuant to chapter 487 of the Public Acts of 2019, and the payment of expenses incident to the duty of the fire investigations section to investigate destructive fires in this state, each fire insurance company transacting business in this state, at the same time it pays other taxes now required by law, shall pay to the commissioner of commerce and insurance the sum of three-quarters of one percent (0.75%) on the net premium receipts of the insurance companies on all business transacted by them in Tennessee, during the next preceding year, as shown by their annual statement under oath to the department of commerce and insurance. This sum shall be held in a separate fund by the commissioner, and shall be designated as the fire prevention fund, for the maintenance of the division of fire prevention and the fire investigations section, and for the payment out of the fund for the expenses and maintenance of the division and the fire investigations section shall be made only on the warrant of the commissioner, and any and all moneys on hand in this division at the end of each fiscal year shall be turned in to the general fund of the state; provided, that this state shall in no way be liable for the salaries or expenses of the fire prevention division other than the fund as provided in this section for such purposes.
§ 68-102-143. Special deputy inspectors — Powers and duties — Inspection fees.
- (a)
- (1)
The commissioner of commerce and insurance may, in addition to the other provisions of this part, authorize and appoint any person, acting through a professional corporation pursuant to the Tennessee Professional Corporation Act, compiled in title 48, chapter 101, part 6, who meets the qualifications enumerated in subdivision (a)(2) as a commissioned deputy electrical inspector in this division, who shall have all the power of other deputies and assistants to enter any building or premises to make inspections of the buildings and their contents, and to report the inspections in writing to the commissioner. The commissioner is directed to contract with each deputy electrical inspector through the inspector's professional corporation to provide electrical inspection services. The contracts shall be between the commissioner and the professional corporation employing the electrical inspector and the electrical inspectors shall not be deemed employees of the state for payroll purposes or otherwise.
- (2)
A deputy electrical inspector shall possess:
- (A)
A high school diploma or high school equivalency credential approved by the state board of education;
- (B)
Practical experience consisting of at least five (5) years in electrical installation or inspection; and
- (C)
A certificate as an electrical inspector issued under § 68-120-118.
- (3)
The commissioner shall provide a program to ensure that electrical inspection services are available throughout the state on a timely basis according to the following criteria:
- (A)
Geographically designated inspection territories shall be established to provide for timely inspections. An inspection shall be considered timely if it is performed within three (3) working days of when the request is made to the inspector;
- (B)
Each geographical territory shall be assigned to a deputy electrical inspector, acting through a professional corporation, by the commissioner after consultation with local electric power distributors and the Tennessee Association of Electrical Inspectors;
- (C)
Each geographical territory may also be served by back-up inspectors who may serve multiple geographic territories in order to provide for timely inspections. The commissioner has authority to contract with back-up inspectors, acting through each back-up inspector's professional corporation.
- (b)
- (1)
Deputy electrical inspectors appointed by the commissioner, or by the city official designated by the commissioner to make appointments in cities or municipalities authorized by the commissioner to conduct electrical inspections, are authorized to inspect electrical installations upon receipt of a request from the owner of the property, a licensed electrical contractor, or from any person, association, or corporation supplying electrical energy to the installations, or from municipal governing bodies, or from the county legislative body of the county in which the installations are located. Each inspector, acting through the inspector's professional corporation, is authorized to charge for and receive a fee for each inspection.
- (2)
The commissioner has the authority to set maximum inspection fees for services and to facilitate the administration and effective enforcement of this section.
- (3)
The fees in subdivision (b)(2) shall include all circuits connected to the services.
- (4)
The state fire marshal may require the inspection of electrical installations with or without a request, in the same manner that inspections are made in accordance with § 68-102-116, and the remedies for dangerous conditions shall be the same as provided in § 68-102-117; provided, that no fees shall be charged for making inspections directed by the state fire marshal as authorized by those sections.
- (5)
No inspection fees may be charged except where an actual inspection is made.
- (c)
Any person, association or corporation supplying electrical energy to any new installation shall have an electrical inspection approval from an authorized electrical inspector or agency before electric service is connected to the installation on a permanent basis.
- (d)
The maintaining of a safe electrical installation shall not be the responsibility of the power distributor beyond its service drop or service lateral connection to the customer's or member's service conductor.
- (e)
- (1)
A service release inspection is temporary service to allow for testing of equipment, environmental conditioning and special operational equipment for construction. The inspection is valid for a period of forty-five (45) days on designated circuits only. A service release inspection does not allow for occupancy of the structure.
- (2)
A service release inspection may be issued for purposes of installation and inspection of a heating, ventilation and air conditioning system (HVAC) for a manufactured home or modular building. An anchoring decal shall not be required for a service release inspection.
§ 68-102-145. Sheriffs and highway patrol officers to prevent spread of forest fires — Punishment for refusing aid.
- (a)
It is the duty of various county sheriffs and the state highway patrol officers to use all effective methods in their power to prevent the spread of forest fires. Whenever the various sheriffs or any member of the state highway patrol becomes aware of the fact that there is a forest fire in the vicinity, the officer shall summon a sufficient number of the male citizens of the county in which the fire is burning, who are between eighteen (18) and thirty (30) years of age, to control the fire, and the officer shall be in complete charge and direction of the efforts to restrain the fire until duly relieved by division of forestry personnel.
- (b)
Any person who, after being duly summoned by the officer to aid in the suppression of the fire, willfully refuses to act in the premises commits a Class C misdemeanor.
§ 68-102-147. Manufactured homes, travel trailers, modular building units and prefabricated units — Approval of electrical, gas and oil systems — Inspection — Fees — Violations — Penalties.
- (a)
It is unlawful for any person, firm, or corporation to sell or offer for sale, any manufactured home, travel trailer, modular building unit as defined in chapter 126, part 3 of this title, or any other prefabricated unit that is designed to be used as an industrial or commercial structure, or housing unit that has been partially or completely assembled and equipped with an electrical, gas, or oil system for light, heat, power or other purposes, unless the systems have been inspected and approved by a nationally recognized and approved independent testing agency or laboratory, or an individual or agency authorized to make such inspections by the state fire marshal. Any person, firm or corporation engaged in selling, renting or offering for sale manufactured homes, or other prefabricated units as described in this subsection (a), shall, within five (5) days of the receipt of any unit that has not been inspected as contemplated by this section, request inspection by the state fire marshal.
- (b)
It is unlawful for any person, firm, association or corporation, including trailer court or park operators, supplying electricity, gas or oil to any manufactured home, travel trailer, modular building unit as defined in chapter 126, part 3 of this title, or prefabricated unit sold or requiring an electrical or gas connection or the furnishing of fuel oil, to connect or furnish electricity, gas or oil, unless it has permanently affixed to it the approval of a nationally recognized independent testing agency or laboratory, or of an individual or agency authorized to make such inspections by the state fire marshal.
- (c)
- (1)
Subsection (b) shall not apply to manufactured homes or travel trailers individually owned or used and being relocated, requiring electric, oil or gas service. A person, firm, association or corporation supplying electricity, oil or gas may connect or supply electricity, oil or gas to such units on a temporary basis, but shall request an inspection within seventy-two (72) hours after such connection is made. When the inspection is made, if extremely hazardous conditions exist, they shall be corrected immediately, or service discontinued. General deficiencies shall be corrected within thirty (30) days or service discontinued, or the owner or user and the person, firm, association or corporation, including trailer court or park operators, supplying the power or fuel shall be in violation and subject to the penalties provided in this section.
- (2)
Subsection (b) shall not apply to manufactured homes and travel trailers being used by vacationists or transients stopping in courts or parks for a period not to exceed fifteen (15) days; provided, that the park or court operator has equipment and makes tests as outlined by the state fire marshal to determine if extremely hazardous conditions exist. If such hazardous conditions do exist, they shall be removed or remedied before connection is made, or the owner or user and the person, firm, association or corporation, including trailer court or park operators, supplying the power or fuel shall be in violation and subject to the penalties provided in this section.
- (d)
Subsections (a) and (b) do not apply to new manufactured homes bearing a label certifying compliance with the federal standards established under the National Mobile Home Construction and Safety Standards Act of 1974 (42 U.S.C. § 5401 et seq.).
- (e)
Subsections (a)-(c) do not apply to new modular building units that have been inspected and approved pursuant to chapter 126, part 3 of this title.
- (f)
The penalty provisions of this section shall not apply to the seller when the sale of gas or oil is made on the supplier's premises and delivered to the purchaser in a container supplied by the purchaser, nor shall these provisions apply to the seller when the sale of gas, oil or electricity is to a travel trailer or manufactured home court or park operator made to such operator for redistribution to its customers.
- (g)
- (1)
The maximum inspection fees for services established by the commissioner of commerce and insurance pursuant to the authority granted in § 68-102-143(b)(2) shall also apply to:
- (A)
Electrical inspections made by inspectors commissioned by the state fire marshal; and
- (B)
Manufactured home or travel trailer inspections made by inspectors commissioned by the state fire marshal where a combination of energy is used, including, but not limited to, electric, gas, oil or other sources of energy.
- (2)
Fees charged pursuant to this subsection (g) are to be derived from converting BTUs of gas, oil or other energy-consuming equipment installed and inspected to the corresponding electric service required for the total energy requirements.
- (h)
Any owner, dealer or operator of a manufactured home, travel trailer, modular building unit as defined in chapter 126, part 3 of this title, or prefabricated unit that has been inspected and approved in accordance with this section shall not be required to comply with any local ordinances in conflict with this section.
- (i)
A violation of this section is a Class C misdemeanor.
- (j)
Subsections (a) and (b) shall not apply to new recreational vehicles, travel trailers, camping trailers, or motor homes manufactured in accordance with the Standard for Recreational Vehicles (ANSI 119.2/NFPA 1192 — 2002).
§ 68-102-148. Fire alarms and extinguishers — Approval before sale — Exceptions — Penalty.
- (a)
It is unlawful for any person, firm, association or corporation to sell, or offer for sale, for use in this state, any device, appliance, system or equipment designed to act as an alarm in the detection and prevention of fires, unless the device, appliance, system or equipment has been investigated and listed by a nationally recognized and approved independent testing agency or laboratory, or agency authorized to make such independent inspections by the state fire marshal.
- (b)
This section does not apply to any device, appliance, system or equipment referenced in subsection (a) offered by a public utility subject to the jurisdiction of, or regulation by, the Tennessee public utility commission or a comparable federal agency.
- (c)
A violation of this section is a Class C misdemeanor.
§ 68-102-149. Firearms for fire officials.
- (a)
It is lawful for the state fire marshal provided for in § 68-102-112, and such deputies as the fire marshal may designate who are full-time salaried employees of this state, to carry a pistol or side arm while on active duty in order to protect their own lives and to effectuate the purposes of their responsibilities in investigating cases of arson or suspected arson.
- (b)
It is lawful for municipal fire investigators who have been authorized by the chief of the municipal fire department or the director of fire services to conduct investigations relative to the cause and origin of fires and/or arson investigations to carry a pistol or side arm while on active duty in order to protect their own lives and to effectuate the purposes of their responsibilities in investigating cases of arson or suspected arson. For the sole purpose of being able to carry a pistol, such investigators shall comply with the requirements of § 39-17-1315(a).
- (c)
It is lawful for salaried county fire investigators who have been authorized by the chief of the county-wide fire department or the director of fire services to conduct investigations relative to the cause and origin of fires or arson investigations to carry a pistol or side arm while on active duty in order to protect their own lives and to effectuate the purposes of their responsibilities in investigating cases of arson or suspected arson. For the sole purpose of being able to carry a pistol, such investigators shall comply with the requirements of § 39-17-1315(a).
§ 68-102-150. Installers of electrical wiring, heating, or any electrical devices — Registration — Fee — Application forms.
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Every person, firm or corporation, or legal entity engaged in the business of installation of electrical wiring, heating, or any electrical devices that require inspection by this chapter and regulations adopted pursuant to this chapter, shall register with the division of fire prevention, and shall pay a fee of twenty-five dollars ($25.00); provided, that such registration and payment shall not be required of persons, firms, corporations or other legal entities engaged in such business in counties with populations of seven hundred thousand (700,000) or more, according to the 1980 federal census or any subsequent federal census, that conduct their own inspections. Application shall be made on forms provided by the commissioner of commerce and insurance, and the commissioner is empowered to adopt any reasonable rules or regulations in order to accomplish the purposes of this section.
§ 68-102-151. One-family or two-family rental units — Smoke alarms required.
- (a)
As used in this section:
- (1)
“One-family or two-family rental unit” means any rental building containing one (1) or two (2) living units with independent cooking and bathroom facilities, whether designated as a house, cottage, duplex, or condominium, or by any other name; and
- (2)
“Smoke alarm” means an alarm responsive to smoke and approved by the building construction safety standards adopted pursuant to § 68-120-101; and
- (A)
Listed by a nationally recognized and approved independent testing agency or laboratory such as Underwriters Laboratories; or
- (B)
Inspected by an agency authorized to make independent inspections by the state fire marshal.
- (b)
Notwithstanding chapter 120 of this title, or any other laws to the contrary, it is unlawful to:
- (1)
Own or operate a one-family or two-family rental unit without installing an approved smoke alarm in each living unit. When activated, the smoke alarm shall initiate a warning sound that is audible in the sleeping rooms of the one-family or two-family rental unit; or
- (2)
Tamper with or remove any smoke alarm required by this section, or a component of any smoke alarm.
- (c)
All smoke alarms required by this section shall be installed in accordance with the applicable building construction safety standards as provided in § 68-120-101, and in accordance with the manufacturer's directions, unless those directions conflict with the applicable building construction safety standards. Notwithstanding the building construction safety standards adopted pursuant to § 68-120-101, battery-operated smoke alarms shall be permitted when installed in buildings without commercial power.
- (d)
- (1)
Any smoke alarm required by this section shall be maintained by the tenant of the living unit where the smoke alarm is located in accordance with the manufacturer's instructions. However, upon termination of a tenancy in a one-family or two-family rental unit, the owner of the one-family or two-family rental unit shall ensure that any required smoke alarm is operational prior to reoccupancy of the one-family or two-family rental unit.
- (2)
No alarm silencing switch or audible trouble silencing switch shall be provided, unless its silenced position is indicated by a readily apparent signal.
- (3)
Compliance with this section does not relieve any person from the requirements of any other applicable law, ordinance, or rule. Nothing contained within this section shall be construed to be in derogation of § 68-120-111.
- (e)
- (1)
A violation of this section is a Class A misdemeanor. Each day on which a violation continues constitutes a separate offense under this section.
- (2)
Section 68-120-106 shall apply with respect to enforcement of this section.
- (f)
The state fire marshal shall periodically undertake appropriate activities to encourage compliance with and enforcement of this section, as well as §§ 68-120-111 and 68-120-112.
§ 68-102-152. Warehouse storage of baled cotton.
- (a)
For the purposes of this section, unless the context clearly requires otherwise, “building code” means any nationally recognized code that has been adopted by reference by the state government or a local government, or any code that has been implemented by ordinance or resolution by a local government.
- (b)
Notwithstanding any provision of law or building code standard or fire safety standard to the contrary, a warehouse designed or used to house baled cotton shall have a maximum capacity of not more than fifteen thousand (15,000) bales, and a single compartment of any such warehouse shall in no event exceed sixty thousand square feet (60,000 sq. ft.) of floor space.
- (c)
Compartments of any warehouse designed or used to house baled cotton shall be separated by one (1) of the following methods:
- (1)
One hundred feet (100′) of clear space; or
- (2)
A four-hour masonry fire wall.
- (d)
A local governing body may adopt an ordinance or resolution that establishes more stringent restrictions than those imposed by this section for the storage of baled cotton.
- (e)
Nothing in this section shall be construed to restrict the automatic sprinkler system requirements of the code of the National Fire Prevention Association (NFPA), § 231E, for the storage of baled cotton.
- (f)
This section applies to any warehouse that is presently in use or which may be constructed in the future.
§ 68-102-153. Disconnection of electric service — Requirements.
- (a)
Neither the state fire marshal nor any inspector who contracts with the state may disconnect or terminate the electrical services at any residential customer's residence until the following have been completed:
- (1)
An inspection has been made of the premises that reveals that continued electrical services pose a substantial and immediate threat of harm to person or property, and the harm cannot be avoided by less drastic means other than disconnecting the service;
- (2)
Reasonable attempts have been made to contact the customer or owner of the premises prior to disconnecting any services;
- (3)
The person performing the inspection makes an examination of the premises to determine that there are no individuals using any medical devices that require electrical services, and, if so, reasonable accommodations are made to continue the electric service to medical devices following any termination; and
- (4)
The person performing the inspection makes an examination of the premises to conclude that termination of the electrical services will not damage any property of the residential customer without first making arrangements to secure the prevention of the damages.
- (b)
This section shall not apply to the personnel of any municipal electric system or any rural electric and community services cooperative.
- (c)
This section shall supersede any provision of law presently enacted that conflicts with this section.
§ 68-102-154. Volunteer firefighter equipment and training grant program.
- (a)
A program, known as the volunteer firefighter equipment and training grant program, is created to annually provide grants to select volunteer fire departments to be used for the purchase of firefighting equipment or to meet local match requirements of federal grants for the purchase of firefighting equipment and training.
- (b)
It is the legislative intent to fund the program by providing a sum-sufficient appropriation in each fiscal year's annual appropriation bill.
- (c)
The commissioner of commerce and insurance shall promulgate rules in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, to establish guidelines for evaluating grant requests and determining which volunteer fire departments will receive grants.
- (d)
The commissioner of commerce and insurance shall decide which grants to award and disburse the grants to the selected volunteer fire departments. The total amount of grants awarded each year must be equally divided among the three (3) grand divisions of the state. The commissioner shall endeavor to expend all funds appropriated to the program each year, and any funds remaining will not revert to the general fund but remain available for expenditure in subsequent fiscal years.
- (e)
As used in this section:
- (1)
“Firefighting equipment” means the equipment used by a firefighter to contain or extinguish fires and to protect the life of the firefighter, other than fire trucks or vehicles; and
- (2)
“Volunteer fire department” means a fire department recognized by the state fire marshal's office, pursuant to § 68-102-304, and classified by the Tennessee Fire Incident Reporting System (TFIRS) as a volunteer fire department.
Part 2 Fire Service and Codes Enforcement Academy
§ 68-102-201. Tennessee fire service and codes enforcement academy.
- (a)
There is established a state institution to be known as the Tennessee fire service and codes enforcement academy within the department of commerce and insurance. All positions, and all tangible assets excluding real property and classroom furnishings, previously under the board of regents for the institution originally created by [former] § 49-8-701 [repealed], are transferred to the department of commerce and insurance.
- (b)
The institution shall be under the direction of the commissioner of commerce and insurance and is assigned to the division of fire prevention under the supervision of the division head. The commissioner shall provide adequate staff to serve the needs of the volunteer, career, paid-on-call and other firefighters and code enforcement officials of the state, municipalities, counties and other entities within the state of Tennessee. The commissioner shall develop a suitable curriculum that serves the purpose stated in subsection (c).
- (c)
The purpose of this fire service and code enforcement academy is to provide effective training to all firefighters, volunteer and career, fire and building code enforcement personnel and other related service professionals in the state of Tennessee. The academy shall teach current methods and practices and develop new methods and practices in the fields of firefighting, fire and building code enforcement, fire prevention, public fire safety education, fire investigation and related subjects.
- (d)
All fire services training developed under subsection (c) intended for any firefighter in Tennessee must be approved by the Tennessee commission on fire fighting personnel standards and education.
§ 68-102-202. Transfer of state fire college.
-
All employees currently assigned duties for the Tennessee state fire college, working under the board of regents, are transferred to the department and are granted career employee status with no probationary period. This does not include the director of any of the schools where these employees are currently assigned.
§ 68-102-204. Rules to remain in effect.
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All rules, regulations, orders and decisions previously issued or promulgated by the Tennessee board of regents with respect to the Tennessee state fire college shall remain in full force and effect and shall hereafter be administered and enforced by the department of commerce and insurance. The department, division of fire prevention, may promulgate any rules and regulations, in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, necessary for the efficient operation of the academy, including, but not limited to, administration, operation, curriculum, conduct, attendance, fees and related items.
§ 68-102-205. Acceptance of donations or grants.
-
The Tennessee fire service and code enforcement academy may accept, for any of its purposes and functions under this chapter, any and all donations of property, real, personal or mixed, and services or grants of money from any governmental unit or public agency, or from any institution, person, firm or corporation. The moneys shall be deposited, disbursed and administered in a trust fund as provided by the laws of this state.
Part 3 Fire Department Recognition Act
§ 68-102-302. “Fire department” defined.
-
As used in this part, unless the context otherwise requires, the term “fire department” means a department of a municipality, county, or political subdivision, or an organization, agency, or entity that offers its services, for or without pay, for the purpose of suppressing fires, performing rescue services, or for other emergency response purposes. Excluded from this definition are law enforcement agencies, emergency medical agencies licensed by the Tennessee emergency medical services board, and rescue squads that do not provide fire protection.
§ 68-102-303. State fire marshal's standards and qualifications.
-
No municipality, county, or political subdivision shall operate a fire department, and no organization, agency, or entity shall operate as a fire department within the state, unless it has been duly recognized to do so pursuant to this part by the department of commerce and insurance, state fire marshal's office. The state fire marshal, in consultation with the Tennessee Fire Chiefs Association (TFCA), shall promulgate rules and regulations pursuant to the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, relative to the standards and qualifications for becoming and remaining a fire department.
§ 68-102-304. Application for operation of fire department — Classification — Certificate of recognition — Recognition renewal.
-
To obtain recognition from the department of commerce and insurance, state fire marshal's office, a municipality, county, or political subdivision desiring to operate a fire department, or an organization, agency, or entity desiring to operate as a fire department shall file an application with the department of commerce and insurance, state fire marshal's office, and file a renewal application to continue so operating, in accordance with the following:
- (1)
The application shall be made on a form prescribed by the state fire marshal and shall be accompanied by a processing fee not to exceed fifty dollars ($50.00). The state fire marshal may require that the form be signed and notarized by the highest ranking official of the fire department;
- (2)
Once recognized, each fire department shall be classified as career, volunteer, or combination as determined by the Tennessee Fire Incident Reporting System (TFIRS);
- (3)
Upon being granted recognized status as a fire department, the state fire marshal shall issue a certificate of recognition to the fire department; the certificate shall be valid for a period of three (3) years from its date of issuance; and
- (4)
Approximately six (6) months prior to the expiration of the three-year recognition period, the state fire marshal's office shall notify each fire department by certified mail of the expiration of its certificate of recognition. The fire department whose certificate is expiring shall be required to complete a recognition renewal form prescribed by the state fire marshal and submit a renewal fee not to exceed fifty dollars ($50.00).
§ 68-102-305. Compliance with § 68-102-108.
-
The municipality, county, political subdivision, organization, agency, or entity filing the application must be in compliance with § 68-102-108, by properly requesting designation as an assistant to the commissioner of commerce and insurance.
§ 68-102-306. Approval of local elected governing body — Certificate of recognition requirement.
- (a)
No new fire department may be established or recognized within Tennessee without the approval of the local elected governing body. This approval shall include the geographical territory to be covered by the new fire department.
- (b)
No governmental unit, person, organization, agency, or entity shall represent themselves to be or have a fire department as defined in this part without first obtaining a certificate of recognition from the state fire marshal's office, in accordance with § 68-102-304.
- (c)
No governmental unit, person, organization, agency, or entity shall receive or solicit money from any source, including local, state, or federal government, for the purpose of operating a fire department as defined in this part, unless the governmental unit, person, organization, agency, or entity maintains a valid certificate of recognition from the state fire marshal's office.
§ 68-102-308. Background checks on fire protection personnel.
- (a)
As used in this section, unless the context otherwise requires:
- (1)
“Employer” means public, private or volunteer fire agencies, as well as fire prevention and investigation bureaus of a local jurisdiction; however, “employer” shall not include the state fire marshal's office or any division or section of the state fire marshal's office;
- (2)
“Employment” means paid employment by a public or private fire department, as well as membership in a volunteer fire department; and
- (3)
“Fire protection personnel” means any paid or volunteer member or applicant of a fire department or fire prevention bureau or division, such as firefighters, fire department officers, fire inspectors, fire investigators, and administrative assistance personnel.
- (b)
As a condition of employment of any paid or volunteer fire protection personnel, employers may initiate a criminal background check on any applicant for employment, or on any fire protection personnel currently employed by the employer.
- (1)
Departments that elect to conduct criminal background checks shall establish a policy addressing when a criminal background check may be conducted on a currently employed member.
- (2)
Criminal background check reports shall be maintained for the duration of employment plus one (1) year. Access to the contents of a criminal background check shall be limited to the department head, human resource officer, and the employee's supervisor. The criminal background check shall not become part of the employee's personnel file.
- (c)
Fire protection personnel shall:
- (1)
Provide past work history and personal references to be checked by the employer;
- (2)
[Deleted by 2023 amendment.]
- (3)
Agree to the release of information required for a criminal background investigation by a professional background screening organization or criminal background check services or registry; and
- (4)
When seeking employment with a public fire agency, supply a fingerprint sample and submit to a criminal history records check to be conducted by the Tennessee bureau of investigation, the federal bureau of investigation, another law enforcement agency, or another legally authorized entity.
- (d)
Any cost incurred by the Tennessee bureau of investigation, federal bureau of investigation, professional background screening organization, law enforcement agency or other legally authorized entity in conducting investigations of fire protection personnel shall be paid by the employer. An employer may require the applicant or employee to reimburse the employer for the costs, at the option of the employer. Payments of the costs to the Tennessee bureau of investigation are to be made in accordance with §§ 38-6-103 and 38-6-109.
§ 68-102-309. Filing of annual financial report by volunteer fire departments receiving appropriations.
-
The governing board of each recognized volunteer fire department receiving appropriations from the federal government, the state, a county, or a municipality, either directly or indirectly, shall file an annual financial report with the comptroller of the treasury and with each local government body from which the department received appropriations. The annual financial report shall be for the year ended June 30, in a form prescribed by the comptroller of the treasury, and such governing board shall file the report within six (6) months of the close of its fiscal year.
Part 4 Commissioned Instructors of the Tennessee Law Enforcement Training Academy
§ 68-102-401. “Member” defined.
-
As used in this part, unless the context otherwise requires, “member” means a member of the Tennessee consolidated retirement system.
§ 68-102-402. Retention of injured member on payroll.
-
Whenever a commissioned instructor employed at the Tennessee law enforcement training academy is injured in the line of duty and the injury disables the member from performing the member's regular duties, whether the disability is temporary or permanent, it is lawful for the commissioner of commerce and insurance, in the commissioner's sound discretion and with the approval of the governor and the attorney general and reporter, to retain the injured disabled member of the department on the regular payroll of the department until the member's claim for compensation for the disability is determined by the division of claims and risk management.
§ 68-102-403. Retired commission card.
- (a)
- (1)
Any commissioned instructor employed at the Tennessee law enforcement training academy who retires after twenty-five (25) years of honorable service shall be issued by the department a retired commission card, which shall identify the member, the member's department and rank, and the fact that the member is retired.
- (2)
Cards issued under this section shall bear the inscription in print of equal or larger size than the rest of the printing on the cards the words “Not a handgun permit.”
- (3)
After twenty-five (25) years of honorable service by a commissioned member of the department, the department shall authorize the member, upon retirement, to retain the member's service weapon in recognition of the member's many years of good and faithful public service.
- (4)
Nothing in this section shall be construed to require the department to purchase any additional service weapons.
- (5)
In the case of commissioned members who retire on disability retirement as provided in title 8, chapter 36, the members may be issued retired commission cards and may be authorized to retain their service weapons.
- (b)
- (1)
Any commissioned member who retires after twenty-five (25) years of honorable service shall be allowed to retain the member's badge in recognition of the member's many years of good and faithful service. The badge, however, shall be permanently marked to indicate the retired status of the member.
- (2)
Subdivision (b)(1) shall only apply to members retiring after July 1, 2008.
Part 5 Fire Safety Standard and Firefighter Protection Act
§ 68-102-501. Short title.
-
This part shall be known and may be cited as the “Fire Safety Standard and Firefighter Protection Act.”
§ 68-102-502. Part definitions.
-
As used in this part, unless the context otherwise requires:
- (1)
“Agent” means any person authorized by the commissioner of revenue to purchase and affix stamps on packages of cigarettes;
- (2)
“Cigarette” means any roll for smoking, whether made wholly or in part of tobacco or any other substance, regardless of size or shape, and whether or not the tobacco or substance is flavored, adulterated or mixed with any other ingredient, the wrapper or cover of which is made of paper or any other substance or material except tobacco;
- (3)
“Manufacturer” means:
- (A)
Any entity that manufactures or otherwise produces cigarettes or causes cigarettes to be manufactured or produced anywhere that the manufacturer intends to be sold in this state, including cigarettes intended to be sold in the United States through an importer;
- (B)
The first purchaser anywhere that intends to resell in the United States cigarettes manufactured anywhere that the original manufacturer or maker did not intend to be sold in the United States; or
- (C)
Any entity that becomes a successor of an entity described in subdivision (3)(A) or (3)(B);
- (4)
“Quality control and quality assurance program” means the laboratory procedures implemented to ensure that operator bias, systematic and nonsystematic methodological errors, and equipment-related problems do not affect the results of the testing. This program ensures that the testing repeatability remains within the required repeatability values required by § 68-102-503(a)(7) for all test trials used to certify cigarettes in accordance with this part;
- (5)
“Repeatability” means the range of values within which the repeat results of cigarette test trials from a single laboratory will fall ninety-five percent (95%) of the time;
- (6)
“Retail dealer” means any person, other than a manufacturer or wholesale dealer, engaged in selling cigarettes or tobacco products;
- (7)
“Sale” means, in addition to its usual meaning, any sale, use, transfer, exchange, barter, gift or offer for sale and distribution, in any manner or by any means whatsoever;
- (8)
“Sell” means to sell, or to offer or agree to sell; and
- (9)
“Wholesale dealer” means any person other than a manufacturer who sells cigarettes or tobacco products to retail dealers or other persons for purposes of resale, and any person who owns, operates or maintains one (1) or more cigarette or tobacco product vending machines in, at or upon premises owned or occupied by any other person.
§ 68-102-503. Cigarettes sold or offered for sale — Testing —Performance standard — Report — Exceptions.
- (a)
- (1)
Except as provided in subsection (g), no cigarettes may be sold or offered for sale in this state or offered for sale or sold to persons located in this state unless the cigarettes have been tested in accordance with the test method and meet the performance standard specified in this section, a written certification has been filed by the manufacturer with the state fire marshal in accordance with § 68-102-504, and the cigarettes have been marked in accordance with § 68-102-505.
- (2)
Testing of cigarettes shall be conducted in accordance with the American Society of Testing and Materials (ASTM) standard E2187-04, Standard Test Method for Measuring the Ignition Strength of Cigarettes.
- (3)
Testing shall be conducted on ten (10) layers of filter paper.
- (4)
No more than twenty-five percent (25%) of the cigarettes tested in a test trial in accordance with this section shall exhibit full-length burns. Forty (40) replicate tests shall comprise a complete test trial for each cigarette tested.
- (5)
The performance standard required by this section shall only be applied to a complete test trial.
- (6)
Written certifications shall be based upon testing conducted by a laboratory that has been accredited pursuant to standard ISO/IEC 17025 of the International Organization for Standardization (ISO), or other comparable accreditation standard required by the state fire marshal.
- (7)
Laboratories conducting testing in accordance with this section shall implement a quality control and quality assurance program that includes a procedure that will determine the repeatability of the testing results. The repeatability value shall be no greater than nineteen-hundredths (0.19).
- (8)
This section does not require additional testing if cigarettes are tested consistent with this part for any other purpose.
- (9)
Testing performed or sponsored by the state fire marshal to determine a cigarette's compliance with the performance standard required shall be conducted in accordance with this section.
- (b)
Each cigarette listed in a certification submitted pursuant to § 68-102-504 that uses lowered permeability bands in the cigarette paper to achieve compliance with the performance standard set forth in this section shall have at least two (2) nominally identical bands on the paper surrounding the tobacco column. At least one (1) complete band shall be located at least fifteen millimeters (15 mm) from the lighting end of the cigarette. For cigarettes on which the bands are positioned by design, there shall be at least two (2) bands fully located at least fifteen millimeters (15 mm) from the lighting end and ten millimeters (10 mm) from the filter end of the tobacco column, or ten millimeters (10 mm) from the labeled end of the tobacco column for non-filtered cigarettes.
- (c)
A manufacturer of a cigarette that the state fire marshal determines cannot be tested in accordance with the test method prescribed in subdivision (a)(2) shall propose a test method and performance standard for the cigarette to the state fire marshal. Upon approval of the proposed test method and a determination by the state fire marshal that the performance standard proposed by the manufacturer is equivalent to the performance standard prescribed in subdivision (a)(4), the manufacturer may employ the test method and performance standard to certify the cigarette pursuant to § 68-102-504. If the state fire marshal determines that another state has enacted reduced cigarette ignition propensity standards that include a test method and performance standard that are the same as those contained in this part, and the state fire marshal finds that the officials responsible for implementing those requirements have approved the proposed alternative test method and performance standard for a particular cigarette proposed by a manufacturer as meeting the fire safety standards of that state's law or regulation under a legal provision comparable to this section, then the state fire marshal shall authorize that manufacturer to employ the alternative test method and performance standard to certify that cigarette for sale in this state, unless the state fire marshal demonstrates a reasonable basis why the alternative test should not be accepted under this part. All other applicable requirements of this section shall apply to the manufacturer.
- (d)
Each manufacturer shall maintain copies of the reports of all tests conducted on all cigarettes offered for sale for a period of three (3) years, and shall make copies of these reports available to the state fire marshal and the attorney general and reporter upon written request. Any manufacturer who fails to make copies of these reports available within sixty (60) days of receiving a written request shall be subject to a civil penalty not to exceed ten thousand dollars ($10,000) for each day after the sixtieth day that the manufacturer does not make the copies available.
- (e)
The state fire marshal may adopt a subsequent ASTM Standard Test Method for Measuring the Ignition Strength of Cigarettes upon a finding that the subsequent method does not result in a change in the percentage of full-length burns exhibited by any tested cigarette when compared to the percentage of full-length burns the same cigarette would exhibit when tested in accordance with ASTM Standard E2187-04 and the performance standard in subdivision (a)(4).
- (f)
The state fire marshal shall review the effectiveness of this section and report findings every three (3) years to the speakers of the senate and the house of representatives and, if appropriate, recommendations for legislation to improve the effectiveness of this part. The report and legislative recommendations shall be submitted no later than February 1 of each three-year period.
- (g)
The requirements of subsection (a) shall not prohibit:
- (1)
Wholesale or retail dealers from selling their existing inventory of cigarettes on or after January 1, 2010, if the wholesale or retail dealer can establish that state tax stamps were affixed to the cigarettes prior to January 1, 2010, and if the wholesale or retail dealer can establish that the inventory was purchased prior to January 1, 2010, in comparable quantity to the inventory purchased during the same period of the prior year; or
- (2)
The sale of cigarettes solely for the purpose of consumer testing. For purposes of this subdivision (g)(2), “consumer testing” means an assessment of cigarettes that is conducted by a manufacturer, or under the control and direction of a manufacturer, for the purpose of evaluating consumer acceptance of the cigarettes, utilizing only the quantity of cigarettes that is reasonably necessary for the assessment.
- (h)
This part shall be implemented in accordance with the implementation and substance of the New York Fire Safety Standards for Cigarettes.
§ 68-102-504. Certified cigarettes — Contents of certification — Establishment of fund.
- (a)
Each manufacturer shall submit to the state fire marshal a written certification attesting that:
- (1)
Each cigarette listed in the certification has been tested in accordance with § 68-102-503; and
- (2)
Each cigarette listed in the certification meets the performance standard set forth in § 68-102-503(a)(4).
- (b)
Each cigarette listed in the certification shall be described with the following information:
- (1)
Brand, or trade name on the package;
- (2)
Style, such as light or ultra light;
- (3)
Length in millimeters;
- (4)
Circumference in millimeters;
- (5)
Flavor, such as menthol or chocolate, if applicable;
- (6)
Filter or non-filter;
- (7)
Package description, such as soft pack or box;
- (8)
Marking approved in accordance with § 68-102-505;
- (9)
The name, address and telephone number of the laboratory, if different from the manufacturer that conducted the test; and
- (10)
The date that the testing occurred.
- (c)
The certifications shall be made available to the attorney general and reporter for purposes consistent with this part and the commissioner of revenue for the purposes of ensuring compliance with this section.
- (d)
Each cigarette certified under this section shall be recertified every three (3) years.
- (e)
At the time a manufacturer submits a written certification under this section, the manufacturer shall pay to the state fire marshal a one-thousand-dollar fee for each brand family of cigarettes listed in a certification. The fee paid shall apply to all cigarettes within the brand family certified, and shall include any new cigarette certified within the brand family during the three-year certification period.
- (f)
There is established in the state treasury a separate, nonreverting fund to be known as the reduced cigarette ignition propensity and firefighter protection act enforcement fund. The fund shall consist of all certification fees submitted by manufacturers, and shall, in addition to any other moneys made available for such purpose, be available to the state fire marshal solely to support processing, testing, enforcement and oversight activities under this part.
- (g)
If a manufacturer has certified a cigarette pursuant to this section, and thereafter makes any change to the cigarette that is likely to alter its compliance with the reduced cigarette ignition propensity standards required by this part, that cigarette shall not be sold or offered for sale in this state until the manufacturer retests the cigarette in accordance with the testing standards set forth in § 68-102-503 and maintains records of that retesting as required by § 68-102-503. Any altered cigarette that does not meet the performance standard set forth in § 68-102-503 may not be sold in this state.
§ 68-102-505. Marking of certified cigarettes.
- (a)
Cigarettes that are certified by a manufacturer in accordance with § 68-102-504 shall be marked to indicate compliance with the requirements of § 68-102-503. The marking shall be in eight-point type or larger and consist of:
- (1)
Modification of the product universal product code (UPC) to include a visible mark printed at or around the area of the UPC. The mark may consist of alphanumeric or symbolic characters permanently stamped, engraved, embossed or printed in conjunction with the UPC;
- (2)
Any visible combination of alphanumeric or symbolic characters permanently stamped, engraved or embossed upon the cigarette package or cellophane wrap; or
- (3)
Printed, stamped, engraved or embossed text that indicates that the cigarettes meet the standards of this part.
- (b)
A manufacturer shall use only one (1) marking, and shall apply this marking uniformly for all packages, including, but not limited to, packs, cartons, and cases, and brands marketed by that manufacturer.
- (c)
The state fire marshal shall be notified as to the marking that is selected.
- (d)
- (1)
Prior to the certification of any cigarette, a manufacturer shall present its proposed marking to the state fire marshal for approval. Upon receipt of the request, the state fire marshal shall approve or disapprove the marking offered, except that the state fire marshal shall approve:
- (A)
Any marking in use and approved for sale in New York pursuant to the New York Fire Safety Standards for Cigarettes; or
- (B)
The letters “FSC”, which signifies fire standards compliant, appearing in eight-point type or larger, if permanently printed, stamped, engraved or embossed on the package at or near the UPC code.
- (2)
Proposed markings shall be deemed approved if the state fire marshal fails to act within ten (10) business days of receiving a request for approval.
- (e)
No manufacturer shall modify its approved marking unless the modification has been approved by the state fire marshal in accordance with this section.
- (f)
Manufacturers certifying cigarettes in accordance with § 68-102-504 shall provide a copy of the certifications to all wholesale dealers and agents to which they sell cigarettes, and shall also provide sufficient copies of an illustration of the package marking utilized by the manufacturer pursuant to this section for each retail dealer to which the wholesale dealers or agents sell cigarettes. Wholesale dealers and agents shall provide a copy of these package markings received from manufacturers to all retail dealers to which they sell cigarettes. Wholesale dealers, agents and retail dealers shall permit the state fire marshal, the commissioner of revenue, the attorney general and reporter and their employees to inspect markings of cigarette packaging marked in accordance with this section.
§ 68-102-506. Violations — Penalties.
- (a)
A manufacturer, wholesale dealer, agent or any other person or entity that knowingly sells or offers to sell cigarettes, other than through retail sale in violation of § 68-102-503 shall be liable for a civil penalty not to exceed one hundred dollars ($100) for each pack of such cigarettes sold or offered for sale; provided, that in no case shall the penalty against any such person or entity exceed one hundred thousand dollars ($100,000) during any thirty-day period.
- (b)
A retail dealer who knowingly sells or offers to sell cigarettes in violation of § 68-102-503, shall be liable for a civil penalty not to exceed one hundred dollars ($100) for each pack of such cigarettes sold or offered for sale; provided, that the penalty against any retail dealer shall not exceed twenty-five thousand dollars ($25,000) for sales or offers to sell during any thirty-day period.
- (c)
In addition to any penalty prescribed by law, any corporation, partnership, sole proprietor, limited partnership or association engaged in the manufacture of cigarettes that knowingly makes a false certification pursuant to § 68-102-504 shall be liable for a civil penalty of at least seventy-five thousand dollars ($75,000) and not to exceed two hundred fifty thousand dollars ($250,000) for each such false certification.
- (d)
Any person violating any other provision in this part shall be liable for a civil penalty for a first offense not to exceed one thousand dollars ($1,000), and for a subsequent offense liable for a civil penalty not to exceed five thousand dollars ($5,000), for each such violation.
- (e)
Any cigarettes that have been sold or offered for sale that do not comply with the performance standard required by § 68-102-503 shall be subject to forfeiture and, upon forfeiture, destroyed; provided, however, that prior to the destruction of any cigarette pursuant to this section, the true holder of the trademark rights in the cigarette brand shall be permitted to inspect the cigarette.
- (f)
The Uniform Administrative Procedures Act, compiled in title 4, chapter 5, governs all matters and procedures respecting the hearing and judicial review of any contested case arising under this part. The state fire marshal is authorized to assess civil penalties for each violation as specified in this part.
- (g)
Whenever any law enforcement personnel or duly authorized representative of the state fire marshal discovers any cigarettes that have not been marked in the manner required by § 68-102-505, such personnel is authorized and empowered to seize and take possession of the cigarettes. The cigarettes shall be turned over to the commissioner of revenue, and shall be forfeited to the state. Cigarettes seized pursuant to this section shall be destroyed; provided, however, that prior to the destruction of any cigarette seized pursuant to this part, the true holder of the trademark rights in the cigarette brand shall be permitted to inspect the cigarette.
§ 68-102-507. Rules and regulations — Inspections.
- (a)
The state fire marshal may promulgate rules and regulations, pursuant to the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, necessary to effectuate the purposes of this part.
- (b)
The commissioner of revenue in the regular course of conducting inspections of wholesale dealers, agents and retail dealers, as authorized under title 67, chapter 4, part 10, may inspect the cigarettes to determine if the cigarettes are marked as required by § 68-102-505. If the cigarettes are not marked as required, the commissioner of revenue shall notify the state fire marshal.
§ 68-102-508. Enforcement of part.
-
To enforce this part, the attorney general and reporter and the state fire marshal are authorized to examine the books, papers, invoices and other records of any person in possession, control or occupancy of any premises where cigarettes are placed, stored, sold or offered for sale, as well as the stock of cigarettes on the premises. Every person in the possession, control or occupancy of any premises where cigarettes are placed, stored, sold or offered for sale, is directed and required to give the attorney general and reporter and the state fire marshal the means, facilities and opportunity for the examinations authorized by this section.
§ 68-102-509. Fire prevention and public safety fund.
-
There is established in the state treasury a special fund to be known as the fire prevention and public safety fund. The fund shall consist of all moneys recovered as penalties under § 68-102-506. The moneys shall be deposited to the credit of the fund and shall, in addition to any other moneys made available for such purpose, be made available to the state fire marshal to support fire safety and prevention programs.
§ 68-102-510. Construction of part.
-
Nothing in this part shall be construed to prohibit any person or entity from manufacturing or selling cigarettes that do not meet the requirements of § 68-102-503 if the cigarettes are or will be stamped for sale in another state or are packaged for sale outside the United States and that person or entity has taken reasonable steps to ensure that the cigarettes will not be sold or offered for sale to persons located in this state.
§ 68-102-511. Federal preemption.
-
This part shall cease to be effective if a federal reduced cigarette ignition propensity standard that preempts this part is adopted and becomes effective.
§ 68-102-512. Enactment and enforcement of local law or regulations — Conflicts of law.
-
Notwithstanding any other law, the local governmental units of this state may neither enact nor enforce any ordinance or other local law or regulation conflicting with, or preempted by, any provision or with any policy of this state expressed by this part, whether that policy is expressed by inclusion of a provision in this part or by exclusion of that subject from this part.
Part 6 Boat Dock Safety [Noah Dean and Nate Act]
§ 68-102-601. Part definitions.
-
As used in this part:
- (1)
“Boat dock” means a man-made structure that protrudes into a body of water for the purpose of mooring a boat or for other water-related recreation, including boat liveries, and that is connected to an electrical power source in any manner; provided, that “boat dock” does not include structures that are privately owned and used exclusively by the owner or the owner's guests for non-commercial purposes;
- (2)
“Boat dock or marina operator” means any person, whether owner or not, supervising or responsible for operating, maintaining, or repairing a boat dock or marina that is subject to this part;
- (3)
“Marina” means a dock, including a boat dock or basin providing moorings for watercraft and boat houses and offering supply, repair, or other services, including electric power supply, for remuneration; provided, that “marina” does not include structures that are privately owned and used exclusively by the owner or the owner's guests for non-commercial purposes;
- (4)
“Person” means an individual, partnership, firm, corporation, association, or other legal entity, however organized;
- (5)
“Vessel” means any watercraft, other than a seaplane on the water, designed and used primarily for navigation or transportation on the water; and
- (6)
“Watercraft” means a vessel that is propelled by machinery, whether or not such machinery is the principal source of propulsion; provided, that it does not include a vessel owned or operated by the United States government, or this state or any department or agency of this state, or any political subdivision of this state.
§ 68-102-602. Requirements to aid in prevention of electrical shock, electrocution, or injury to users of marinas and boat docks — Violations — Penalties.
- (a)
All boat dock or marina operators shall comply with the following requirements to aid in preventing electrical shock, electrocution, or injury to the users of their facilities and the surrounding areas:
- (1)
Any main overcurrent protective device, installed or replaced on or after April 1, 2015, that feeds a marina shall have ground-fault protection not exceeding one hundred milliamperes (100 mA). Ground-fault protection not exceeding one hundred milliamperes (100 mA) of each individual branch or feeder circuit shall be permitted as a suitable alternative. Each marina operator may determine the devices that it will utilize to achieve the one-hundred-milliamperes limit that is required by this subdivision (a)(1), including, but not limited to, the use of equipment leakage circuit interrupters or ground fault circuit interrupters;
- (2)
Cause a safety inspection to be made between January 1, 2015, and December 31, 2017, and every five (5) years thereafter, by the state fire marshal. The inspection shall include a review of all sources of electrical supply, including ship-to-shore power pedestals, submergible pumps, and sewage pump-out facilities, that could result in unsafe electrical current in the water for the purpose of ensuring compliance with the standards for maintenance of electrical wiring and equipment that are applicable to the marina. In the event that a deficiency is found during a safety inspection, any subsequent inspection that is required for the inspection of repairs that are made to address such deficiency shall be conducted by a deputy electrical inspector who is commissioned under § 68-102-143; and
- (3)
Install permanent safety signage with print legible at eighty feet (80′) of distance and placed to give adequate notice, to persons using the boat dock or marina or swimming area near the boat dock or marina, of the electric shock hazard risks of the waters around the boat dock or marina. The signage shall state:
-
“ELECTRIC SHOCK HAZARD RISK: NO SWIMMING WITHIN 100 YARDS OF THE BOAT DOCK”.
- (b)
- (1)
It is an offense for any boat dock or marina operator to intentionally or knowingly violate the requirements of this section.
- (2)
A violation of subdivision (a)(1) that does not result in serious bodily injury or death of an individual is a Class A misdemeanor, punishable by a fine only of two thousand five hundred dollars ($2,500).
- (3)
A violation of subdivision (a)(1) that results in serious bodily injury to an individual, as defined in § 39-11-106, is a Class A misdemeanor, punishable by a fine only of five thousand dollars ($5,000).
- (4)
A violation of subdivision (a)(1) that results in the death of an individual is a Class E felony, punishable by a fine only of fifty thousand dollars ($50,000).
- (5)
A violation of subdivision (a)(2) or (a)(3) is a Class A misdemeanor, punishable by a fine only not to exceed five hundred dollars ($500).
- (c)
If any boat dock or marina operator who is convicted of, or pleads guilty to, an offense under this section fails to comply with the requirements of this section within ninety (90) days of the date that the judgment was entered, the state fire marshal shall declare the boat dock or marina where the violation occurred to be a threat to the public safety and order the closure of such boat dock or marina until the boat dock or marina complies with the requirements of this section.
§ 68-102-603. Enforcement by state fire marshal.
-
The state fire marshal shall enforce this part and may promulgate rules for the efficient enforcement of its provisions. The rules shall be promulgated in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.
Chapter 104 Fireworks
Part 1 General Provisions
§ 68-104-101. Chapter definitions.
-
As used in this chapter, unless the context otherwise requires:
- (1)
“Distributor” means any person engaged in the business of making sales of fireworks to any other person engaged in the business of reselling fireworks either as a retailer, wholesaler, or seasonal retailer, or any person who receives, brings or imports any fireworks of any kind, in any manner into this state, except to a holder of a Tennessee manufacturer's, distributor's, or wholesaler's permit. Any sale of fireworks to a retailer shall only be accomplished by a manufacturer or distributor possessing the required applicable permit issued by the state of Tennessee. “Distributor” also includes any person engaged in the business of making sales of display fireworks, as defined in § 68-104-202, or proximate pyrotechnics or flame effect materials to licensed exhibitors for the purpose of providing fireworks, pyrotechnic or flame effect display services in this state. A distributor may sell display fireworks, proximate pyrotechnics or flame effect materials only to holders of a Tennessee exhibitor's permit. An out-of-state distributor shall not be required to obtain a Tennessee permit when selling exclusively to a holder of a Tennessee manufacturer's, distributor's, wholesaler's or exhibitor's permit;
- (2)
“D.O.T. Class C common fireworks” means all articles of fireworks as are now or hereafter classified as D.O.T. Class C common fireworks in the regulations of the United States department of transportation for transportation of explosive and other dangerous articles;
- (3)
“Manufacturer” means any person engaged in the making, manufacture or construction of fireworks of any kind within this state;
- (4)
“Permit” means the written authority of the state fire marshal issued under the authority of this chapter;
- (5)
“Person” means any individual, firm, partnership or corporation;
- (6)
“Retailer” means any person engaged in the business of making retail sales of fireworks at any time during the year;
- (7)
“Sale” means an exchange of articles of fireworks for money and also includes barter, exchange, gift or offer thereof, and each such transaction made by any person, whether as principal, proprietor, salesperson, agent, association, copartnership, or one (1) or more individuals;
- (8)
“Seasonal retailer” means any person engaged in the business of making retail sales of fireworks within this state from June 20 through July 5 and December 10 through January 2 of each year;
- (9)
“Special fireworks” means:
- (A)
All articles of fireworks that are classified as Class B explosives in the regulations of the United States department of transportation;
- (B)
All articles of fireworks other than those classified as Class C; and
- (C)
Unmanned free-floating devices capable of producing an open flame such as, but not limited to, sky lanterns; and
- (10)
“Wholesaler” means any person engaged in the business of making sales of fireworks to a seasonal retailer. A wholesaler shall not be permitted to make a sale to a retailer.
§ 68-104-102. Permits and fees.
- (a)
It is unlawful for any person to manufacture, sell, offer for sale, ship or cause to be shipped or received into or within this state, except as provided in this chapter, any item of fireworks, without first having secured the required applicable permit, as a manufacturer, distributor, wholesaler, retailer or seasonal retailer, from the state fire marshal. This provision applies to nonresidents as well as residents of this state. No permit shall be required of a consumer to purchase from a dealer holding a required Tennessee permit for purchases within this state. Mail orders where consumers purchase any fireworks through the mail or receive any fireworks in Tennessee by mail, parcel service, or other carrier are prohibited. A sales clerk must be on duty to serve consumers at the time of purchase or delivery. It is the legislative intent that all fireworks sold and delivered to consumers within this state must take place within this state and be sold and delivered only by a Tennessee dealer holding a Tennessee fireworks permit, and that all fireworks coming into the state and sold within the state be under the supervision of the state fire marshal as provided in this chapter.
- (b)
A manufacturer's permit issued under this chapter shall be subject to rules and regulations promulgated by the state fire marshal to govern the manufacture of fireworks as in the state fire marshal's judgment the public welfare may require.
- (c)
- (1)
The decision of the state fire marshal as to what type of permit or permits shall be required of each person under this chapter shall be final. No permit shall be issued to a person under eighteen (18) years of age. All permits shall be for the calendar year or any fraction of the year and shall expire on December 31. A grace period of two (2) days shall be allowed each holder of a permit. Permits issued to retailers and seasonal retailers must be displayed. No permit provided for in this section is transferable to another person or location, unless such transfer has been approved by the state fire marshal.
- (2)
The state fire marshal shall verify that an applicant for a permit under this chapter is locally licensed, as described in § 68-104-106, to do business in this state and is registered with the department of revenue prior to issuing the permit.
- (d)
- (1)
The state fire marshal shall charge the following fees for permits:
- (A)
Manufacturer$1,000
- (B)
Distributor$1,000
- (C)
Retailer$1,000
- (D)
Wholesaler $1,000
- (E)
Seasonal retailer$100
- (F)
Exhibitor$1,000
- (2)
A person engaged in more than one (1) of the activities in subdivision (d)(1) shall pay only one (1) fee based upon the classification requiring the higher fee.
- (e)
The holder of a retailer's permit will be authorized to engage in the retail sale of fireworks in any quantity during the life of the permit.
- (f)
A holder of a manufacturer's permit will not be required to have any additional permit or permits, in order to sell to distributors, wholesalers, retailers or seasonal retailers.
- (g)
All fees collected for permits shall constitute expendable receipts of the fire prevention division. The state fire marshal may designate a deputy fire marshal as the fireworks enforcement officer. The state fire marshal is charged with the enforcement of this chapter and may call upon any state, county, municipal or other peace officer for assistance in the enforcement of this chapter.
§ 68-104-104. Consignee required to hold permit before shipping or delivering fireworks — Purchase only from seller holding permit — Record of sale.
-
No person shall deliver, sell or ship fireworks into or within this state, unless the consignee produces the required permit or evidence that the consignee holds such permit. No person shall purchase fireworks from another person without first requiring proof that the proper permit required of the seller has been obtained and is current and valid. Each holder of a permit under this chapter shall keep an accurate record of each shipment received. Each holder of a permit as distributor, manufacturer or wholesaler shall keep a record of each sale, delivery or out shipment of fireworks. The records shall be clear, legible and accurate, showing the name and address of the seller or purchaser, item and quantity received or sold. The records are to be kept at each place of business and shall be subject to examination by the state fire marshal or the state fire marshal's designated representative, who shall have the authority during regular business hours to require any manufacturer, distributor, wholesaler, retailer or seasonal retailer to produce records for the current year and the preceding full calendar year.
§ 68-104-105. Permit for new location — Illegal acts — Inspections — Revocation of permits.
- (a)
Any request for the issuance of a retailer's or seasonal retailer's fireworks permit for a new location shall be accompanied by a statement that the sale of fireworks in the county or municipality, respectively, is permissible. The statement shall be signed by the chief executive officer of the county or municipality in which fireworks are to be sold or by a person appointed or designated by the chief executive officer of the county or municipal government having responsibility for compliance with this section within the county or municipality. For purposes of this section, “new location” means any location where fireworks were not sold at retail as of May 2, 1983. “New location” does not include any location in which the lawful sale of fireworks has transpired for the immediate two (2) years prior to May 2, 1983.
- (b)
- (1)
All fireworks held for sale at retail within local jurisdictions where the sale or use of fireworks is prohibited are declared contraband and subject to confiscation.
- (2)
It is declared illegal to ship into any municipality or county of this state for purposes of possession for sale at retail or to sell any fireworks where such municipality or county has declared that the sale or possession of such fireworks is an illegal act by the appropriate ordinance or law; provided, that in counties with a population of not less than fifty-eight thousand seventy-five (58,075) nor more than fifty-eight thousand one hundred seventy-five (58,175), according to the 1980 federal census or any subsequent federal census, the sale and possession of fireworks in accordance with this chapter is lawful within such county and any incorporated municipality within that county unless either the governing body of the county, for the unincorporated areas of the county, or the governing bodies of the respective municipalities within such county, for the areas under their jurisdiction, act by a majority vote of the respective bodies to prohibit such sales and possession; and provided further, that the respective governing bodies may act, or may rescind their previous actions, at any time by a majority vote. The state fire marshal or the fire marshal's designated representatives may inspect the location for each permit before a permit is issued to determine if the location meets the requirements of this chapter and reasonable safety standards for the storage and sale of fireworks. The exact mailing address and exact address where fireworks are to be sold must be stated on each application and permit. Inspection is not required for renewal of permits at the same location to be operated by the same owner, unless there has occurred substantial structural use or environmental changes.
- (c)
- (1)
The state fire marshal may, in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, revoke any permit issued under this chapter upon evidence that the holder has violated any provisions of this chapter. Before any permit is revoked, the state fire marshal shall give notice of the state fire marshal's intention to do so, by registered mail, or personal service to the holder of such permit. The notice shall inform the permit holder of the holder's right to a hearing. The state fire marshal shall conduct an appropriate contested case hearing concerning the action regarding permit revocation, in accordance with the Uniform Administrative Procedures Act.
- (2)
If the permit revoked is for a business located in this state, notice of the revocation order must be supplied to the county clerk of the county in which the permit holder's business is located.
- (d)
The state fire marshal, in the fire marshal's discretion, may refuse to issue another permit to the holder of a permit that has been cancelled or revoked for cause for a period not to exceed three (3) years.
§ 68-104-106. Privilege licenses not replaced by permit — Issuance requirements.
-
The issuance of the permits required in this chapter does not replace or relieve any person of state, county or municipal privilege licenses as provided by law. Before the issuance of any state and county licenses, the county clerk shall require each applicant for a fireworks license to exhibit a permit or furnish other definite and satisfactory evidence that a proper permit has been issued to the applicant by the state fire marshal and that the permit is current and valid.
§ 68-104-108. Permissible fireworks.
-
It is unlawful for any individual, firm, partnership or corporation to possess, sell or use within this state, or ship into this state, except as provided in this chapter, any pyrotechnics commonly known as fireworks, other than the following permissible items:
- (1)
Those items classified as D.O.T. Class C common fireworks; or
- (2)
Those items that comply with the construction, chemical composition and labeling regulations promulgated by the United States consumer product safety commission and permitted for use by the general public under its regulations.
§ 68-104-109. Conditions for sale and use of permissible articles.
-
No permissible articles of common fireworks defined in § 68-104-108 shall be sold, offered for sale, or possessed within this state, or used, in this state, except as provided in § 68-104-211, unless it is properly named to conform to the nomenclature of § 68-104-108, and unless it is certified as common fireworks on all shipping cases and by imprinting on the article or retail container, “D.O.T. Class C common fireworks,” such imprint to be of sufficient size and so positioned as to be readily recognized by law enforcement authorities and the general public.
§ 68-104-110. Retail sale of permissible items — Exception to definition of “fireworks.”
-
Permissible items of fireworks, as provided for in § 68-104-108, may be sold by a retailer or a seasonal retailer, except that fireworks does not include toy pistols, toy canes, toy guns, or other devices in which paper caps containing twenty-five one-hundredths (0.25) grains or less of explosive compounds are used; provided, they are so constructed that the hand cannot come in contact with the cap when in place for exploding, and toy paper pistol caps which contain less than twenty-five one-hundredths (0.25) grains of explosive compounds, cone, bottle, tube, and other type serpentine pop-off novelties, model rockets, wire sparklers containing not over one hundred (100) grams of composition per item (sparklers containing any chlorate or perchlorate salts may not exceed five (5) grams of composition per item), emergency flares, matches, trick matches and cigarette loads, the sale and use of which shall be permitted at all times.
§ 68-104-111. Storage, location and display of fireworks — Protection of fuses.
- (a)
Placing, storing, locating or displaying of fireworks in any window where the sun may shine through glass onto the fireworks so displayed or to permit the presence of lighted cigars, cigarettes, or pipes, within ten feet (10′) of where the fireworks are offered for sale is declared unlawful and prohibited. At all places where fireworks are stored or sold, there must be posted signs with the words “Fireworks — No smoking” in letters not less than four inches (4″) high. No fireworks shall be sold at retail at any location where paints, oils or varnishes are for sale or use, unless such paints, oils or varnishes are kept in their original consumer containers, nor where resin, turpentine, gasoline or any other flammable substance is stored or sold, if the storage creates an undue hazard to any person or property.
- (b)
All firework devices that are readily accessible to handling by consumers or purchasers shall have their fuses protected in such a manner as to protect against accidental ignition of an item by spark, cigarette ash or other ignition source. Safety-type thread-wrapped and coated fuses shall be exempt from this provision.
§ 68-104-112. Unlawful acts in the sale and handling of fireworks.
- (a)
- (1)
To purchase any Class C common fireworks, a person must be at least sixteen (16) years of age. Any person sixteen (16) or seventeen (17) years of age who wishes to purchase Class C common fireworks must provide proof of age to the retailer or seasonal retailer by presenting a state-issued photo identification or be accompanied by an adult. It is unlawful to offer for retail sale or to sell any Class C common fireworks to any person under sixteen (16) years of age or to any intoxicated or irresponsible person.
- (2)
It is unlawful to explode or ignite fireworks within six hundred feet (600′) of any church, hospital, asylum, public school or within two hundred feet (200′) of where fireworks are stored, sold or offered for sale.
- (3)
No person shall ignite or discharge any permissible articles of fireworks within or throw any permissible articles of fireworks from a motor vehicle while within, nor shall any person place or throw any ignited article of fireworks into or at a motor vehicle, or at or near any person or group of people.
- (4)
It is unlawful for any individual, firm, partnership or corporation to sell at retail any Class C common fireworks within any county of this state having a population greater than three hundred fifty-five thousand (355,000), according to the 2010 federal census or any subsequent federal census, except in municipalities within such counties with a population of not less than six hundred (600) nor more than six hundred twenty (620), according to the 1980 federal census or any subsequent census, that permitted the sale of such fireworks before 1984; provided, that it is not unlawful for Class C common fireworks to continue to be sold by a person on a parcel of land that contains a fireworks stand, if:
- (A)
The parcel of property upon which such fireworks are sold is either partially located in a county having a population in excess of three hundred fifty-five thousand (355,000), according to the 2010 federal census or any subsequent federal census, or there is disagreement concerning whether such property is wholly contained within a county having a population in excess of three hundred fifty-five thousand (355,000), according to the 2010 federal census or any subsequent federal census; and
- (B)
Fireworks have been sold annually at such stand for a period of at least forty-five (45) years.
- (b)
- (1)
All items of fireworks that exceed the limits of D.O.T. Class C common fireworks as to explosive composition, such items being commonly referred to as “illegal ground salutes” designed to produce an audible effect, are expressly prohibited from shipment into, manufacture, possession, sale or use within this state for any purpose. This subdivision (b)(1) shall not affect display fireworks authorized by this chapter.
- (2)
A violation of subdivision (b)(1) for a second or subsequent offense is a Class E felony.
- (c)
Notwithstanding any other provision of law to the contrary:
- (1)
It shall be lawful for any individual, firm, partnership, or corporation to sell at retail any D.O.T. Class C common fireworks, as defined in § 68-104-101, within the city of East Ridge. This part shall apply to the sale of fireworks in such city; and
- (2)
It shall be lawful for any individual, firm, partnership, or corporation to sell at retail any D.O.T. Class C common fireworks, as defined in § 68-104-101, within a municipality with a population of not less than ten thousand one hundred seventy (10,170) nor more than ten thousand one hundred seventy-nine (10,179), according to the 2010 federal census or any subsequent census. This part shall apply to the sale of fireworks in such municipality.
§ 68-104-113. Exceptions to application.
-
Nothing in this chapter shall be construed as applying to the manufacture, storage, sale or use of signals necessary for the safe operation of railroads or other classes of public or private transportation or of illuminating devices for photographic use, nor as applying to the military or naval forces of the United States, or of this state or to peace officers, nor as prohibiting the sale or use of blank cartridges for ceremonial, theatrical, or athletic events, nor as applying to the transportation, sale or use of fireworks solely for agricultural purposes; provided, that the purchaser first secures a written permit to purchase and use fireworks for agricultural purposes only from the state fire marshal, after approval of the county agricultural agent of the county in which the fireworks are to be used, and the fireworks must at all times be kept in possession of the farmer to whom the permit is issued. Such permits and fireworks shall not be transferable. Items sold for agricultural purposes shall be limited to those items that are legal for retail sale and use within this state.
§ 68-104-114. Penalties.
- (a)
Except as otherwise provided, a violation of this chapter is a Class C misdemeanor.
- (b)
Notwithstanding subsection (a), a violation of § 68-104-112(a)(1) is a Class C misdemeanor punishable by a fine to the retailer or seasonal retailer of up to one hundred dollars ($100) for the first offense, a fine of up to two hundred fifty dollars ($250) for the second offense, and a fine of up to five hundred dollars ($500) for subsequent offenses. Any municipality may adopt § 68-104-112(a)(1) by reference or substantial duplication as an ordinance violation.
§ 68-104-115. Seizure and destruction of fireworks.
- (a)
The state fire marshal shall seize as contraband any fireworks, other than Class C common fireworks defined in § 68-104-108, or special fireworks for public displays as provided in § 68-104-211, that are sold, displayed, used or possessed in violation of this chapter. The fire marshal is authorized to destroy fireworks so seized.
- (b)
Before any seized fireworks may be destroyed:
- (1)
If the owner of the seized fireworks is known, the state fire marshal shall give notice by registered mail or personal service to the owner of the state fire marshal's intention to destroy the seized materials. The notice shall inform the owner of the owner's right to a hearing. The state fire marshal shall conduct an appropriate contested case hearing concerning the destruction of fireworks in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.
- (2)
If the identity of the owner of any seized fireworks is not known to the state fire marshal, the fire marshal shall cause to be published, in a newspaper of general circulation in the county in which the seizure was made, notice of the seizure, and of the state fire marshal's intention to destroy the fireworks. The notice shall be published once each week for three (3) consecutive weeks. If no person claims ownership of the fireworks within ten (10) days of the date of the last publication, the state fire marshal may proceed to destroy the fireworks. If the owner does claim the fireworks within the time above specified, a hearing as set out in subdivision (b)(1) shall be held.
§ 68-104-116. Private acts and municipal ordinances unaffected.
-
This chapter shall not affect the validity of any private act, nor any city ordinance further prohibiting or restricting the sale or use of fireworks; provided, that in counties with a population of not less than fifty-eight thousand seventy-five (58,075) nor more than fifty-eight thousand one hundred seventy-five (58,175), according to the 1980 federal census or any subsequent federal census, § 68-104-105 shall control.
Part 2 Licensing and Certification Program
§ 68-104-201. Purpose of part.
-
The purpose of this part is to enact a self-funded licensing program for display fireworks, pyrotechnic, and flame effect exhibitors and a certification program for individuals conducting fireworks displays, proximate pyrotechnic displays, and flame effect displays. The purpose of these programs is to ensure a level of competence that promotes the safety of the viewing public, as well as the safety of fire service personnel, fireworks display operators and proximate pyrotechnic display operators, and employees, performers, and support personnel. It is not the purpose of this part to regulate DOT Class C common fireworks or consumer fireworks as described by NFPA standards.
§ 68-104-202. Part definitions.
-
As used in this part, unless the context otherwise requires:
- (1)
“Certified flame effect operator” means an individual who, by experience, training and examination recognized and approved by the state fire marshal, has demonstrated the necessary knowledge and ability to safely assemble, discharge and supervise flame effects in accordance with this part and NFPA 160;
- (2)
“Certified outdoor display operator” means an individual who, by experience, training and examination recognized and approved by the state fire marshal, has demonstrated the necessary knowledge and ability to safely assemble, discharge and supervise outdoor displays of display fireworks in accordance with NFPA 1123;
- (3)
“Certified proximate pyrotechnic operator” means an individual who, by experience, training and examination recognized and approved by the state fire marshal, has demonstrated the necessary knowledge and ability to safely assemble, discharge and supervise indoor pyrotechnics, indoor pyrotechnic materials used outdoors or proximate displays of 1.4G or 1.4S fireworks or pyrotechnics in accordance with NFPA 1126;
- (4)
“Display fireworks” means those fireworks designed primarily to produce visible or audible effects by combustion, deflagration or detonation and that are classified as 1.3G fireworks or display fireworks in the regulations of the United States department of transportation (DOT) for transportation of explosive and other dangerous articles;
- (5)
“Event” means any function or gathering at which there will be a fireworks display, a pyrotechnic display, a flame effect display or any combination of these displays. If a function or gathering lasts more than one (1) day, each day is a separate event. “Event” does not include any function or gathering at which DOT Class C common fireworks, also known as 1.4G fireworks, will be used;
- (6)
“Fire marshal” means the state fire marshal;
- (7)
“Flame effect” means the combustion of an inflammable solid, liquid or gas to produce thermal, physical, visual or audible phenomena before an audience as defined by NFPA 160;
- (8)
“Flame effect display” means the use of flame effects before an audience as defined by NFPA 160;
- (9)
“Licensed exhibitor” means a sole proprietor, partnership, corporation, company, firm or other entity licensed under this part to perform or provide firework or pyrotechnic materials for outdoor fireworks displays, proximate pyrotechnic displays, flame effect displays or any combination of these displays;
- (10)
“NFPA” means the National Fire Protection Association;
- (11)
“NFPA 160” means the NFPA publication entitled “NFPA 160: Standard for the Flame Effects Before an Audience,” 2001 edition or any subsequent edition that has been adopted by the state fire marshal by rule;
- (12)
“NFPA 1123” means the NFPA publication entitled “NFPA 1123: Code for Fireworks Display,” 2000 edition or any subsequent edition that has been adopted by the state fire marshal by rule;
- (13)
“NFPA 1124” means the NFPA publication entitled “NFPA 1124: Code for the Manufacture, Transportation, Storage, and Retail Sale of Fireworks and Pyrotechnic Articles,” 2000 edition or any subsequent edition that has been adopted by the state fire marshal by rule;
- (14)
“NFPA 1126” means the NFPA publication entitled “NFPA 1126: Standards for the Use of Pyrotechnics Before a Proximate Audience,” 2001 edition or a subsequent edition that has been adopted by the state fire marshal by rule;
- (15)
“Outdoor fireworks display” means a presentation of display fireworks for a public or private gathering as defined by NFPA 1123;
- (16)
“Proximate pyrotechnic display” means the use of pyrotechnic devices and materials, 1.4G or 1.4S fireworks or pyrotechnics, when any portion of the audience is closer than permitted by NFPA 1123, and subject to NFPA 1126 requirements;
- (17)
“Proximate pyrotechnics” means pyrotechnic devices for professional use only, used outdoors or indoors, that are similar to consumer fireworks in chemical composition and construction, but that are not intended for consumer use, and that are defined by NFPA 1126 as 1.4G or 1.4S fireworks or pyrotechnics; and
- (18)
“Sponsor” means any person or organization that contracts with a licensed exhibitor or certified operator to perform a fireworks display, proximate pyrotechnic display, flame effect display or any combination of these displays. With regard to a municipality, county or metropolitan government that sponsors a display, “sponsor” means a governmental entity in compliance with § 68-104-203(b).
§ 68-104-203. Licensed exhibitor — Application for permits — Requirements.
- (a)
An individual or entity, other than a municipality, county, or metropolitan government, must be a licensed exhibitor to perform an outdoor fireworks display, an indoor or outdoor proximate pyrotechnic display or an indoor or outdoor display using flame effects. An individual or entity must be a licensed exhibitor to supply display fireworks, indoor or outdoor proximate pyrotechnics or flame effect materials for display purposes.
- (b)
A municipality, county or metropolitan government conducting an indoor or outdoor proximate pyrotechnic display or an indoor or outdoor display using flame effects, however, must apply for and obtain the permit required pursuant to § 68-104-212, and:
- (1)
Have a certified operator on site at the event supervising or discharging the display;
- (2)
Show proof of insurance in accordance with the limits of liability established in the Tennessee Governmental Tort Liability Act, compiled in title 29, chapter 20, or proof of adequate self-insurance; and
- (3)
Have the pyrotechnic materials supplied or purchased from a licensed exhibitor.
§ 68-104-204. Applicant requirements.
-
To receive an exhibitor's license, an applicant shall:
- (1)
Make application to the fire marshal on a form prescribed by the fire marshal. The application must be accompanied by the required fee. An individual seeking a license as a sole proprietor or on behalf of a business entity must be at least twenty-one (21) years of age and not have been convicted of or pleaded guilty or nolo contendere to a state or federal felony for the commission of an offense that bears directly on the applicant's fitness to practice competently, as determined by the fire marshal. In the case of a business entity seeking a license, no officer or member of its governing board may have been convicted of or pleaded guilty or nolo contendere to a state or federal felony for the commission of an offense that bears directly on the applicant's fitness to practice competently, as determined by the fire marshal; and
- (2)
Submit evidence satisfactory to the fire marshal that the applicant has and will continue in force a general liability insurance policy, on an event, multiple event or continuous basis, to cover its potential liability for bodily injury and property damage in the minimum amount of one million dollars ($1,000,000) during all fireworks, pyrotechnic and flame effect displays for the use and benefit of any person who may be injured or aggrieved. The certificate of insurance or other evidence must be issued by an insurer authorized to do business in this state. If the insurance policy ceases to be in effect, the exhibitor's license becomes invalid. This subdivision (2) does not require employees or certified operators to maintain this insurance coverage.
§ 68-104-205. Issuance of license.
-
If an applicant complies with the requirements of this part and the rules of the fire marshal, the fire marshal shall issue the license within sixty (60) days of receiving the application. The term of the license is one (1) year from the date of issuance. Each license issued shall contain a distinct number assigned to the particular exhibitor. The fire marshal shall maintain a list of all licensed exhibitors. In this list next to the exhibitor's name, the fire marshal shall insert the period of licensure and the exhibitor's license number. The list of licensed exhibitors shall be posted on the department's website.
§ 68-104-206. Renewal of license.
-
A license holder with an unexpired license may apply for a new license at any time before the license expires. An exhibitor whose license has been expired for ninety (90) or fewer days may renew the license and have it retroactive to the date the old license expired by applying and paying a fee equal to one and one-half (1½) times the normal fee. This section does not prevent the fire marshal from denying a new license, if the applicant does not comply with this part or rules of the fire marshal.
§ 68-104-207. Denial, suspension, revocation or refusal to renew license or certification.
- (a)
The fire marshal may refuse to grant, or may suspend, revoke or refuse to renew any license or certification held under this part, and may assess a civil penalty not exceeding two thousand five hundred dollars ($2,500) for a first violation of this part and not exceeding ten thousand dollars ($10,000) for a second or subsequent violation of this part; provided, however, that the fire marshal may assess a civil penalty up to ten thousand dollars ($10,000) for a first violation of this part that is willful and egregious and in the fire marshal's discretion warrants such a penalty.
- (b)
The Uniform Administrative Procedures Act, compiled in title 4, chapter 5, shall govern all matters and procedures respecting the hearing and judicial review of any contested case arising under this part.
- (c)
If an exhibitor's license is suspended or revoked, then the exhibitor shall cease performing displays and distributing display fireworks immediately. If an exhibitor's license is revoked for any reason, then the exhibitor is prohibited from applying for a new license for one (1) year from the date of revocation. Upon a finding that the exhibitor's federal license, if applicable, has been revoked, the fire marshal shall revoke the exhibitor's state license. An exhibitor's license that has been revoked solely for failure to have the required insurance may be reinstated upon proof by the exhibitor that the required insurance has been obtained.
§ 68-104-208. Program of certification.
- (a)
The fire marshal shall establish a program of certification for outdoor fireworks display operators, proximate pyrotechnic display operators, and flame effect display operators. To receive certification, an applicant must apply for certification to the fire marshal on a form to be prescribed by the fire marshal, must be at least twenty-one (21) years of age, and must not have been convicted of or pleaded guilty or nolo contendere to a state or federal felony. In addition, an applicant must meet the following requirements for the areas in which the applicant desires certification:
- (1)
To be certified as an outdoor fireworks display operator, the applicant must:
- (A)
Pass a written examination that tests outdoor display operator knowledge, approved by and conducted under the auspices of the fire marshal;
- (B)
Show that the applicant has worked under competent supervision on at least three (3) outdoor fireworks displays in the three (3) years immediately preceding the application; and
- (C)
Pay a certification fee not to exceed one hundred fifty dollars ($150) to be set by rule by the fire marshal;
- (2)
To be certified as a proximate pyrotechnic display operator, the applicant must:
- (A)
Pass a written examination that tests pyrotechnic special effects operator knowledge, approved by and conducted under the auspices of the fire marshal;
- (B)
Show that the applicant has worked under competent supervision on at least five (5) proximate pyrotechnic displays in the three (3) years immediately preceding the application; and
- (C)
Pay a certification fee not to exceed one hundred fifty dollars ($150) to be set by rule by the fire marshal; and
- (3)
To be certified as a flame effect display operator, the applicant must:
- (A)
Pass a written examination that tests flame effect operator knowledge, approved by and conducted under the auspices of the fire marshal;
- (B)
Show that the applicant has worked under competent supervision on at least five (5) flame effect displays in the three (3) years immediately preceding the application; and
- (C)
Pay a certification fee not to exceed one hundred fifty dollars ($150) to be set by rule by the fire marshal.
- (b)
If an applicant applies for more than one (1) certification, the applicant may take the test for any or all certifications and pay a maximum certification fee of three hundred dollars ($300).
- (c)
The fire marshal shall establish the scope and type of examinations required by this section, and may require applicants to take a test created by a nationally recognized pyrotechnic association. The fire marshal may administer the examination or may enter into an agreement with a testing service or organization. The tests may be administered at a specific location or time. The fire marshal may set by rule and collect a reasonable nonrefundable fee calculated to cover the costs of administering the test. Written tests may be supplemented by practical tests or demonstrations deemed necessary to determine the applicant's skill and ability. The content, type, frequency, and location of the tests shall be designated by the fire marshal.
- (d)
- (1)
An operator certification or renewal expires three (3) years after the date of approval or reissuance. To renew the certification, an individual must show to the satisfaction of the fire marshal that the individual has attended at least six (6) hours of continuing education training meeting the approval of the fire marshal in the areas of certification desired during the three-year certification period and pay the applicable certification fees.
- (2)
Notwithstanding subdivision (d)(1), in lieu of sitting for continuing education credit, an operator may elect to retake the appropriate examination for the certification desired; provided, however, that the operator must earn a passing score on the appropriate examination for the certification desired. Subsection (a) requiring the submission of verification of experience forms shall be waived if the certification is renewed via appropriate re-examination in lieu of continuing education training prior to the expiration date for the certification.
§ 68-104-209. Operators from other states — Reciprocity.
-
The fire marshal, upon application by a certified operator, or equivalent, from another state, may allow the operator to perform displays in this state without submitting to the written examination, if the fire marshal determines that the other state's laws allow certified operators from Tennessee to perform displays in that state and the other state's laws set standards for operators substantially equivalent to those in this state. All other applicable certification provisions apply to the out-of-state operator, and applicants for whom the written examination is waived must comply with all other requirements, including continuing education requirements.
§ 68-104-210. Unlawful practices — Violations — Adopting section by reference — Exceptions.
- (a)
It is unlawful for:
- (1)
Except with regard to a municipality, county or metropolitan government that conducts a display, so long as the governmental entity is in compliance with § 68-104-203(b), anyone other than a certified operator to perform an outdoor display using display fireworks, indoor display or proximate pyrotechnics display that are defined as 1.4G or 1.4S fireworks or pyrotechnics in the regulations of the United States DOT for transportation of explosive and other dangerous articles, or indoor or outdoor display using flame effects;
- (2)
Any person or entity to perform an outdoor display using display fireworks, an indoor display or proximate pyrotechnics display using 1.4G or 1.4S fireworks or pyrotechnics, or an indoor or outdoor display using flame effects without an appropriately certified operator on the scene of the display to supervise during the preparation for the display, during the display, and immediately after the display until the site is released;
- (3)
Any exhibitor or certified operator to conduct or perform an outdoor fireworks display except in accordance with NFPA 1123;
- (4)
Any exhibitor or certified operator to conduct or perform a proximate pyrotechnic display except in accordance with NFPA 1126; or
- (5)
Any exhibitor or certified operator to conduct or perform a flame effect display except in accordance with NFPA 160.
- (b)
A violation of subsection (a) is a Class B misdemeanor.
- (c)
Notwithstanding any provision of the law to the contrary, any municipality may adopt subsection (a) by reference or substantial duplication as an ordinance violation.
- (d)
Subsection (a) does not apply to individuals or organizations employing DOT Class C common fireworks for their personal or display use.
§ 68-104-211. Public displays — Permits — Fire prevention.
- (a)
- (1)
Items of fireworks that are to be used for public display only and that are otherwise prohibited for sale or use within this state include display shells designed to be fired from mortars and display set pieces defined as 1.3G fireworks or display fireworks in the regulations of the United States DOT for transportation of explosive and other dangerous articles.
- (2)
Public displays shall be performed only under competent supervision, and after the persons or organizations making the displays have applied for and received a permit for displays issued by the state fire marshal.
- (3)
Applications for permits for public displays shall be made in writing at least ten (10) days in advance of the proposed display, and the application shall show that the proposed display is to be so located and supervised that it is not hazardous to property and that it shall not endanger human lives; provided, however, that the fire marshal may accept applications and issue permits for public displays within the ten-day window and charge the applicant, in addition to the regular permit fee, an expedited permit fee, to be established by rule but not to exceed twice the amount of the regular permit fee, for the issuance of an expedited public display permit.
- (4)
If the display is to be performed within the limits of a municipality, the application shall so state and shall bear the signed approval of the chief supervisory officials of the fire department of the municipality. At the time the application for a permit is filed for a public display to be held within the limits of a municipality, the permittee shall send a written notification to the chief supervisory official of the police department of the municipality stating the date, time and location of the public display. At the time the application for a permit is filed for a public display to be held within the limits of the county but outside the limits of a municipality, the permittee shall send a written notification to the chief supervisory law enforcement official of the county stating the date, time and location of the public display. If the display is to be performed within the limits of a county, but outside the limits of a municipality, the application shall so state and shall bear the signed approval of the chief supervisory fire department officials of the county, or the officials' designees. The chief supervisory fire department officials of such county, or such officials' designee, shall have the authority to demand all necessary documentation to ensure that the permittee has a fire suppression vehicle or firefighter at the site of the fireworks display as required by this part. Such documentation does not have to be submitted to the department. The applicable fire department official who issues approval of the fireworks display pursuant to this section shall determine how many firefighters are required for such fireworks display.
- (5)
Permits issued shall be limited to the time specified in the permit, and shall not be transferable. Possession of special fireworks for resale to holders of a permit for a public fireworks display shall be confined to holders of a distributors permit only.
- (b)
The permittee conducting an outdoor public display of fireworks shall have at least one (1) fire suppression vehicle or apparatus with the necessary personnel on site during the outdoor display as determined by the fire department official with authority to issue approval of the fireworks display. The permittee is responsible for all costs associated with the fire suppression vehicle or apparatus.
- (c)
- (1)
The permittee conducting an indoor public display of fireworks shall have at least one (1) trained firefighter or certified fire inspector on site during the indoor display. The trained firefighter or certified fire inspector may be a volunteer firefighter, a firefighter from another jurisdiction, or an inspector with the appropriate credentials as determined by the fire department official with authority to issue approval of the fireworks display. The permittee is responsible for all costs associated with the trained firefighters or certified fire inspectors.
- (2)
Immediately before the start of the program that includes the use of indoor fireworks, the owner of the building or the authorized representative of the owner, shall orally notify attendees of the location of all exits from the building to be used in the event of a fire or other emergency.
- (3)
At least two (2) working fire extinguishers shall be in the area where the fireworks are to be employed.
- (4)
In any building in which indoor fireworks are to be employed, signs designating the location of all emergency exits shall be posted in each restroom that is available to the public.
§ 68-104-212. Permit fee.
-
The fire marshal shall collect a permit fee from or on behalf of the sponsor for each event at which there will be a display, which may include all or any of the types of displays regulated by this part, in an amount not to exceed fifty dollars ($50.00) per permit. As part of the application for a permit, the fire marshal shall verify that the required insurance has been obtained and is in force for the event, and shall deny the application if it is not. A permittee, which may include an exhibitor, sponsor or operator that is conducting multiple displays that are essentially identical at a single location, may be issued a multiple display permit. The fire marshal shall set by rule and collect a multiple display permit fee from or on behalf of the sponsor of an event, not to exceed four hundred dollars ($400) per location. A multiple display permit expires one (1) year after issuance.
§ 68-104-213. Storage requirements.
-
Any person or entity that stores fireworks or pyrotechnic materials, or both, that are classified as Class B or 1.3 fireworks or pyrotechnic materials in the regulations of the United States DOT for transportation of explosive and other dangerous articles, shall store them in accordance with current NFPA standards, including NFPA 1124, and any applicable federal, state, and local laws or ordinances. Violation of this section is a Class B misdemeanor.
§ 68-104-214. Rules and regulations.
-
The fire marshal shall administer and enforce this part and may call upon any state, county, or municipal officer or employee for assistance. The fire marshal may promulgate rules to carry out the fire marshal's responsibilities under this part, including rules relative to:
- (1)
Licensing of exhibitors;
- (2)
Certification of operators;
- (3)
Training;
- (4)
Examinations;
- (5)
The responsible handling of display fireworks, proximate displays and flame effect displays; and
- (6)
Any other reasonable rules the fire marshal deems necessary to implement this part.
§ 68-104-215. Validity of municipal ordinances.
-
This part does not affect the validity of any municipal ordinance further regulating or restricting outdoor displays using display fireworks, indoor or proximate pyrotechnics displays, or indoor or outdoor displays using flame effects.
Chapter 105 Tennessee Blasting Standards Act
§ 68-105-102. Chapter definitions.
-
As used in this chapter, unless the context otherwise requires:
- (1)
“Airblast” means the airborne shock wave generated by a blast and traveling through the atmosphere;
- (2)
“ATF” means the bureau of alcohol, tobacco, firearms, and explosives of the United States department of justice;
- (3)
“ATF permit or license” means the permit or license issued by the ATF and required by 18 U.S.C. § 842 for any person who intends to engage in business as an explosive materials user, importer, manufacturer, or dealer;
- (4)
“Blast” means the act of detonating explosive materials joined by a shared initiation system and a single firing device;
- (5)
“Blast hole” or “borehole” means a hole drilled in rock or other material for the placement of explosives;
- (6)
“Blaster” means a person qualified by reason of training, knowledge, experience and registration to fire or detonate explosives in blasting operations;
- (7)
“Blasting operation” means the use of explosives in the blasting of stone, rock, ore or any other natural formation, or in any construction or demolition work;
- (8)
“Charge” means a quantity of explosives that is to be detonated within a segregated position in the blast design;
- (9)
“Commissioner” means the commissioner of commerce and insurance or the commissioner's designee;
- (10)
“Delay” means a period of time until detonation after application of energy to the ignition system;
- (11)
“Delay period” means a time separation of eight (8) milliseconds or greater between detonation of charges;
- (12)
“Department” means the department of commerce and insurance;
- (13)
“Distance” means the actual distance in feet along ground contour to the nearest dwelling house, public building, school, church, commercial or institutional building normally occupied;
- (14)
“Explosives” means any chemical compound or other substance or mechanical system intended for the purpose of producing an explosion, or that contains oxidizing and combustible units or other ingredients in such proportion or quantities that ignition by detonation may produce an explosion, capable of causing injury to persons or damage to property;
- (15)
“Handler” means a person qualified by reason of training, knowledge, experience and registration to accept custody and possession of explosives in blasting operations;
- (16)
“Letter of denial” means a written notification from the ATF indicating that an individual is not approved to possess, use, manufacture, distribute, transport, or direct the use or management of explosives;
- (17)
“Limited blaster” means a person qualified by reason of training, knowledge, experience and registration to:
- (A)
Fire or detonate not more than five (5) pounds of explosives per blast in surface blasting operations; or
- (B)
Use explosives as a blaster in underground mining operations;
- (18)
“Person” means an individual, public or private corporation, political subdivision, government agency, municipality, industry, copartnership, association, firm, trust, estate or other entity whatsoever;
- (19)
“Scaled distance” means the actual distance in feet divided by the square root of the maximum charge weight per delay period, in pounds; and
- (20)
“Weight” means the maximum weight of explosive, in pounds. For the sole purpose of using the formula set forth in § 68-105-104, “weight” means maximum pounds per delay period.
§ 68-105-103. Requirements governing blasting.
- (a)
The use of explosives for the purpose of blasting in the neighborhood of a public highway, dwelling house, public building, school, church, commercial or institutional building, or pipeline or other public utility facility, including, but not limited to, electrical and communications cables or wires, must be done in accordance with this chapter and the rules promulgated by the department.
- (b)
- (1)
Except as provided in subdivision (b)(9), in all instances other than as provided in subdivision (c)(1), the person who will be conducting blasting operations shall give notice to the department of the exact location a blast or blasts will occur. The notice must be made, in such manner as required by the commissioner, at least seventy-two (72) hours before the blasting operations commence.
- (2)
The notice must include a beginning and ending date for the blasting.
- (3)
Additional notification is not required for blasts that are to occur during the period of time included in the notice.
- (4)
If a public utility provider requires blasting to restore services in unusual circumstances, then the public utility provider, or the provider's designated contractor, may begin blasting operations prior to notifying the department as long as the notice is provided as soon as possible.
- (5)
If the blasting operation is in a permanent location such as, but not limited to, a commercial quarry, mine, or cemetery that has recurring blasting operations, the requirements of this subsection (b) are met if the person who will be conducting the blasting operations files a one-time notice of the location with the department.
- (6)
The department:
- (A)
May assess a fine of one hundred dollars ($100) for a first violation of failing to file a required notice; and
- (B)
Shall assess a fine of five hundred dollars ($500) for a second or subsequent violation of failing to file a required notice; provided, for good cause shown, the commissioner may waive the payment of the fine.
- (7)
The department shall retain the fines imposed and collected pursuant to this subsection (b) to defray the cost of administering and enforcing this chapter. The fines collected pursuant to this subsection (b) do not revert to the general fund.
- (8)
By March 1 of each year, the commissioner shall file an annual report with the chair of the commerce committee of the house of representatives and the chair of the commerce and labor committee of the senate providing information in sufficient detail for the committees to determine whether the fines established pursuant to subdivision (b)(6) are sufficient to ensure the notifications are being timely filed with the commissioner.
- (9)
A person conducting blasting operations is not required to file notice pursuant to this subsection (b) if the person utilizes five (5) pounds or less of explosives per blast.
- (c)
- (1)
If blasting operations are to be conducted within one hundred feet (100′) of a pipeline distributing manufactured, mixed, or natural gas, or within two hundred feet (200′) of an interstate pipeline distributing liquefied or liquid petroleum, then the person who will conduct the blasting operations shall notify the department and the utility company having control of the pipeline at least three (3) full working days, except Sundays and holidays, prior to blasting. If blasting operations are to be conducted on a single project for a period of more than one (1) day, then a single notification of intention constitutes compliance with this subdivision (c)(1).
- (2)
If blasting operations are to be conducted at the immediate location of a dwelling house, public building, school, church, commercial or institutional building that would result in ground vibrations having a particle velocity exceeding the limits provided by this chapter, then the blasting operations may proceed after receiving written consent from the property owner or owners affected.
- (3)
If the standard table of distance is exceeded, that is, a scaled distance that is less than fifty (50), then the blaster must provide notice to all structures in that area.
- (d)
A blaster shall give ample warning when a blast is about to be fired to allow all persons to retreat to a safe place, and shall take care to ascertain that all persons are in the clear. Each blaster shall follow a definite plan of warning signals that can be clearly seen or heard by anyone in the blasting area. The blaster shall inform all persons in the proximity of the established procedure, and shall take additional precautions when entry into the area is not easily denied.
- (e)
Blasting operations must not be conducted within close proximity of a public highway, unless reasonable precautionary measures are taken to safeguard the public.
- (f)
If blasting is to be done in congested areas or in proximity to a structure, railway, or highway, or another installation that may be damaged, then the blaster must take special precautions in the loading, delaying, initiation, and confinement of each blast with mats or other methods so as to control the throw of fragments, and thus prevent bodily injury or property damage.
- (g)
- (1)
A person conducting blasting operations in the vicinity of a pipeline as described in subdivision (c)(1) shall use:
- (A)
A blast hole drilling pattern and blast initiation procedure that will provide the greatest relief possible in the direction away from the pipeline; and
- (B)
A type of explosive designed to limit propagation between blast holes.
- (2)
Blasting operations in the vicinity of a pipeline as described in subdivision (c)(1) must be conducted as follows:
- (A)
The blast depth in the initial excavation must be limited to the elevation of the top of the pipeline, plus one-half (½) of the distance from the nearest blast hole to the pipeline;
- (B)
Subsequent excavations when approaching the pipelines must be limited to one-half (½) the horizontal distance from the nearest blast hole to the pipeline;
- (C)
Under the conditions described in subdivision (g)(1), the diameter of the blast hole must not exceed three inches (3″), and only one (1) blast hole may be fired per delay;
- (D)
If a free face has been established to the finished depth of the trench, then subdivisions (g)(1) and (2) do not apply;
- (E)
Monitored blasting must not exceed two inches (2″) per second peak particle velocity as measured by a seismograph at a liquid petroleum pipeline or four inches (4″) per second peak particle velocity as measured by a seismograph at all other pipelines as described in subdivision (c)(1); and
- (F)
A pipeline owner or operator seeking more restrictive vibration limits shall apply to the department under § 68-105-109(f), and indicate on the application the desired limit, in inches per second.
- (3)
If blasting is to be done in the vicinity of other utility lines, then:
- (A)
The blaster shall take reasonable precautionary measures to protect the line; and
- (B)
In the case of underground utilities, the blaster shall give notice to the department and the utility company at least seventy-two (72) hours in advance of the blasting operation.
§ 68-105-104. Blasting standards.
- (a)
In all blasting operations, except as otherwise provided in this chapter, the maximum ground vibration at a dwelling, public building, school, church, or commercial or institutional building normally occupied adjacent to the blasting site must not exceed the limitations specified in the following graph shown in Figure A to limit peak particle velocity based upon the frequency of the blast vibration:
-
- (b)
Unless a blaster uses a seismograph to monitor a blast to ensure compliance with Figure A, the operation shall comply with the scaled distance equations shown in the following Table 1.
-
TABLE 1SCALED DISTANCE EQUATIONS
-
Site
-
0 to 300 ft (91.4 m)Standard Table of Distance
-
301 to 5000 ft (92 m to 1524 m) W (lbs) = (d (ft)/55) or
-
W (kg) = (d (m)/24.9)
-
5001 ft (1524 m) and beyondW (lbs) = (d (ft)/65) or
-
W (kg) = (d (m)/29.4)
-
Key:
-
W = The maximum weight of explosives in pounds (or kilograms) that can be detonated per delay interval of 8 milliseconds or greater.
-
d = The distance in feet (or meters) from the blast site to the nearest dwelling, public building, school, church, commercial, or institutional building normally occupied not owned, leased, or contracted by the blasting operation, or on property where the owner has not given a written waiver to the blasting operation.
-
Note: To convert English Units of scaled distances (ft/lb½) to metric units (m/kg½) divide by a factor of 2.21.
-
-
Table 2: STANDARD TABLE OF DISTANCE (0 to 300 feet (91.4 m))
-
- (c)
Airblast resulting from blasting activities must not exceed one hundred forty decibels (140 dB) at the location of a dwelling, public building, school, church, or commercial or institutional building that is not owned or leased by the person engaged in the blasting operation, or on property for which the owner has not provided a written waiver to the person engaged in the blasting operation.
- (d)
In estimating the peak particle velocity at a particular position, the following equation must be used:
-
-
In the equation, V is the maximum ground particle velocity at the seismograph, D is the distance of the seismograph from the blasting, and D is the distance from the blast to the position in question and in the same general direction. The distance D may not be greater than D, and D cannot be more than five (5) times D.
- (e)
Blasting operations at permanent sites are considered as being within the limits set forth in this section if at specified locations, on at least five (5) blasts, instrumentation has shown the peak particle velocity and frequency to be within the limits of Figure A. Periodic seismic monitoring must be employed to ensure compliance with applicable law.
§ 68-105-105. Seismograph measurements.
- (a)
At a dwelling house, public building, school, church, commercial or institutional building normally occupied within three hundred feet (300′) of a blast hole, the responsible blasting firm shall offer the owner or occupant a pre-blast survey at no charge. This requirement applies only in cases where the standard table of distance is exceeded. The blasting firm shall make the offer in writing at least seventy-two (72) hours prior to commencement of the blasting operation. All surveys requested during the offer period must be completed prior to the commencement of the blasting operation. Each owner or occupant may request, in writing, complete documentation of surveys, including all photographs, from the blasting firm, and the blasting firm shall provide documentation in a timely manner. Each survey shall document all structural and cosmetic flaws noted at that time. This subsection (a) does not apply to permanent blasting operations.
- (b)
Instruments for determining particle velocity as set forth in this chapter are limited to such specific types of devices, including their deployment and field practice guidelines, as have been expressly approved by the department. The commissioner may enter upon a premise for the purpose of conducting or supervising necessary instrumentations provided by this chapter.
§ 68-105-106. Registration of explosives users — Requirements for registration — Registration classifications — Renewal — Fees.
- (a)
Unless otherwise exempted by this chapter, no person shall detonate explosives in any blasting operation, unless the person is registered with the department.
- (b)
The minimum requirements for registration are the following:
- (1)
Previous practical experience, obtained under the supervision of a registered, experienced blaster, the adequacy of which is at the discretion of the commissioner;
- (2)
A Tennessee handler's or blaster's registration, or a blaster's license issued by another state or jurisdiction; provided, the applicant for registration based on possession of a blaster's license issued by another state or jurisdiction has possessed the licensure for at least one (1) year prior to applying for licensure in this state; and
- (3)
Proof of having passed an examination prescribed by the department. The examination shall test the applicants' knowledge of blasting operations, including the storage, transportation, handling, and detonation of explosives, and state laws, rules and regulations pertaining to explosive materials.
- (c)
No person shall be eligible for registration as a blaster or limited blaster who is not at least twenty-one (21) years of age. No person shall be eligible for registration as a handler who is not at least eighteen (18) years of age.
- (d)
No person shall be eligible for registration who does not understand, speak and write the English language.
- (e)
The department shall have three (3) classifications of registration: “blaster's registration;” “limited blaster's registration;” “handler's registration.”
- (f)
A person holding a limited blaster's registration shall not conduct a blasting operation in which more than five pounds (5 lbs.) total of explosives are used in a blast in surface blasting operations, or use explosives as a blaster in underground mining operations.
- (g)
A blaster who fails to renew the registration within one (1) year of the expiration date of the last valid registration shall be required to reapply for a registration and retake an examination.
- (h)
Applications for registration shall be in writing upon a form furnished by the department and shall be accompanied by a nonrefundable application fee.
- (i)
If the application is satisfactory to the department, then the applicant is entitled to an examination to determine the applicant's qualifications. The department is entitled to charge each applicant an examination fee as set by the department for each examination. The department may administer the examination or may contract for the administration of such examination.
- (j)
If the results of the examination of any applicant are satisfactory to the department, then the department may issue a registration to the applicant upon receipt of a registration fee.
- (k)
Any person who is a registered or licensed blaster in another state where the qualifications, in the opinion of the commissioner, are equivalent to those prescribed in the state of Tennessee at the date of application, and where reciprocal registration privileges satisfactory to the department are granted to Tennessee registrants, may be granted a registration without an examination, upon the payment of a fee. The applicant shall not be required to possess a Tennessee handler's registration as a prerequisite for any type of blasting registration.
- (l)
Certificates of registration shall expire three (3) years following the date of their issuance or renewal and are invalid on that date unless renewed. Renewals may be effected by the payment of a renewal fee.
- (m)
All fees provided in this section shall be set by the department by rule, pursuant to the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.
- (n)
Blasting firms shall submit any letter of denial received from the ATF to the state fire marshal within five (5) calendar days of receipt.
§ 68-105-107. Records.
- (a)
A record of each blast shall be kept.
- (b)
All records, including seismograph reports, shall be retained at least three (3) years and shall be available for inspection and shall contain the following minimum data:
- (1)
Name of company or contractor;
- (2)
Location, date and time of blast;
- (3)
Name and signature of blaster on charge;
- (4)
Type of material blasted;
- (5)
Number of holes, burden and spacing;
- (6)
Diameter and depth of holes;
- (7)
Types of explosives used (trade name);
- (8)
Total weight of explosives used;
- (9)
Maximum weight of explosives and maximum number of holes per delay period;
- (10)
Method of firing with overhead diagram of the delay pattern;
- (11)
Direction and distance in feet to nearest dwelling house, public building, school, church, commercial or institutional building normally occupied, neither owned nor leased by the person conducting the blasting;
- (12)
Weather conditions;
- (13)
Type and height or length of stemming;
- (14)
Type of delay blasting caps used and delay periods used (trade name);
- (15)
Kind of mats or other forms of protection used;
- (16)
The person taking the seismograph reading shall accurately indicate the location of each seismograph used, and its distance from the blast;
- (17)
Name of person and/or firm analyzing the seismograph record;
- (18)
Name of driller;
- (19)
Type of material blasted and any anomalous or unusual conditions encountered during drilling;
- (20)
Location of holes not loaded or those requiring non-typical loading; and
- (21)
Documentation of measures taken to compensate for anomalous or unusual conditions.
- (c)
It is unlawful for any person to make any false entry in any record required to be kept pursuant to this section.
§ 68-105-108. Rules and regulations — Forms.
- (a)
The department may promulgate such rules and regulations, neither inconsistent nor contradictory with this chapter, that it deems necessary to effectuate the chapter.
- (b)
The department may also prescribe forms required for the administration of the chapter.
§ 68-105-109. Notification of accidents — Cessation of blaster operations — Preservation of evidence — Penalties — Hearings and judicial review — Variations from requirements.
- (a) Notification of Accident.
In the event of a blasting accident, the blaster in charge of the site shall notify the department where death, personal injury requiring hospital admission, or property damage of at least five thousand dollars ($5,000) due to flying debris occurs as a result of a blasting operation. If the blaster in charge is incapacitated, the blasting firm shall be responsible for notifying the department immediately in the event of an accident described in this subsection (a).
- (b) Cessation of Blaster Operations.
When a reportable accident occurs, the blaster in charge shall cease blasting operations immediately and shall be prohibited from conducting further blasting operations until such time as the department's investigation is completed. In no event, however, shall this cessation last longer than five (5) working days, unless the commissioner determines that a longer period of time is necessary based upon the commissioner's finding of just cause.
- (c) Preservation of Evidence.
When a reportable accident occurs, blasting operations at the site shall cease and a reasonable effort shall be made to ensure that the immediate blasting area remains undisturbed sufficient to preserve evidence of the accident until the department completes its initial investigation. In no event, however, shall this cessation last longer than three (3) working days, unless the commissioner determines that a longer period is necessary based upon the commissioner's finding of just cause. The requirements of this section do not apply to measures taken at the site to resume traffic flow, to facilitate emergency operations, or for the mitigation of damage.
- (d) Enforcement Authority.
The department may refuse to grant, or may suspend, revoke or refuse to renew any registration held under this chapter, and may assess a civil penalty in an amount not to exceed two thousand five hundred dollars ($2,500) if an individual, and five thousand dollars ($5,000) if a firm, for each violation of this chapter or the rules promulgated hereunder.
- (e) Hearings and Judicial Review.
The Uniform Administrative Procedures Act, compiled in title 4, chapter 5, govern all matters and procedures respecting the hearing and judicial review of any contested case arising under this chapter.
- (f) Variations from Requirements.
The department may approve variations from the requirements of this chapter where the proposed variations from the specific requirements:
- (1)
Are necessary;
- (2)
Will not hinder the effective administration of the chapter; and
- (3)
Will not be contrary to any other applicable law, either state or federal.
§ 68-105-110. Local requirements preempted.
-
This chapter is intended to and shall preempt and supersede all existing and future county, town, city or municipal ordinances or regulations respecting the subjects covered by the chapter.
§ 68-105-111. Penalties.
-
Any person, firm, association, corporation or other entity that engages in activity governed by this chapter and is not registered as required by this chapter commits a Class A misdemeanor.
§ 68-105-112. Minimum insurance requirements.
-
Each person applying for or renewing a firm registration certificate shall maintain a current liability insurance policy that includes blasting coverage, in the minimum amount of one million dollars ($1,000,000) during all blasting operations, for the use and benefit of any person who may be injured or aggrieved by wrongful act or omission of any employee, servant, officer, or agent in the conduct of business of the blaster, or the blaster itself. If the insurance policy ceases to be in effect, the firm registration certificate shall become invalid. This requirement shall not be construed so as to require employees and/or blasters to maintain such insurance coverage. This section shall not be applicable to any governmental entity, as defined in the Tennessee Governmental Tort Liability Act, compiled in title 29, chapter 20.
§ 68-105-114. Application for registration — Expiration — Fees.
- (a)
The application for a firm registration to purchase, receive, or take possession of explosives shall be on a form prescribed by the department. The application shall indicate the applicant's name, address, type of business, general purpose for which the explosives shall be used and proof of insurance as required by § 68-105-112, and shall be accompanied by a nonrefundable application fee. For any activity that requires registered blasters, the applicant shall provide the names and registration numbers of the registered blasters on the application.
- (b)
Firm registrations to purchase, receive, or take possession of explosives shall expire three (3) years following the date of their issuance or renewal and are invalid on that date unless renewed. Renewal may be effected by the payment of a renewal fee. Firm registrations are not transferable.
- (c)
The manufacture, handling, use, storage and transportation of explosives shall be in accordance with this chapter and the rules promulgated under this chapter.
- (d)
All fees provided in this section shall be set by the department by rule, pursuant to the Uniform Administrative Procedures Act, compiled at title 4, chapter 5.
§ 68-105-115. Insurance requirement.
-
Notwithstanding any other law to the contrary, a registered blaster or limited blaster who is not a full time employee of a registered firm shall have a current liability insurance policy that includes blasting coverage, in the minimum amount of one million dollars ($1,000,000), during all blasting operations for the use and benefit of any person who may be aggrieved by a wrongful act or omission of the blaster.
§ 68-105-116. Authority of department — Promulgation of rules and regulations — Inspections — Warrants — Disposal of unclaimed explosives.
- (a)
The department may promulgate rules and regulations concerning the manufacture, transportation, sale, storage, or use of explosives and the maintenance of such explosives, and any other rules and regulations necessary to effectuate this chapter.
- (b)
In order to carry out the purposes of this chapter, the commissioner or the commissioner's authorized representative may enter, without delay and without advance notice, any place where explosives are in use or stored or where blasting records are kept, during regular working hours and at other reasonable times, in order to inspect such places and to question any explosives user or seller for the purpose of ascertaining compliance or noncompliance with this chapter.
- (c)
If an explosives user or seller refuses entry, the commissioner or the commissioner's authorized representative may apply to the circuit court within the county in which the premises to be entered are located for an order to enforce the right of entry.
- (d)
If, during the course of a lawful inspection, the commissioner or the commissioner's authorized representative discovers explosives stored or kept in an unlawful manner and such unlawfully stored or kept explosives constitute an imminent and substantial danger to life or property, the commissioner or the commissioner's authorized representative may, upon proper affidavit before a magistrate with authority and jurisdiction to issue search warrants, obtain a warrant authorizing seizure of such unlawfully stored or kept explosives and thereby seize and store such explosives in a lawful and safe manner.
- (1)
No warrant pursuant to this subsection (d) shall be issued upon an affidavit that does not aver that an arrangement has been made between the commissioner or the commissioner's authorized representative and public or private sources for the lawful and safe storage of the explosives to be seized.
- (2)
No warrant pursuant to this subsection (d) shall be issued upon an affidavit that does not specifically describe the place in which the explosives are to be stored and identify the city, county, street address and name of the person, company, or agency accepting the explosives for storage.
- (3)
Any owner or person entitled to lawful possession of explosives seized pursuant to this subsection (d) shall be entitled to recovery of the seized explosives upon written or verbal notification to the commissioner or the commissioner's authorized representative stating the person's capability to lawfully and safely store the seized explosives, and upon an inspection by the commissioner or the commissioner's authorized representative of the person's storage facilities and methods that reveals the person's capability to lawfully and safely store the explosives.
- (4)
The commissioner or the commissioner's authorized representative shall make the inspection within five (5) days of receipt of the notification.
- (5)
If the commissioner or the commissioner's authorized representative receives no communication from the owner or person entitled to lawful possession of the seized explosives within thirty (30) days after the seizure of such explosives, then the commissioner or the commissioner's authorized representative may dispose of the seized explosives in a safe and lawful manner.
§ 68-105-118. Nonrenewal, revocation, or suspension of registration or application.
- (a)
The department may refuse to issue or renew, and revoke or suspend any registration or application if any registrant or applicant:
- (1)
Has violated any provision of this chapter or any other state or federal law relating to explosives, or has violated any regulation duly promulgated by the department;
- (2)
Has misrepresented or concealed any material fact in the application for a registration, or any document filed in support of the application;
- (3)
Has permitted any employee of the person, either by direct instruction or by reasonable implication, to violate this chapter;
- (4)
Has been terminated from employment due to possessing or being under the influence of intoxicants or possessing or using illegal drugs;
- (5)
Has used explosives in an unsafe manner; or
- (6)
Has been convicted in a court of competent jurisdiction of a felony, or is under indictment for the same.
- (b)
Any current registration as a blaster, limited blaster, handler, or firm shall automatically become invalid if the registrant's ATF license or permit is revoked or otherwise becomes invalid.
§ 68-105-119. Creation of advisory council — Membership and terms — Role of advisory council.
- (a)
There is created in the department an advisory council on the commercial explosives industry. The advisory council shall consist of twelve (12) members. The term of each member shall be three (3) years. Membership shall include manufacturers, distributors and users of commercial explosives who are engaged in commercial mining, construction and demolition activities. A minimum of six (6) members shall be registered blasters. Three (3) members shall be representatives from other interested agencies.
- (b)
The department is responsible for the administrative functions of the council. The members shall elect a chair of the advisory council for the three-year term.
- (c)
All members of the advisory council shall be appointed by the commissioner. In making appointments to the advisory council, the commissioner shall be fair and nondiscriminatory.
- (d)
Each member shall continue to serve after the expiration of the member's term until a successor shall have been duly appointed and qualified.
- (e)
The commissioner may remove any member of the advisory council for misconduct, incompetence, or willful neglect of duty.
- (f)
The advisory council shall meet at least two (2) times every calendar year.
- (g)
Special meetings may be held at such times it is deemed necessary by the chair of the advisory council or by three (3) members of such council.
- (h)
It is the duty of the advisory council to assist the department in developing reasonable policies and regulations that will protect public safety while promoting efficiency and effectiveness.
§ 68-105-120. Exceptions. [Contingent amendment. See Compiler's Notes. See first variant for section until contingency is met.]
-
Nothing contained in this chapter shall apply to:
- (1)
Personnel of the military or naval forces of the United States, or to the duly organized military force within the state, so long as these persons are acting within their respective official capacities and in the performance of their official duties;
- (2)
Personnel of law enforcement entities, so long as these persons are acting within their official capacities and in the performance of their official duties;
- (3)
The use of explosives for occasional agricultural blasting. “Agricultural blasting” means stump removal, beaver dam or lodge eradication and other similar types of personal agricultural use;
- (4)
The use of explosive materials in medicines and medicinal agents in forms prescribed by the most recent edition of the official United States Pharmacopoeia or the National Formulary;
- (5)
Fireworks as permitted by chapter 104 of this title;
- (6)
The use of explosive materials solely intended by the commercial manufacturer to be used to create an exploding target for use in lawful sporting activity or the use of an exploding target for its intended purpose in lawful sporting activity; provided, that the person using the explosive materials is eighteen (18) years of age or older; or
- (7)
The use of explosives in surface coal mining and reclamation operations to the extent the use is regulated by the department of environment and conservation pursuant to the Primacy and Reclamation Act of Tennessee, compiled in title 59, chapter 8, part 1, and title 30 of the Code of Federal Regulations.
§ 68-105-120. Exceptions. [Effective until contingency met. See second variant.]
-
Nothing contained in this chapter shall apply to:
- (1)
Personnel of the military or naval forces of the United States, or to the duly organized military force within the state, so long as these persons are acting within their respective official capacities and in the performance of their official duties;
- (2)
Personnel of law enforcement entities, so long as these persons are acting within their official capacities and in the performance of their official duties;
- (3)
The use of explosives for occasional agricultural blasting. “Agricultural blasting” means stump removal, beaver dam or lodge eradication and other similar types of personal agricultural use;
- (4)
The use of explosive materials in medicines and medicinal agents in forms prescribed by the most recent edition of the official United States Pharmacopoeia or the National Formulary;
- (5)
Fireworks as permitted by chapter 104 of this title; or
- (6)
The use of explosive materials solely intended by the commercial manufacturer to be used to create an exploding target for use in lawful sporting activity or the use of an exploding target for its intended purpose in lawful sporting activity; provided, that the person using the explosive materials is eighteen (18) years of age or older.
§ 68-105-121. Continuing education requirements.
-
As a prerequisite to renewal, the registrant must provide proof of having completed the continuing education requirements established by the department. The department may prescribe continuing education requirements by rule.
Chapter 106 Child Safety on Highways
§ 68-106-101. Chapter definitions.
-
For purposes of this chapter, unless the context otherwise requires:
- (1)
“Child” means any person under eighteen (18) years of age;
- (2)
“Highway” means the entire width between the boundary lines of every way when any part thereto is open to the use of the public for the purpose of vehicular travel;
- (3)
“Intersection” means the area embraced within the prolongation or connection of the lateral curb lines, or, if none, then the lateral boundary lines of the roadways of two (2) highways that join one another at, or approximately at, right angles, or the areas within which vehicles traveling upon different highways joining at any other angle may come in conflict;
- (4)
“Roadway” means that portion of a highway improved, designed or ordinarily used for vehicular travel, exclusive of the berm or shoulder. In the event a highway includes two (2) or more separate roadways, “roadway” refers to any such roadway separately but not to all such roadways collectively; and
- (5)
“Sidewalk” means the portion of a street between the curb lines, or the lateral lines of a roadway, and the adjacent property lines, intended for use by pedestrians.
§ 68-106-102. Restrictions on children on highways to solicit or collect money.
- (a)
A county may by resolution, and a municipality may by ordinance, prohibit or restrict a child from being present in the roadway of a highway or an intersection for the purpose of the child's participation in soliciting or collecting money.
- (b)
This section shall not apply to private roads or driveways, nor shall this section prevent children from using sidewalks.
Chapter 110 Organized Camps
§ 68-110-101. Chapter definitions.
-
As used in this chapter, unless the context otherwise requires:
- (1)
“Commissioner” means the commissioner of health or the commissioner's authorized representative;
- (2)
“Department” means the department of health;
- (3)
- (A)
“Organized camp” means any area, place, parcel, or tract of land on which facilities are established or maintained to provide an outdoor group-living experience for children or adults, or where one (1) or more permanent or semipermanent structures are established or maintained as living or sleeping quarters for children or adults, and operated for educational, social, recreational, religious instruction or activity, physical education or health, or vacation purposes either gratuitously or for compensation;
- (B)
“Organized camp” is not intended to include a hunting, fishing or other camp privately owned and used exclusively for the personal pleasure of the owner and the owner's guests;
- (C)
“Organized camp” is not intended to include a camp site on property owned by a church and used exclusively for the personal pleasure of the members of the church and such member's guests, if:
- (i)
No permanent or semipermanent structures or buildings are established or maintained on the camp site as living or sleeping quarters, restrooms, or for a cafeteria or kitchen, to provide an outdoor group-living experience for children or adults;
- (ii)
The camp site is used for occasional weekend or overnight camping experiences for such persons; and
- (iii)
The camp site contains no electrical, sewage or water hookups or pads to accommodate travel trailers, truck coaches or campers, tent campers and other similar camping vehicles;
- (4)
“Person” means any and all persons, including any:
- (A)
Individual, firm, or association;
- (B)
Municipal or private corporation organized or existing under the laws of this or any other state;
- (C)
State;
- (D)
Municipality, commission, or political subdivision of a state;
- (E)
Interstate body;
- (F)
Governmental agency of this state; and
- (G)
Department, agency or instrumentality of the executive, legislative, or judicial branches of the federal government;
- (5)
“Public 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 officer's authorized representative; and
- (6)
“Travel camp” means any organized camp in which provisions are made for the accommodation of travel trailers, truck coaches or campers, tent campers, tents, and other camping vehicles.
§ 68-110-103. Permits.
- (a)
No place or site within any political subdivision of the state of Tennessee shall be established or maintained by any person as an organized camp, unless the person holds a valid permit issued by the commissioner or public health officer in the name of the person for the specific organized camp.
- (b)
The commissioner or public health officer is authorized to issue, suspend, or revoke permits in accordance with this chapter and any rules and regulations that may be adopted by the department under the authority of this or other applicable laws.
- (c)
The annual permit fee to operate an organized camp shall be in accordance with the following schedule. As used in this subsection (c), a “travel campsite” is a designated camping space that is equipped with utility connections.
- (d)
If the permit fee is delinquent for more than thirty (30) calendar days, a penalty of one-half (½) the permit fee shall be added to the permit fee. If a check is returned for any reason, a penalty of one-half (½) the permit fee shall be added to the permit fee. The permit fee, plus any penalty, shall be paid to the commissioner before the permit is issued.
- (e)
The permit shall be kept and displayed in a conspicuous manner, properly framed, at the organized camp for which it was issued.
- (f)
Ninety-five percent (95%) of permit fees, fines, and penalties collected within a contract county pursuant to this chapter shall be conveyed by contract to the respective county health department to assist such county health department in implementing the program in the local jurisdiction. This amount shall be calculated based upon fees collected in the contract county during the state's fiscal year multiplied by ninety-five percent (95%).
- (g)
No contract county currently charging a local permit fee shall charge a local permit fee. By July 30 of each year, each contract county shall provide a report to the commissioner for the preceding fiscal year documenting the total cost relative to carrying out the contract and the amount of permit fees collected. The report shall be on a form provided by the commissioner.
§ 68-110-104. Inspections — Right-of-entry.
- (a)
The commissioner or public health officer is authorized and directed to make inspections to determine the conditions of organized camps, in order that the commissioner or officer may perform such person's duty of safeguarding the health and safety of occupants of organized camps and of the general public.
- (b)
The commissioner and public health officer have the power to enter at reasonable times upon any private or public property, for the purpose of inspecting and investigating conditions relating to the enforcement of this chapter or of regulations promulgated under this chapter.
§ 68-110-105. Enforcement of chapter — Local requirements to conform with departmental requirements.
- (a)
It is the duty of the local public health officers or the commissioner, when the commissioner determines that this chapter is not being adequately enforced, to enforce this chapter.
- (b)
All ordinances, rules, regulations, and other requirements adopted by the boards of health or local governing bodies shall at least conform to the reasonable requirements that may have been established by the department and shall not be inconsistent with such rules and regulations as may be adopted by the department.
§ 68-110-106. Penalties.
-
Any person who violates this chapter or the rules and regulations adopted pursuant to this chapter, or fails to perform the reasonable requirements of the department or public health officer after receipt of ten (10) days' written notice of such requirements, shall be fined not less than ten dollars ($10.00) nor more than fifty dollars ($50.00) for each offense. Each day of continued violation after conviction constitutes a separate offense.
Chapter 111 Rented Premises Unfit For Habitation
§ 68-111-101. Chapter definitions.
-
As used in this chapter, unless the context otherwise requires:
- (1)
“Agent” means a person:
- (A)
Authorized to act for and on behalf of the landlord for the acceptance of service of process and for receipt of notices and demands or who becomes an agent pursuant to § 66-28-302; or
- (B)
Authorized to manage the premises;
- (2)
“Landlord” means lessor, one under whom another holds premises as a tenant or lessee;
- (3)
“Tenant” means one who occupies as a residence the premises of another in subordination to that other person's title and with such other person's assent, express or implied, and whose rental payments do not exceed two hundred dollars ($200) per week or the monetary equivalent, for any period of payment other than weekly; and
- (4)
“Third party complainant” means a health care provider or public employee who, in the regular performance of the health care provider's or public employee’s duties, has been inside a premises occupied by a tenant.
§ 68-111-102. Minimum health standards.
-
The state department of health shall establish and distribute to each county and public health department of the state minimum health standards in the rental of any premises; these standards shall establish living and building conditions of a dwelling that render it unfit for human habitation.
§ 68-111-103. Complaint.
-
Any tenant or third party complainant may file a complaint with the building inspector of the city or county in which the rented premises are located or with the county public health department in which the tenant's rented premises are located, if the premises are, in the opinion of the tenant or complainant and the building inspector or the public health department, in violation of the minimum health standards and consequently unfit for human habitation. The building inspector or representative of the public health department shall inspect the building facility no later than fourteen (14) days after the filing of the complaint. The complaint shall be in writing, and a copy shall be forwarded by certified mail to the tenant's landlord or the landlord's agent. It shall be a condition of this section that no rent shall be paid to anyone except the landlord until the building inspector or a representative of the public health department agrees in writing with the tenant that the premises are unfit for habitation.
§ 68-111-104. Inspection.
- (a)
The building inspector or the county public health department to whom the complaint is directed shall, within fourteen (14) days of the filing of a complaint, make an inspection of the rented premises. If it is found that the unit is unfit for human habitation, as defined, the building inspector or county public health department shall notify the landlord of the premises or the landlord's agent of the violation found, in writing, by certified mail, and a copy shall be forwarded to the tenant. The notice, in addition to setting out the condition found, shall give the landlord of the premises thirty (30) days in which to correct the condition.
- (b)
If at the expiration of the thirty-day period, as determined by an inspection of the premises by the building inspector or by the county public health department, which inspection shall be made within seven (7) days of the expiration of the period, the landlord of the premises has not corrected the condition, the tenant shall pay to the county clerk of the county in which the premises are located the rental payments that may become due from that date.
- (c)
If the landlord of the premises has not corrected the condition at the expiration of six (6) months from the date of the first notice, as determined by an inspection of the premises by the building inspector or county public health department, which inspection shall be made within seven (7) days of the expiration of the period, the rental payments so made by the tenant to the county clerk shall, upon a certificate of noncompliance being filed with the county clerk by the building inspector or the county public health department, which certificate shall be filed within fourteen (14) days of the expiration of the period, a copy of which shall be forwarded by certified mail to the landlord or the landlord's agent, be forfeited by the landlord of the premises to the state for the use of the agency to whom the complaint was directed and the county clerk shall, at the expiration of the thirty-day period from the date the certificate of noncompliance is filed where no appeal has been had by the landlord as provided in this section, pay to the state for the use of the county agency to whom the complaint was directed, less all fees as provided in § 68-111-106, the rental payments so held.
- (d)
If an appeal is filed by the landlord, the sums so held by the county clerk shall remain on deposit in the special account pending the final determination of the appeal.
- (e)
If the landlord of the premises corrects the condition, as determined by an inspection of the premises by the building inspector or the county public health department, the county clerk shall, upon receiving a certificate of compliance from the building inspector or the county public health department, which certificate shall be filed within fourteen (14) days of the expiration of the period, return the rental payments so held to the landlord of the premises.
§ 68-111-105. Retaliatory eviction prohibited — Vacating during repairs — Premises not repairable.
- (a)
No tenant shall be dispossessed of the rented premises or otherwise penalized by the landlord of the premises for prosecuting any complaint under or pursuant to this chapter, or for payment to the county clerk of rental payments where the rented premises are in violation of the standard, as defined pursuant to § 68-111-102.
- (b)
In the event it is necessary to temporarily vacate the premises to carry out repairs, the landlord may get temporary possession from the tenant, and the tenant's rent shall be abated during this period and resume upon the tenant's moving back into the premises.
- (c)
In the event the conditions are such that to repair the building is not feasible, the landlord shall notify the tenant and the agency to which the complaint was directed that the landlord has elected not to repair the structure and shall give the tenant thirty (30) days' notice to vacate the premises. Thereafter, the premises shall not be rented or used as a human habitation, unless and until the condition of violation is corrected.
§ 68-111-106. Duties of county clerk — Fees.
- (a)
The county clerk of each county is authorized and directed to accept the rental payment sums as provided in this chapter and shall deposit such sums in a special account and shall account for such sums, as provided by law to account for such other sums in the county clerk's possession.
- (b)
The county clerk, for the county clerk's services, shall receive the sum of five percent (5%) from all such rental payment sums that are forfeited to the state for the use of the county agency to whom the complaint was directed.
§ 68-111-107. Appeal of certificate of noncompliance — Judicial review.
-
The landlord of the premises shall have the right to appeal the findings of the building inspector or of the county public health department to the county board of health of the county in which the premises are located. Where the county has no county board of health, the appeal shall be made to the county mayor of the county in which the premises are located. The appeal shall be made within thirty (30) days from the date of the filing of the certificate of noncompliance. The landlord shall have the right, after the determination by the county board of health or the county mayor, of appeal to the circuit court of the county in which the premises are located. An appeal shall be heard de novo in the circuit court.
Chapter 112 Mass Gatherings
§ 68-112-101. Purpose.
-
It is the purpose of the general assembly to regulate the assemblage of large numbers of people, in excess of those normally needing the health, sanitary, fire, police, transportation and utility services regularly provided in this state, in order that the health, safety and welfare of all persons in this state, residents and visitors alike, may be protected.
§ 68-112-102. Chapter definitions.
-
As used in this chapter, unless the context otherwise requires:
- (1)
“Assembly” means a gathering of five thousand (5,000) or more people that is conducted or can reasonably be expected to be conducted for eighteen (18) or more hours continuously, whether on public or private property;
- (2)
“Department” means the department of health; and
- (3)
“Person” includes any individual, natural human being, partnership, corporation, firm, company, association, society, or group.
§ 68-112-103. Assembly prohibited without license.
-
No person shall permit, maintain, promote, conduct, advertise, act as an entrepreneur, undertake, organize, manage, or sell or give tickets to an actual or reasonably anticipated assembly, unless a license to hold the assembly has first been obtained from the department.
§ 68-112-104. Requirements for issuance of license.
-
Before an applicant may be issued a license, the applicant shall first:
- (1)
Determine the maximum number of people who will be assembled or admitted to the location of the assembly; provided, that the maximum number shall not exceed the maximum number that can reasonably assemble at the location of the assembly in consideration of the nature of the assembly; and provided further, that, where the assembly is to continue overnight, the maximum number shall not be more than is allowed to sleep within the boundaries of the location of the assembly by the zoning or health ordinances of the county or municipality; and
- (2)
Provide proof that such applicant will furnish at such person's own expense before the assembly commences:
- (A)
A fence completely enclosing the proposed location, of sufficient height and strength to prevent people in excess of the maximum permissible number from gaining access to the assembly grounds, which shall have at least four (4) gates, at least one (1) at or near four (4) opposite points of the compass;
- (B)
Potable water, meeting all federal and state requirements for purity, sufficient to provide drinking water for the maximum number of people to be assembled at the rate of at least one gallon (1 gal.) per person per day and water for bathing at the rate of at least ten gallons (10 gals.) per day;
- (C)
Separate enclosed toilets for males and females, meeting all state and local specifications, conveniently located throughout the grounds, sufficient to provide facilities for the maximum number of people to be assembled at the rate of at least one (1) toilet for every two hundred (200) females and at least one (1) toilet for every three hundred (300) males, together with an efficient, sanitary means of disposing of waste matter deposited, which is in compliance with all state and local laws and regulations; a lavatory with running water under pressure and a continuous supply of soap and paper towels shall be provided with each toilet;
- (D)
A sanitary method of disposing of solid waste, in compliance with state and local laws and regulations, sufficient to dispose of the solid waste production of the maximum number of persons to be assembled at the rate of at least two and one-half pounds (2.5 lbs.) of solid waste per person per day, together with a plan for holding and a plan for collecting all such waste at least once each day of the assembly and sufficient trash cans with tight fitting lids and personnel to perform the tasks;
- (E)
Physicians and nurses licensed to practice in Tennessee sufficient to provide the average medical care enjoyed by residents of Tennessee for the maximum number of people to be assembled at the rate of at least one (1) physician for every ten thousand (10,000) persons and at least one (1) nurse for every five thousand (5,000) persons. The number of physicians and nurses required to be on duty at various times throughout the assembly shall be established by regulations adopted and promulgated by the department. Facilities for medical treatment and arrangements for emergency transportation and treatment shall be in accordance with regulations adopted and promulgated by the department;
- (F)
If the assembly is to continue during hours of darkness, illumination sufficient to light the entire area of the assembly at the rate of at least five-foot candles, but not to shine unreasonably beyond the boundaries of the enclosed location of the assembly;
- (G)
A free parking area inside the assembly grounds sufficient to provide parking space for the maximum of people to be assembled at the rate of at least one (1) parking space for every four (4) persons;
- (H)
Telephones connected to outside lines sufficient to provide service for the maximum number of people to be assembled at the rate of at least one (1) separate line and receiver for each one thousand (1,000) persons;
- (I)
If the assembly is to continue overnight, camping facilities in compliance with all state and local requirements sufficient to provide camping accommodations for the maximum number of people to be assembled;
- (J)
Security guards, either regularly employed, duly sworn, off-duty Tennessee peace officers or private guards, licensed in Tennessee, sufficient to provide adequate security for the maximum number of people to be assembled at the rate of at least one (1) security guard for every seven hundred fifty (750) persons;
- (K)
Fire protection, including alarms, extinguishing devices and fire lanes and escapes, sufficient to meet all state and local standards for the location of the assembly, and sufficient emergency personnel to efficiently operate the required equipment;
- (L)
All reasonably necessary precautions to ensure that the sound of the assembly will not carry unreasonably beyond the enclosed boundaries of the location of the assembly; and
- (M)
A bond, filed with the clerk of the county where the assembly is to be held either in cash or underwritten by a surety company licensed to do business in Tennessee at the rate of one dollar ($1.00) per person for the maximum number of people permitted to assemble, which shall indemnify and hold harmless the county, municipality or state or any of its agents, officers, servants and employees from any liability or causes of action which might arise by reason of granting this license, and from any cost incurred in cleaning up any waste material produced or left by the assembly.
§ 68-112-105. Application for license.
- (a)
An application for a license to hold an actual or anticipated assembly of five thousand (5,000) or more persons shall be made in writing to the department at least sixty (60) days in advance of the assembly.
- (b)
The application shall contain a statement made upon oath or affirmation that the statements contained in the application are true and correct to the best knowledge of the applicant and shall be signed and sworn to or affirmed by the individual making application in the case of an individual, natural human being, by all officers in the case of a corporation, by all partners in the case of a partnership or by all officers of an unincorporated association, society or group or, if there be no officers, by all members of such association, society or group.
- (c)
The application shall contain and disclose:
- (1)
The name, age, residence and mailing address of all persons required to sign the application by subsection (b) and, in the case of a corporation, a certified copy of the articles of incorporation together with the name, age, residence and mailing address of each person holding ten percent (10%) or more of the stock of the corporation;
- (2)
The address and legal description of all property upon which the assembly is to be held together with the name, residence and mailing address of the record owner or owners of all the property;
- (3)
Proof of ownership of all property upon which the assembly is to be held or a statement made upon oath or affirmation by the record owner or owners of all such property that the applicant has permission to use the property for an assembly of five thousand (5,000) or more persons;
- (4)
The nature or purpose of the assembly;
- (5)
The total number of hours the assembly is to last;
- (6)
The maximum number of persons that the applicant shall permit to assemble at any time, not to exceed the maximum number that can reasonably assemble at the location of the assembly, in consideration of the nature of the assembly, or the maximum number of persons allowed to sleep within the boundaries of the location of the assembly by the zoning ordinances of the municipality, if the assembly is to continue overnight;
- (7)
The maximum number of tickets to be sold, if any;
- (8)
The plans of the applicant to limit the maximum number of people permitted to assemble;
- (9)
The plans for fencing the location of the assembly and the gates contained in the fence;
- (10)
The plans for supplying potable water, including the source, amount available and location of outlets;
- (11)
The plans for providing toilet and lavatory facilities, including the source, number and location, type and the means of disposing of waste deposited;
- (12)
The plans for holding, collection, and disposing of solid waste material;
- (13)
The plans to provide for medical facilities, including the location and construction of a medical structure, the names and addresses and hours of availability of physicians and nurses, and provisions for emergency ambulance service;
- (14)
The plans, if any, to illuminate the location of the assembly, including the source and amount of power and the location of lamps;
- (15)
The plans for parking vehicles, including size and location of lots, points of highway access and interior roads, including routes, between highway access and parking lots;
- (16)
The plans for telephone service, including the source, number and location of telephones;
- (17)
The plans for camping facilities, if any, including facilities available and their location;
- (18)
The plans for security, including the number of guards, their deployment, and their names, addresses, credentials and hours of availability;
- (19)
The plans for fire protection, including the number, type and location of all protective devices, including alarms and extinguishers, and the number of emergency fire personnel available to operate the equipment;
- (20)
The plans for sound control and sound amplification, if any, including number, location and power of amplifiers and speakers; and
- (21)
The plans for food concessions and concessioners who will be allowed to operate on the grounds, including the names and addresses of all concessioners and their license or permit numbers.
- (d)
The application shall include the bond required in § 68-112-104, and the license fee required in § 68-112-106.
§ 68-112-106. Fee — Separate license for each day of assembly.
- (a)
An application for a license to hold an actual or anticipated assembly shall be accompanied by a license fee of one hundred dollars ($100), and, if the license is granted, the fee is paid to the state treasury and becomes a part of the general funds of the state.
- (b)
A separate license shall be required for each calendar day and each location in which five thousand (5,000) or more persons assemble or can reasonably be anticipated to assemble.
§ 68-112-107. Time for processing.
-
The application for a license shall be processed within twenty (20) days of receipt and shall be issued if there is compliance with all of the conditions. If for some reason the license is not granted, the department shall return the license fee to the applicant and a written statement of why the license was denied.
§ 68-112-108. Grounds for revocation.
-
The license may be revoked by the department at any time, if there is not compliance with any of the conditions necessary for the issuing of or contained in the license, or if there ceases to be compliance with any condition previously met.
§ 68-112-109. Limitations on license.
-
A license shall permit the assembly of only the maximum number of people stated in the license. The licensee shall not sell tickets to, nor permit to assemble at the licensed location, more than the maximum permissible number of people. The license shall not permit the sound of the assembly to carry unreasonably beyond the enclosed boundaries of the location of the assembly.
§ 68-112-110. Exceptions.
-
This chapter does not apply to any regularly established permanent place of worship, stadium, athletic field, arena, auditorium, coliseum, or other similar permanently established place of assembly for assemblies that do not exceed by more than two hundred fifty (250) persons the maximum seating capacity of the structure where the assembly is held. This chapter does not apply to government sponsored fairs held on regularly established fairgrounds or to assemblies required to be licensed by other laws and regulations of this state.
§ 68-112-112. Injunctions.
-
The holding of an assembly in violation of any provision or condition contained in this chapter is deemed a public nuisance and may be abated by injunction in any court of competent jurisdiction.
§ 68-112-113. Criminal penalties.
-
Any person who violates a provision of this chapter, or who violates any condition upon which such person is granted a license, commits a Class E felony, and shall be fined not less than one thousand dollars ($1,000) nor more than ten thousand dollars ($10,000).
Chapter 114 Ski Area Safety and Liability Act
§ 68-114-102. Chapter definitions.
-
As used in this chapter, unless the context otherwise requires:
- (1)
“Industry” means generally the activities of all ski area operators;
- (2)
“Passenger” means any person, while being transported or conveyed by a passenger tramway, or while waiting in the immediate vicinity for such transportation or conveyance, or while moving away from the disembarkation or unloading point of a passenger tramway to clear the way for the passengers following, or while in the act of boarding or embarking upon or disembarking from, a passenger tramway;
- (3)
“Passenger tramway” means those devices described in American National Standards Institute Code § B 77.1 — 1973 and supplements to the code;
- (4)
“Ski area” means all the ski slopes and ski trails and passenger tramways administered or operated as a single enterprise within this state;
- (5)
“Ski area operator” means a person or organization having operational responsibility for any ski area, including an agency of this state or a political subdivision of this state; and
- (6)
“Skier” means any person present in a ski area for the purpose of engaging in the sport of skiing, Nordic, freestyle or other types of ski jumping and who is using skis, a sled, a tube or a snowboard.
§ 68-114-103. Responsibility of skier and passenger.
-
It is recognized that Alpine or downhill skiing as a recreational sport and the use of passenger tramways associated with Alpine or downhill skiing may be hazardous to skiers or passengers, regardless of all feasible safety measures that can be taken. Therefore, each skier and each passenger has the sole responsibility for knowing the range of the skier's or passenger's own ability to negotiate any slope, ski trail or associated passenger tramway, and it is the duty of each skier and passenger to conduct the skier or passenger within the limits of the skier's or passenger's own ability, to maintain control of the skier's or passenger's speed and course at all times while skiing, to heed all posted warnings and to refrain from acting in a manner that may cause or contribute to the injury of the skier or passenger or others. Except as otherwise specifically provided in this chapter, each skier or passenger is deemed to have assumed the risk of and legal responsibility for any injury to the skier's or passenger's person or property arising out of the skier's or passenger's participation in Alpine or downhill skiing or the use of any passenger tramways associated with Alpine or downhill skiing. The responsibility for collisions by any skier while actually skiing, with any person or object, shall be solely that of the skier or skiers involved in the collision and not that of the ski area operator.
§ 68-114-104. Violations.
-
No passenger or skier shall:
- (1)
Board or embark upon or disembark from a passenger tramway except at an area designated for that purpose;
- (2)
Throw or expel any object from a passenger tramway;
- (3)
Do any act that interferes with the running or operation of a passenger tramway;
- (4)
Place any object in the uphill track of a surface lift that may cause a passenger to fall;
- (5)
Except at designated locations, cross the uphill track of any surface lift;
- (6)
Ski on a slope or ski trail that has been designated “closed” as provided by this chapter; or
- (7)
Leave the scene of a skiing accident or collision resulting in bodily injury to another without providing the information required in § 68-114-108 to the specified person.
§ 68-114-105. Tramways.
-
The ski area operator shall have the primary responsibility for the design, construction, maintenance, and inspection of any passenger tramway. All passenger tramways shall be designed, constructed, and maintained in accordance with standards of the American National Standards Institute § B 77.1 — 1973 and supplements to the standards. The operation of a passenger tramway shall be deemed not to be the operation of a common carrier.
§ 68-114-106. Signs and designations.
-
It is the duty of the ski area operator to maintain the following signs and designations:
- (1) Base Stations.
- (A)
A color code is established in accordance with the following:
- (i)
Green circle — To designate the ski area's least difficult trails and slopes;
- (ii)
Black diamond — To designate the ski area's most difficult trails and slopes;
- (iii)
Blue square — To designate the ski area's trails and slopes that fall between the green circle and black diamond designations;
- (iv)
Yellow triangle with red exclamation point inside with a red band around the triangle — To designate danger areas; and
- (v)
Octagonal shape with red border around white interior with a black figure in the shape of a skier inside with a black band running diagonally across the sign from the upper right hand side to the lower left hand side with the word “closed” beneath the emblem — To designate a closed trail or slope; and
- (B)
A trail board shall be maintained at one (1) or more prominent locations at each ski area displaying that area's network of ski trails and slopes, with each trail and slope rated on the board in accordance with the color code in subdivision (1)(A) and containing a key to the code in accordance with the designations in subdivision (1)(A). The trail board shall further designate which ski trails and slopes are open and their condition; and
- (2) Trails or Slopes.
- (A)
The ski area operator shall conspicuously mark the top of each trail or slope with the appropriate symbol for that particular trail's or slope's degree of difficulty in accordance with this chapter. Those portions of the trails or slopes that are of extra hazardous nature or are closed shall be marked at the top with the appropriate symbol; and
- (B)
Whenever maintenance personnel or equipment is being employed upon any trail or slope while such trail or slope is open to the public, the ski area operator shall place, or cause to be placed, a conspicuous notice to that effect at or near the top of such trail or slope.
§ 68-114-107. Actions against ski area operators — Insurance.
- (a)
Unless a ski area operator is in violation of this chapter or other state acts pertaining to ski areas, which violation is causal of the injury complained of, no action shall lie against any such operator by any skier or passenger or representative of a skier or passenger; this prohibition shall not, however, prevent the maintenance of an action against a ski area operator for negligent design construction, or operation maintenance of the passenger tramway itself.
- (b)
Each ski area operator shall maintain liability insurance with limits of not less than one million dollars ($1,000,000) per occurrence, except that the insurance need not be maintained with respect to passenger tramways not open to the general public, operated without charge to the users of the tramway. This exception shall not apply, however, to passenger tramways operated by schools, ski clubs and other similar organizations.
- (c)
No action shall be maintained against any ski area operator for injuries to any skier or passenger, unless the action is commenced within one (1) year from the time of injury; provided, that as a condition precedent to an action, the ski area operator shall be notified by registered mail within ninety (90) days of the injury as to the alleged violation of this chapter or other acts pertaining to ski areas, unless the court finds under the circumstances of the particular case that the operator or any of its employees either had actual knowledge of the injury or had a reasonable opportunity to learn of the injury within the ninety-day period, or was otherwise not substantially prejudiced by reason of not having been given actual written notice of the injury within the period; provided, that in any case where lack of written notice, actual knowledge, or a reasonable opportunity to obtain knowledge of any injury within the ninety-day period is alleged by a ski area operator, the burden of proof shall be on the operator to show that it was substantially prejudiced by the lack of written notice, actual knowledge or opportunity to obtain knowledge.
§ 68-114-108. Person involved in accident at ski area resulting in bodily injury to remain at scene to furnish name and contact information — Exception.
- (a)
Any person who is involved in, causes, or contributes to an accident or collision at a ski area that results in bodily injury shall remain in the immediate vicinity of the accident until furnishing a member of the ski patrol or an employee or representative of the ski area operator the person's name and other contact information.
- (b)
Subsection (a) shall not apply if the person leaves the immediate vicinity of the accident or collision for the sole purpose of securing aid for a person who may have been injured in the accident or collision; provided, that the person returns to the scene of the accident or collision after securing aid and provides the person's name and contact information as required by subsection (a).
Chapter 115 Tennessee Athletic Commission Act of 2016
Part 1 General Provisions
§ 68-115-102. Chapter definitions.
-
As used in this chapter, unless the context otherwise requires:
- (1)
“Amateur” means a person who has never competed in an unarmed combat sport competition or contest for any purse or item of value, other than for a prize or item of value that does not exceed fifty dollars ($50.00), except those involved in Olympic organizations recognized by the Tennessee Athletic Commission as a sanctioning organization. Section 68-115-208 shall apply to any Olympic organizations that are recognized as a sanctioning organization by the Tennessee Athletic Commission;
- (2)
“Application fee” means the fee due at the time an application for a license is submitted to the commission;
- (3)
“Association of Boxing Commissions” means the association recognized by state athletic commissions that affiliate with the association regarding rules of unarmed combat sports. The association may also mean and be referred to as the “ABC Association for Professional Unarmed Combat Contests”;
- (4)
“Banned substances” mean substances defined by the World Anti-Doping Agency as banned substances, in addition to any illegal substance;
- (5)
“Boxing” means unarmed combat to compete with the fists;
- (6)
“Combatant” means any person eighteen (18) years of age or older who engages in a professional unarmed combat contest;
- (7)
“Commission” means the Tennessee athletic commission;
- (8)
“Commissioner” means any member of the Tennessee athletic commission;
- (9)
“Contest” means an unarmed combat sport competition or exhibition in which at least one (1) of the combatants is a professional or has previously competed as a professional in this state or any other state or in which licensed combatants compete for a purse or item of value greater than that amount authorized pursuant to subdivision (1) for an amateur event;
- (10)
“Department” means the department of commerce and insurance;
- (11)
“Event” means an amateur event in which amateurs, as defined in this section, compete in an unarmed combat sport competition in accordance with this chapter;
- (12)
“Immediate family member” means a spouse, parent, sibling or child;
- (13)
“Kickboxing” means unarmed combat involving the use of striking techniques delivered with the upper and lower body, and in which the combatants remain standing while striking;
- (14)
- (A)
“Manager” means a person who:
- (i)
Undertakes to represent the interests of another person by contract, agreement or other arrangement, in procuring, arranging or conducting a professional contest in which the person will participate as a combatant;
- (ii)
Directs or controls the activities of an unarmed combatant relating to the participation of the unarmed combatant in a professional contest;
- (iii)
Receives or is entitled to receive at least ten percent (10%) of the gross purse of any professional unarmed combatant for services relating to the participation of the unarmed combatant in a professional contest; or
- (iv)
Receives compensation for services as an agent or representative of an unarmed combatant;
- (B)
“Manager” does not include an attorney who is licensed to practice law in this state if the attorney's participation in any of the activities described in subdivision (14)(A)(i) is limited solely to the attorney's legal representation of a client who is an unarmed combatant;
- (15)
“Matchmaker” means a person who brings together professional boxers, kickboxers or mixed martial art combatants or arranges professional contests of unarmed combat;
- (16)
“Mixed martial arts” means unarmed combat using a combination of techniques from different disciplines of the martial arts, including kicking, wrestling and striking, subject to applicable limitations set forth in this chapter and rules promulgated by the commission;
- (17)
“Permit” means a certification of approval for a contest or event, issued upon receipt of an application and fee that shall be established and collected pursuant to the rulemaking authority of the commission for professional and amateur events;
- (18)
“Person” means and includes individuals, corporations, limited liability companies, partnerships or associations, domestic and foreign;
- (19)
“Physician” means a person licensed to practice medicine in this state;
- (20)
“Pro-am competition” means a competition that features a combination of professional contests and amateur events;
- (21)
“Professional” means a person who competes or has competed in an unarmed combat sport contest for the purpose of a purse or item of value greater than that amount authorized for an amateur event, or any person who has been previously licensed in any other jurisdiction as a professional;
- (22)
“Promoter” means any person who produces, stages or sponsors any professional contest of unarmed combat;
- (23)
“Purse” means the financial guarantee or any other remuneration for which combatants are participating in a professional contest and includes the combatant's share of any payment received for radio broadcasting, television or motion picture rights;
- (24)
“Ring official” means any person who performs any one (1) or more of the following official functions during the progress of a professional contest of unarmed combat:
- (A)
“Announcer” means a person authorized to act as an announcer at professional contests of unarmed combat;
- (B)
“Judge” means a person who is responsible for scoring the performances of the combatants in a professional contest of unarmed combat;
- (C)
“Referee” means a person who is present in the ring during the professional contest and exercises general supervision;
- (D)
“Ringside physician” means a person licensed to practice medicine in this state and licensed by the commission as a ring official; and
- (E)
“Timekeeper” means a person who is the official timer of the length of the rounds and the intervals of the rounds in a professional contest of unarmed combat;
- (25)
“Sanctioning organization” means an organization recognized by the Tennessee athletic commission that sanctions amateur events of unarmed combat, and is required to comply with all provisions of this chapter. “Sanctioning organization” may also mean an organization recognized by the Tennessee athletic commission that adopts rules pursuant to § 68-115-213;
- (26)
“Second” means a person, including a manager, who is present at any professional unarmed combat contest to provide assistance or advice to combatants during a professional contest of unarmed combat;
- (27)
“Show settlement” means the period of time immediately following the professional contest in which a commission member or the executive director shall meet with venue personnel and the contest promoter to review ticket sales and collect fees due if paid immediately following the professional contest; and
- (28)
“Unarmed combat” means and includes boxing, mixed martial arts and kickboxing as defined and regulated under this chapter.
§ 68-115-103. Creation of athletic commission — Appointments — Quorum — Conflict of interest — Vacancies — Attendance at events, competitions, and contests.
- (a)
There is created the Tennessee athletic commission. Notwithstanding § 4-3-1304(a), the Tennessee athletic commission shall be attached to the division of regulatory boards within the department of commerce and insurance for all administrative and supervisory purposes, including, but not limited to, matters relating to receipts, disbursements, budget, audit, and other similarly related administrative items.
- (b)
The entire membership of the commission as comprised on December 31, 2015, shall be vacated on January 1, 2016, and five (5) new members shall be appointed in accordance with subsection (c).
- (c)
The commission shall be composed of the following members:
- (1)
One (1) member shall be a public member, to be appointed by the governor;
- (2)
Two (2) of the members shall have knowledge of and experience in boxing, with one (1) of the members to be appointed by the speaker of the house of representatives and one (1) of the members to be appointed by the governor. The member first appointed to fill a vacancy arising from the expiration of a member's term after January 1, 2016, shall be appointed to a term of three (3) years; and
- (3)
Two (2) of the members shall have knowledge of and experience in mixed martial arts, with one (1) of the members to be appointed by the speaker of the senate and one (1) of the members to be appointed by the governor.
- (d)
Except as provided in subdivision (c)(2), a member's term of office shall be four (4) years.
- (e)
All commission members shall be resident citizens of this state, and at least one (1) member of the commission shall reside in each grand division.
- (f)
In making appointments to the commission, the governor and the speakers of the senate and the house of representatives shall strive to ensure that the commission is representative of the state's geographic and demographic diversity, with appropriate attention to the representation of women and minorities.
- (g)
In making appointments to the commission, the appointing authorities shall be provided written proof of experience by all candidates for membership on the commission.
- (h)
A member of the commission who is appointed to an initial term of three (3) years or less in accordance with subdivision (c)(2) may be reappointed for up to one (1) additional four-year term. Members whose initial appointments are for four (4) years and members who have been reappointed to a four-year term shall not be reappointed for one (1) year following the date upon which the member's term expires.
- (i)
Three (3) members of the commission shall constitute a quorum, and any official action of the commission shall require the concurrence of at least a quorum.
- (j)
No member of the commission or any member of a commissioner's immediate family shall, at any time during the commissioner's service as a member of the commission or for one (1) year after the commissioner's term expires or the commissioner resigns as a member, be employed by a promoter of or promote any professional contest, or have any financial interest in the promotion or sponsorship of a professional contest. This subsection (j) shall not apply to immediate family members who compete as combatants in a professional contest or who may compete as amateurs in an amateur event if regulated by the commission pursuant to § 68-115-213.
- (k)
No member of the commission shall receive any complimentary tickets, nor shall any member of a commissioner's immediate family receive any complimentary tickets, for professional contests.
- (l)
Commission members shall be considered officials in the executive branch, as defined in § 3-6-301.
§ 68-115-104. Filling vacancies — Appointments.
-
A vacancy through expiration of the term of any member of the commission shall be filled by the respective appointing authority for a term of four (4) years. In the event a vacancy should occur other than by expiration of the term of a member, the respective appointing authority shall fill the vacancy for the unexpired portion of the original term.
§ 68-115-106. Election of chair — Term.
-
The members of the commission shall elect one (1) member as chair of the commission, who shall serve for a term of one (1) year, whereupon another member shall be elected as provided in this chapter.
§ 68-115-107. Fees — Disposition of funds.
- (a)
The fees established for professional combatants, promoters, managers, matchmakers, seconds, ringside physicians, and other ring officials licensed in accordance with § 68-115-204 shall be in an amount that provides for the cost of administering the licensing and regulation of unarmed combat contests.
- (b)
All moneys collected by the department pursuant to this chapter shall be deposited in the state treasury in a separate fund to be known as the Tennessee athletic commission administrative fund.
- (c)
Fees to be paid by the persons listed in subsection (a) shall be adjusted as necessary to provide that the Tennessee athletic commission administrative fund is fiscally self-sufficient and that the revenues from fees do not exceed necessary and required expenditures.
- (d)
Disbursements from the Tennessee athletic commission administrative fund shall be made solely for the purpose of defraying expenses incurred by the commission in the implementation and enforcement of this chapter.
- (e)
No expenses for the implementation and enforcement of this chapter shall be payable from the general fund of the state.
- (f)
Any part of the Tennessee athletic commission administrative fund remaining at the end of a fiscal year shall not revert to the general fund, but shall be carried forward until expended in accordance with this chapter.
§ 68-115-108. Meetings — Attendance by electronic means — Expenses.
- (a)
- (1)
The commission shall meet as often as the duties of the commission require.
- (2)
- (A)
Commission members shall attend at least fifty percent (50%) of the required quarterly meetings.
- (B)
Any commission member who fails to attend meetings as required in subdivision (a)(2)(A) shall be removed as a member by the appointing authority.
- (3)
If a commissioner is permitted to attend a meeting from a remote location by telephone, television, teleconferencing, or other electronic means pursuant to the rules of the commission and title 8, chapter 44, then the commissioner shall utilize such method no more than twice annually, unless an emergency situation arises.
- (b)
Members of the commission shall not receive per diem or other compensation for their services, but may be reimbursed for actual expenses incident to attending commission meetings, in accordance with the comprehensive travel regulations promulgated by the department of finance and administration and approved by the attorney general and reporter.
§ 68-115-109. Executive director — Responsibilities.
-
The director of the division of regulatory boards in the department of commerce and insurance or the director's designee shall serve as executive director of the commission and shall perform all administrative functions for the commission. The executive director of the commission shall keep an accurate record of its proceedings and transactions.
Part 2 Administration
§ 68-115-201. Rules — Hearing.
- (a)
The commission is authorized to promulgate rules to effectuate the purposes of this chapter and to protect and ensure the health, safety, and welfare of combatants in professional contests, amateurs in events, and combatants and amateurs in pro-am competitions. The rules shall be promulgated pursuant to the Uniform Administrative Procedures Act, compiled in title 4, chapter 5. Any hearing conducted pursuant to this chapter shall be conducted in accordance with the Uniform Administrative Procedures Act.
- (b)
The rules adopted by the commission shall include, but not be limited to:
- (1)
The number and qualifications of ring officials required at any contest;
- (2)
The powers and duties of ring officials;
- (3)
The qualifications of licensees or permitees;
- (4)
The procedures for supplying a social security number, fingerprint sample and submitting to a criminal history records check; and
- (5)
The procedures for performing medical duties relative to contests.
§ 68-115-203. Power and duties of commission.
- (a)
Except as provided in § 68-115-302 concerning wrestling contests, the commission shall have discretion, authority, management, regulation and control of all professional contests and pro-am competitions held, conducted or given within this state, the powers and duties specified in this chapter and all other powers necessary and proper to enable the commission to execute fully and effectively all of the purposes, duties and policies of this chapter. Any provision of this chapter or rule of the commission applicable to professional contests and to combatants, promoters, managers, matchmakers, seconds, ringside physicians and any other ring official participating in professional contests shall apply to professional contests conducted as part of a pro-am competition and participants in such contests.
- (b)
The commission or the executive director shall have the authority to employ, as necessary, designated individuals, as part-time state employees for purposes of title 8, chapter 42, part 1, who are qualified to assist ring officials and commission members in the regulation of professional contests. Such state employees shall be classified as executive service employees.
- (c)
The commission may review, with a promoter, all ring officials employed for a professional contest; and the promoter may submit a list of recommended ring officials for consideration by the commission.
§ 68-115-204. Professional contest of unarmed combat — License applications — Fees — Bond.
- (a)
All combatants of professional unarmed combat contests, promoters, managers, matchmakers, seconds, ringside physicians and any other ring official shall be licensed by the commission. No person shall participate, directly or indirectly, in any professional contest of unarmed combat unless the person has first applied for and received a license from the commission.
- (b)
The commission shall establish license fees for professional combatants, promoters, managers, matchmakers, seconds, ringside physicians and any other ring official who shall be licensed by the commission in regulated unarmed combat contests and shall have the authority to establish any fees deemed necessary for professional contests held within this state. Failure to pay the fees shall be cause for denial of the application.
- (c)
License applications shall be in writing on forms prescribed by the commission and shall correctly identify the applicant. Licenses shall be valid for two (2) years from the date of issuance. Applicants for the license shall pay a biennial license fee to be fixed by the commission on a uniform scale and a fifty-dollar nonrefundable application fee.
- (d)
The commission may deny an application for a license.
- (e)
Before any promoter's license is granted, the applicant shall file a bond in an amount fixed by the commission, but not less than twenty-five thousand dollars ($25,000), executed by the applicant as principal, and by a corporation qualified under the laws of this state as surety, payable to this state, and conditioned upon the faithful performance by the applicant of this chapter.
- (f)
A person who has failed to pay any reportable fee or tax due the commission shall not be issued a promoter's license or have a promoter's license renewed. This subsection (f) shall also apply to a corporation, limited liability company or a partnership for which the person was an officer, managing member or member.
- (g)
This section shall not apply to amateur sanctioning organizations or amateur combatants.
§ 68-115-205. Establishment of permit application and fee — Sufficiency of bond.
- (a)
The commission shall establish a permit application and accompanying permit fee to be charged to promoters of all professional contests of unarmed combat in this state. Failure to pay the permit fee shall be cause for denial of the application. If the commission determines that the bond filed by the promoter pursuant to § 68-115-204 is inadequate for the permit being sought, it may require the promoter to file additional security in an amount and form fixed by the commission prior to the issuance of the permit.
- (b)
Every promoter of a professional contest or amateur event of unarmed combat shall obtain a permit from the commission for each contest or event not less than thirty (30) days prior to the date a promoter stages a contest or event, unless some shorter time period is authorized by the commissioner or executive director.
- (c)
As provided by § 68-115-213, upon the adoption of rules, the commission may establish an application and accompanying permit fee to be charged to promoters of amateur events of unarmed combat in this state.
§ 68-115-206. Qualifications of combatant — Issuance of license — Requirements — Denial — Appeal.
- (a)
The executive director shall have the authority to examine the professional combatant's record, experience, skill and physical condition pursuant to the powers granted to it in this chapter, and may deny the issuance of a license if, in the executive director's opinion, the combatant's record, experience, skill and physical condition indicate the combatant is unqualified to participate in professional contests of unarmed combat. The applicant may appeal the executive director's decision to deny the issuance of a license to the commission. The appeal shall be heard in a timely manner.
- (b)
- (1)
All combatants applying for a license under this chapter shall be required to submit, upon application, proof that a medical examination has been performed and that blood tests have been taken for infectious diseases or for any other purpose required by the commission within ninety (90) days of applying for a license or the renewal of a license.
- (2)
Professional combatants who are thirty-five (35) years of age or older shall, in addition to the requirements of subdivision (b)(1), have a neurological examination and submit a medical report within thirty (30) days of applying for a license or renewal of a license.
- (3)
Professional combatants shall meet all medical requirements as prescribed by this section. The commission or executive director may deny any application based on the results of the examinations or may request additional medical examinations as deemed necessary.
- (c)
An application for a license constitutes a request for a determination of the applicant's general suitability, character, integrity and ability to participate or engage in or be associated with contests of unarmed combat. The burden of proof is on the applicant to establish to the satisfaction of the commission or executive director that the applicant is qualified to receive a license. By filing an application with the commission, an applicant accepts the risk of adverse public notice, embarrassment, criticism, financial loss or other action with respect to the applicant's application, and expressly waives any claim for damages as a result of such adverse public notice, embarrassment, criticism, or financial loss. Any written or oral statement that is made by a member of the commission, executive director or any witness testifying under oath that is relevant to the application and investigation of the applicant is privileged and does not impose liability for defamation or constitute a ground for recovery in a civil action.
- (d)
The commission may require a criminal history records check to be conducted by the Tennessee bureau of investigation on applicants for licenses. The commission may require the applicant or licensee to submit a social security number and a complete set of fingerprints as part of the records check. The Tennessee bureau of investigation may conduct a criminal history records check of any applicant or licensee, including those records maintained by the federal bureau of investigation. The cost of the records check by the Tennessee bureau of investigation or the federal bureau of investigation, as appropriate, shall be paid by the person being investigated.
§ 68-115-207. Confidentiality of information — Disclosure — Notice.
- (a)
Except as otherwise provided in subsection (b), the commission and the executive director shall keep confidential:
- (1)
Any information, including, but not limited to, an applicant's social security number, that the commission or the executive director receives concerning an applicant for the issuance of a license pursuant to this chapter that is declared confidential by law and that is provided to the commission by the applicant, another governmental entity or the Association of Boxing Commissions;
- (2)
Any information contained in an applicant's medical records, if the information is not relevant to the commission in determining whether to grant a license to the applicant;
- (3)
Any information relating to the financial records of an applicant or licensee; and
- (4)
Any information required to be disclosed to the commission and kept confidential pursuant to federal law.
- (b)
The commission shall reveal the information set forth in subsection (a):
- (1)
Upon the lawful order of a court of competent jurisdiction;
- (2)
To any person, upon the request of the person who is the subject of the information; and
- (3)
In the course of the necessary administration of this chapter.
- (c)
A person seeking an order of a court of competent jurisdiction for the disclosure of information described in subsection (a) shall submit a motion in writing to the court requesting the information. At least ten (10) days prior to submitting the motion, the person shall provide notice to the commission, the attorney general and reporter and all persons who may be affected by the disclosure of the information. The notice shall:
- (1)
Include, without limitation, a copy of the motion and all documents in support of the motion that are to be filed with the court; and
- (2)
Be delivered in person or by certified mail to the last known address of each person to whom notice shall be provided.
§ 68-115-208. Gross receipt tax — Preliminary and final report on ticket sales — Complimentary tickets — Violations and penalties — Book and records.
- (a)
- (1)
Every promoter shall pay professional contest fees and taxes due for professional contests of:
- (A)
Four percent (4%) of the total gross receipts from admission fees to the live professional contest of unarmed combat or five hundred dollars ($500), whichever is greater, exclusive of any federal tax or tax imposed by any political subdivision of this state; and
- (B)
Three percent (3%) of the first one million dollars ($1,000,000), and one percent (1%) of the next two million dollars ($2,000,000), of the total gross receipts from the sale, lease or other exploitation of broadcasting, television and motion picture rights for that contest without any deductions for commissions, brokerage fees, distribution fees, advertising, combatants’ purses or any other expenses or charges.
- (2)
In addition, if a pro-am competition or an amateur event is broadcasted or televised, such event shall be subject to, and the promoter shall pay, the same percentage of gross receipts as are required pursuant to subdivision (a)(1)(A) for professional contests and the percentage of total gross receipts required pursuant to subdivision (a)(1)(B) for professional contests related to broadcasting, television and motion picture rights.
- (b)
- (1)
At show settlement, the promoter and venue personnel shall sign off on and submit to a commission member or the executive director, on a form prescribed by the commission, a preliminary report on ticket sales.
- (2)
The promoter shall pay to the commission the four percent (4%) reportable gross receipts tax described in subsection (a) based upon the preliminary report at show settlement, during which time moneys are paid to the promoter from the contracted venue, or no later than ten (10) days from the date of the contest. If any additional tax is required to be paid pursuant to this section, the tax shall be paid within thirty (30) days from the date of the contest.
- (c)
The promoter shall pay to the commission the fees for the rights described in subdivision (a)(2) no later than thirty (30) days from the date of the contest.
- (d)
A promoter shall not issue complimentary tickets for more than two percent (2%) of the seats in the house, equally distributed between or among the price categories for which complimentary tickets are issued without the commission's written authorization. The commission shall not consider complimentary tickets that it authorizes pursuant to this section to constitute part of the total gross receipts from admission fees.
- (e)
Every promoter shall, within thirty (30) days after the completion of any professional contest for which an admission fee is charged and received, furnish to the commission a final verified written report showing:
- (1)
The number of tickets sold or issued for the professional contest;
- (2)
The amount of:
- (A)
Gross receipts from admission fees without any deductions for commissions, brokerage fees, distribution fees, advertising, combatants' purses or any other expenses or charges; and
- (B)
Broadcasting fees derived from the sale, lease or other exploitation of broadcasting, motion picture and television rights of the professional contest, without any deductions for commissions, brokerage fees, distribution fees, advertising, combatants' purses or any other expenses or charges; and
- (3)
Any other reports requested by the commission.
- (f)
When any person fails to make any report and pay the full amount of the reportable tax or fee required by this chapter, there shall be imposed a specific penalty to be added to the tax or fee in the amount of five percent (5%) of the tax or fee if the failure is for not more than thirty (30) days, with an additional five percent (5%) for each additional thirty (30) days or fraction of thirty (30) days, during which the failure continues, not to exceed twenty-five percent (25%) in the aggregate. In the case of a false or fraudulent report, or in the case where no report has been filed and there exists a willful intent to defraud the state of the tax or fee due under this chapter, a specific penalty of one hundred percent (100%) of the tax or fee may be due.
- (g)
Every person required to pay a tax or fee pursuant to this chapter shall keep and preserve records showing the amount of the person's reportable gross receipts taxable and broadcast fees pursuant to this chapter and such other books of account as may be necessary to determine the amount of tax or fee pursuant to this chapter, and all such books and records shall be open to inspection at all reasonable hours to the commission. All such books and records shall be maintained by the taxpayer for a period of three (3) years.
§ 68-115-209. Suspension or revocation of license.
- (a)
The commission may, in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, suspend or revoke the license of any person issued pursuant to this chapter who:
- (1)
Enters into a contract for a professional contest of unarmed combat in bad faith;
- (2)
Participates in any sham or fake professional contest of unarmed combat;
- (3)
Participates in a professional contest of unarmed combat pursuant to a collusive understanding or agreement in which the combatant competes in or terminates the professional contest in a manner that is not based upon honest competition;
- (4)
Is found to have failed to give the combatant's best efforts, a failure to compete honestly or a failure to give an honest exhibition of the combatant’s skills in a professional contest of unarmed combat;
- (5)
Is found by the commission to have committed an act or conduct that is detrimental to a professional contest of unarmed combat, including, but not limited to, any foul or unsportsmanlike conduct in connection with a professional contest of unarmed combat;
- (6)
Fails to comply with any limitation, restriction or condition placed on the professional combatant's license;
- (7)
Is determined to have used performance enhancing drugs or violated any provision of the World Anti-Doping Agency guidelines regulating substances;
- (8)
Engages in fraud or deceit in obtaining a license under this chapter;
- (9)
Is physically or mentally incapable;
- (10)
Has violated this chapter, any rule duly promulgated under this chapter or any lawful order of the commission; or
- (11)
Has had the person's license revoked or suspended by any other authority, or has surrendered such license to the other authority, that regulates unarmed combat or its equivalent.
- (b)
The commission may also refuse to issue a license to an applicant who has been found by the commission to have committed any of the acts described in subsection (a) in this state or in any other jurisdiction.
§ 68-115-210. Assignment of ring officials — Payment and fees.
-
The commission or executive director shall assign all ring officials for a professional contest of unarmed combat. Every promoter of a professional contest shall pay for services rendered by the ring officials and any other fees for services provided pursuant to this chapter.
§ 68-115-211. Proof of medical insurance coverage.
-
Every promoter of a professional contest of unarmed combat shall provide proof of medical insurance coverage for medical, surgical, and hospital care to cover injuries sustained by a combatant while engaged in professional contests of unarmed combat, in an amount to be set by rule, as promulgated by the commission.
§ 68-115-212. Withholding of purse or other amount payable to combatant, manager or second.
- (a)
The commission, its executive director or any other employee authorized by the commission may order the promoter to withhold any part of a purse or other money belonging or payable to any professional combatant, or any manager or second, if, in the judgment of the commission, executive director or other employee:
- (1)
The combatant is not or has not competed honestly or to the best of the combatant's skill and ability or the combatant otherwise is in violation of any rules adopted by the commission or any of the provisions of this chapter, including, but not limited to, § 68-115-209; or
- (2)
The manager or second violates any rules promulgated by the commission or any of the provisions of this chapter, including, but not limited to, § 68-115-209.
- (b)
Upon the withholding of any part of a purse or other money pursuant to this section, the commission shall immediately schedule a hearing on the matter, and provide adequate notice to all interested parties prior to the hearing.
- (c)
If it is determined that a licensee is not entitled to any part of the licensee's share of the purse or other money, the promoter shall pay the money over to the commission. Subject to subsection (d), all money received by the executive director or the commission shall be paid into the athletic commission account pursuant to § 68-115-107.
- (d)
Money turned over to the commission pending final action in any matter shall be credited to the athletic commission's agency account and shall remain in the account until the commission orders its disposition in accordance with the final action taken.
- (e)
- (1)
Unless otherwise stipulated by the promoter and professional combatant by contract, the combatant shall be paid the purse at the conclusion of the professional contest.
- (2)
All contracts entered into between a combatant and a promoter shall include a provision that entitles the combatant, upon obtaining a favorable judgment by a court, to recover all costs, prejudgment interests and attorney fees, the right to which shall not be waived in any such contract.
§ 68-115-213. Amateur events of unarmed combat — Permit and registration — Rules — Pro-am competitions.
- (a)
Except for amateur events exempted from this chapter pursuant to part 3, the commission is authorized to require promoters of amateur events of unarmed combat to obtain a permit prior to conducting the events. If the permit is required, the commission shall adopt rules in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, that prescribe, without limitation, the requirements and fees for obtaining the permit.
- (b)
Except for combatants participating in amateur events exempted from this chapter pursuant to part 3 of this chapter, an amateur combatant may not take part in an amateur event of unarmed combat unless the event is sanctioned by and the amateur is registered with an amateur sanctioning organization recognized and approved by the commission.
- (c)
The commission may require an approved sanctioning organization that participates in amateur events of unarmed combat in this state to register with the commission before it participates, directly or indirectly, in any amateur event of unarmed combat. If the registration is required, the commission shall adopt rules in accordance with the Uniform Administrative Procedures Act that prescribe, without limitation, the requirements and fees for obtaining the registration.
- (d)
Notwithstanding subsections (a)-(c), the commission shall be the sole regulatory authority for pro-am competitions. Any amateur who participates in an event that is conducted as part of a pro-am competition shall be subject to the jurisdiction of the commission and is required to obtain an amateur license issued by the commission. In accordance with § 68-115-201(a), the commission shall promulgate rules relative to amateur events conducted as part of a pro-am competition and amateur participants in such events, including but not limited to physical examinations.
§ 68-115-214. Obligations of promoter — Confidentiality of contracts.
- (a)
A promoter shall, at least seventy-two (72) hours before a professional contest of unarmed combat, file with the commission's executive director a copy of all contracts entered into for the sale, lease or other exploitation of broadcasting, television and motion picture rights for the professional contest.
- (b)
The promoter shall keep detailed records of the accounts and other documents related to the promoter's receipts from the sale, lease or other exploitation on the broadcasting, television and motion picture rights for a professional contest, and the commission or any state agency may inspect these accounts and documents at any time to determine the amount of the total gross receipts received by the promoter from the broadcasting, television and motion picture rights.
- (c)
Each contract filed with the commission pursuant to this section is confidential and is not a public record, and shall not be disclosed except as provided in § 68-115-207(b).
§ 68-115-216. Disciplinary actions — Cost of proceedings.
- (a)
If disciplinary action is taken against a person by the commission pursuant to this chapter based on the conduct of the person that either directly or indirectly relates to a professional contest of unarmed combat or pro-am competition, the commission may, in lieu of or in addition to revoking or suspending a license or permit issued to the person, impose a penalty not to exceed two hundred fifty thousand dollars ($250,000).
- (b)
If disciplinary action is taken against a person pursuant to this chapter, the commission may require the person against whom the action is taken to pay the costs of the proceeding, including investigative costs and attorney's fees.
- (c)
If a complaint is made against a person pursuant to this chapter, the complaint shall be made on a commission-prescribed form. The form shall be submitted to the executive director, who shall then present the complaint to the commission to:
- (1)
Determine if the complaint warrants further review; or
- (2)
Take action against the person based on the complaint.
§ 68-115-217. Reinstatement of license.
-
The commission may reinstate a revoked license upon receipt of an application and the payment of a penalty prescribed by the commission, not to exceed two hundred fifty thousand dollars ($250,000).
§ 68-115-219. Authorization of international qualifying events for kickboxing — Promulgation of rules.
-
- (a)
Notwithstanding any provision of this chapter to the contrary, the commission may authorize international qualifying events for kickboxing to occur in this state if the events meet the standards required for such events by the World Association of Kickboxing Organizations or any subsequent entity recognized as the official kickboxing governing body by the International World Games Association.
- (b)
Pursuant to § 68-115-201, the commission shall promulgate rules to effectuate this section.
Part 3 Applicability
§ 68-115-301. Specified amateur event of unarmed combat.
-
This chapter shall not apply to any amateur event of unarmed combat conducted by or participated in exclusively by any school, college or university or by any association or organization of a school, college or university, when each amateur in the event is a bona fide student in the school, college or university.
Part 4 Physical Examinations
§ 68-115-401. Presence and duty of designated member of commission.
-
The executive director of the commission, a member of the commission, qualified medical personnel, or the commission's designee shall be present at all weigh-ins, pre-contest physical examinations, and professional contests, and shall ensure that the rules are strictly enforced.
§ 68-115-403. Pre-contest physical examination — Specified time — Expenses.
- (a)
All professional combatants shall be required to submit to a pre-contest physical examination within forty-eight (48) hours of, or the day prior to, the scheduled start of the contest. A random urine drug screen to determine the use of banned or illegal substances may be required of a combatant, within the time specified in this chapter, prior to a contest.
- (b)
All physical examinations required pursuant to subsection (a) shall be performed by a ringside physician.
- (c)
A professional combatant shall be subject to additional blood testing for infectious diseases if more than ninety (90) days have elapsed since the combatant's license was issued.
- (d)
All expenses incurred pursuant to this section shall be paid by the promoter.
§ 68-115-404. Referees — Ringside physicians — Physical examinations — Testing — Emergency medical services and ambulance required — Expenses.
- (a)
In making round and foul determinations, the referee shall be the sole arbiter of the professional contest; however, the ringside physician shall advise the referee to terminate or continue the contest based on the physician's observation of the combatant's physical condition.
- (b)
Immediately following the professional contest, the ringside physician shall examine both combatants.
- (c)
After examining each professional combatant who has lost as a result of a technical knockout (TKO) or knockout (KO), the ringside physician may require the combatant to undergo a neurological examination.
- (d)
If a loss of consciousness has occurred, the professional combatant may undergo neurological testing at the determination of the commission and may not be permitted to participate in any professional contest until the test has been conducted and the combatant has been determined to be medically fit to compete by a neurologist. All neurological reports shall be submitted to the commission by the neurologist for its review before the combatant may be permitted to compete in a subsequent professional contest.
- (e)
The commission may require a drug screen or any other examination to be performed or requested immediately following a contest.
- (f)
- (1)
An ambulance or other emergency vehicle shall remain on the premises at all times during a professional contest.
- (2)
A two-member licensed emergency medical team consisting of one (1) paramedic shall remain on the premises at all times during a professional contest.
- (3)
The most direct and unobstructed route to the ambulance or other emergency medical vehicle shall be made available for medical officials.
- (4)
Emergency medical services shall be approved by the chief or the director of the local fire department or emergency medical service department or bureau of the city or county having jurisdiction over the professional contest.
- (g)
All expenses incurred pursuant to this section shall be paid by the promoter.
§ 68-115-405. Prohibited acts — Drugs.
-
Combatants shall not train or compete under the influence of any illegal drug or legal drug used illegally, as recognized by the World Anti-Doping Agency.
§ 68-115-406. Endangerment of combatant or opponent — Report of medications.
-
Combatants shall report any and all medication they are taking to the ringside physician prior to a professional contest. If the combatant is under the influence of alcohol or any stimulant, or is taking any controlled substance or other medication, that the ringside physician determines would endanger the combatant or the combatant's opponent, the combatant shall not be allowed to compete.
Part 5 Compliance
§ 68-115-501. Compliance with specified federal act — Membership authorized — Use of guidelines to promulgate rules.
- (a)
This chapter shall be in full compliance with the federal Professional Boxing Safety Act of 1996, as amended by the Muhammad Ali Boxing Reform Act (15 U.S.C. § 6301 et seq.).
- (b)
The Tennessee athletic commission is directed to become a member of the Association of Boxing Commissions, with costs associated with the membership in the association to be paid out of commission revenue and to use the regulatory guidelines adopted by the Association of Boxing Commissions and any amendments made to those regulatory guidelines in promulgating rules for the regulation of boxing.
- (c)
The Tennessee athletic commission is directed to use the Mixed Martial Arts Unified Rules as adopted and established in other states and professional associations as the regulatory guideline to promulgate rules for the regulation of mixed martial arts.
- (d)
The Tennessee athletic commission is directed to use as a regulatory guideline to promulgate rules those rules recognized by the International Kickboxing Federation (IKF), the International Sport Kickboxing Association (ISKA) and the World Karate Association (WKA).
Chapter 117 Tanning Facility Control Act of 1990
§ 68-117-102. Chapter definitions.
-
As used in this chapter, unless the context otherwise requires:
- (1)
“Tanning device” means any equipment that emits radiation used for tanning of the skin, such as a sun lamp, tanning booth, or tanning bed, and includes any accompanying equipment, such as protective eyewear, timers and handrails; and
- (2)
“Tanning facility” means any place where a tanning device is used for a fee, membership dues, or any other compensation.
§ 68-117-104. Requirements.
- (a)
A tanning facility shall:
- (1)
Have a trained attendant on duty whenever the facility is open for business;
- (2)
Provide each customer with protective eyewear that meets the requirements of 21 CFR 1040.20(c)(4);
- (3)
Not allow a person to use a tanning device if that person does not use the protective eyewear;
- (4)
Show each customer how to use suitable physical aids, such as handrails and markings on the floor, to maintain proper exposure distance as recommended by the manufacturer;
- (5)
Limit each customer to the maximum exposure time as recommended by the manufacturer; and
- (6)
Control the interior temperature of a tanning facility so that it does not exceed thirty-four degrees centigrade (34° C).
- (b)
- (1)
Each time a person uses a tanning facility or each time a person executes or renews a contract to use a tanning facility, the person shall sign a written statement, as set forth in this chapter, that the person:
- (A)
Has read and understood the warnings before using the device; and
- (B)
Agrees to use the protective eyewear that the tanning facility provides.
- (2)
When using a tanning device, a person shall use the protective eyewear that the tanning facility provides.
- (3)
- (A)
Except as otherwise provided in subdivision (b)(3)(B), a person between sixteen (16) and eighteen (18) years of age shall be accompanied by the person's parent or legal guardian when using a tanning device. The accompanying parent or legal guardian must provide photo identification, provide proof of guardianship if applicable, and sign a warnings statement on a form issued by the department of health that complies with § 68-117-106 and states that the legal guardian is giving consent for use of a tanning device to the person who is between sixteen (16) and eighteen (18) years of age. The department of health shall issue a warning statement form that complies with this subdivision (b)(3)(A) on its website.
- (B)
A person between sixteen (16) and eighteen (18) years of age who has used a tanning device at a tanning facility in compliance with subdivision (b)(3)(A) may use a tanning device at that tanning facility without the parent or guardian present on a subsequent visit as long as the signed statement required by subdivision (b)(3)(A) remains on file with the tanning facility.
- (4)
A person under sixteen (16) years of age is prohibited from using a tanning device at a tanning facility.
- (5)
The operator of the tanning facility shall maintain the signed statements provided for in subdivision (b)(3) for a period of not less than two (2) years and shall make them available for inspection upon request.
§ 68-117-105. Penalty.
-
A violation of any of the provisions of this chapter constitutes a Class B misdemeanor punishable by a fine of not more than five hundred dollars ($500). Each day on which a violation occurs constitutes a separate offense. Violations of this chapter may subject an owner and/or operator of a tanning facility to civil claims, prosecution, or both.
§ 68-117-106. Warning statement.
-
The statement that must be given to each tanning facility customer and must be signed by the customer shall contain at a minimum the following:
- (1)
Failure to use the required eye protection provided to the customer may result in damage to the eyes;
- (2)
Overexposure to ultraviolet light may cause severe sunburn reactions;
- (3)
Repeated exposure to ultraviolet light may result in skin cancer and premature aging of the skin;
- (4)
Abnormal skin sensitivity or severe burning may be caused by reactions when tanning devices are used in conjunction with certain foods, cosmetics, and medications such as tranquilizers, diuretics (fluid pills), antibiotics, high blood pressure medicines, and birth control pills;
- (5)
An individual taking prescription medication or over-the-counter drugs should consult a physician before using a tanning device;
- (6)
An individual with skin that tends to burn easily, freckles, or never tans should avoid use of a tanning device before consulting a physician;
- (7)
An individual with a family or personal past medical history of skin cancer should avoid use of a tanning device;
- (8)
An individual should allow a minimum of twenty-four (24) hours between uses of a tanning device; and
- (9)
Pregnant women or women using oral contraceptives may develop discolored skin due to the use of tanning devices.
§ 68-117-107. Required display of warning sign.
- (a)
Each tanning facility shall prominently post, in a location always plainly visible to the public, a sign no smaller than twenty-four inches by thirty-six inches (24″ x 36″) that shall be readily legible to the average person to ensure that it is likely to be read by a customer wishing to use a tanning bed.
- (b)
Each sign shall contain the following language:
-
-
Improper or repeated exposure to ultraviolet radiation may cause damage to skin including premature aging and skin cancer.
-
Failure to use protective eyewear may result in severe burns or permanent injury to the eyes.
-
Medications or cosmetics may increase sensitivity to ultraviolet radiation.
-
Consult a physician if you are using medications.
-
Pregnancy or use of estrogen containing medications such as premarin or oral contraceptives may result in skin discoloration when exposed to ultraviolet radiation.
-
An individual with a personal or family history of melanoma should avoid exposure to ultraviolet radiation.
-
An individual with skin that tends to burn easily, freckles, or never tans should avoid exposure to tanning devices.
-
An individual with a personal history of skin cancer or abnormal moles should avoid exposure to tanning devices.
-
Improper use of a tanning device contrary to the recommendations of the manufacturer may be harmful to the user and shall not be allowed.
-
IF YOU DO NOT TAN IN THE SUN, YOU ARE UNLIKELY TO TAN FROM USE OF THIS DEVICE.
Chapter 120 Building Regulations
Part 1 General Provisions
§ 68-120-101. Statewide building construction safety standards — Promulgation — Applicability.
- (a)
The state fire marshal shall, in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, promulgate rules establishing minimum statewide building construction safety standards. Such standards shall be designed to afford a reasonable degree of safety to life and property from fire and hazards incident to the design, construction, alteration and repair of buildings or structures. The standards:
- (1)
Shall include, but not be limited to, provisions relative to structural strength and stability; energy efficiency; means of egress; fire resistant ratings and requirements; and fire protection equipment and materials;
- (2)
May be selected wholly or partially from publications or amended versions of publications of nationally recognized agencies or organizations, such as the International Code Council, Inc., the National Fire Protection Association, Inc., and Underwriters Laboratories, Inc.;
- (3)
Shall classify buildings according to types of occupancy and construction;
- (4)
Shall contain appropriate requirements and specifications for both new and existing buildings;
- (5)
Shall not discriminate against or in favor of particular construction materials or construction techniques;
- (6)
Shall, to the extent practicable, be stated in terms of performance objectives without prescribing the use of certain methods, designs, techniques or materials;
- (7)
Shall be reasonably compatible with building construction safety standards adopted by local governments in this state;
- (8)
- (A)
Shall not include mandatory sprinkler requirements for one-family and two-family dwellings; however, notwithstanding this subdivision (a)(8), local governments may adopt more stringent requirements for one-family and two-family dwellings;
- (B)
- (i)
If a local government seeks to adopt mandatory sprinkler requirements for one-family and two-family dwellings pursuant to this subdivision (a)(8), then the local government may only adopt such requirements, by either ordinance or resolution, as appropriate, upon an affirmative two-thirds (⅔) vote on final reading; provided, that if passage of such ordinance or resolution requires two (2) readings, then such requirements may only be adopted after reading such ordinance or resolution in open session of the legislative body at meetings specially called on two (2) different days that are no less than two (2) weeks apart; and if passage requires three (3) readings, then the last two (2) readings shall occur on two (2) different days that are no less than two (2) weeks apart. Mandatory sprinkler requirements shall be voted on in an ordinance or resolution separate from any other ordinance or resolution addressing building construction safety standards;
- (ii)
If a local government seeks to repeal the mandatory sprinkler requirements adopted pursuant to this subdivision (a)(8), then the local government shall repeal such requirements in the same manner as required to adopt such requirements under this subdivision (a)(8); provided, that if a local government adopted mandatory sprinkler requirements prior to April 27, 2012, then the local government may repeal such requirements in the same manner the local government adopted the requirements; and
- (C)
- (i)
- (a)
A townhouse shall be considered a separate building with independent exterior walls and shall be separated by a two-hour fire-resistance-rated wall assembly. A townhouse shall be built according to local and statewide adopted building codes; provided, however, a fire sprinkler system shall not be required for a townhouse;
- (b)
Notwithstanding subdivision (a)(8)(C)(i)(a), local governments may adopt mandatory sprinkler requirements for townhouses by local ordinance through the process for one-family and two-family dwellings pursuant to this subdivision (a)(8);
- (ii)
For purposes of this subdivision (a)(8)(C), “townhouse” means a single family dwelling unit constructed in a group of three (3) or more attached units that extends from foundation to roof, not more than three (3) stories in height, with a separate means of egress, and an open space or public way on at least two (2) sides;
- (9)
Must include provisions for multi-level commercial and residential structures relative to mitigating structural collapse that may result from explosive devices, including, but not limited to, methods to deter entry into a structure by a motor vehicle; and
- (10)
- (A)
Shall require installation of an approved carbon monoxide alarm, as defined in § 68-120-112, within ten feet (10′) of each room used for sleeping purposes in any construction begun on or after January 1, 2016, that:
- (i)
Is intended for use as a hotel as defined in § 68-120-112; and
- (ii)
Has a fossil-fuel-burning heater or appliance, a fireplace, an attached garage, or other feature, fixture, or element that emits carbon monoxide as a byproduct of combustion; and
- (B)
Shall require that carbon monoxide alarms required pursuant to subdivision (a)(10)(A) be wired directly to the building's power supply with secondary battery backup.
- (b)
- (1)
- (A)
The standards established pursuant to subsection (a) apply to municipal, county, state and private buildings, including one-family and two-family dwellings, unless otherwise provided by statute.
- (B)
- (i)
Notwithstanding subdivision (b)(1)(A), the standards established pursuant to subsection (a) relative to one-family and two-family dwellings do not apply in any county or municipality in which the legislative body of the county or municipality, by a two-thirds (⅔) vote, adopts a resolution to exempt the county or municipality, as appropriate, from the application of statewide standards for one-family and two-family dwellings within the jurisdictional boundaries of the county or municipality, as appropriate; provided, however, that any action by the county legislative body concerning the implementation of this subdivision (b)(1)(B)(i) shall be limited to the jurisdictional boundaries outside any municipality located within the county. Upon approving the resolution, the presiding officer of the legislative body shall notify the state fire marshal of the actions taken under this subdivision (b)(1)(B)(i).
- (ii)
- (a)
An initial resolution following July 1, 2009, may be adopted by a county or municipal legislative body to take effect on July 1, 2010, or at a later date stated in the resolution.
- (b)
A resolution adopted pursuant to subdivision (b)(1)(B)(ii)(a) or the adoption of any other resolution, shall expire one hundred eighty (180) days following the date of the election for the local legislative body next occurring following the adoption of the resolution, but an earlier expiration date may be stated in the resolution.
- (C)
The governing body of any such county or of a municipality located in any such county that has taken the action pursuant to subdivision (b)(1)(B) is authorized to reverse such action by adopting a resolution to apply subsection (a) with respect to one-family and two-family dwellings within the jurisdictional boundaries of the municipality or county, as appropriate; provided, that, any action by the county legislative body concerning its actions shall be limited to the jurisdictional boundaries outside any municipality located within the county. The presiding officer of the governing body shall notify the state fire marshal of the approval of the resolution.
- (D)
Notwithstanding this section to the contrary, the owner of a building, structure, or premises located in a county or municipality that has taken action pursuant to subdivision (b)(1)(B) may request that the state fire marshal inspect the building, structure, or premises to determine whether the building, structure, or premises meets the statewide codes established pursuant to subsection (a). If an owner requests an inspection pursuant to this subdivision (b)(1)(D), the inspection must be conducted in accordance with this section. Upon completion of the inspection, if the state fire marshal determines that the owner's building, structure, or premises meets the statewide codes established pursuant to subsection (a), the state fire marshal must issue documentation to the owner evidencing such.
- (2)
Such standards do not apply to any building, other than state buildings, educational occupancies or any other occupancy requiring an inspection by the state fire marshal for initial licensure, located within the jurisdiction of a local government that certifies in writing to the state fire marshal that:
- (A)
The local jurisdiction has chosen to adopt and enforce building construction and fire safety codes for construction of all buildings, for construction of all buildings other than one-family and two-family dwellings, or for construction of one-family and two-family dwellings only; and
- (i)
For one-family and two-family construction, it has adopted the International Residential Code, published by the International Code Council, Inc.; or
- (ii)
For construction other than one-family and two-family dwellings, it has adopted a building construction safety code consisting of the International Building Code, published by the International Code Council, Inc., and either:
- (a)
The international fire code, published by the International Code Council, Inc.; or
- (b)
The uniform fire code, published by the National Fire Protection Association, Inc., if adopted on or after July 1, 2006; and
- (iii)
For one-family and two-family construction, it has adopted the International Energy Conservation Code, published by the International Code Council, and is not more stringent than the state minimum standard adopted pursuant to subsection (a); and
- (B)
It is adequately enforcing its code and performing any reviews of construction plans and specifications and inspections required by the state fire marshal under this section.
- (C)
Amended versions of the publications referred to in subdivisions (a)(2) and (b)(2)(A) shall be designed to afford a reasonable degree of safety to life and property from fire and hazards incident to the design, construction, alteration, and repair of buildings or structures within the jurisdiction.
- (3)
If a local jurisdiction chooses to adopt and enforce codes for only one-family and two-family dwellings or for all buildings other than one-family and two-family dwellings that would be subject to the codes adopted by the state fire marshal pursuant to subdivision (a)(1), the state fire marshal shall enforce the statewide codes with regard to those buildings for which the local jurisdiction has not adopted and is not enforcing codes.
- (4)
- (A)
An audit of the records and transactions of each local government which chooses to enforce its own code pursuant to subdivision (b)(2) shall be made by the state fire marshal at least once every three (3) years to ensure that the local government is adequately performing its enforcement functions.
- (B)
The state fire marshal shall, in accordance with the Uniform Administrative Procedures Act promulgate rules to implement this subdivision (b)(4).
- (5)
Notwithstanding subdivision (b)(2), the standards established pursuant to subsection (a) apply, if:
- (A)
The local government's building construction safety code publications are not current within seven (7) years of the date of the latest editions of the publications, unless otherwise approved by the state fire marshal in writing; provided, however, that nothing in this subdivision (b)(5)(A) shall require a local government to adopt a standard more stringent than the standards enforced by the state fire marshal, pursuant to this section, or to adopt a mandatory sprinkler requirement for one-family and two-family dwellings; or
- (B)
After affording appropriate written notice of grounds and opportunity for hearing, the state fire marshal determines that the local government is not adequately performing its enforcement functions.
- (6)
Notwithstanding the applicability of the standards set forth in subsection (a) to educational occupancies, any entity undertaking to construct an educational occupancy within the jurisdictional boundaries of a local government that chooses to enforce its own code pursuant to this subsection (b) may begin construction upon approval of its building plans by such local government while, if the codes enforced by the local government are the same or more stringent than the codes enforced by the state fire marshal, awaiting final approval of its plans by the state fire marshal. If a conflict arises between the state fire marshal and the local government relative to the application or interpretation of the same or substantially identical building construction safety standards or fire safety standards, then the determination of the state fire marshal shall supersede the conflicting application or interpretation by the local government.
- (7)
- (A)
- (i)
Notwithstanding subdivision (a)(5), a local government may adopt a regulation or code, pertaining to construction materials by ordinance or resolution, as appropriate, by majority vote.
- (ii)
If passage of the ordinance or resolution requires two (2) readings, then the requirement may only be adopted after reading it in open session of the legislative body at meetings on two (2) different days.
- (iii)
If passage of the ordinance or resolution requires three (3) readings, then the last two (2) readings must occur on two (2) different days.
- (iv)
A proposed requirement pertaining to construction materials must be a separate item on the agenda and include, in bold type and all caps, the following statement in the meeting notice:
-
THE PROPOSED ORDINANCE REQUIRES CERTAIN MATERIALS TO BE RESTRICTED IN THE CONSTRUCTION OF BUILDINGS.
- (B)
The consideration of a requirement pertaining to construction materials must be by separate vote. If the requirement is to be part of a general ordinance or resolution, then the requirement pertaining to construction materials must be severable from the rest of the ordinance or resolution, and voted on separately.
- (C)
If a local government seeks to modify a regulation, code, or ordinance adopted pursuant to this subdivision (b)(7), then the local government shall make the modification in the same manner as required to adopt a requirement under this subdivision (b)(7).
- (D)
A regulation, ordinance, or code adopted pursuant to this subdivision (b)(7) shall not prohibit a particular construction material that is approved by a national building code or the state fire marshal.
- (E)
A regulation, ordinance, or code adopted pursuant to this subdivision (b)(7) must allow for the consideration of waivers of the adopted regulation, ordinance, or code pertaining to construction materials, in whole or in part, during the development approval process.
- (F)
Denial of a waiver related to a regulation, ordinance, or code referenced in subdivision (b)(7)(E) does not constitute a prohibition under subdivision (b)(7)(D).
- (G)
Except to the extent local law conflicts with these provisions, this section neither grants nor removes local governmental authority to promulgate provisions under home rule charters, private acts, or general state law.
- (H)
This subdivision (b)(7) does not limit the professional judgment of a licensed design professional with respect to electrical, mechanical, or plumbing standards.
- (c)
The standards established pursuant to subsection (a) do not apply to:
- (1)
Renovations of existing one-family and two-family dwellings;
- (2)
Nonresidential farm buildings;
- (3)
Temporary buildings used exclusively for construction purposes;
- (4)
Structures or units regulated under chapter 126 of this title; or
- (5)
Buildings or facilities reviewed and licensed by the board for licensing health care facilities.
- (d)
- (1)
The state fire marshal may, by rules promulgated in accordance with the Uniform Administrative Procedures Act require review and approval of plans and specifications prior to construction or alteration of certain types of buildings or structures. Such rules may include a schedule of fees sufficient to cover the costs of reviewing construction plans and specifications. However, no such fee shall exceed two hundred fifty dollars ($250) plus two dollars and fifty cents ($2.50) per each one thousand dollars ($1,000) or fraction thereof by which the total valuation of the proposed construction exceeds one hundred thousand dollars ($100,000).
- (2)
The state fire marshal is authorized to promulgate by rule a convenience fee to cover the costs of receiving construction plans, specifications and related fees electronically submitted pursuant to this part. Any fee set by rule pursuant to this subdivision (d)(2) shall be assessed in addition to the fee or fees assessed for the costs of reviewing construction plans and specifications pursuant to subdivision (d)(1). In no event shall the fee assessed pursuant to this subdivision (d)(2) exceed the actual costs incurred in the submission of the plans, specifications or fees electronically.
- (e)
The state fire marshal shall file with the secretary of state any publications incorporated by reference in rules promulgated under this section. Such publications shall be available for public inspection, and the secretary of state shall certify to any part of the publication at the request of any interested person, upon receipt of the statutory fee.
- (f)
- (1)
- (A)
The state fire marshal may, in addition to the other provisions of this part, authorize and appoint any person, employed by any municipality or county or acting through a professional corporation pursuant to § 48-101-601, who meets the qualifications enumerated in subdivision (f)(2) as a commissioned deputy building inspector in this division, who shall have all the power of other deputies and assistants to enter any one-family and two-family dwellings to make inspections of the buildings and their contents and to report the inspections in writing to the commissioner. The commissioner is directed to contract with each deputy building inspector through the municipality or county employing the inspector or the inspector's professional corporation to provide one-family and two-family building inspection services. The contracts shall be entered into between the commissioner, with the approval of the commissioner of finance and administration, and the professional corporation employing the building inspector and the building inspectors shall not be deemed employees of the state for payroll purposes or otherwise.
- (B)
- (i)
A deputy building inspector shall be certified by this state as:
- (a)
A building inspector pursuant to § 68-120-113;
- (b)
A plumbing inspector pursuant to § 68-120-118; or
- (c)
A mechanical inspector pursuant to § 68-120-118.
- (ii)
A deputy building inspector shall be limited in performing inspections to the discipline in which they are certified.
- (C)
The commissioner shall provide a program to ensure that one-family and two-family building construction inspection services are available throughout the state on a timely basis. An inspection shall be considered timely if it is performed within three (3) working days of when the request is made to the inspector, except that an inspection of a footer shall be considered timely if it is performed within one (1) working day of when the request is made to the inspector.
- (2)
- (A)
Deputy building inspectors appointed by the commissioner are authorized to inspect one-family and two-family building construction upon receipt of a request from the owner of the property, a licensed contractor, from municipal governing bodies or from the county legislative body of the county in which the buildings are located. Each inspector, either through their municipality, county or professional corporation, shall be authorized to charge for and receive a fee for each inspection.
- (B)
The state fire marshal shall establish a schedule of fees to pay the cost incurred by the department for the administration and enforcement of this part.
- (C)
The state fire marshal may require the inspection of one-family and two-family dwellings with or without a request, in the same manner that inspections are made in accordance with § 68-102-116, and the remedies for dangerous conditions shall be the same as provided in § 68-102-117; provided, that no fees shall be charged for making inspections directed by the state fire marshal as authorized by §§ 68-102-116 and 68-102-117.
- (D)
No inspection fees may be charged except where an actual inspection is made.
- (3)
The state fire marshal may promulgate such rules and regulations as necessary to carry out this part, in accordance with the Uniform Administrative Procedures Act.
- (g)
If a local government adopts mandatory sprinkler requirements for one-family and two-family dwellings pursuant to subdivision (a)(8), then such requirements shall not apply to manufactured homes constructed or installed under parts 2 and 4 of chapter 126 of this title unless such requirements are consistent with the regulations established by the United States department of housing and urban development (HUD) relating to the installation of sprinkler equipment in manufactured homes.
- (h)
The words “or fuel-fired appliances” in exception 2 of R501.3 of the 2012 International Residential Code, published by the International Code Council, Inc., shall be disregarded by any state or local government official in determining the applicability of R501.3 to any residential construction prior to January 1, 2016.
- (i)
If a local government adopts mandatory sprinkler requirements for one-family and two-family dwellings pursuant to subdivision (a)(8) that would apply to dwellings used as establishments providing hospitality services, then those mandatory sprinkler requirements shall be applied only to those dwellings constructed on or after the date the mandatory sprinkler requirements took effect. For purposes of this subsection (i), “hospitality services” means offering sleeping accommodations to transients for less than thirty (30) nights per stay.
- (j)
A statewide building construction safety standard or another standard or requirement adopted by a local government shall not prohibit, limit, or be enforced to prohibit or limit the use of a refrigerant that is designated as acceptable for use pursuant to and in accordance with 42 U.S.C. § 7671k, as long as the equipment that contains such refrigerant is listed and installed in accordance with the safety standards and use conditions imposed by federal law or rule for safe alternatives identified pursuant to such designation under 42 U.S.C. § 7671k.
§ 68-120-102. Violations of building standards — Retroactive application prohibited.
- (a)
It is unlawful to:
- (1)
Construct, alter, or repair any building or structure, or install any equipment in any building or structure, in violation of any rule duly promulgated as provided in this chapter; or
- (2)
Maintain, occupy or use a building or structure or part of any building or structure that has been erected or altered in violation of any rule duly promulgated as provided in this chapter.
- (b)
Retroactive enforcement of standards established pursuant to § 68-120-101(a) is prohibited with respect to any building or structure that conformed to the construction safety standards legally effective at the time of construction, unless the nonconformity to current standards poses a serious life safety hazard. However, any addition or alteration to, or change of occupancy in, such nonconforming building or structure after the effective date of standards established pursuant to § 68-120-101(a) shall be in compliance with§ 68-120-101(a).
§ 68-120-103. Alarm systems — Fire drills.
-
Ample provisions shall be made for the immediate notification or warning of all occupants and for the immediate transmission of an alarm to the fire department upon the discovery of a fire in such buildings as may be designated by suitable regulations issued by the state fire marshal, which may include buildings used for sleeping purposes, or in which persons congregate in such numbers or under such conditions as may create a serious congestion or panic hazard. The regulations shall provide for installation, arrangement, electrical and mechanical details, operation, maintenance and tests of all such alarm systems and other necessary details of such systems, including training of owners, tenants or their employees in methods of fire exit drills to ensure the efficient and safe use of the exit facilities in buildings, and to prevent panic, and in the coordination of such drills with fire alarm systems; provided, that where deemed necessary, such regulations may include the patrolling of a building by able-bodied watchpersons between the hours of eight o'clock p.m. (8:00 p.m.) and six o'clock a.m. (6:00 a.m.), which patrol work shall be supervised by an approved central station signaling system, or be checked through the use of an approved clock system. Where the clock system is used, the person in charge of the building shall review the records each morning and file such records consecutively for periods of one (1) year for the inspection of the state fire marshal or other officials.
§ 68-120-104. Inflammable materials — Limiting amounts to be used or stored.
-
The state fire marshal shall make regulations limiting the maximum amount of inflammable interior furnishings and materials, including draperies, curtains, shades, floor coverings, upholstery, furniture of combustible type, paints, varnishes, bedding and other materials that may be used or stored in any building or room or space of such building.
§ 68-120-105. Ventilation, heating and cooling equipment — Regulations.
-
The state fire marshal shall make regulations establishing minimum requirements as to safety for the following: blower and exhaust systems, dust, stock and vapor removal, air conditioning systems, warm air heating, air cooling and ventilating systems and protection against lightning.
§ 68-120-106. Enforcement officials — Jurisdiction — Employment of technicians.
- (a)
The state fire marshal, such fire marshal's deputies and assistants, including all municipal fire prevention or building officials in those municipalities having such officers, and where no such officer exists, the chief of the fire department of every incorporated city or place in which a fire department is established, and the mayor of each incorporated place in which no fire department exists, and all state officials, now having jurisdiction or as directed by the governor, or county officers having jurisdiction in regard to any matter regulated in this chapter, shall have concurrent jurisdiction. No regulation shall be issued or enforced by any such official that is in conflict with this chapter. This chapter shall supersede all less stringent provisions of municipal ordinances. The state fire marshal is authorized to employ such technicians as the state fire marshal may deem necessary for the proper enforcement of this chapter. The technicians may be licensed engineers or architects, subject to the approval of the governor. The employment of assistants shall be limited to funds appropriated to the division of fire prevention and available for that purpose.
- (b)
Notwithstanding this section or any other law to the contrary, with respect to child care centers, family child care homes, all as defined in § 71-3-501, if a conflict arises between the state fire marshal and any other official having concurrent jurisdiction relative to application or interpretation of the same or substantially identical building construction safety standards or fire prevention standards, then the determination of the state fire marshal shall supersede the conflicting application or interpretation by the other official having concurrent jurisdiction. This subsection (b) shall not be construed to apply to any child care center physically located within buildings or facilities reviewed and licensed by the board for licensing health care facilities, as provided by § 68-120-101(c)(5), only as nursing homes. This subsection (b) shall not be construed to abrogate any right of appeal granted under part 4 of this chapter.
§ 68-120-107. Violations — Notice to discontinue — Procedure upon disregard of notice.
- (a)
Whenever the state fire marshal or other official having jurisdiction is satisfied that a building or structure, or any work in connection with the building or structure, the erection, construction or alteration, execution or repair of which is regulated, permitted or forbidden by this chapter, is being erected, constructed, altered or repaired in violation of the provisions or requirements of this chapter, the state fire marshal or other official shall serve a written notice or order upon the person responsible therefor, directing discontinuance of such illegal action and the remedying of the condition that is in violation of the provisions or requirements of this chapter.
- (b)
In case such notice or order is not promptly complied with, the state fire marshal or other official having jurisdiction shall proceed in accordance with §§ 68-102-117 — 68-102-125.
- (c)
Whenever, in the opinion of the state fire marshal or other official having jurisdiction, by reason of defective or illegal work in violation of a provision or requirement of this chapter, the continuance of a building operation is contrary to public safety, the state fire marshal or other official may order, in writing, all further work to be stopped, and may require suspension of work until the condition in violation has been remedied. Any person aggrieved by the order of the state fire marshal or other official may have the order reviewed by a court of competent jurisdiction, according to the procedure provided in chapter 102, part 1 of this title.
§ 68-120-108. Penalties for violations.
- (a)
Any person who violates a provision of this chapter or fails to comply with this chapter, or with any of the requirements of this chapter, or who erects, constructs, alters, or has erected, constructed or altered a building or structure in violation of this chapter, commits a Class B misdemeanor.
- (b)
The owner of a building, structure or premises where anything in willful violation of this chapter has been constructed or exists, and any architect, builder, contractor, person or corporation who has constructed or designed, or who has assisted in the construction or designing of the building, structure, or premises, each have committed a separate offense and, upon conviction of the offense, shall be fined as provided in subsection (a). The owner of a building, structure or premises where anything in willful violation of this chapter other than as referred to in this subsection (b) is placed or exists, and any agent, person or corporation employed in connection with the violation and who assisted in the commission of such violation each have committed a separate offense and, upon conviction of the offense, shall be fined as provided in subsection (a).
§ 68-120-109. Abatement of violations.
- (a)
The imposition of penalties prescribed in this section do not preclude the state fire marshal from proceeding in accordance with § 68-102-117 or other provisions of chapter 102, part 1 of this title, for the purpose of preventing an unlawful erection, construction, reconstruction, alteration, repair, conversion, maintenance or use, or to restrain, correct or abate a violation, or to prevent the occupancy of a building, structure or premises, or to prevent illegal business or use in or about any premises.
- (b)
This section is applicable to public elementary or secondary schools, and to county or municipal jails.
- (1)
When the state fire marshal finds that a public elementary or secondary school or county or municipal jail contains serious life safety hazards, life-threatening conditions, or potentially hazardous violations, the state fire marshal shall notify the responsible local officials in writing. The notification shall include:
- (A)
A list of the discovered deficiencies according to their relative seriousness; and
- (B)
A requirement that the local officials submit a plan for the correction of such deficiencies within sixty (60) days after receipt of such notification, or such longer period of time as may be granted by the state fire marshal. The state fire marshal shall establish a priority list for the correction of such deficiencies to meet state standards.
- (2)
The state fire marshal shall assist the local officials in establishing and implementing the plan based on such priority list subject to subdivisions (b)(3) and (4).
- (3)
If the plan submitted by the local officials is approved by the state fire marshal, the state fire marshal shall assist them in implementing the plan.
- (4)
If the plan submitted by the local officials is rejected by the state fire marshal, the local officials may file a petition for appeal of the state fire marshal's decision in accordance with [former] § 68-120-403 [repealed], to the board of appeals for schools and jails.
- (5)
Except where an immediate threat to the safety of the occupants requires emergency action, the state fire marshal may not institute proceedings to close a public elementary or secondary school or county or municipal jail, unless the state fire marshal furnishes the written notice required by subdivision (b)(1) and the responsible local officials:
- (A)
Submit no plan for correction of the cited deficiencies within the allotted time;
- (B)
Fail to carry out the terms of an approved plan;
- (C)
Do not timely file a petition for appeal of the state fire marshal's rejection of their proposed plan; or
- (D)
Timely file a petition for appeal of the state fire marshal's rejection of their proposed plan, and the board of appeals for schools and jails disposes of the petition in the state fire marshal's favor.
§ 68-120-110. School buildings — Conflicting safety codes — Minimum safety standards.
- (a)
Notwithstanding any provision, regulation, ruling or other administrative promulgation by any agency, board, or commission of this state, or a county, municipality, or other political subdivision of this state, and notwithstanding any such promulgation by an official or employee of such agency, board or commission, the following minimum standards are established:
- (1)
In the construction of any new public or private school or other educational facility, or when additions or substantial alterations are made to an existing structure being utilized as a public or private school or other educational purpose, all auditoriums, cafetoriums, cafeterias, gymnasiums with or without spectator seating, classrooms, offices, and accessory uses normally occurring in schools or other structures utilized for educational purposes shall be deemed to be integrated architectural components of such structure and not an assemblage of different occupancies, and no fire separation with respect to such structure shall be required solely because of various related occupancies.
- (2)
Subdivision (a)(1) shall in no way affect the fire separation ratings of shafts, exits, kitchens, or boiler rooms as provided for in the Southern Building Code.
- (b)
This section shall be construed as a limitation on the powers granted to governmental agencies of this state as provided for in this chapter.
- (c)
Notwithstanding any other provision of law, rule or regulation to the contrary, an appeal from a decision of the state fire marshal rendered in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, concerning the applicability of building and fire safety codes to a church sanctuary or church recreational facility, shall be directed to the chancery court of the county in which the church sanctuary or church recreational facility is located, pursuant to § 4-5-322; provided, that the church facility is located within a political subdivision of the state that does not have local building codes and the facility is not used for educational or daycare purposes.
§ 68-120-111. Smoke alarms.
-
No newly constructed one-family or two-family dwelling shall be approved for connection of electric service on a permanent basis under § 68-102-143, unless the dwelling is equipped with a smoke alarm that has been:
- (1)
Listed in accordance with the standards of Underwriters Laboratories, or another testing agency or laboratory accepted by the state fire marshal; and
- (2)
Installed in accordance with the building construction safety standards adopted pursuant to § 68-120-101 and in accordance with the manufacturer's directions, unless those directions conflict with applicable standards adopted by the state fire marshal. Notwithstanding the building construction safety standards adopted pursuant to § 68-120-101, battery-operated smoke alarms shall be permitted when installed in buildings without commercial power.
§ 68-120-112. Smoke alarms and carbon monoxide alarms in residential buildings.
- (a)
As used in this section:
- (1)
“Apartment building”:
- (A)
Means any building containing three (3) or more living units with independent cooking and bathroom facilities, whether designated as an apartment house, tenement, or garden apartment, or by any other name; and
- (B)
Does not include condominium projects;
- (2)
“Approved carbon monoxide alarm”:
- (A)
Means a device, either battery operated or electrical, that detects the presence of carbon monoxide gas and is listed by a nationally recognized testing laboratory approved by the federal occupational safety and health administration to test and certify to American National Standards Institute/Underwriters Laboratories Standards ANSI/UL2034 or ANSI/UL2075; and
- (B)
Includes a combination carbon monoxide alarm and smoke detector if the device does the following:
- (i)
Complies with ANSI/UL2034 or ANSI/UL2075 for carbon monoxide alarms and ANSI/UL217 for smoke detectors; and
- (ii)
Emits an alarm in a manner that clearly differentiates between detecting the presence of carbon monoxide and the presence of smoke;
- (3)
“Fossil fuel” means coal, kerosene, oil, fuel gases, or other petroleum or hydrocarbon product that emits carbon monoxide as a byproduct of combustion;
- (4)
“Hotel”:
- (A)
Means any building providing sleeping accommodations for guests, travelers, or semi-permanent residents for commercial purposes; and
- (B)
Includes motels, inns, boarding homes, lodging homes, rooming houses, tourist homes, hostels, dormitories, and apartment hotels; and
- (5)
“Smoke alarm” means an alarm responsive to smoke and approved by the building construction safety standards adopted pursuant to § 68-120-101; and
- (A)
Listed by a nationally recognized and approved independent testing agency or laboratory such as Underwriters Laboratories; or
- (B)
Inspected by an agency authorized to make independent inspections by the state fire marshal.
- (b)
It is unlawful to:
- (1)
Own or operate a hotel without installing a smoke alarm in every room of the hotel that is ordinarily used for sleeping purposes;
- (2)
Own or operate an apartment building without installing a smoke alarm in every living unit within the apartment building. When activated, the smoke alarm shall initiate a warning sound that is audible in the sleeping rooms of the living unit;
- (3)
Own or operate a hotel that has a fossil-fuel-burning heater or appliance, a fireplace, or other feature, fixture, or element that emits carbon monoxide as a byproduct of combustion without installing an approved carbon monoxide alarm within ten feet (10′) of each room used for sleeping purposes; or
- (4)
Knowingly tamper with or remove any smoke alarm or carbon monoxide alarm required by this section, or a component of a smoke alarm or carbon monoxide alarm.
- (c)
- (1)
All smoke alarms required by this section:
- (A)
Shall be installed in accordance with the manufacturer's directions, unless they conflict with applicable law; and
- (B)
May be wired directly to the building's power supply, powered by a self-monitored battery, or operated with a plug-in outlet fitted with a plug restrainer device; provided, that the outlet is not controlled by any switch other than the main power supply.
- (2)
All carbon monoxide alarms required by this section:
- (A)
Shall be installed in accordance with either the standards of the National Fire Protection Association or the manufacturer's directions, unless the standards or directions conflict with applicable law; and
- (B)
May be wired directly to the building's power supply, powered by a self-monitored battery, or operated with a plug-in outlet fitted with a plug restrainer device if the outlet is not controlled by any switch other than the main power supply.
- (3)
This section shall apply only to buildings existing before January 1, 2016. Smoke alarms and carbon monoxide alarms shall be installed and maintained in new buildings in accordance with the applicable building construction safety standards as provided in § 68-120-101.
- (d)
- (1)
Any smoke alarm required in an apartment building by this section shall be maintained by the tenant of the living unit where the smoke alarm is located in accordance with the manufacturer's instructions. However, upon termination of a tenancy in a living unit, the owner of the apartment building shall ensure that any required smoke alarm is operational prior to reoccupancy of the living unit.
- (2)
The owner or manager of a hotel is responsible for performance of maintenance, repairs, and tests as are necessary to ensure that every smoke alarm and carbon monoxide alarm required in the hotel is operational at all times.
- (3)
No alarm silencing switch or audible trouble silencing switch shall be provided, unless its silenced position is indicated by a readily apparent signal.
- (4)
Compliance with this section shall not relieve any person from the requirements of any other applicable law, ordinance, or rule.
- (e)
- (1)
A violation of this section is a Class C misdemeanor. Each day on which a violation continues constitutes a separate offense under this section.
- (2)
Section 68-120-106 applies with respect to the enforcement of this section.
§ 68-120-113. Municipal and county fire prevention and building officials — Certification — Penalties.
- (a)
- (1)
All municipal, county and state employed fire prevention and building officials having jurisdiction to enforce this chapter shall receive certification from the state fire marshal before enforcing applicable building and fire codes. An application for certification shall be filed with the state fire marshal on a form to be developed by the state fire marshal. Any fire safety or building inspector hired shall have up to twelve (12) months from the date of employment to receive certification. The state fire marshal shall promulgate rules and regulations pursuant to the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, relative to the standards and qualifications for certification. Such rules and regulations shall require proof satisfactory to the state fire marshal that the candidate understands all applicable building and fire codes.
- (2)
The state fire marshal shall recognize and accept certification from the Southern Standard Building Code Congress International, International Code Council (ICC) or the National Fire Protection Association, as satisfying the standards and qualifications for certification of municipal, county and state employed fire prevention and building officials. The state fire marshal may also recognize and accept certification from other appropriate professional building and fire code organizations. Any person shall be deemed to meet the requirements of this chapter who has been continuously employed as a municipal or county building inspector for a period of seven (7) years or more and who has attained sixty (60) years of age; or who has been a municipal or county building inspector for at least one (1) year, has attained fifty (50) years of age and was licensed by the state as an electrical, plumbing, or heating/air conditioning contractor prior to July 1, 1993. Upon the filing of the application required by subdivision (a)(1), accompanied by the requisite fee, and a resolution by the governing body of the employing municipality or county, or a certification from the employing state agency, affirming that the applicant is performing the applicant's duties satisfactorily, the state fire marshal shall issue certification in the same form as provided for other applicants. Certification pursuant to this section shall not be a prerequisite for fire safety and building inspector employment purposes, but the employing governmental entity shall have all newly employed applicants certified within twelve (12) months of the date of employment.
- (b)
Certification as a fire safety or building inspector shall be valid for a period of three (3) years from the date of issuance. The state fire marshal shall provide each certificate holder with a recertification application form at least sixty (60) days prior to the expiration of the certificate.
- (c)
Each application for recertification shall be accompanied by a recertification fee as set by the state fire marshal. Such fee shall be reasonably related to the cost of maintaining certification and shall not be set at a level that would discourage compliance. All certificates shall be subject to late recertification for a period of sixty (60) days following their expiration date by payment of the prescribed fee, plus a penalty as set by the state fire marshal.
- (d)
- (1)
The state fire marshal may revoke the certification of any fire prevention or building official who does not properly enforce this chapter. Any fire prevention or building official whose certification is revoked may appeal such revocation pursuant to the Uniform Administrative Procedures Act. No fire prevention or building official shall be authorized to enforce this chapter while such official's revocation of certification is being appealed.
- (2)
In addition to any other penalty under law, any fire prevention or building official who knowingly fails to enforce this chapter, and such intentional failure poses an immediate danger to the life, safety or welfare of another, commits a Class B misdemeanor.
- (e)
Each certificate holder shall be issued a card designating that the holder is qualified to perform inspections pursuant to this chapter. Each certificate holder shall carry the card in the certificate holder's possession whenever the certificate holder is performing inspections pursuant to this chapter. The certificate card shall be exhibited upon request of the owner or authorized representative of the owner of the premises to be inspected.
- (f)
The state fire marshal shall establish, or contract for, training courses, which shall be made available to governmental employees with building inspection or fire safety responsibilities, in order to enable them to acquire the knowledge and skills required to attain certification under this chapter.
- (g)
Implementation of this section shall be subject to the funding being provided in the general appropriations act.
§ 68-120-115. Compliance with safety standards for compressed natural gas — Exemption.
- (a)
A natural gas installation that dispenses compressed natural gas from a storage container or a distribution pipeline by means of a compressor or pressure booster into a fuel supply container or into a portable container shall comply with the appropriate equipment qualifications established by the National Fire Protection Association (NFPA) 52 Standard for Compressed Natural Gas (CNG) Vehicular Fuel Systems, 1992 edition.
- (b)
This section does not apply to a natural gas installation that was dispensing compressed natural gas on April 7, 1995.
§ 68-120-116. Appeal to state fire marshal's office when conflict between city and county.
- (a)
Notwithstanding the provision of § 68-120-101, or any other law to the contrary, the state fire marshal's office may be utilized to hear an appeal and issue a ruling, regarding a building or fire code issue that involves a county building located within a city, when a conflict arises between the city and county. The state fire marshal's office shall provide a decision within ten (10) working days of receipt of the written appeal.
- (b)
Subsection (a) shall not apply to buildings or facilities reviewed or licensed by the board for licensing health care facilities.
§ 68-120-117. Administrative inspection warrant — Definitions.
- (a)
As used in this section, unless the context otherwise requires:
- (1)
“Agency” means any county, city, or town employing a building official certified pursuant to § 68-120-113;
- (2)
“Building official” means any local government building official certified pursuant to § 68-120-113; provided, that such officials are acting in their capacity as an official of a municipality or county, and provided that the official is seeking to enforce the ordinances or codes of such local government; and
- (3)
“Issuing officer” means:
- (A)
Any official authorized by law to issue search warrants;
- (B)
Any court of record in the county of residence of the agency making application for an administrative inspection warrant; or
- (C)
Any municipal court having jurisdiction over the agency making application for an administrative inspection warrant; provided, that the judge of the court is licensed to practice law in the state of Tennessee.
- (b)
In the event that a building official is denied permission to make an inspection and a warrant is required by the Constitution of the United States or the state of Tennessee to perform such inspection, a building official may obtain an administrative inspection warrant in accordance with the procedures outlined in this section. Title 40, chapter 6, part 1, shall not apply to warrants issued pursuant to this section.
- (c)
The issuing officer is authorized to issue administrative inspection warrants authorizing a building official to inspect named premises. In so doing, the issuing officer shall determine from the affidavits filed by the building official, acting as an officer of the agency requesting the warrant, that:
- (1)
The agency has the statutory authority to conduct the inspection;
- (2)
Probable cause exists to believe that a violation of law has occurred or is occurring. For the purposes of this section, probable cause is not the same standard as used in obtaining criminal search warrants. In addition to a showing of specific evidence of an existing violation, probable cause can be found upon a showing of facts justifying further inquiry, by inspection, to determine whether a violation of any state law or local building, fire, or life safety code is occurring. This finding can be based upon a showing that:
- (A)
Previous inspections have shown violations of law and the present inspection is necessary to determine whether those violations have been abated;
- (B)
Complaints have been received by the agency and presented to the issuing officer, from persons who by status or position have personal knowledge of violations of law occurring on the named premises;
- (C)
The inspection of the premises in question was to be made pursuant to an administrative plan containing neutral criteria supporting the need for the inspection; or
- (D)
Any other showing consistent with constitutional standards for probable cause in administrative inspections;
- (3)
The inspection is reasonable and not intended to arbitrarily harass the persons or business involved;
- (4)
The areas and items to be inspected are accurately described and are consistent with the statutory inspection authority; and
- (5)
The purpose of the inspection is not criminal in nature and the agency is not seeking sanctions against the person or business for refusing entry.
- (d)
The issuing officer shall immediately make a finding as to whether an administrative inspection warrant should be issued and, if the issuing officer so determines, issue the warrant. No notice shall be required prior to the issuance of the warrant.
- (e)
All warrants shall include at least the following:
- (1)
The name of the agency and building official requesting the warrant;
- (2)
The statutory or regulatory authority for the inspection;
- (3)
The names of the building official or officials authorized to conduct the administrative inspection;
- (4)
A reasonable description of the property and items to be inspected;
- (5)
A brief description of the purposes of the inspection; and
- (6)
Any other requirements or particularity required by the constitutions of the United States and the state of Tennessee regarding administrative inspections.
- (f)
All warrants shall be executed within ten (10) days of issuance.
- (g)
Any person who willfully refuses to permit inspection, obstructs inspection or aids in the obstruction of an inspection of property described in an administrative inspection warrant commits a Class C misdemeanor.
- (h)
Any person aggrieved by an unlawful inspection of premises named in an administrative inspection warrant may, in any judicial or administrative proceeding, move to suppress any evidence or information received by the agency pursuant to the inspection.
- (i)
If the court or the administrative agency finds that the inspection was unlawful, such evidence and information shall be suppressed and not considered in the proceeding.
§ 68-120-118. Certification of municipal, county or state plumbing inspectors or mechanical inspectors.
- (a)
- (1)
- (A)
All persons entering into employment after July 1, 2008, as a municipal, county or state employed plumbing inspector or mechanical inspector, or both, having jurisdiction to enforce this chapter shall receive certification from the state fire marshal before enforcing applicable plumbing, mechanical and fuel gas codes. Plumbing and mechanical inspectors hired after July 1, 2008, shall have up to twelve (12) months from the date of employment to receive certification. Municipal, county or state plumbing and mechanical inspectors employed on July 1, 2008, shall be deemed to meet the certification qualifications of this chapter for three (3) years from the date of certification. On the expiration date of the three-year period, all plumbing and mechanical inspectors deemed to meet the qualifications set out by this subdivision (a)(1)(A) shall meet all requirements of subdivision (a)(2) in order to be recertified. An application for certification shall be filed with the state fire marshal on a form to be developed by the state fire marshal. The state fire marshal shall promulgate rules and regulations pursuant to the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, relative to the standards and qualifications for certification. The rules and regulations shall require proof satisfactory to the state fire marshal that the candidate understands all applicable plumbing, mechanical and fuel gas codes.
- (B)
Each person entering into employment after January 1, 2020, as a municipal, county, or state-employed electrical inspector, having jurisdiction to enforce this chapter must receive certification from the state fire marshal before enforcing applicable electrical codes. Municipal, county, or state electrical inspectors employed or under contract pursuant to § 68-102-143 on January 1, 2020, are deemed to have met the certification qualifications of this section for three (3) years from the date of certification. On the expiration date of the three-year period, each electrical inspector deemed to meet such qualifications must be recertified in accordance with subdivision (a)(2). An application for certification must be filed with the state fire marshal on a form developed by the state fire marshal. The state fire marshal shall promulgate rules and regulations pursuant to the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, relative to the standards and qualifications for certification. The rules and regulations must require proof satisfactory to the state fire marshal that the candidate understands all applicable electrical codes.
- (2)
The state fire marshal shall recognize and accept certification from a nationally or internationally recognized certifying organization to satisfy the standards and qualifications for certification of municipal, county, and state-employed plumbing, mechanical, and electrical inspectors. The state fire marshal may also recognize and accept certification from other appropriate professional building code organizations. Upon the filing of the application required by subdivision (a)(1)(A), accompanied by the requisite fee, and a resolution by the governing body of the employing municipality or county, or a certification from the employing state agency, affirming that the applicant is performing the applicant's duties satisfactorily, the state fire marshal shall issue certification in the same form as provided for other applicants. Certification pursuant to this section shall not be a prerequisite for plumbing and mechanical inspector employment purposes, but the employing governmental entity shall have all newly employed applicants certified within twelve (12) months of the date of employment.
- (b)
Certification as a plumbing, mechanical, or electrical inspector shall be valid for a period of three (3) years from the date of issuance. The state fire marshal shall provide each certificate holder with a recertification application form at least sixty (60) days prior to the expiration of the certificate.
- (c)
Each application for recertification shall be accompanied by a recertification fee as set by the state fire marshal. The fee shall be reasonably related to the cost of maintaining certification and shall not be set at a level that would discourage compliance. All certificates shall be subject to late recertification for a period of sixty (60) days following their expiration date by payment of the prescribed fee, plus a penalty as set by the state fire marshal.
- (d)
- (1)
The state fire marshal may revoke the certification of any plumbing, mechanical, or electrical inspector who does not properly enforce this chapter. Any plumbing, mechanical, or electrical inspector whose certification is revoked may appeal the revocation pursuant to the Uniform Administrative Procedures Act, compiled in title 4, chapter 5. No plumbing, mechanical, or electrical inspector shall be authorized to enforce this chapter while the official's revocation of certification is being appealed.
- (2)
In addition to any other penalty under law, any plumbing, mechanical, or electrical official or inspector who knowingly fails to enforce this chapter, and the intentional failure poses an immediate danger to the life, safety or welfare of another, commits a Class B misdemeanor.
- (e)
Each certificate holder shall be issued a card designating that the holder is qualified to perform inspections pursuant to this chapter. Each certificate holder shall carry the card in the certificate holder's possession whenever the certificate holder is performing inspections pursuant to this chapter. The certificate card shall be exhibited upon request of the owner or authorized representative of the owner of the premises to be inspected.
- (f)
The state fire marshal shall establish, or contract for, training courses, which shall be made available to governmental employees with plumbing, mechanical, or electrical responsibilities in order to enable them to acquire the knowledge and skills required to attain certification under this chapter.
- (g)
Notwithstanding this section to the contrary, a person entering into employment as a municipal or county building, plumbing, mechanical, or electrical inspector with a jurisdiction that is exempt under § 68-120-101(b)(1)(B), may perform field inspections as of the date of employment, but shall obtain either a commercial or residential certification, or both, in their respective discipline within twelve (12) months of the date of employment.
§ 68-120-119. Nosing of stairs leading into public entrance of public building.
- (a)
- (1)
This section applies to any:
- (A)
Public building constructed by the state or its political subdivisions on or after July 1, 2017;
- (B)
Existing public building for which exterior or interior renovations to any area intended for use by the general public are approved by the state building commission on or after July 1, 2017; and
- (C)
Public buildings purchased by the state on or after July 1, 2017.
- (2)
This section does not apply to any public building listed on the national register of historic places or the Tennessee register of historic places.
- (b)
All stair steps leading into a public entrance of a public building must have detectable nosings of a contrasting color. The texture and color must be applied at a width of not less than one inch (1″) and not more than two inches (2″) for the entire length of the edge of each stair step.
- (c)
The nosing of stairs must be modified in accordance with this section no later than ninety (90) days after a public building is constructed, renovated, or purchased, as applicable.
- (d)
Notwithstanding this section, a public entity of the state exercising control over a public building of historical significance may apply for and receive a waiver from the requirements of this section from the state building commission.
- (e)
For purposes of this section:
- (1)
“Public building”:
- (A)
Means any building or structure owned by the state or its political subdivisions that is used by the general public for providing or receiving public benefits or public services; and
- (B)
Does not include any building, structure, or improved area owned by the state or its political subdivisions used by the general public as a place of gathering or amusement, including theaters, auditoriums, restaurants, hotels, factories, stadiums, shopping areas, convention centers, and all other places of public accommodations; and
- (2)
“Public entrance”:
- (A)
Means the main entrance to a public building; and
- (B)
Does not include any secondary entrance to a public building, including any entrance primarily used by employees.
§ 68-120-120. Notice of policy of allowing use of restrooms by either biological sex.
- (a)
A public or private entity or business that operates a building or facility open to the general public and that, as a matter of formal or informal policy, allows a member of either biological sex to use any public restroom within the building or facility shall post notice of the policy at the entrance of each public restroom in the building or facility.
- (b)
Signage of the notice must be posted in a manner that is easily visible to a person entering the public restroom and must meet the following requirements:
- (1)
Be at least eight inches (8″) wide and six inches (6″) tall;
- (2)
The top one-third (⅓) of the sign must have a background color of red and state “NOTICE” in yellow text, centered in that portion of the sign;
- (3)
The bottom two-thirds (⅔) of the sign must contain in boldface, block letters the following statement centered on that portion of the sign:
-
THIS FACILITY MAINTAINS A POLICY OF ALLOWING THE USE OF RESTROOMS BY EITHER BIOLOGICAL SEX, REGARDLESS OF THE DESIGNATION ON THE RESTROOM.
- (4)
Except as provided in subdivision (b)(2), have a background color of white with type in black; and
- (5)
Be located on a door to which the sign must be affixed or have its leading edge located not more than one foot (1′) from the outside edge of the frame of a door to which the sign must be affixed.
- (c)
If an entity or business is notified that it is not in compliance with this section, the entity or business has thirty (30) days in which to comply before any action is taken against the entity or business.
- (d)
As used in this section:
- (1)
“Policy” means the internal policy of a public or private entity or such policy as the result of a rule, ordinance, or resolution adopted by an agency or political subdivision of this state; and
- (2)
“Public restroom”:
- (A)
Includes a locker room, shower facility, dressing area, or other facility or area that is:
- (i)
Open to the general public;
- (ii)
Designated for a specific biological sex; and
- (iii)
A facility or area where a person would have a reasonable expectation of privacy; and
- (B)
Excludes a unisex, single-occupant restroom or family restroom intended for use by either biological sex.
§ 68-120-121. Electrical inspections by registered engineers — Inspection form — Review by local government — Registration requirements and maintenance — Conflicts of interest prohibited.
- (a)
- (1)
A local government may, by a majority vote of the appropriate local legislative body, adopt an ordinance or resolution allowing the local government to accept electrical inspections, whether residential or commercial, issued by engineers who are registered in accordance with title 62, chapter 2.
- (2)
An engineer shall register as an inspector with the state fire marshal in accordance with this section prior to conducting an inspection.
- (3)
A local government that votes to accept inspections pursuant to subdivision (a)(1) must comply with the requirements of this section.
- (b)
An inspection performed by an engineer pursuant to this section must be on a form approved by the state fire marshal.
- (c)
A local government, or the appropriate local governmental official or entity, shall review and approve an inspection performed by an engineer pursuant to this section, or provide written notice of any deficiencies, within five (5) business days from the date the inspection was received by the local government or appropriate local governmental official or entity.
- (d)
- (1)
To register with the state fire marshal, an engineer licensed in accordance with title 62, chapter 2, shall submit to the state fire marshal's office a completed application demonstrating that the engineer is qualified pursuant to subdivision (a)(1), and including such information as determined reasonably necessary by the state fire marshal.
- (2)
- (A)
The state fire marshal shall publish a list of engineers registered to conduct inspections in accordance with subdivision (d)(1).
- (B)
An individual registered pursuant to subdivision (d)(1) shall ensure that all information on file with the state fire marshal is current and correct, including the individual's contact information and proof of current registration under title 62, chapter 2.
- (e)
- (1)
The state fire marshal shall remove an individual from the list published pursuant to subdivision (d)(2) if the state fire marshal no longer has on file for the individual a current and valid registration as an engineer in accordance with title 62, chapter 2.
- (2)
An individual removed from the list pursuant to subdivision (e)(1) may reapply to be registered and placed on the list again.
- (f)
The state fire marshal may remove a registrant from the list published pursuant to subdivision (d)(2), or refuse to place an applicant on the list, if the state fire marshal finds that the registrant or applicant has violated this section or a rule promulgated pursuant to this section.
- (g)
A local government shall not accept an inspection from an engineer who has a conflict of interest. A conflict of interest includes, but is not limited to:
- (1)
Employment or another affiliation with, or a financial interest in, the individual, firm, or corporation engaged in the construction project to be reviewed or inspected; or
- (2)
A relationship with a family member or individual involved in the construction project that could create the appearance of impropriety.
- (h)
A local government that accepts an inspection pursuant to this section shall maintain a record of an inspection performed by an engineer for no less than three (3) audit years. A local government shall maintain, at a minimum, the following records:
- (1)
The inspection report submitted by the engineer to the local government;
- (2)
The supporting documentation to the inspection report provided by the engineer to the local government;
- (3)
The documentation of approval of the inspection report by the local government; and
- (4)
Any correspondence between the local government and the engineer regarding the inspection and inspection report.
Part 2 Tennessee Public Buildings Accessibility Act
§ 68-120-202. State policy.
-
It is declared to be the policy of the state of Tennessee to make all public buildings accessible to and functional for persons who have a physical disability.
§ 68-120-203. Part definitions.
-
As used in this part, unless the context otherwise requires:
- (1)
“Physical disability” means having a disability on account of sight disabilities, hearing disabilities, disabilities of incoordination, disabilities of aging, and any other disability that significantly reduces mobility, flexibility or perceptiveness;
- (2)
“Public building” means any building, structure, or improved area owned or leased by the state of Tennessee or its political subdivisions, and any building, structure, or improved area used primarily by the general public as a place of gathering or amusement, including, but not limited to, theaters, restaurants, hotels, factories, office buildings, stadiums, hospitals, voting areas, shopping areas, convention centers and all other public accommodations; and
- (3)
“Responsible authority” means the local building inspector and:
- (A)
The state building commission, with respect to state public buildings, as provided in § 4-15-106(a); and
- (B)
The state fire marshal, with respect to public buildings reviewed under authority of § 68-120-101(d).
§ 68-120-204. Buildings and public entertainment facilities to be accessible to disabled — Minimum specifications.
- (a)
- (1)
Any public building that is constructed, enlarged, or substantially altered or repaired after July 1, 2012, shall be designed and constructed pursuant to specifications, approved by the responsible authority, making such building accessible to, and usable by, persons who have a physical disability. The minimum specifications, except as provided in subdivision (a)(2) and § 68-120-205, shall be the 2010 ADA Standards for Accessible Design, and any further amendments, supplements or subsequent editions, or any other code as the state fire marshal determines by rule. The minimum specifications for a project shall be those in effect at the time the project is submitted to the responsible authority for final approval of the construction, enlargement, alteration, or repair.
- (2)
For public buildings for which a local building inspector is the responsible authority, a local government may select disability accessibility specifications from the codes or publications listed in subdivision (a)(1) or from the codes or publications of other nationally recognized agencies or organizations.
- (3)
All public buildings constructed or remodeled in accordance with the standards, and requirements of this part, or containing facilities that are in compliance therewith, shall display a symbol, which is white on a blue background. The specifications for this symbol shall be furnished by the department of transportation indicating the location of such facilities designed for persons with physical disabilities. When a building contains an entrance other than the main entrance which is ramped or level for use by persons with physical disabilities, a sign showing its location shall be posted at or near the main entrance which shall be visible from the adjacent public sidewalk or way.
- (b)
All auditoriums, theaters, gymnasiums, stadiums, and other public entertainment facilities must provide accommodations in level or nearly level locations from which persons confined in wheelchairs may see and hear the offered entertainment as well as persons regularly seated in the facility.
- (c)
All accommodations required by subsection (b) shall comply with subsection (a), and with state and local fire safety requirements for emergency egress.
§ 68-120-205. Enforcement of part — Date for compliance — Waivers as to particular buildings and provisions.
- (a)
The responsible authority shall be responsible for the enforcement of this part as to any public building.
- (b)
Any unauthorized deviation from these standards and specifications shall be rectified by full compliance within one hundred twenty (120) days after discovery of the deviation. The failure thereafter to so rectify is a Class C misdemeanor for each day of noncompliance; except that in cases of practical difficulty, unnecessary hardship, or extreme difference, the responsible authority may grant exceptions from the requirements of this part, but only when it is clearly evident that equivalent facilitation and protection are thereby secured. No penalty or fine shall be assessed against the federal, state, or local government on account of noncompliance with these provisions.
- (c)
This part applies to temporary or emergency constructions as well as permanent buildings.
Part 3 Safety Glazing Materials
§ 68-120-301. Part definitions.
-
As used in this part, unless the context otherwise requires:
- (1)
“Hazardous locations” means those installations, glazed or to be glazed in commercial and public buildings, known as framed or unframed glass entrance doors; and those installations, glazed or to be glazed in residential buildings and other structures used as dwellings, commercial buildings, and public buildings, known as sliding glass doors, storm doors, shower doors, bathtub enclosures, and fixed glazed panels adjacent to entrance and exit doors that, because of their location, present a barrier in the normal path traveled by persons going into or out of these buildings, and because of their size and design may be mistaken as means of ingress or egress; and any other installation, glazed or to be glazed, in which the use of other than safety glazing materials would constitute an unreasonable hazard as the state fire marshal may determine; whether or not the glazing in such doors, panels, enclosures and other installations is transparent; and
- (2)
“Safety glazing material” means any glazing material, such as tempered glass, laminated glass, wire glass or rigid plastic, that meets the requirements of the minimum statewide building construction safety standards established by the state fire marshal pursuant to § 68-120-101(a), and that are so constructed, treated, or combined with other materials as to minimize the likelihood of cutting and piercing injuries resulting from human contact with the glazing material.
§ 68-120-302. Label requirements.
-
Each light of safety glazing material manufactured, distributed, imported, or sold for use in hazardous locations or installed in such a location within this state shall be permanently labeled by such means as etching, sandblasting, firing of ceramic material on the safety glazing material, or by other suitable means. The label shall identify the labeler, whether manufacturer, fabricator or installer, and the nominal thickness and the type of safety glazing material and the fact that the material meets the requirements of the minimum statewide building construction safety standards established by the state fire marshal pursuant to § 68-120-101(a). The label shall be legible and visible after installation and shall not be used on other than safety glazing materials.
§ 68-120-303. Prohibited acts.
-
It is unlawful within this state to knowingly sell, fabricate, assemble, glaze, install, consent or cause to be installed, glazing materials other than safety glazing materials in, or for use in, any hazardous location in this state.
§ 68-120-306. Statutory conflict.
-
Whenever this part conflicts with any local, municipal or county ordinance or resolution, or parts thereof, the more stringent shall apply.
Part 4 Appeals
§ 68-120-401. Promulgation of rules — Procedures.
-
The commissioner of commerce and insurance shall promulgate rules setting forth departmental procedures for resolving disputes regarding the interpretation and application of building and construction safety standards adopted pursuant to § 68-120-101 that arise during the review of plans or the inspection of construction by the department. Any appeal of the ultimate decision of the department in such a dispute shall be made in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, part 3, pertaining to contested cases.
Part 5 Tennessee Equitable Restrooms Act
§ 68-120-502. Part definitions.
-
As used in this part, unless the context otherwise requires:
- (1)
“Facilities where the public congregates” means sports and entertainment arenas, musical amphitheatres, stadiums, community and convention halls, specialty event centers, amusement facilities, fairgrounds, zoos, institutions of higher education, and specialty event centers in public parks;
- (2)
“Food service establishment” means a food service establishment as defined in [former] § 68-14-302(6) [deleted];
- (3)
“Hotel” means an establishment as defined in § 68-14-302;
- (4)
“Public building” means a building owned or leased by the state, any agency or instrumentality of the state or any political subdivision;
- (5)
“Renovation” means:
- (A)
The rehabilitation of an existing building that requires more than fifty percent (50%) of the gross floor area or volume of the entire building to be rebuilt. Cosmetic work such as painting, wall covering, wall paneling, floor covering and suspended ceiling work shall not be included; or
- (B)
Any addition to an existing building. This part shall only apply to such portion of the building being renovated and not to the entire building;
- (6)
“Responsible authority” means those entities set forth in § 68-120-203(3); and
- (7)
“Specialty event center” means an open arena used for rallies, concerts, exhibits, etc., with no permanent structure for purposes of assembly.
§ 68-120-503. Restroom requirements.
- (a)
Publicly and privately owned facilities where the public congregates shall be equipped with sufficient temporary or permanent restrooms to meet the needs of the public at peak hours. More water closets shall be provided for women than for men by a ratio to be determined by the state building commission. In determining any ratio required under this part, the commission shall consider the number of urinals and water closets for men as opposed to the number of water closets for women. Such facilities shall be approved by the responsible authority.
- (b)
- (1)
In any stadium built before July 1, 2000, if the state architect determines that there are sufficient women's toilet facilities and there are not sufficient men's toilet facilities, the state architect may allow a variance to permit construction of additional men's toilet facilities without the construction of additional women's toilet facilities.
- (2)
If the state architect determines that on a level of any stadium or arena constructed before July 1, 2000, there are sufficient women's toilet facilities and there are not sufficient men's toilet facilities and there is not space for adding enough toilet facilities for men to alleviate overcrowding conditions, then the state architect may allow a variance to allow one (1) women's restroom to be converted to a men's restroom on each side of a stadium where necessary, if and only if, sufficient toilet facilities for women would still exist on that level.
- (c)
Whenever the owner or operator of a facility with seats for not less than ten thousand (10,000) spectators that is used primarily for auto racing and other activities, has reasonable evidence that such events will be attended by a substantially greater number of men than women on a regular basis, such owner or operator may, upon approval of the state architect, configure and construct the available toilet facilities so that the number of men's fixtures and the number of women's fixtures are changed to reflect the greater number of men or women attending events at the facility; provided, that sufficient toilet facilities for women are included in the facility. This subsection (c) shall only apply in counties having a population of not less than eighty-eight thousand eight hundred (88,800) nor more than eighty-eight thousand nine hundred (88,900), or not less than eight hundred ninety-seven thousand four hundred (897,400) nor more than eight hundred ninety-seven thousand five hundred (897,500), according to the 2000 federal census or any subsequent federal census.
- (d)
Whenever the owner or operator of a facility with seats for not less than eight thousand (8,000) spectators that is used primarily for horse shows and other activities, has reasonable evidence that such events will be attended by a substantially greater number of men than women on a regular basis, such owner or operator may, upon approval of the state architect, configure and construct the available toilet facilities so that the number of men's fixtures and the number of women's fixtures are changed to reflect the greater number of men or women attending events at the facility; provided, that sufficient toilet facilities for women are included in the facility. This subsection (d) shall only apply in counties having a population of not less than one hundred eighteen thousand five hundred (118,500) nor more than one hundred eighteen thousand six hundred (118,600), according to the 1990 federal census or any subsequent federal census.
§ 68-120-504. Applicability — Implementation — Enforcement.
-
This part applies to publicly and privately-owned facilities where the public congregates that are constructed, structurally altered or renovated after May 9, 1994. Implementation of this part shall be based upon contracts for design or construction signed on or after the effective date of the rules and regulations promulgated under this part. Such contracts for design or construction shall be submitted to the responsible authority at the same time as required in part 2 of this chapter. The responsible authority shall be responsible for the enforcement of this part in the same manner as provided in part 2 of this chapter.
§ 68-120-505. Exemptions.
-
This part does not apply to the following:
- (1)
A hotel;
- (2)
A food establishment;
- (3)
A state or local park with a seating capacity for less than two hundred fifty (250) persons, or a higher education facility with a seating capacity for less than two hundred fifty (250) persons; or
- (4)
Automobile race tracks:
- (A)
Where portable facilities can be located; and
- (B)
That were in existence prior to July 1, 1985.
§ 68-120-506. Rules and regulations.
-
The responsible authority is authorized to promulgate rules and regulations to carry out the purposes of this part. All such rules and regulations shall be promulgated in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.
§ 68-120-507. State's share of cost — Funding.
- (a)
The state's share of the cost pursuant to the Constitution of Tennessee, Article II, § 24, for any increased expenditure required by a county or municipality by this part shall be provided from the increase in unallocated tax revenue of state-shared taxes enumerated in § 9-4-5301.
- (b)
This part shall be implemented from funds available to the executive branch.
§ 68-120-508. Football stadium restrooms.
- (a)
All football stadiums that are under design, planned for construction or newly constructed during or after 1996 and that are not high school football stadiums, shall comply with § 68-120-503, so that more water closets are provided for women than for men at a ratio determined by the state building commission.
- (b)
This section shall apply to any county having a metropolitan form of government and a population of over one hundred thousand (100,000), according to the 1990 federal census or any subsequent federal census.
- (c)
This section does not apply to football stadiums in existence prior to its enactment.
§ 68-120-509. Trough facilities in male restrooms.
-
Notwithstanding any law or regulation to the contrary, publicly and privately owned facilities where the public congregates shall be allowed to have trough systems with continuously running water in restroom facilities for men.
Chapter 121 Elevators, Dumbwaiters, Escalators, and Aerial Tramways
§ 68-121-101. Chapter definitions.
-
As used in this chapter, unless the context otherwise requires:
- (1)
“Aerial passenger tramways” means recreational transportation of passengers on devices that are usually referred to by the following names:
- (A) Reversible Aerial Tramways.
That class of aerial passenger tramways and lifts in which the passengers are transported in carriers and are not in contact with the ground or snow surface, and in which the carriers reciprocate between terminals;
- (i) Single-Reversible Tramways.
That type of reversible aerial tramway that has a single carrier, or single group of carriers, that moves back and forth between terminals on a single path of travel and is sometimes called “to-and-fro” aerial tramway; and
- (ii) Double-Reversible Tramways.
That type of reversible aerial tramway that has two (2) carriers, or two (2) groups of carriers, that oscillate back and forth between terminals on two (2) paths of travel and is sometimes called “jig-back” tramway;
- (B) Aerial Lifts and Ski Mobiles.
That class of aerial passenger tramways and lifts in which the passengers are transported in carriers and are not in contact with the ground or snow surface and in which the carriers circulate around a closed system and are activated by a wire rope or chain. The carriers usually make U-turns in the terminals and move along generally parallel and opposing paths of travel. The carriers may be open or enclosed cabins, cars, or platforms. The carriers may be fixed or detachable;
- (i) Gondola Lifts.
That type of lift where the passengers are transported in open or enclosed cabins. The passengers embark and disembark while the carriers are stationary or moving slowly under a controlled arrangement;
- (ii) Chair Lifts.
That type of lift where the passengers are transported in chairs, either open or partially enclosed;
- (iii) Ski Mobiles.
That type of lift where the passengers are transported in open or enclosed cars that ride on a rigid structural system and are propelled by a wire rope or chain; and
- (iv) Similar Equipment.
Lifts which utilize carrier configurations not specified in subdivision (1)(B)(i), (1)(B)(ii) or (1)(B)(iii), but do not require that the passenger remain in contact with the ground or snow surface;
- (C) Surface Lifts.
That class of conveyance where the passengers are propelled by means of a circulating overhead wire rope while remaining in contact with the ground or snow surface. Transportation is limited to one (1) direction. Connection between the passengers and the wire rope is by means of a device attached to and circulating with the haul rope known as a “towing outfit”;
- (i) T-bar Lifts.
That type of lift where the device between the haul rope and passengers forms the shape of an inverted “T,” propelling passengers located on both sides of the stem of the “T”;
- (ii) J-bar Lifts.
That type of lift where the device between the haul rope and passenger is in the general form of a “J,” propelling a single passenger located on the one (1) side of the stem of the “J”;
- (iii) Platter Lifts.
That type of lift where the device between the haul rope and passenger is a single stem with a platter or disc attached to the lower end of the stem, propelling the passenger astride the stem of the platter, or disc; and
- (iv) Similar Equipment.
Lifts that utilize towing device configurations not specified in subdivision (1)(C)(i), (1)(C)(ii) or (1)(C)(iii), but require that passengers remain in contact with the ground or snow surface, and conform to the general description of this subdivision (1); and
- (D) Tows.
That class of conveyance where the passengers grasp the circulating haul rope, a handle attached to the circulating haul rope, or attach a gripping device to the circulating haul rope and are propelled by the circulating haul rope. The passengers remain in contact with the ground or snow surface. The upward-traveling haul rope remains adjacent to the uphill track of the passengers and at an elevation that permits them to maintain their grasp on the haul rope, handle, or gripping device throughout that portion of the tow length that is designed to be traveled;
- (i) Fiber Rope Tow.
A tow having a fiber, natural or synthetic, haul rope; and
- (ii) Wire Rope Tow.
A tow having a metallic haul rope;
- (2)
“Alteration” means any change or addition to the equipment other than ordinary repairs or replacement;
- (3)
“Amusement device” means:
- (A)
Any mechanical or structural device that carries or conveys a person, or that permits a person to walk along, around or over a fixed or restricted route or course or within a defined area, including the entrances and exits to the device, for the purpose of giving persons amusement, pleasure, thrills or excitement. “Amusement device” includes, but is not limited to, roller coasters, Ferris wheels, merry-go-rounds, glasshouses, and walk-through dark houses;
- (B)
“Amusement device” also includes:
- (i)
Any dry slide over twenty feet (20′) in height excluding water slides; and
- (ii)
Any portable tram, open car, or combination of open cars or wagons pulled by a tractor or other motorized device, except hay rides, those used solely for transporting patrons to and from parking areas, or those used for guided or educational tours, but that do not necessarily follow a fixed or restricted course; and
- (C)
“Amusement device” does not include the following:
- (i)
Devices operated on a river, lake, or any other natural body of water;
- (ii)
Wavepools;
- (iii)
Roller skating rinks;
- (iv)
Ice skating rinks;
- (v)
Skateboard ramps or courses;
- (vi)
Mechanical bulls;
- (vii)
Buildings or concourses used in laser games;
- (viii)
All terrain vehicles;
- (ix)
Motorcycles;
- (x)
Bicycles;
- (xi)
Mopeds;
- (xii)
Go karts;
- (xiii)
Bungee cord or similar elastic device;
- (xiv)
An amusement device that is owned and operated by a nonprofit religious, educational or charitable institution or association, if the device is located within a building subject to inspection by the state fire marshal or by any political subdivision of the state under its building, fire, electrical and related public safety ordinances;
- (xv)
An amusement device that attaches to an animal so that while being ridden the path of the animal is on a fixed or restricted path;
- (xvi)
Climbing walls; and
- (xvii)
Seasonal haunted houses that are open no more than three (3) months in a calendar year;
- (4)
“Board” means the elevator and amusement device safety board, created in § 68-121-102;
- (5)
“Commissioner” means the commissioner of labor and workforce development;
- (6)
“Complete elevator, dumbwaiter or escalator” means any elevator, dumbwaiter or escalator for which the plans and specifications and the application for the construction permit required by § 68-121-108 are filed on or after the effective date of the application of the rules and regulations adopted by the board as provided in § 68-121-103(a)(2). All other elevators, dumbwaiters and escalators shall be deemed to be existing installations;
- (7)
“Department” means the department of labor and workforce development;
- (8)
“Dormant elevator, dumbwaiter or escalator” means an elevator or dumbwaiter whose cables have been removed, whose car and counterweight rest at the bottom of the shaftway, and whose shaftway doors are permanently boarded up or barricaded on the inside, or an escalator whose main power feed lines have been disconnected;
- (9)
“Dumbwaiter” means a hoisting and lowering mechanism equipped with a car that moves in guides in a substantially vertical direction, the floor area of which does not exceed nine square feet (9 sq. ft.), whose total compartment height does not exceed four feet (4′), the capacity of which does not exceed five hundred pounds (500 lbs.), and that is used exclusively for carrying freight. “Dumbwaiter” does not include a dormant dumbwaiter;
- (10)
“Elevator” means a hoisting and lowering mechanism equipped with a car or platform that moves in guides in a substantially vertical direction and that serves two (2) or more floors of a building. “Elevator” also includes stairway inclined lifts and platform lifts for transportation of handicapped persons;
- (11)
“Escalator” means a moving inclined continuous stairway or runway used for raising or lowering passengers;
- (12)
“Freight elevator” means an elevator used primarily for carrying freight and on which only the operator and the persons necessary for loading and unloading are permitted to ride;
- (13)
“Moving walks” means a moving runway for transporting passengers, where the passenger transporting surface remains parallel to its direction of motion and is uninterrupted;
- (14)
“Operator” means a person or the agent of a person who owns or controls, or has the duty to control, the operation of an amusement device or related electrical equipment;
- (15)
“Owner” means a person that owns, leases, controls or manages the operations of an amusement device and may include the state or any political subdivision of the state;
- (16)
“Passenger elevator” means an elevator that is used to carry persons other than the operator and persons necessary for loading and unloading;
- (17)
“Qualified inspector” means any person who is:
- (A)
Found by the commissioner to possess the requisite training and experience in respect to amusement devices to perform competently the inspections required by this chapter;
- (B)
Certified by the National Association of Amusement Ride Safety Officials (NAARSO) to have and maintain at least a level one certification;
- (C)
Is a member of, and certified by, the Amusement Industry Manufacturing and Suppliers (AIMS); or
- (D)
Is a member of, and certified by, the Association for Challenge Course Technology (ACCT);
- (18)
“Related electrical equipment” means any electrical apparatus or wiring used in connection with amusement devices;
- (19)
“Safety rules” means the rules and regulations governing rider conduct on an amusement device pursuant to § 68-121-125;
- (20)
“Serious incident” means any single incident where any person or persons are immediately transported to a licensed off-site medical care facility for treatment of an injury as a result of being on, or the operation of, the amusement device; and
- (21)
“Serious physical injury” means a patron's personal injury immediately reported to the owner or operator as occurring on an amusement device and that results in death, dismemberment, significant disfigurement or other significant injury that requires immediate in-patient admission and twenty-four-hour hospitalization under the care of a licensed physician for other than medical observation.
§ 68-121-102. Creation of elevator and amusement device safety board — Members — Terms — Expenses — Reporting of technical issues.
- (a)
- (1)
There is created the elevator and amusement device safety board, consisting of eight (8) members appointed by the governor. The focus of five (5) members of the board shall be for elevator safety, the focus of two (2) members shall be amusement device safety, and the focus of one (1) member shall be on amusement device safety, representing the interests of the traveling amusement device business, inflatables, challenge courses, or the commercial sale or rental of amusement devices. The initial appointments for two (2) of the members whose focus is amusement device safety shall be as follows: one (1) member shall be appointed for a term of three (3) years and one (1) member shall be appointed for a term of four (4) years. The term of the member representing the interests of the traveling amusement device business, inflatables, challenge courses, or the commercial sale or rental of amusement devices shall be for a term of four (4) years. At the expiration of the respective terms of each member of the board, a successor, identifiable with the same focus as provided in this section, shall be appointed for a term of four (4) years. The term or appointment of any person who is a member of the elevator and amusement device safety board shall continue until the person's term expires and successors are appointed.
- (2)
Upon the death, resignation or incapacity of any member, the governor shall fill the vacancy for the remainder of the unexpired term, with a representative of the same focus as that of the member's predecessor.
- (3)
Of the five (5) appointed members whose focus is elevator safety, one (1) shall be a representative of the owners and lessees of elevators within this state; one (1) shall be a representative of the manufacturers of elevators used within this state; one (1) shall be a representative of an insurance company authorized to insure the operation of elevators in this state; and two (2) shall be representatives of the public at large.
- (4)
The appointed member whose focus is traveling amusement device safety shall represent the interests of the traveling amusement device business.
- (5)
Of the two (2) appointed members whose focus is amusement device safety: one (1) member shall represent the interest of the Tennessee Fair Association; and one (1) member shall represent the interests of the fixed amusement device business and be NAARSO or AIMS certified. All members of the board shall be residents of this state.
- (6)
In making appointments to the board, the governor shall strive to ensure that at least one (1) person serving on the board is sixty (60) years of age or older and that at least one (1) person serving on the board is a member of a racial minority.
- (b)
Five (5) members of the board shall constitute a quorum.
- (c)
The members of the board shall receive no compensation for their services, but shall be reimbursed for their actual and necessary expenses incurred in the performance of their official duties in accordance with subsection (d).
- (d)
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.
- (e)
All technical issues concerning elevators, dumbwaiters, escalators, aerial passenger tramways, and amusement devices shall be heard by the elevator and amusement device safety board, which shall report findings and recommendations to the commissioner or commissioner's designee for final disposition.
§ 68-121-103. Duties and powers of board — Rules and regulations.
- (a)
It is the duty of the board to license elevator inspectors as provided in this chapter, and the board has the power and it is its duty to consult with engineering authorities and organizations studying and developing safety codes, including the American Standards Association, and to determine what rules and regulations governing the qualifications, training and duties of elevator operators and the operation, maintenance, construction, alteration and installation of elevators, dumbwaiters and escalators, and the inspection of new and existing installations are adequate, reasonable and necessary to provide for the safety of life, limb and property, and to protect the public welfare and upon such determination shall make, amend or repeal from time to time rules and regulations as follows:
- (1)
For the maintenance and operation of all elevators, dumbwaiters and escalators;
- (2)
For the construction of new elevators, dumbwaiters and escalators;
- (3)
For the alteration of existing elevators, dumbwaiters and escalators;
- (4)
Prescribing minimum safety requirements for all existing elevators, dumbwaiters and escalators; and
- (5)
Prescribing the fees for construction permits, operating permits, acceptance inspections, initial inspections and periodic inspections for new and existing elevators, dumbwaiters and escalators.
- (b)
The elevator safety board is also vested with the duty, power, authority and responsibility to regulate aerial passenger tramways and moving walks in the same manner as provided in this chapter for elevators, dumbwaiters and escalators.
- (c)
Any new technology, as defined in the adopted version of the Elevator Safety Code, as such code is defined in Rule 0800-3-4-01(7), shall be authorized for use under this chapter; provided, that such technology meets the latest published standards of the American Society of Mechanical Engineers Safety Code for Elevators and Escalators.
- (d)
The elevator and amusement device safety board shall have the following powers related to amusement device safety in addition to those related to elevators, dumbwaiters, escalators and aerial passenger tramways pursuant to subsections (a)-(c):
- (1)
To consult with engineering authorities and organizations that are studying and developing amusement device safety standards;
- (2)
To adopt a code of rules and regulations governing the owner's duty of reasonable care for the installation, assembly, disassembly, repair, maintenance, use, testing, operation, and inspection of amusement devices. The board shall have the power to adopt a safety code only for those types of amusement devices defined in § 68-121-101. In promulgating the amusement device safety code the board may consider any existing or future American Society for Testing and Materials (ASTM) safety standards affecting amusement devices, or any other nationally acceptable standard; and
- (3)
To make recommendations to the commissioner concerning the board's findings on safety issues related to amusement devices.
- (e)
Any rules or regulations adopted and promulgated shall be of a reasonable nature, and based upon generally accepted engineering standards, formulas, and practices, and insofar as is practicable and consistent with this chapter, shall be uniform with the rules and regulations of other states. The rules shall be promulgated in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.
§ 68-121-104. Powers and duties of department.
- (a)
Except where otherwise provided, the department has the power, and it is its duty, to enforce this chapter and the rules and regulations promulgated by the board.
- (b)
The department shall exercise enforcement over moving walks in the same manner and to the same extent as provided in this chapter for elevators, dumbwaiters, and escalators.
- (c)
The commissioner shall promulgate rules necessary to administer this chapter, including rules for the reporting of any fatalities or serious physical injuries incurred from the operation of amusement devices, or specifically related electrical equipment, and the subsequent inspection of the amusement devices and related electrical equipment. The rules shall be promulgated in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.
§ 68-121-105. Registration of elevators, dumbwaiters and escalators.
-
Within sixty (60) days after the date of adoption by the board of rules and regulations under § 68-121-103, the owner or lessee of every existing elevator, dumbwaiter and escalator shall register with the department each elevator, dumbwaiter or escalator owned or operated by such owner or lessee, giving type, contract load and speed, name of manufacturer, its location and the purpose for which it is used and such other information as the department may require. The registration shall be made on a form to be furnished by the department on request. Elevators, dumbwaiters and escalators whose erection is begun subsequent to the date of adoption, but prior to the effective date of the rules and regulations adopted under § 68-121-103, shall be registered with the department within not more than seven (7) days after they are completed and placed in service.
§ 68-121-106. Schedule for inspecting and testing of elevators, dumbwaiters and escalators — Report of inspections — Failure to file report.
-
All new, altered and existing elevators, dumbwaiters and escalators, except dormant elevators, dumbwaiters and escalators, shall be tested and inspected in accordance with the following schedule:
- (1)
- (A) Initial Inspection Test of New or Altered Installations.
Every new or altered elevator, dumbwaiter and escalator shall be inspected and tested in conformity with the applicable rules and regulations adopted by the board before the operating permit, required by § 68-121-107, is issued. The inspections and tests shall be made under the supervision of an elevator inspector licensed and employed by the state;
- (B)
[Deleted by 2022 amendment.]
- (2) Initial Inspection of Existing Elevators, Dumbwaiters and Escalators.
The owner or lessee of every existing passenger elevator or escalator shall cause it to be inspected within three (3) months, and the owner or lessee of every existing freight elevator or dumbwaiter shall cause it to be inspected within six (6) months after the effective date of the rules and regulations adopted by the board under § 68-121-103, except that the commissioner may, at the commissioner's discretion, extend the time specified in this subdivision (2) for making such inspections;
- (3) Periodic Inspections.
The owner or lessee shall cause an inspection of every passenger elevator, dumbwaiter, escalator and freight elevator to be made periodically every sixth calendar month, following the month in which the initial inspection required by subdivision (1) or (2) has been made; provided, that any such inspection of either a passenger elevator, dumbwaiter, escalator or freight elevator may be made within the first fifteen (15) days of the month following the calendar month during which such inspection is due. The inspections required by subdivisions (2) and (3) shall be made only by elevator inspectors who have been licensed in accordance with § 68-121-110;
- (4) Required Inspections.
The inspections required by subdivisions (1)-(3) are “required inspections”;
- (5)
- (A) Report of Inspections.
A report of every required inspection shall be filed with the department by the inspector making the inspection on a form approved by the department within twenty (20) days after the inspection or test has been completed. For the inspections required by subdivisions (1)-(3), the report shall include all information required by the department to determine whether the elevator, dumbwaiter or escalator is in a safe operating condition and whether the owner or lessee of the elevator or escalator has complied with those rules and regulations adopted by the board under § 68-121-103 that are applicable;
- (B)
For the inspection required by subdivision (1), the report shall indicate whether the elevator, dumbwaiter or escalator has been installed in accordance with the permit issued by the department, and meets the requirements of the applicable rules and regulations adopted by the board under § 68-121-103;
- (6) Failure to File Report of Inspection with Department.
In the event that the report required by subdivision (5) is not filed with the department within twenty (20) days after the final date when the elevator, dumbwaiter, escalator or moving walk should have been inspected, as required by subdivisions (2) and (3), the commissioner shall designate a licensed inspector in the employ of the state to make the inspection and to report to the department. For each such inspection and report made at the direction of the commissioner, the owner or lessee of the elevator, dumbwaiter, escalator or moving walk shall pay to the department an inspection fee of a minimum of twenty-five dollars ($25.00) with a maximum of one hundred fifty dollars ($150), such fees to be charged as adopted by the board under § 68-121-103(a)(5). The fees shall be paid directly to the department, shall not be paid to the inspector and shall be the only fee for which the owner or lessee shall be liable under this chapter for the inspections required by subdivisions (2) and (3); and
- (7) Additional Inspections.
In addition to such required inspections, the commissioner may designate a licensed inspector in the employ of the state to make such additional inspections as may be required to enforce this chapter and the rules and regulations adopted by the board under § 68-121-103.
§ 68-121-107. Operating permits.
- (a)
It is unlawful to operate any elevator, dumbwaiter, or escalator without a valid operating permit issued in accordance with this section. If an inspection report indicates compliance with this chapter, the commissioner shall issue an operating permit to the owner or lessee of such elevator, dumbwaiter, or escalator; provided, that no permits shall be issued if the fees required by § 68-121-106 have not been paid. The operating permit shall be issued for the period covered by the inspection required by § 68-121-106(1) and (2), shall state the contract load and speed for such elevator, dumbwaiter or escalator, and shall be posted conspicuously in the car or cage or in the platform of the elevator and on or near the dumbwaiter or escalator. It shall be extended by endorsement of the commissioner or the commissioner's duly appointed agent after each periodic inspection required by § 68-121-106(3).
- (b)
If the inspection report required by § 68-121-106 indicates failure of compliance with applicable rules and regulations approved by the board under § 68-121-103, the commissioner shall give notice to the owner or lessee or the person or persons of changes necessary for compliance with the rules and regulations. After the changes have been made, the commissioner shall issue an operating permit. The fee to be charged for the operating permit issued under this chapter shall be adopted by the board pursuant to § 68-121-103(a)(5), and shall be in an amount sufficient to defray the cost of administering this chapter. The fee shall not exceed a maximum of one hundred dollars ($100).
- (c)
If the inspection report required by § 68-121-106 indicates that an elevator or escalator is in an unsafe condition, so that its continued operation may be dangerous to the public safety, then the commissioner may, at the commissioner's discretion, require the owner or lessee to discontinue the use of such elevator or escalator until it has been made safe and in conformity with the rules and regulations of the board. If the commissioner has reason to believe that any owner or lessee to whom an operating permit has been issued is not complying with the applicable rules and regulations adopted by the board under § 68-121-103, the commissioner shall so notify the owner or lessee and shall give notice of a date for a hearing on the noncompliance to the owner or lessee. If, after the hearing, the commissioner finds that the owner or lessee is not complying with the rules and regulations, the commissioner shall revoke the permit.
- (d)
No operating permit shall be required for elevators or escalators that are located in a highly restricted area owned and operated by the United States government. No state permit is to be issued for elevators located in municipalities where elevator inspection ordinances are in force in accordance with § 68-121-111, it being the responsibility of such municipalities to make the inspections and collect permit fees within their respective jurisdictions.
§ 68-121-108. Installations, relocations or alterations — Submission of plans — Fees.
- (a) Plans and Specifications.
On and after the effective date of the rules and regulations adopted by the board under § 68-121-103, detailed plans and specifications of each elevator, dumbwaiter or escalator to be thereafter installed, relocated or altered shall be submitted to the department or its authorized representative, together with an application for a construction permit or form to be furnished or approved by the department or its authorized representative. Repairs or replacements normally necessary for maintenance may be made on existing installations with parts equivalent in material, strength and design to those replaced and no plans or specifications or application need be filed for such repairs or replacements.
- (b) Construction Permits.
- (1)
A construction permit shall be issued by the department or its authorized representatives for every new elevator, dumbwaiter or escalator installation or alteration before the installation of the elevator, dumbwaiter or escalator is started. The department or its authorized representative shall issue such permit, if the plans and specifications required under subsection (a) indicate compliance with the applicable rules and regulations adopted by the board under § 68-121-103. If such plans and specifications indicate failure to comply with the applicable rules and regulations adopted by the board under § 68-121-103, the department or its authorized representative shall give notice to the person filing the application of changes necessary for compliance with the applicable rules and regulations.
- (2)
After such changes have been made, the department or its authorized representative shall issue a construction permit. No permit shall be required for the repairs or replacements normally necessary for maintenance.
- (c) Fees.
- (1)
A fee shall be paid to the department or its authorized representative for the issuing of construction permits required under subsection (b) for each new or altered elevator, dumbwaiter, escalator or moving walk. The fee shall not exceed a maximum of three hundred dollars ($300). The fees shall be charged as adopted by the board under § 68-121-103(a)(5) and shall be in an amount sufficient to defray the cost of administering this chapter. The department shall give receipts for all fees and sums received and shall transmit the fees and sums upon receipt to the state treasurer, who shall maintain a separate account of the fees and sums; and the fees and sums shall constitute expendable receipts of the department in addition to the appropriations otherwise available.
- (2)
A fee shall be paid to the department or its authorized representative for the issuing of construction permits required by subsection (b) for each new or altered aerial passenger tramway. The fee shall not exceed a maximum of three hundred dollars ($300). The fees to be charged as adopted by the board under § 68-121-103(a)(5) and shall be in an amount sufficient to defray the cost of administering this chapter. The department shall give receipts for all fees and sums received and shall transmit the fees and sums upon receipt to the state treasurer, who shall maintain a separate account of the fees and sums; and the fees and sums shall constitute expendable receipts of the department in addition to the appropriations otherwise available.
- (3)
A fee shall be paid to the department or its authorized representative for the acceptance inspection and for each unscheduled follow-up inspection following the construction or alteration of an elevator, dumbwaiter, escalator, moving walk or aerial passenger tramway. The fees shall be charged as adopted by the board under § 68-121-103(a)(5) and shall be in an amount sufficient to defray the cost of administering this chapter. The fee shall not exceed a maximum of three hundred dollars ($300). The department shall give receipts for all fees and sums received and shall transmit the fees and sums upon receipt to the state treasurer, who shall maintain a separate account of the fees and sums; and the fees and sums shall constitute expendable receipts of the department in addition to the appropriations otherwise available.
§ 68-121-109. Maintenance in safe operating condition.
- (a)
Every elevator, dumbwaiter and escalator shall be maintained by the owner or lessee in a safe operating condition and so that it conforms to the rules and requirements of the board as adopted under § 68-121-103.
- (b)
Every aerial passenger tramway shall be maintained by the owner or lessee in a safe operating condition and so that it conforms to the rules and requirements of the board as adopted under §§ 68-121-101, 68-121-103, 68-121-108, and this section.
- (c)
- (1)
As provided in the applicable codes of the American Society of Mechanical Engineers (ASME) as adopted by the Tennessee elevator safety board, each elevator shall have a means of two-way communication. The code requirement of two-way communication may be satisfied with a dedicated line, a line consolidation technology that enables the simultaneous operation of more than one (1) communication device, or an intercom system where a central answering location is staffed twenty-four (24) hours a day.
- (2)
If the state chooses to upgrade its two-way communication system in elevators in state facilities, funds in the facilities revolving fund may be used for such upgrade.
§ 68-121-110. Licensing inspectors — Qualifications — Examinations — Fee — Revocation of license.
- (a)
No person shall be licensed as an elevator inspector to inspect elevators, escalators or new or altered dumbwaiters, unless the person is an employee of the state authorized to inspect elevators, escalators and dumbwaiters or an employee authorized to inspect elevators, escalators and dumbwaiters for any insurance company insuring such elevators, escalators and dumbwaiters in this state; provided, that the person has satisfied the board that the person has had experience in inspecting elevators, escalators and dumbwaiters, has satisfactorily passed a written examination given by the board testing the person's knowledge of this chapter and the rules and regulations adopted by the board under § 68-121-103; provided, however, that the board may license a person as an elevator inspector without such examination, if the person holds a license as an inspector of elevators for a state or city that has a standard of examination substantially equal to that provided for in this section. A written application for such examination and license shall be made upon a form to be supplied by the board upon request, and shall be accompanied by a statement of the applicant's experience, together with an examination fee of five dollars ($5.00). The examination shall be given not more than six (6) months from the date the applicant makes such application. If the applicant has the experience and successfully passes the examination, the applicant shall, upon payment to the board of a license fee of five dollars ($5.00), be entitled to a license as an elevator inspector as a matter of right, and the license shall be renewable annually at a fee of two dollars ($2.00). There shall be no limit to the number of times an applicant may seek a license as herein provided, except that a rejected applicant may not make a new application within six (6) months from the date on which the applicant is notified that the applicant has failed to qualify. A fee of five dollars ($5.00) shall be paid to the board for each subsequent examination.
- (b)
If the board has reason to believe that a licensed inspector is no longer qualified to hold such licensed inspector's license, it shall give such inspector reasonable notice of the time and place of a hearing at which the board shall inquire into the inspector's fitness and competency to act as an elevator inspector. If the board finds that such inspector is no longer qualified to act as an elevator inspector, it shall revoke such inspector's license forthwith, and such inspector shall not thereafter make any inspection required under this chapter.
§ 68-121-111. Municipal laws or ordinances unaffected.
-
This chapter shall not have the effect of replacing any municipal law or ordinance in municipalities having regulations controlling the design, construction, location, installation, inspection and operation of elevators, dumbwaiters or escalators where such local laws, ordinances or regulations are in substantial conformity with the commonly accepted standards of safety concerning the design, construction, location, installation, inspection and operation of elevators, dumbwaiters or escalators and in substantial conformity with the published standards of the American Standard Safety Code for Elevators, Dumbwaiters and Escalators, and nothing in this chapter shall be construed as preventing the local officials or boards of such municipalities from the exclusive right to regulate or enforce all such local laws, ordinances or regulations now in force or hereafter enacted as may comply with the standards above defined, and no provision of this chapter shall be construed as permitting the erection of elevators, dumbwaiters or escalators without first obtaining a building or like permit from the proper municipal authorities in compliance with local laws and ordinances provided therefor.
§ 68-121-112. Appeals.
- (a)
Any person aggrieved by an order or act of the commissioner or department under this chapter may, within fifteen (15) days after notice thereof, appeal from such order or act to the board.
- (b)
The board shall hear the appeal in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.
§ 68-121-114. Violations to be prosecuted.
-
Prosecutions for violations of this chapter shall be instituted by the commissioner, and shall be in the form of summary proceedings before a court of competent jurisdiction. Upon conviction, after a hearing, the penalties provided for in § 68-121-115 shall be imposed and shall be final, subject to appeal to a court of proper jurisdiction in the manner prescribed by law.
§ 68-121-115. Penalties for violations of chapter or permit fee requirements.
- (a)
Any person, firm or corporation that violates any of this chapter or the rules and regulations adopted by the board, or who fails or neglects to pay the fees as required in this chapter, commits a Class C misdemeanor.
- (b)
The fee for any inspection or operating permit under this chapter shall be increased fifty percent (50%), if such fee is not paid within sixty (60) days from the date of the invoice for such inspection or permit.
- (c)
Notwithstanding subsection (a) to the contrary, any person who knowingly makes a false statement, representation, or certification in an application, record, report, or other document filed or required to be maintained under this chapter shall be guilty of a Class A misdemeanor.
§ 68-121-116. Amusement devices — Legislative findings.
- (a)
The legislature finds that:
- (1)
An unsafe amusement device is likely to cause serious and preventable injuries to members of the public; and
- (2)
For the welfare of the people of the state, these injuries must be prevented and the public must be protected from unsafe amusement devices.
- (b)
The purpose of regulating amusement devices is to ensure, as far as reasonably possible, the safety of the public in the use of amusement devices in the state by providing for:
- (1)
Adoption of safety regulations for the owner's duty of reasonable care;
- (2)
An effective enforcement and compliance program;
- (3)
Reporting procedures on the safety of amusement devices; and
- (4)
Safety provisions governing riders' use of amusement devices.
§ 68-121-117. Violations — Penalties.
- (a)
- (1)
It is an offense, punishable as provided in § 68-121-115, for:
- (A)
The owner of any amusement device to operate, or permit any person to operate, any amusement device, unless an annual permit has been issued by the department to the owner of the amusement device, which permit shall be valid in any and all counties in the state for one (1) year from the date the permit is issued.
- (B)
Any person to operate an amusement device, if the person:
- (i)
Has knowledge that the annual permit required, pursuant to subdivision (a)(1)(A), has not been issued to the owner;
- (ii)
Has no authority to operate the amusement device; or
- (iii)
Operates the amusement device beyond the authorization given to the person by the owner.
- (2)
If the amusement device is not at a fixed location within this state, then the owner of the amusement device shall only be required to obtain one (1) such annual permit and the permit shall be displayed in a conspicuous location.
- (b)
The department is authorized to charge a fee to be set by the department for the issuance of an annual permit, but the department shall not issue the permit until the owner furnishes to the department proof of insurance for, and proof of inspection of the amusement device or devices by any authorized insurer, or its designated representative. The proof of insurance shall be in an amount of not less than one million dollars ($1,000,000) per occurrence, insuring the owner or operator against liability for bodily injury and property damage arising from the use of the amusement device.
- (c)
- (1)
If the annual permit is issued for an individual amusement device, the permit shall be prominently displayed on the amusement device.
- (2)
If the annual permit is issued for amusement devices to an enterprise that has multiple amusement devices owned or managed by one (1) owner, the permit shall be filed at the main office of the site where the amusement devices are located, and shall be available for inspection by any public official during the normal business hours of the office and by members of the public during the normal business operating hours of the amusement devices.
- (d)
The policy or bond required by this section shall be a standardized form approved by the department and obtained from one (1) or more insurers or sureties approved by the department.
§ 68-121-118. Responsibilities of owner or operator of amusement device — Report of fatalities, physical injuries or incidents — Inspections — Penalties.
- (a)
The owner or operator of an amusement device shall immediately cease to operate any amusement device upon which a fatality, serious physical injury, or serious incident has occurred. An owner shall report any accident involving a fatality, serious physical injury, or serious incident resulting from the operation of an amusement device to the commissioner, in writing, within twenty-four (24) hours and contact a qualified inspector from the list maintained by the commissioner pursuant to § 68-121-119 to conduct an inspection.
- (b)
The cessation shall remain in force until an inspection has been performed by a qualified inspector, the inspector has determined that the amusement device or related equipment is safe for public use, and the department has authorized the owner or operator to resume operation of the amusement device.
- (c)
The qualified inspector shall initiate the inspection within twenty-four (24) hours of receipt of the report of a fatality, serious physical injury, or serious incident caused by the operation of an amusement device and shall perform the inspection in a manner that proceeds with all practicable speed and minimizes the disruption of the remainder of the amusement devices at the site where the amusement device is located, as well as unrelated commercial activities. The cost of an inspection shall be paid for by the owner of the amusement device. The amusement device may resume operation, upon authorization from the department, immediately following the reasonable determination by a qualified inspector that a principal cause of the serious physical injury was the victim's failure to comply with the posted safety rules or with verbal instructions. If an owner or operator of an amusement device fails to comply with any requirement listed in this section, that owner or operator shall incur a penalty of three hundred dollars ($300) each day, enforceable by the department, until full compliance is achieved. Any penalties deposited or collected shall be deposited into the general fund.
§ 68-121-119. Qualified inspectors.
- (a)
The commissioner shall compile a list of persons who have been found to be qualified inspectors. The list shall be posted on the website maintained by the department.
- (b)
The commissioner may employ or contract with qualified inspectors to conduct inspections of amusement devices pursuant to this chapter. However, if the commissioner does not employ or contract with qualified inspectors, then owners and operators shall provide the commissioner with all resulting inspection reports.
§ 68-121-120. Operation of amusement device — Inspections — Permit.
- (a)
A person shall not operate an amusement device unless the owner of the amusement device has the device inspected at least once annually by a qualified inspector, who is either provided by the commissioner or whom the owner or insurer has selected from the lists maintained on the department's website pursuant to § 68-121-119, and has obtained written documentation from the qualified inspector that the inspection has been made and the amusement device meets American Society of Testing Materials (ASTM) standards or the Association for Challenge Course Technology (ACCT) industry standards. The owner of the amusement device is solely responsible for the cost of an inspection conducted pursuant to this subsection (a).
- (b)
The inspection required pursuant to subsection (a) must be conducted, at a minimum, to meet the manufacturer's or engineer's specifications and to follow the applicable ASTM standards or ACCT industry standards.
- (c)
The commissioner may conduct a spot inspection of any amusement device without notice at any time while the amusement device is operating or will be operating in this state. The commissioner's designee may order temporary suspension of an operating permit if it has been determined after a spot inspection that an amusement device or devices are hazardous or unsafe. Operation of the amusement device shall not resume until the hazardous or unsafe condition has been corrected and subjected to reinspection by the commissioner for an inspection fee established by rule.
- (d)
An operator of an amusement device must be competent and at least sixteen (16) years of age. An operator shall operate no more than one (1) amusement device at any one (1) time and shall be in attendance at all times the device is in operation.
§ 68-121-121. Maintenance, inspection, and accidents records for amusement device — Proof of inspection.
- (a)
Each owner or operator shall retain on the premises or with a traveling or portable amusement device for at least twenty-four (24) months, all maintenance, inspection and accident records for each amusement device. The owner shall make the records for the amusement device under inspection for failure or malfunction available to the commissioner or the board upon request. The documents may be kept electronically or digitally.
- (b)
An owner or operator of an amusement device, as applicable, shall prominently display or have available on location the amusement device's proof of inspection, which shall include the date of the last inspection of the amusement device.
§ 68-121-122. Itinerary of traveling or portable amusement devices — Filing and content.
- (a)
The owner or operator of traveling or portable amusement devices shall file an itinerary with the department on a form prescribed by the commissioner no less than thirty (30) days before the operation of an amusement device for use by the public.
- (b)
The itinerary shall include the following:
- (1)
The name of the amusement device owner;
- (2)
The carnival, fair, or activity sponsor;
- (3)
The address and telephone number of the site;
- (4)
The dates open to the public; and
- (5)
The name of the contact person on site.
§ 68-121-124. Liability for accidents.
-
The state and its officers and employees or members of the board shall not be construed to assume liability arising out of an accident involving an amusement device by reason of administration of this chapter.
§ 68-121-125. Safety rules governing rider — Violations and penalties — Duty to report injuries — Display of rules.
- (a)
A rider on an amusement device shall, at a minimum:
- (1)
Obey the reasonable safety rules posted in accordance with subsection (g) and oral instructions for an amusement device issued by the amusement device's owner or the owner's employee or agent, unless:
- (A)
The safety rules are contrary to those issued by the board; or
- (B)
The oral instructions are contrary to the safety rules; and
- (2)
Refrain from acting in any manner that may cause or contribute to injuring the rider or others, including:
- (A)
Interfering with the safe operation of the amusement device;
- (B)
Not engaging any safety devices that are provided;
- (C)
Disconnecting or disabling a safety device except at the express instruction of the operator;
- (D)
Altering or enhancing the intended speed, course or direction of an amusement device;
- (E)
Extending arms and legs beyond the carrier or seating area except at the express direction of the amusement device operator;
- (F)
Throwing, dropping or expelling an object from or toward an amusement device;
- (G)
Getting on or off an amusement device except at the designated time and area, if any, at the direction of the amusement device operator, or in an emergency; and
- (H)
Unreasonably controlling the speed or direction of the rider or an amusement device that requires the rider to control or direct the rider or a device.
- (b)
A rider of an amusement device shall not get on, enter, or attempt to get on an amusement device unless the rider reasonably determines that, at a minimum, the rider:
- (1)
Has sufficient knowledge to use, get on, enter, or get off the amusement device safely without instruction or has requested and received before getting on the amusement device sufficient information to get on, use, enter, or get off safely;
- (2)
Has located, reviewed and understood any signs in the vicinity of the amusement device and has satisfied any posted height, medical or other restrictions and abided by all rules, regulations and restrictions;
- (3)
Is not under the influence of alcohol or any drug that affects the rider's ability to safely use the amusement device or obey the posted rules or oral instructions; and
- (4)
Is authorized by the amusement device owner or the owner's authorized servant, agent or employee to get on the amusement device.
- (c)
- (1)
It is an offense for any person to knowingly violate subsection (a) or (b).
- (2)
A violation of subdivision (c)(1) is a Class C misdemeanor, punishable by a fine only.
- (d)
A rider, or the rider's parent or guardian on the rider's behalf, shall report in writing to the owner any injury sustained on an amusement device before leaving the owner's premises, including:
- (1)
The name, address, and phone number of the injured person;
- (2)
A full description of the incident, the injuries claimed, any treatment received, and the location, date, and time of the injury;
- (3)
The cause of the injury, if known; and
- (4)
The names, addresses, and phone numbers of any witnesses to the incident.
- (e)
If the rider, or the rider's parent or guardian on a rider's behalf, is unable to file a report before leaving the owner's premises because of the severity of the rider's injuries, the rider, or the rider's parent or guardian, shall file the report as soon as reasonably possible.
- (f)
The failure of a rider, or the rider's parent or guardian on a rider's behalf, to report an injury under this section shall have no effect on the rider's right to commence a civil action.
- (g)
Safety rules governing rider conduct must be prominently displayed at or near the entrance to, or loading platform for, the amusement device.
Chapter 122 Boiler Inspection, Erectors and Repairers
Part 1 General Provisions
§ 68-122-101. Board of boiler rules — Created — Members — Compensation.
- (a)
There is created within the department of labor and workforce development a board of boiler rules, which shall hereafter be referred to as the “board,” consisting of five (5) members who shall be appointed to the board by the governor. The original appointments were one (1) for a term of one (1) year, one (1) for a term of two (2) years, one (1) for a term of three (3) years and two (2) for a term of four (4) years. At the expiration of their respective terms of office, they, or their successors identifiable with the same interest respectively as provided in this section, shall be appointed for terms of four (4) years each. The governor may at any time remove any member of the board for inefficiency or neglect of duty in office. Upon the death or incapacity of any member, the governor shall fill the vacancy for the remainder of the vacated term with a representative of the same interest with which the representative's predecessor was identified. Of these five (5) appointed members, one (1) shall be representative of owners and users of boilers within the state, one (1) shall be representative of the boiler manufacturers within the state, one (1) shall be a representative of a boiler insurance company licensed to do business within the state, one (1) shall be a mechanical engineer on the faculty of a recognized engineering college or a graduate mechanical engineer having equivalent experience, and one (1) shall be representative of the boilermakers or practical steam operating engineers. In making appointments to the board, the governor shall strive to ensure that at least one (1) person serving on the board is sixty (60) years of age or older and that at least one (1) person serving on the board is a member of a racial minority. The board shall elect one (1) of its members to serve as chair, and, at the call of the chair, the board shall meet at least four (4) times each year at the state capitol or other place designated by the board. Beginning July 1, 1965, the membership of the board shall be increased by one (1) member who shall be a representative of the owner-users of unfired pressure vessels and who shall be a mechanical engineer licensed to practice in the state of Tennessee. Such additional representative's appointment shall be made by the governor. The additional representative's first term shall be for a period of two (2) years and all succeeding terms after the expiration of the first shall be for a period of four (4) years.
- (b)
The members of the board shall serve without salary and shall be reimbursed for travel expenses in accordance with the comprehensive travel regulations as promulgated by the department of finance and administration and approved by the attorney general and reporter.
§ 68-122-102. Rules and regulations — Part definitions.
- (a)
The board shall formulate definitions, rules and regulations for the safe and proper construction, installation, repair, use and operation of boilers in this state. The definitions, rules and regulations so formulated shall be based upon, and, at all times, follow the generally accepted nationwide engineering standards, formulae and practices established and pertaining to boiler construction and safety, and the board may by resolution adopt an existing published codification of standards, formulae and practices known as the Boiler Construction Code of the American Society of Mechanical Engineers, with the amendments and interpretations of the code made and approved by the council of the society, and may likewise adopt the amendments and interpretations subsequently made and published by the same authority; and when so adopted, the code shall be deemed incorporated into, and to constitute a part of the whole of the definitions, rules and regulations of the board. Amendments and interpretations to the code so adopted shall be adopted immediately upon being promulgated, to the end that the definitions, rules and regulations shall at all times follow the generally accepted nationwide engineering standards.
- (b)
The board shall promulgate rules and regulations for the safe and proper installation, repair, use and operation of boilers that were in use or installed ready for use in this state prior to the date upon which the first rules and regulations under this part pertaining to existing installations became effective, or during the twelve-month period immediately thereafter.
- (c)
The rules and regulations formulated by the board shall have the force and effect of law, except that the rules applying to the construction of new boilers shall not be construed to prevent the installation thereof until twelve (12) months after their approval by the board.
- (d)
Amendments in the rules and regulations adopted by the board shall be permissive immediately and shall become mandatory twelve (12) months after such approval.
- (e)
As used in this part, unless the context otherwise requires:
- (1)
“Autoclave” means a device that:
- (A)
Sterilizes reusable medical or dental equipment used by an individual or entity licensed under this title or title 63;
- (B)
Consists of an unfired pressure vessel with or without an integrated miniature boiler; and
- (C)
Is regulated by the United States food and drug administration;
- (2)
“Boiler” means and includes a closed vessel or vessels intended for use in heating water or other liquids or for generating steam or other vapors under pressure or vacuum by the direct application of heat from combustible fuels, electricity, or nuclear energy, and also includes an unfired pressure vessel, meaning a vessel in which pressure is obtained from an external source or from an indirect application of heat;
- (3)
“Commissioner” means the commissioner of labor and workforce development;
- (4)
“Department” means the department of labor and workforce development; and
- (5)
“Miniature boiler” means a boiler designed and constructed not to exceed the following:
- (A)
Sixteen inches (16″) inside diameter of shell;
- (B)
If a non-electric boiler, twenty (20) square feet of heating surface;
- (C)
Five (5) cubic feet of gross volume, exclusive of the casing and insulation; and
- (D)
One hundred pounds (100 lbs.) per square inch gauge maximum allowable working pressure.
§ 68-122-103. New installations must conform to regulations.
-
No boiler that does not conform to the rules and regulations formulated by the board governing new construction and installation shall be installed and operated in this state after twelve (12) months from the date upon which the first rules and regulations under this part pertaining to new construction and installation shall have become effective, unless the boiler is of special design or construction, and is not covered by the rules and regulations, nor is in any way inconsistent with such rules and regulations, in which case a special installation and operating permit may, at its discretion, be granted by the board.
§ 68-122-104. Existing boilers required to conform — Applicability.
- (a)
All boilers that were in use, or installed ready for use in this state prior to the date upon which the first rules and regulations became effective, or during the twelve-month period immediately thereafter, shall be made to conform to the rules and regulations of the board governing existing installations, and the formulae prescribed therein shall be used in determining the maximum allowable working pressure for such boilers.
- (b)
This part shall not be construed as in any way preventing the use or sale of boilers as referred to in subsection (a); provided, that they have been made to conform to the rules and regulations of the board governing existing installations; and provided further, that they have not been found upon inspection to be in an unsafe condition.
- (c)
- (1)
This part shall apply to historic power boilers. “Historic power boilers” means any steam traction engine, portable, or stationary, standard or nonstandard power boiler, including free-lance and scale models, owned by publicly operated museums, nonprofit organizations and individuals who preserve, maintain, exhibit and only occasionally operate these boilers on a not-for-profit basis and for the primary purpose of perpetuating the agricultural and pioneer heritage of Tennessee.
- (2)
Such boilers shall conform to the rules and regulations adopted by the board of boiler rules.
§ 68-122-105. Exemptions — Municipal laws or ordinances.
- (a)
This part shall not apply to the following boilers:
- (1)
Boilers under federal control or boilers that are used to generate electricity under contract with the Tennessee Valley authority (TVA);
- (2)
Unfired pressure vessels meeting the requirements of the interstate commerce commission for shipment of liquids or gases under pressure;
- (3)
Air tanks located on vehicles operating under the rules of other state authorities and used for carrying passengers or freight;
- (4)
Air tanks installed on the right-of-way of railroads and used directly in the operation of trains;
- (5)
Unfired pressure vessels having a volume of five (5) cubic feet or less;
- (6)
Unfired pressure vessels designed for working pressure not exceeding fifteen pounds (15 lbs.) per square inch gauge;
- (7)
Unfired pressure vessels containing liquefied petroleum gases;
- (8)
Unfired pressure vessels contained within an autoclave; or
- (9)
Miniature boilers that are integrated as components of medical devices regulated by the United States food and drug administration.
- (b)
The following boilers shall be exempt from the requirements of §§ 68-122-110 — 68-122-113:
- (1)
Boilers located on farms and used solely for agricultural purposes;
- (2)
Steam boilers used for heating purposes carrying a pressure of not more than fifteen pounds (15 lbs.) per square inch gauge, that are located in private residences or in apartment houses of less than six (6) families;
- (3)
Hot water heating boilers carrying a pressure of not more than thirty pounds (30 lbs.) per square inch gauge, that are located in private residences or in apartment houses of less than six (6) families; or
- (4)
Unfired pressure vessels containing only water under pressure for domestic supply purposes and operated at a temperature of not over two hundred degrees Fahrenheit (200°F), including those containing air, the compression of which serves only as a cushion for airlift pumping systems.
- (c)
This part shall not have the effect of replacing any municipal law or ordinance in municipalities having regulations controlling the design, construction, location, installation, inspection, and operation of boilers where such local laws, ordinances or regulations are in substantial conformity with the commonly accepted standards of safety concerning the design, construction, location, installation, inspection and operation of boilers and in substantial conformity with the published standards of the Boiler Construction Code of the American Society of Mechanical Engineers, and nothing in this part shall be construed as preventing the local officials or boards of such municipalities from the exclusive right to regulate or enforce all such local laws, ordinances or regulations now in force or hereafter enacted as may comply with the standards above defined, and no provision of this part shall be construed as permitting the erection of boilers without first obtaining a building or like permit from the proper municipal authorities in compliance with local laws and ordinances provided therefor.
- (d)
[Deleted by 2023 amendment.]
§ 68-122-106. Chief inspector — Appointment — Qualifications — Removal — Duties and powers.
- (a)
Any time the office of the chief inspector becomes vacant, the commissioner shall appoint a citizen of this state who shall have had at the time of such appointment practical experience in the construction, maintenance, repair, or operation of high pressure boilers and unfired pressure vessels, as a mechanical engineer, steam engineer, boilermaker, or boiler inspector, to be chief inspector until the chief inspector's successor shall have been appointed and qualified. The chief inspector may be removed for cause following an investigation by the commissioner or the commissioner's designee.
- (b)
The chief inspector, if authorized by the commissioner, is charged, directed and empowered to:
- (1)
Cause the prosecution of all violators of this part;
- (2)
Issue, or suspend, or revoke for cause, inspection certificates as provided for in § 68-122-111;
- (3)
Draw upon the state treasurer for funds necessary to meet the expenses authorized by this part, which shall include the necessary traveling expenses of the chief inspector and the chief inspector's deputies and the expenses incident to the maintenance of the chief inspector's office;
- (4)
Take action necessary for the enforcement of the laws of the state governing the use of boilers and of the rules and regulations of the board;
- (5)
Keep a complete record of the type, dimensions, maximum allowable working pressure, age, condition, location and date of the last recorded internal inspection of all boilers to which this part applies; and
- (6)
Publish and distribute, among manufacturers and others requesting them, copies of the rules and regulations adopted by the board.
§ 68-122-107. Deputy inspectors — Employment — Qualifications.
-
The chief inspector shall employ deputy inspectors, who shall be responsible to the chief inspector and who shall have had at time of appointment not less than five (5) years' practical experience in the construction, maintenance, repair or operation of high pressure boilers and unfired pressure vessels as a mechanical engineer, steam engineer, boilermaker or boiler inspector, and who has passed the examination provided for in § 68-122-109.
§ 68-122-108. Special inspectors — Appointment — Duties — Right of inspection.
- (a)
In addition to the deputy boiler inspectors authorized by § 68-122-107, the chief inspector shall, upon the request of any company authorized to insure against loss from explosion of boilers and unfired pressure vessels in this state, or upon the request of any company operating unfired pressure vessels in this state having a regularly established inspection service maintained by the owner or user of pressure vessels subject to inspection and whose inspection service, personnel, equipment and supervision meet the requirements prescribed therefor by the board, issue to any inspectors of the company commissions as special inspectors; provided, that each such inspector, before receiving such inspector's commission, shall satisfactorily pass the examination provided for in § 68-122-109 or, in lieu of such examination, shall hold a commission or a certificate of competency as an inspector of boilers and unfired pressure vessels for a state that has a standard of examination substantially equal to that of the state of Tennessee, or a certificate as an inspector of boilers issued by the national board of boiler and pressure vessel inspectors. A commission as a special inspector for a company operating unfired pressure vessels in this state shall be issued only if, in addition to meeting the requirements stated in this subsection (a), the inspector is continuously employed by the company for the purpose of making inspections of unfired pressure vessels used, or to be used, by such company, and not for resale. Special inspectors of a company operating unfired pressure vessels, commissioned under this section, shall not be authorized to inspect boilers.
- (b)
Such special inspectors shall receive no salary from, nor shall any of their expenses be paid by, the state, and the continuance of a special inspector's commission shall be conditioned upon the special inspector continuing in the employ of a boiler insurance company duly authorized as provided for in subsection (a) or upon continuing in the employ of a company operating unfired pressure vessels in this state, and upon the special inspector's maintenance of the standards imposed by this part.
- (c)
Such special inspectors shall inspect all boilers and unfired pressure vessels insured or all unfired pressure vessels operated by their respective companies and, when so inspected, the owners and users of such boilers and unfired pressure vessels shall be exempt from the payment to the state of the inspection fees as provided for in § 68-122-113.
- (d)
Each company employing such special inspectors shall, within thirty (30) days following each internal and external boiler or unfired pressure vessel inspection made by such inspectors, file a report of such inspection with the chief inspector upon appropriate forms as promulgated by the American Society of Mechanical Engineers.
- (e)
The commissioner, the chief inspector, or any deputy or special inspector, shall have free access, during reasonable hours, to any premises in the state where a boiler or unfired pressure vessel is being constructed, or is being installed, for the purpose of ascertaining whether such boiler or unfired pressure vessel is constructed and installed in accordance with this part.
- (f)
The special inspectors commissioned as provided by this section and their employers, agents, or service contractors shall have the same liability, as provided in § 9-8-307, for the performance of their services as deputy inspectors authorized under § 68-122-107 or state employees acting within the scope of their employment.
§ 68-122-109. Examinations for chief, deputy and special inspectors — Suspension or revocation of commission — Replacement when lost.
- (a)
Examinations for chief, deputy, or special inspectors must be administered by a National Board of Boiler and Pressure Vessel Inspectors' member jurisdiction; the National Board of Boiler and Pressure Vessel Inspectors during the last day of the In-service Commission (IS) two-week course; an on-demand provider approved by the National Board of Boiler and Pressure Vessel Inspectors; or other testing methods approved by the National Board of Boiler and Pressure Vessel Inspectors. The examinations must meet the requirements of the latest edition of the Rules for Commissioned Inspectors as approved by the National Board of Boiler and Pressure Vessel Inspectors. If an applicant fails to pass an examination, the applicant must follow the re-examination requirements of the latest edition of the Rules for Commissioned Inspectors. The record of an applicant's examination must be accessible to the applicant and the applicant's employer.
- (b)
A commission may be suspended or revoked after due investigation and recommendation by the board to the commissioner for the incompetence or untrustworthiness of the holder of the commission, or for willful falsification of any matter or statement contained in the applicant's application or in a report of any inspection. A person whose commission has been suspended or revoked, except for untrustworthiness, shall be entitled to apply to the board for reinstatement or, in the case of revocation, for a new examination and commission after ninety (90) days from such revocation. A person whose commission has been suspended or revoked shall be entitled to an appeal as provided in § 68-122-115 and to be present in person and/or represented by counsel on the hearing of the appeal.
- (c)
If a certificate or commission is lost or destroyed, a new certificate or commission shall be issued in its place without another examination.
§ 68-122-110. Inspection of boilers.
- (a)
Each boiler used or proposed to be used within this state, except boilers exempt in § 68-122-105, shall be thoroughly inspected as to their construction, installation, condition and operation as follows:
- (1)
Power boilers shall be inspected annually both internally and externally while not under pressure, and shall also, if possible, be inspected externally while under pressure approximately six (6) months following the date of each internal inspection;
- (2)
Low pressure heating boilers shall be inspected both internally and externally biennially where construction will permit;
- (3)
Unfired pressure vessels subject to internal corrosion shall be inspected both internally and externally biennially where construction will permit, except that the board may, in its discretion, provide for longer periods between inspections; and
- (4)
Unfired pressure vessels not subject to internal corrosion shall be inspected externally at intervals set by the board, but internal inspections shall not be required of unfired pressure vessels, the contents of which are known to be noncorrosive to the material of which the shell, head, or fittings are constructed, either from the chemical composition of the contents or from evidence that the contents are adequately treated with a corrosion inhibitor; provided, that such vessels are constructed in accordance with the rules and regulations of the board or in accordance with standards equivalent to the rules and regulations of the board in effect at the time of manufacture.
- (b)
A grace period of two (2) months longer than the twelve-month period may elapse between internal inspections of a boiler while not under pressure or between external inspections of a boiler while under pressure.
- (c)
The inspections required in this section shall be made by the chief inspector, or by a deputy inspector, or by a special inspector provided for in this part.
- (d)
If at any time a hydrostatic test shall be deemed necessary, it shall be made, at the discretion of the inspector, by the owner or user of the boiler.
- (e)
All boilers to be installed in this state after the twelve-month period from the date upon which the rules and regulations of the board shall become effective shall be inspected during construction as required by the applicable rules and regulations of the board by an inspector authorized to inspect boilers in this state, or, if constructed outside of the state, by an inspector holding a certificate from the national board of boiler and pressure vessel inspectors, or a certificate of competency as an inspector of boilers for a state that has a standard of examination substantially equal to that of this state as provided in § 68-122-109.
- (f)
- (1)
Notwithstanding subsection (a), the board may, in its discretion, grant a variance for longer intervals between inspections. All requests for boiler inspection variances shall be submitted to the chief inspector or the chief inspector's designee no less than forty-five (45) days prior to the next regularly scheduled or called meeting of the board.
- (2)
The board shall produce a guide and checklist setting forth conditions which must be met before a variance for longer intervals between inspections may be granted.
- (3)
All boilers operating under a variance pursuant to this subsection (f) shall be inspected externally while under pressure approximately every six (6) months for the duration of the variance.
- (4)
Any boiler that fails an external inspection pursuant to subdivision (f)(3), shall be shut down and inspected internally, and the variance shall be rescinded.
- (g)
The board may also, in its discretion, grant other variances where the board deems it necessary in order to protect the health, safety and welfare of the public. All requests for variances shall be submitted to the chief inspector or the chief inspector's designee no less than forty-five (45) days prior to the next regularly scheduled or called meeting of the board.
§ 68-122-111. Inspection certificates — Maximum certificate fees — Insured boilers — Suspension.
- (a)
If, upon investigation, a boiler is found to comply with the rules and regulations of the board, the owner or user of the boiler shall pay directly to the chief inspector an appropriate certificate fee as adopted by the board pursuant to § 68-122-102, and the chief inspector, or such duly authorized representative, shall issue to such owner or user an inspection certificate bearing the date of inspection and specifying the maximum pressure under which the boiler may be operated. In no event shall such fee exceed a maximum amount of fifty dollars ($50.00) for high-pressure boilers or eighty dollars ($80.00) for low-pressure boilers and unfired pressure vessels. Such inspection certificate shall be valid for not more than twenty-four (24) months, for power boilers, and for not more than twenty-six (26) months, for low pressure heating boilers and unfired pressure vessels, from its date. Certificates shall be posted under glass in the room containing the boiler inspected, or, in the case of a portable boiler, in a metal container to be fastened to the boiler or to be kept in a tool box accompanying the boiler.
- (b)
No inspection certificate issued for an insured boiler inspected by a special inspector shall be valid after the boiler for which it was issued shall cease to be insured by a company duly authorized by this state to carry such insurance.
- (c)
The chief inspector or the chief inspector's authorized representative may at any time suspend an inspection certificate when, in the chief inspector's or representative's opinion, the boiler for which it was issued cannot be operated without menace to the public safety, or when the boiler is found not to comply with the rules and regulations provided for in this part. A special inspector shall have corresponding powers with respect to inspection certificates for boilers insured by the company employing the special inspector. Such suspension of an inspection certificate shall continue in effect until such boiler shall have been made to conform to the rules and regulations of the board, and until the inspection certificate shall have been reinstated.
§ 68-122-112. Operation without certificate or at excessive pressure — Penalty.
-
It is unlawful for any person, firm, partnership or corporation to operate a boiler under pressure in this state without a valid inspection certificate. The operation of a boiler without such inspection certificate, or at a pressure exceeding that specified in such inspection certificate, constitutes a Class C misdemeanor on the part of the owner, user, or operator of the boiler. Each day of such unlawful operation is a separate offense.
§ 68-122-113. Inspection fees.
- (a)
Biennial or required inspections of unfired pressure vessels shall be based on the maximum length of the vessel multiplied by the maximum width of diameter. The fee for internal and/or external inspections of each unfired pressure vessel subject to inspection shall be in an amount adopted by the board pursuant to § 68-122-102. In no event shall the fee for any unfired pressure vessel not greater than a cross sectional area of fifty square feet (50 sq. ft.) exceed thirty dollars ($30.00). On unfired pressure vessels that exceed fifty square feet (50 sq. ft.) in cross section area, not more than one hundred dollars ($100) shall be charged per day for the actual inspection time of each inspector on any one (1) vessel.
- (b)
A group of unfired pressure vessels, such as the rolls of a paper machine or dryer operating as a single machine or unit, shall be considered as one (1) unfired pressure vessel.
- (c)
The fee for biennial or required inspections of high-pressure boilers shall be based on the maximum heating surface of the vessel. The fee for internal and/or external inspections of each high-pressure boiler subject to inspection shall be in an amount adopted by the board pursuant to § 68-122-102. In no event shall the fee charged for inspection of a high-pressure boiler exceed sixty dollars ($60.00).
- (d)
The fee for biennial or required internal and/or external inspections of each low-pressure boiler subject to inspection shall be in an amount adopted by the board pursuant to § 68-122-102. In no event shall the fee for any low-pressure boiler exceed thirty dollars ($30.00).
- (e)
Shop inspections, special inspections, inspections of secondhand or used boilers, i.e., boilers that have changed ownership and location after primary use, and quality control system reviews conducted by the chief or deputy inspectors shall be charged at a rate to be determined by the board, plus all expenses, including travel and hotel. In no event shall such inspections or reviews be charged at a rate to exceed seven hundred dollars ($700) for one (1) full day of eight (8) hours.
§ 68-122-114. Bond furnished by chief and deputy inspectors.
-
The chief inspector shall furnish a bond in the sum of five thousand dollars ($5,000), and each of the deputy inspectors, employed and paid by the state, shall furnish a bond in the sum of two thousand dollars ($2,000) conditioned upon the faithful performance of their duties and upon a true account of moneys handled by them respectively and the payment of moneys to the proper recipient. The cost of these bonds shall be paid by the state treasurer.
§ 68-122-115. Appeals from orders or acts of inspectors.
-
Any person aggrieved by an order or act of an inspector or the chief inspector under this part, may, within fifteen (15) days after notice thereof, appeal from such order or act to the board. The board shall hear the appeal in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.
§ 68-122-116. Receipt for fees — Fee increase as penalty — Fee exemptions.
- (a)
The chief inspector shall give an official receipt for all fees, which shall constitute expendable receipts of the department in addition to the appropriations otherwise available.
- (b)
The fee for any inspection or inspection certificate under this chapter shall be increased fifty percent (50%) if such fee is not paid within sixty (60) days from the date of the invoice for such inspection or certificate.
- (c)
The inspection and inspection certificate fees prescribed in this part shall not apply to boilers located in municipalities having valid laws, ordinances or regulations that comply with the standards defined in § 68-122-105(c).
Part 2 Boiler Erectors and Repairers Act
§ 68-122-202. License required.
-
Any person, corporation, partnership or firm engaged in or desiring to engage in the work of repairing or erecting steam boilers, steam kettles, pressure tanks or steam generators in this state shall obtain a license to perform such work from the board of boiler rules as created in the department of labor and workforce development by § 68-122-101.
§ 68-122-203. “Erect” defined.
-
“Erect,” as used in this part, includes only such steam boilers, steam kettles, pressure tanks, or steam generators as are assembled at the place of installation, and does not include such steam boilers, steam kettles, pressure tanks, or steam generators as are constructed at the place of manufacture and delivered to the place of installation. It does not include sectional boilers constructed of cast iron.
§ 68-122-204. Application for license — Examination — Approval — Issuance.
-
An application for license under this part shall be made to the chief inspector of steam boilers and unfired pressure vessels, and the applicant shall pass an examination as prescribed by the board of boiler rules and given by the chief inspector, and further, the applicant must meet and continue to comply with the minimum qualifications as set up by the board of boiler rules and the recommended rules for repairs promulgated by the National Board of Boiler and Pressure Vessel Inspectors. Thereafter, at the earliest meeting of the board of boiler rules, the application shall be submitted to the board for its approval along with the recommendation of the chief inspector, and upon the finding of the board of boiler rules that the applicant has satisfied the requirements of this part, the chief inspector shall be authorized to issue a license to the applicant.
§ 68-122-205. License fee — Renewal — Fee maximums — Disposition of fees collected — Duty of enforcement.
- (a)
The original issuing fee and renewal fee shall each be in an amount adopted by the board pursuant to its authority under § 68-122-102. In no event shall such fees exceed a maximum amount of one hundred dollars ($100) for the first year and sixty dollars ($60.00) for each annual renewal. The license shall be renewed by the time of its expiration by paying in advance the annual renewal fee.
- (b)
The license shall be valid for a period of one (1) year from the date of issuance unless sooner revoked for cause by the commissioner of labor and workforce development.
- (c)
All fees provided for in this part shall be paid to the department of labor and workforce development and shall be expendable fees to be used by the department of labor and workforce development in enforcing this part, and the enforcement of this part shall be the duty of the chief inspector of the department.
§ 68-122-206. Exclusions.
- (a)
This part shall not apply to persons, corporations, partnerships or firms that are complying with the rules and regulations of the interstate commerce commission or to persons, corporations, partnerships or firms that have their own maintenance personnel who are limited to the lawful erection and repair of their own boiler equipment.
- (b)
This part shall not apply to those persons, corporations, partnerships or firms engaged in the work of repairing or erecting those types of steam boilers specifically excluded by § 68-122-105.
§ 68-122-207. Local laws not affected.
-
This part shall not have the effect of replacing any municipal law or ordinance that regulates and licenses the repairing or erection of steam boilers, steam kettles, pressure tanks or steam generators, and nothing in this part shall be construed as preventing the local officials or board of such municipalities from the exclusive right to regulate or enforce all such local laws or regulations now in force, and no provision of this part shall be construed as permitting the repair or erection of boilers without first complying with the requirements of the local laws and ordinances provided for such repair or erection of boilers.
§ 68-122-208. Penalty for violation.
-
It is unlawful for any person, corporation, partnership or firm to engage in the work of repairing or erecting steam boilers, steam kettles, pressure tanks, or steam generators in this state without a valid license as provided under this part. Any violation of this part is a Class C misdemeanor. Each day of such violation constitutes a separate offense. This does not apply to any person repairing such equipment whenever a licensed repair worker cannot be readily obtained, and an emergency exists.
§ 68-122-209. Construction of part.
-
It is the intention of this part that this part is supplemental to part 1 of this chapter and that nothing in this part is to be construed as conflicting with part 1 of this chapter.
Chapter 126 Manufactured Homes
Part 1 General Provisions
§ 68-126-102. Cooperation with federal government.
- (a)
In order to enable this state to assume responsibility for enforcement of federal manufactured home construction and safety standards established under the National Manufactured Home Construction and Safety Standards Act of 1974 (42 U.S.C. § 5401 et seq.), the division of fire prevention shall submit to the secretary of the department of housing and urban development a plan for enforcement of such standards. The division of fire prevention, under the supervision and direction of the commissioner of commerce and insurance, shall be responsible for administering the plan throughout the state. The commissioner shall submit to the secretary, as part of the plan, a schedule of inspection fees in an amount to cover the cost of inspection. These fees are to be paid by each manufactured home manufacturer located in the state.
- (b)
For the purpose of implementing such plan, the commissioner is granted all powers with respect to enforcement of the National Manufactured Home Construction and Safety Standards Act, amendments to the act, and regulations promulgated under the act that this state is now or hereafter permitted or required to possess. The commissioner may enter into whatever agreements with the department of housing and urban development, or agency, instrumentality, or representative of the department, the commissioner deems necessary and appropriate for carrying out the commissioner's responsibilities under this section.
Part 3 Tennessee Modular Building Act
§ 68-126-302. Legislative findings — Purpose — Standards.
- (a)
The general assembly finds that, in an effort to meet the building needs within the state, the private construction industry has developed mass production techniques that can substantially reduce construction costs, and that the mass production of buildings presents unique problems with respect to the establishment of uniform health and safety standards and inspection procedures. The general assembly further finds that, by minimizing the problems of standards and inspection procedures, it is demonstrating its intention to encourage the reduction of building construction costs and to make building and home ownership more feasible for all residents of the state.
- (b)
Because of the nature of the construction of modular building units that arrive at the site of installation with some or all of the electrical, mechanical, plumbing and other systems already built into the unit and not able to be inspected at the site without disassembly or destruction, it is the purpose of this part to provide for the inspection of modular building units for compliance with building codes at the place of manufacture.
- (c)
The commissioner is authorized to set standards for the construction and installation of modular building units, and to provide for the inspection of such units by the department, by an approved inspection agency or by reciprocal agreement with other states.
§ 68-126-303. Part definitions.
-
As used in this part, unless the context otherwise requires:
- (1)
“Approved inspection agency” means a person, organization or local government approved by the commissioner to be especially qualified by reason of facilities, personnel, experience, and demonstrated reliability, to investigate, test, evaluate and inspect modular building units, systems, or the component parts of modular building units together with the plans, specifications, and quality control procedures to ensure that such units, systems, or component parts are in full compliance with the standards adopted by the commissioner pursuant to this part and to label such units complying with those standards. Any person, or any organization whose membership is composed of persons, employed by a manufacturer of modular units or owning any interest in any such manufacturing business, shall be ineligible for approval by the commissioner to serve as an inspection agency;
- (2)
“Commissioner” means the commissioner of commerce and insurance;
- (3)
“Component” means any assembly, sub-assembly, or combination of elements for use as a part of a modular building unit, which may include the structural, electrical, mechanical, plumbing, fire protection, or other structurally integrated system or systems thereof affecting life safety;
- (4)
“Department” means the department of commerce and insurance;
- (5)
“Guard shelter” means a structure used exclusively for the purpose of providing shelter for no more than two (2) persons who are watching over or protecting a person or place or supervising prisoners;
- (6)
“Installation” means the assembly of modular building units on-site and/or the process of affixing modular building-related components to land, a foundation, footings, utilities, or an existing building;
- (7)
“Local government” means any political subdivision of this state with authority to establish standards and requirements applicable to the construction, installation, alteration and repairs of buildings;
- (8)
“Modular building unit” means a structural unit, or preassembled component unit, including the necessary electrical, plumbing, heating, ventilating and other service systems, manufactured off-site and transported to the point of use for installation or erection, with or without other specified components, as a finished building. “Modular building unit” does not apply to temporary structures used exclusively for construction purposes, nonresidential farm buildings, or ready-removables that are not modular structures;
- (9)
“Ready-removable” means a structure without any foundation, footings, or other support mechanisms that allow a structure to be easily relocated but which may include electrical wiring. Ready-removable structures include, but are not limited to, stadium press boxes, guard shelters, or structures that contain only electrical, electronic, or mechanical equipment that are solely occupied for service or maintenance of such equipment; and
- (10)
“Structure” means any building or improvement and its components, systems, fixtures, and appurtenances at the time of completion or construction.
§ 68-126-304. Prerequisites to sale or installation — Local requirements.
- (a)
- (1)
After the effective date of the rules adopted pursuant to this part, no modular building unit shall be offered for sale, sold, or installed in this state, unless it is approved and bears the insignia of approval of the commissioner, the commissioner's designee, or an approved inspection agency.
- (2)
All modular building units manufactured in this state, or intended to be offered for sale, sold, or installed in this state, shall be inspected by the commissioner, the commissioner's designee, or an approved inspection agency, at the place of manufacture of the modular building unit.
- (b)
- (1)
No local standard relating to the construction or installation of modular building units shall be applicable to any modular building unit subject to this part, unless such standard is identical to that set by the commissioner pursuant to § 68-126-302.
- (2)
Any modular building unit bearing an insignia of approval issued by the commissioner, the commissioner's designee, or an approved inspection agency pursuant to this part, shall be deemed to comply with any local standard relating to the construction of modular building units.
- (3)
Subject to subdivision (b)(1), a local government may make, and charge a fee for, an inspection of the installation of a modular building unit. Such fee shall be equal to the amount charged for a similar inspection on conventionally built housing.
- (4)
Local land use and zoning requirements, fire zones, building setback requirements, side and rear yard requirements, subdivision control, as well as the review and regulation of aesthetic requirements, are specifically and entirely reserved to local government. Such local requirements and rules that may be enacted by a local government must be reasonable and uniformly applied and enforced without any distinction as to whether a building is a conventionally constructed or modular building.
- (5)
Modular building units bearing an insignia of approval issued by the commissioner, the commissioner's designee, or an approved inspection agency pursuant to this part shall not be modified prior to or during installation, except in conformance with the rules of the commissioner.
§ 68-126-305. Powers and duties of commissioner.
- (a)
- (1)
The commissioner shall enforce and administer this part.
- (2)
The commissioner shall promulgate such rules and regulations as the commissioner finds necessary to carry out this part, in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.
- (3)
The commissioner is authorized to require licenses of manufacturers, dealers, and any other person involved in the construction, installation, sale or lease of a modular building unit, and to set reasonable fees and conditions for such licenses.
- (b)
In addition to any other powers conferred on the commissioner by law, the commissioner may:
- (1)
Prescribe all forms required to be filed pursuant to this part;
- (2)
Establish a schedule of fees to pay the cost incurred by the department for the administration and enforcement of this part;
- (3)
Appoint and employ such personnel as are necessary to carry out the duties imposed upon the commissioner by this part;
- (4)
Delegate inspection authority under this part, by contract or other agreement, to local governments, private persons, corporations, associations, and agencies of other states, as an approved inspection agency; and
- (5)
Assess civil penalties not to exceed five thousand dollars ($5,000) for each violation of this part.
- (c)
If a modular building is manufactured, sold, or installed in violation of this part, the commissioner may require:
- (1)
The manufacturer, dealer, or installer in violation of this part to provide the commissioner with as-built plans to be evaluated and approved by the commissioner for compliance with state building codes;
- (2)
The manufacturer, dealer, or installer in violation of this part to make available for inspection any components and concealed spaces of the structure and to repair any damages made when making the components and concealed spaces available for inspection;
- (3)
Inspections to be made during the remanufacturing process and may require that concealed spaces be opened or made accessible as necessary to determine that components comply with state building codes; and
- (4)
The manufacturer, dealer, or installer to be responsible for all costs or expenses incurred pursuant to this subsection (c).
§ 68-126-306. Reciprocity — Interstate agreements.
-
If the commissioner determines that the standards for construction and inspection of modular building units prescribed by statute or rule of another state are at least equal to rules prescribed under this part and that such standards are actually enforced by such other state, the commissioner may negotiate and enter into reciprocal agreements with appropriate officials of other states, or with an agent for such states. Any modular building unit inspected and approved under such an agreement shall be deemed to have been approved by the commissioner.
§ 68-126-307. Judicial relief to compel compliance.
-
The department may seek injunctive or other relief to compel compliance with the requirements of this part or with rules issued pursuant to this part, or to enjoin the sale, delivery, or installation of a modular building unit. Such relief may be sought in the chancery court of the county in which the modular building unit that is the subject of the action is located, or of the county in which such unit was manufactured, or of Davidson County.
§ 68-126-310. Exemption from licensure requirements for local education agencies.
-
A local education agency (LEA) whose students, under supervision of vocational/industrial instructors, construct, as part of a vocational/industrial curriculum, modular building units shall be exempt from all licensure requirements of this part; provided, however, that:
- (1)
The LEA constructs no more than five (5) modular buildings per school per school year;
- (2)
Each modular building's structural and electrical systems are inspected from its initial stages of construction by qualified building and electrical inspectors;
- (3)
Each modular building meets all applicable local building codes and, when installed at a permanent site, is inspected by local building officials as a site-built structure; and
- (4)
The LEA provides the purchaser of a modular building with a statement disclosing that it does not comply with this part. The LEA shall retain a copy of the statement signed by the purchaser.
§ 68-126-311. Requirements for ready-removables with electrical wiring.
- (a)
Ready-removables with electrical wiring must still meet applicable state and local electrical permitting requirements, local building permitting requirements, and have hardwired smoke alarms installed in accordance with the manufacturer's instructions.
- (b)
No ready-removable shall be modified for use as residential, recreational, or emergency housing in this state.
Part 4 Tennessee Manufactured Home Installation Act
§ 68-126-402. Part definitions.
-
As used in this part, unless the context otherwise requires:
- (1)
“Commissioner” means the commissioner of commerce and insurance or the commissioner's designee;
- (2)
“Installer” means a licensed manufactured home installer, or a licensed manufactured home retailer. It does not include individual employees of licensed installers and retailers, unless such individuals are duly licensed as installers or retailers in accordance with this chapter;
- (3)
“Manufactured home” is defined as in § 68-126-202;
- (4)
“Person” means any individual, firm, association, corporation, or legal entity; and
- (5)
“Set-up” means an installation of the manufactured home according to the manufacturer's installation instructions or those provided in § 68-126-403(c)(2)-(4), and includes, but is not limited to, site preparation; support structures, including footings, piers, caps and shims; anchoring systems; connection, fastening, moisture barrier installation between sections, and roofing dry-in of multi-sections; HVAC duct connections; plumbing and electrical cross-over connections; completion of exterior siding; installation of heating application ventilation systems or fireplace chimney systems; and completion of hinged roof sections.
§ 68-126-403. Installation criteria and standards.
- (a)
It is unlawful to occupy any manufactured home in this state, unless the manufactured home has been installed by a person licensed by the commissioner to make such installation.
- (b)
It is unlawful for any person to locate or relocate any manufactured home in this state, other than a home heretofore exempt, or a home previously installed and inspected according to rules in effect at the time of location on the site, unless the installation of the manufactured home has been done by a person licensed by the commissioner to make such installation.
- (c)
New homes shall be installed according to the following criteria:
- (1)
In compliance with manufacturer instructions that are Design Approval Primary Inspection Agency (DAPIA) approved, if provided or available;
- (2)
- (A)
If the manufacturer has not provided or does not make available suitable instructions, then the home shall be installed according to instructions that, at a minimum, meet federal manufactured home installation standards as provided in 24 CFR 3285, promulgated pursuant to the National Manufactured Home Construction and Safety Standards Act of 1974 (42 U.S.C. § 5401 et seq.) and are prepared and sealed by an engineer registered in this state; or
- (B)
If an alternative to subdivision (c)(1) or (c)(2)(A) is required, the installation of the home shall, at a minimum, meet federal manufactured home installation standards as provided in 24 CFR 3285, promulgated pursuant to the National Manufactured Home Construction and Safety Standards Act of 1974; and
- (3)
Installation shall comply with federal emergency management agency regulations applicable to flood zones.
- (d)
Used homes installed after July 1, 2003, shall be installed according to the following criteria:
- (1)
In compliance with the manufacturer's manual in use at the time the home was manufactured;
- (2)
As an alternative to subdivision (d)(1), the home shall be installed according to instructions prepared and sealed by an engineer registered in the state of Tennessee; or
- (3)
As an alternative to subdivisions (d)(1) and (2), the home may be installed according to the instructions in ANSI 225.1, 1994 Edition, until such time as federal standards are implemented pursuant to the Manufactured Housing Improvement Act of 2000, at which time the federal standards shall supplant the ANSI 225.1, 1994 Edition, instructions; and
- (4)
In addition to the requirements of subdivisions (d)(1), (d)(2) or (d)(3), installation shall comply with federal emergency management agency regulations applicable to flood zones.
- (e)
The provisions of subdivision (d)(3) that would require French drains shall not apply to manufactured homes installed in any portion of a mobile home or manufactured home trailer park operating as such on or before January 1, 2004, in which all the lots have all underground utilities, so long as the installation otherwise prevents water build-up under the home, shifting or settling of the foundation, dampness in the home, damage to siding and bottom board, buckling of walls and floors and problems with the operation of doors and windows.
§ 68-126-404. Licensing and certification of installers — Fees, bonds, and penalties.
- (a)
No person may install a manufactured home in this state unless such person is licensed by the commissioner as an installer. Any subcontractor used by an installer to perform installation work in accordance with § 68-126-205 shall be duly licensed as an installer or shall be covered under the installer's bond. At least one (1) person who actually performs installation work at the site shall be certified by the commissioner in accordance with subdivision (d)(2).
- (b)
In addition to meeting other lawful requirements, an applicant for a license as an installer shall present, at the time of application, proof of having completed a fifteen-hour course, approved by the commissioner, covering the installation of manufactured homes.
- (c)
Prior to being issued a license as an installer, an applicant shall have passed an examination in manufactured home installation that is approved by the commissioner.
- (d)
- (1)
An application for a license as an installer shall be submitted on a form prescribed by the commissioner, and shall be accompanied by a fee as set by the commissioner by rule, promulgated pursuant to the Uniform Administrative Procedures Act, compiled in title 4, chapter 5; provided, however, that the first percentage increase after January 1, 2016, shall not exceed one hundred percent (100%) of the current fee; provided, further, that the fee for an installer's license shall not exceed one hundred twenty-five dollars ($125). An application for a license as an installer shall be accompanied by a surety bond executed by the applicant as principal and by a surety company qualified to do business in this state as a surety. The bond shall be executed to the state of Tennessee and in favor of any consumer who shall suffer any loss as a result of the violation of this part. The bond shall be in the amount of ten thousand dollars ($10,000). The installer license fee shall be paid annually and shall not be prorated for portions of a year. All licenses shall expire one (1) year from the date of issuance.
- (2)
An application for certification by an employee of an installer shall be submitted on a form prescribed by the commissioner and shall be accompanied by proof of having completed a fifteen-hour course and passed an examination approved by the commissioner covering the installation of manufactured homes. The license fee and bond requirements specified in subdivision (d)(1) shall not apply to applicants for certification. All certifications shall expire one (1) year from the date of issuance.
- (3)
The application for a license as an installer shall specify each employee who has been certified by the commissioner as having successfully completed the examination for manufactured home retailers and installers, and who will or may be physically on site at the time of setup of any manufactured home.
- (4)
In addition to the license fee for the issuance of an installer license, any installer who fails to renew such installer license on or before its expiration date or who commences business in this state prior to obtaining a license shall be required to pay a penalty in an amount that the commissioner may determine by duly promulgated rule for acting as an installer without a license.
- (e)
In addition to the requirements of subdivision (d)(1), after January 1, 2004, and as a prerequisite to renewal of a license as an installer, the installer shall present proof of having completed five (5) hours of continuing education in manufactured home installation, approved by the commissioner, during the twelve-month period immediately preceding renewal. After January 1, 2004, any person desiring to renew certification shall present proof of having completed five (5) hours of continuing education in manufactured home installation, approved by the commissioner, during the twelve-month period immediately preceding renewal.
- (f)
The commissioner may require installers to establish and maintain such records, make such reports, and provide such information as may be necessary to ensure compliance with this part.
- (g)
Installers of HVAC systems who are engaged in the activities described in § 68-126-402(4) in conjunction with the installation of HVAC systems are exempt from the requirements of this section.
§ 68-126-405. Administration — Rules and regulations — Standards.
- (a)
The state fire marshal is charged with the administration of this part.
- (b)
The state fire marshal shall, in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, promulgate rules and regulations for carrying into effect all provisions of this part.
- (1)
The rules and regulations shall include standards for the manufacture, approval, and installation of anchor systems.
- (2)
In the formulation of such standards, the state fire marshal shall strive to protect the public to a reasonable degree from dangers associated with overturning and sliding of manufactured homes, without unduly increasing their cost to consumers.
- (3)
The state fire marshal shall include, in the rules and regulations required above, minimum standards for support systems for manufactured homes.
§ 68-126-406. Inspection — Permit — Fee.
- (a)
All manufactured homes required to be installed pursuant to § 68-126-403 may be inspected for compliance with applicable standards by qualified manufactured housing inspectors provided by the commissioner. Such inspectors shall have specialized training in manufactured housing installation inspection. The form and manner of training shall be determined by the commissioner.
- (b)
The installer shall apply for an installation permit prior to installing a manufactured home and shall pay an inspection fee of forty-five dollars ($45.00). The permit may be purchased and the fee shall be paid to the county clerk in any county of this state. The county clerk shall retain eight dollars ($8.00) of each permit fee and remit thirty-seven dollars ($37.00) to the commissioner. The fees shall be remitted to the commissioner on a monthly basis, not later than the twentieth day of the month following the month in which the fee is paid, and such remittance shall include a report of the license numbers of the installers and retailers who purchase permits and the corresponding permit numbers sold.
- (c)
All fees remitted to the commissioner, plus any funds received by the state from the federal department of housing and urban development for manufactured housing, shall be allocated to a fund within the general fund called the manufactured housing fund and shall, subject to appropriation, be utilized exclusively to fund the commissioner's regulatory activities pertaining to manufactured homes. Funds deposited in the manufactured housing fund shall not revert to the general fund at the end of the fiscal year but shall remain available for appropriation for the purposes provided in this subsection (c).
- (d)
In case of rejection of any part of the home installation, a separate forty-five dollar ($45.00) fee shall be charged to the installer.
- (e)
The commissioner shall ensure that at least five percent (5%) of manufactured homes installed in the state each year are inspected; provided, however, that there shall be at least one (1) inspection of a home installed by each installer each year. Inspection shall occur within twenty (20) business days after the commissioner's receipt of the installer's report. Each installer shall submit a report to the commissioner on at least a weekly basis describing the homes installed by the installer that week. Such report shall include, at a minimum, the name and address of the retailer and the location of each home installed.
- (f)
Upon payment of the inspection fee, the county clerk shall provide the purchaser a permit decal. The commissioner shall provide the permit decals to the county clerk. Installers and retailers may purchase decals from the county clerk; provided, however, that the commissioner shall account for all permits.
- (g)
A permit decal shall be placed on each new and used home that is installed after January 1, 2004. The decal shall be affixed inside the electrical panel box cover. The installer shall write the address where the home is located on the permit. The state or local electrical inspector shall not authorize electricity to be turned on at the home if no installation decal is on the home when the electrical installation is done.
- (h)
If a permit decal is lost or destroyed, the applicant for a replacement decal shall pay to the county clerk a fee of forty-five dollars ($45.00), from which the county clerk shall retain eight dollars ($8.00) and remit thirty-seven dollars ($37.00) to the commissioner. The applicant for the replacement permit decal shall provide to the county clerk an affidavit stating that the decal was lost or destroyed. The county clerk shall submit a copy of the affidavit for any replacement permit decal issued with the monthly report to the commissioner.
§ 68-126-408. Alteration of installations.
-
It is unlawful for any person to alter any anchoring installation that has been inspected and approved without the written consent of the state fire marshal or the state fire marshal's authorized agent.
§ 68-126-410. Violations — Penalties — Injunctions.
- (a)
For purposes of this section, “imminent safety hazard” means a hazard creating an imminent and unreasonable risk of death or severe personal injury.
- (b)
Any person who violates any provision of this part, or any rule or regulation promulgated under this part, shall be subject to the following penalties:
- (1)
If the violation does not create an imminent safety hazard, the following shall apply:
- (A)
The commissioner shall notify the installer, in writing, of the violation or violations and direct the installer to correct the violation or violations within thirty (30) days of the date of the letter. Such notification shall also be sent to the retailer. Upon appropriate written request, the commissioner may grant an extension of time to correct the violation or violations. In determining whether such a violation has occurred, the inspector shall take into account the manufacturer's installation instructions. The installer shall respond to the commissioner, in writing, and confirm that corrections have been made and outline the steps taken to correct the violation or violations. The commissioner may reinspect the home or verify with the homeowner that corrections were made;
- (B)
If after notification of the violation or violations and after thirty (30) days have passed, the installer has not corrected the violations, then the commissioner may, after providing notice and an opportunity for a hearing pursuant to the Uniform Administrative Act, compiled in title 4, chapter 5, revoke or suspend the license of the installer. In addition to or in lieu of any other lawful discipline, the commissioner may assess a civil penalty in accordance with the following schedule:
- (i)
For a first offense within a one-year period, a civil penalty of one hundred dollars ($100);
- (ii)
For a second offense not involving the same violation within a one-year period, a civil penalty in an amount of one hundred dollars ($100) to five hundred dollars ($500);
- (iii)
For a third or subsequent offense not involving the same violation within a two-year period, a civil penalty in an amount of five hundred dollars ($500) to two thousand five hundred dollars ($2,500);
- (iv)
For a second or subsequent offense involving the same violation within a two-year period, a civil penalty of two thousand five hundred dollars ($2,500); and
- (v)
In addition to or in lieu of imposing other lawful discipline, the commissioner may require an installer to take additional education or retake the examination or both; and
- (C)
In any finding of violation or violations, the inspector shall cite on the inspection report the section from the manufacturer's installation instructions, or other applicable installation standards, pertaining to the violation or violations. If the responsibility for the violation or violations is not clear and the retailer presents no documentation to the contrary, the retailer shall be held responsible for the entire installation;
- (2)
If the violation creates an imminent safety hazard, the following shall apply:
- (A)
The commissioner shall notify the installer immediately, in writing, of the violation or violations and direct the installer to correct the violation or violations immediately. Such notification shall also be sent to the retailer. In determining whether such a violation has occurred, the inspector shall take into account the manufacturer's installation instructions. The installer shall respond to the commissioner, in writing, within twenty-four (24) hours of receiving notification of the violation or violations and provide a plan of corrective action outlining the steps that will be taken to correct the violation or violations. The commissioner may reinspect the home or verify with the homeowner that corrections were made;
- (B)
If after notification of the violation or violations and after twenty-four (24) hours have passed, the installer has not submitted an acceptable plan of corrective action, then the commissioner may, after providing notice and an opportunity for a hearing pursuant to the Uniform Administrative Act, revoke or suspend the license of the installer. In addition to or in lieu of any other lawful discipline, the commissioner may assess a civil penalty in accordance with the schedule set forth in subdivision (b)(1)(B);
- (C)
In addition to or in lieu of imposing other lawful discipline, the commissioner may require an installer to take additional education or retake the examination or both; and
- (D)
In any finding of a violation or violations, the inspector shall cite on the inspection report the section from the manufacturer's installation instructions, or other applicable installation standards, pertaining to the violation or violations. If the responsibility for the violation or violations is not clear and the installer presents no documentation to the contrary, the retailer shall be held responsible for the entire installation.
- (c)
Any person who violates any provision of this part, or of any rule or regulation promulgated pursuant to this part, commits a Class C misdemeanor.
- (d)
The commissioner may also seek injunctive relief against any violation of this part, or of any rule or regulation promulgated pursuant to this part, in accordance with the procedure established in § 68-135-111.
§ 68-126-411. Disposition of revenue.
-
All revenue resulting from the administration of this part shall be placed to the credit of the manufactured housing fund, and shall be used accordingly.
§ 68-126-412. Preemption — Supersession.
-
It is the intention of the general assembly that this part, and the regulations issued pursuant thereto, preempt any local ordinance or regulation of the installation of manufactured homes. All city, county and consolidated government resolutions, ordinances, regulations and code requirements on installation of manufactured homes are superseded by this chapter, and regulations issued thereto.
Chapter 131 Hazardous Substances
Part 1 Tennessee Hazardous Substances Act
§ 68-131-102. Part definitions.
-
As used in this part, unless the context otherwise requires:
- (1)
“Antifreeze” means any substance or preparation sold, distributed or intended for use as the cooling liquid or to be added to the cooling liquid in the cooling system of internal combustion engines of motor vehicles to prevent freezing of the cooling liquid or to lower its freezing point.
- (2)
- (A)
“Banned hazardous substance” means:
- (i)
Any toy or other article intended for use by children, that:
- (a)
Is a hazardous substance;
- (b)
Bears or contains a hazardous substance in such manner as to be susceptible of access by a child to whom such toy or other article is entrusted; or
- (c)
Is otherwise hazardous because it presents electrical, mechanical or thermal hazards; or
- (ii)
Any hazardous substance intended or packaged in a form suitable for use in household, that the commissioner by regulation classifies as a banned hazardous substance on the basis of a finding that, notwithstanding such cautionary labeling as is or may be required under this part for that substance, the degree or nature of the hazard involved in the presence or use of such substance in households is such that the objective of the protection of the public health and safety can be adequately served only by keeping such substance, when so intended or packaged, out of the channels of commerce; provided, that the commissioner, by regulation:
- (a)
Shall exempt from subdivision (2)(A)(i) articles, such as chemical sets, that by reason of their functional purpose require the inclusion of the hazardous substance involved, and that bear labeling giving adequate directions and warnings for safe use and are intended for use by children who have attained sufficient maturity, and may reasonably be expected, to read and heed such directions and warnings; and
- (b)
Shall exempt from subdivision (2)(A)(i), and provide for the labeling of common fireworks, including toy paper caps, cone fountains, cylinder fountains, whistles without report, and sparklers, to the extent that the commissioner determines that such articles can be adequately labeled to protect the purchasers and users of the articles;
- (B)
Proceedings for the issuance, amendment, or repeal of regulations pursuant to subdivision (2)(A)(ii) shall be governed by § 68-131-103;
- (C)
If any substance or article is determined to be a banned hazardous substance after the sale of such substance or article by a manufacturer or a distributor to a distributor or a dealer and prior to the sale of such substance or article by such distributor or dealer, the distributor shall immediately repurchase such substance or article at the price paid by such dealer, plus the transportation charges involved, and the manufacturer shall immediately repurchase from the distributor, or from the dealer if there is no distributor, such substance or article unsold or repurchased at the price paid, plus all transportation charges involved;
- (3)
“Bittering agent” means denatonium benzoate;
- (4)
“Commerce” means any and all commerce within the state of Tennessee and subject to the jurisdiction of the state of Tennessee, and includes the operation of any business or service establishment;
- (5)
“Commissioner” means the commissioner of agriculture or the commissioner's legally authorized representative or agent;
- (6)
“Corrosive” means any substance that, in contact with living tissue, will cause destruction of tissue by chemical action, but does not refer to action on inanimate surfaces;
- (7)
“Department” means the Tennessee department of agriculture;
- (8)
“Electrical” means of or pertaining to the flow of an electrical charge or to electrons in motion; an article may be determined to present an “electrical hazard,” if, in normal use or when subjected to reasonably foreseeable damage or abuse, its design or manufacture may cause personal injury or illness by electric shock resulting from current leakage, inadequate insulation, accessibility of live parts, or other conditions;
- (9)
“Extremely flammable” applies to any substance that has a flash point at or below twenty degrees Fahrenheit (20° F), as determined by the Tagliabue Open Cup Tester and “combustible” applies to any substance that has a flash point above eighty degrees Fahrenheit (80° F), to and including one hundred fifty degrees Fahrenheit (150° F), as determined by the Tagliabue Open Cup Tester; and “flammable” applies to any substance that has a flash point above twenty degrees Fahrenheit (20° F), to and including eighty degrees Fahrenheit (80° F), as determined by the Tagliabue Open Cup Tester; except that the flammability or combustibility of solids and of the contents of self-pressurized containers shall be determined by methods found by the commissioner to be generally applicable to such materials or containers, respectively, and established by regulations issued by the commissioner, which regulations shall also define the terms “flammable,” “combustible” and “extremely flammable” in accordance with such methods;
- (10)
- (A)
“Hazardous substance” means:
- (i)
Any substance or mixture of substances that:
- (a)
Is toxic;
- (b)
Is corrosive;
- (c)
Is an irritant;
- (d)
Is a strong sensitizer;
- (e)
Is flammable or combustible; or
- (f)
Generates pressure through decomposition, heat, or other means, if such substance or mixture of substances may cause substantial personal injury or substantial illness during or as a proximate result of any customary or reasonably foreseeable handling or use, including reasonably foreseeable ingestion by children;
- (ii)
Any substances that the commissioner by regulation finds, pursuant to § 68-131-103(a), meet the requirements of subdivision (10)(A)(i);
- (iii)
Any radioactive substance, if, with respect to such substance as used in a particular class of article or as packaged, the commissioner determines by regulation that the substance is sufficiently hazardous to require labeling in accordance with this part in order to protect the public health;
- (iv)
Any toy or other article intended for use by children that the commissioner finds, pursuant to § 68-131-103(e), meets the requirements of subdivision (10)(A)(i)(d);
- (B)
“Hazardous substance” does not apply to economic poisons subject to the Federal Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. §§ 135-135R) or the Tennessee Insecticide, Fungicide, and Rodenticide Act, compiled in title 43, chapter 8, nor to foods, drugs, and cosmetics subject to the Tennessee Food, Drug, and Cosmetic Act, compiled in title 53, chapter 1, nor to substances intended for use as fuels when stored in containers and used in the heating, cooking, or refrigeration system of a house, but “hazardous substance” does apply to any article that is not itself an economic poison within the meaning of the Federal Insecticide, Fungicide, and Rodenticide Act or the Tennessee Insecticide, Fungicide, and Rodenticide Act, but that is a hazardous substance within the meaning of subdivision (10)(A) by reason of bearing or containing such an economic poison; and
- (C)
“Hazardous substance” does not include any source material, special nuclear material, or by-product material as defined in the Atomic Energy Act of 1954 (42 U.S.C. § 2011 et seq.) and regulations issued pursuant to that act by the atomic energy commission;
- (11)
- (A)
“Highly toxic” means any substance that falls within any of the following categories:
- (i)
Produces death within fourteen (14) days in one-half (½) or more than one-half (½) of a group of ten (10) or more laboratory white rats, each weighing between two hundred (200) and three hundred (300) grams, at a single dose of fifty (50) milligrams or less per kilogram of body weight, when orally administered;
- (ii)
Produces death within fourteen (14) days in one-half (½) or more than one-half (½) of a group of ten (10) or more laboratory white rats, each weighing between two hundred (200) and three hundred (300) grams, when inhaled continuously for a period of one (1) hour or less at an atmosphere concentration of two hundred (200) parts per million (1,000,000) by volume or less of gas or vapor or two (2) milligrams per liter by volume or less of mist or dust; provided, that such concentration is likely to be encountered by a person when the substance is used in any reasonably foreseeable manner; or
- (iii)
Produces death within fourteen (14) days in one-half (½) or more than one-half (½) of a group of ten (10) or more rabbits tested in a dosage of two hundred (200) milligrams or less per kilogram of body weight, when administered by continuous contact with the bare skin for twenty-four (24) hours or less;
- (B)
If the commissioner finds that available data on human experience with any substance indicate results different from those obtained on animals in the dosages or concentrations provided for in subdivision (11)(A), the human data shall take precedence;
- (12)
“Immediate container” does not include package liners;
- (13)
“Irritant” means any substance not corrosive within the meaning of subdivision (6), which on immediate, prolonged, or repeated contact with normal living tissue will induce a local inflammatory reaction;
- (14)
“Label” means a display of written, printed, or graphic matter upon the immediate container of any substance, or in the case of an article that is unpackaged or is not packaged in an immediate container intended or suitable for delivery to the ultimate consumer, a display of such matter directly upon the article involved or upon a tag or other suitable material affixed to the article, and a requirement made by or under authority of this part that any word, statement, or other information appearing on the label shall not be considered to be complied with, unless such word, statement, or other information also appears:
- (A)
On the outside container or wrapper, if any there be, unless it is easily legible through the outside container or wrapper; and
- (B)
On all accompanying literature where there are directions for use, written or otherwise;
- (15)
“Mechanical” means of or pertaining to the design, construction or structure of a substance; an article may be determined to present a “mechanical hazard,” if, in normal use or when subjected to reasonably foreseeable damage or abuse, its design or manufacture presents an unreasonable risk of personal injury or illness by strangulation, suffocation, asphyxiation, fragmentation, explosion, puncture, or other mechanical means;
- (16)
“Misbranded hazardous substance” means a hazardous substance, including a toy, or other article intended for use by children, which is a hazardous substance, or which bears or contains a hazardous substance in such manner as to be susceptible of access by a child to whom such toy or other article is entrusted, intended or packaged in a form suitable for use in the household or by children, which substance, except as otherwise provided by or pursuant to § 68-131-103, fails to bear a label:
- (A)
That states conspicuously:
- (i)
The name and place of business of the manufacturer, packer, distributor, or seller;
- (ii)
The common or usual name or the chemical name, if there be no common or usual name, of the hazardous substance or of each component that contributes substantially to its hazard, unless the commissioner by regulation permits or requires the use of a recognized generic name;
- (iii)
The signal word “DANGER” on substances that are extremely flammable, corrosive, or highly toxic;
- (iv)
The signal word “WARNING” or “CAUTION” on all other hazardous substances;
- (v)
An affirmative statement of the principal hazard or hazards, such as “Flammable,” “Combustible,” “Vapor Harmful,” “Causes Burns,” “Absorbed Through Skin,” or similar wording descriptive of the hazard;
- (vi)
Precautionary measures describing the action to be followed or avoided, except when modified by regulation of the commissioner pursuant to § 68-131-103;
- (vii)
Instruction, when necessary or appropriate, for first aid treatment;
- (viii)
The word “poison” for any hazardous substance that is defined as “highly toxic” by subdivision (11);
- (ix)
Instructions for handling and storage of bulk shipments and packages that require special care in handling or storage; and
- (x)
The statement:
- (a)
“Keep out of the reach of children” or its practical equivalent; or
- (b)
If the article is intended for use by children and is not a banned hazardous substance, adequate directions for the protection of children from the hazard; and
- (B)
On which any statements required under subdivision (16)(A) are located prominently and are in the English language in conspicuous and legible type in contrast by typography, layout, or color with other printed matter on the label;
- (17)
“Person” includes an individual, partnership, corporation, or association, or the person's legal representative or agent;
- (18)
“Radioactive substance” means a substance that emits ionizing radiation;
- (19)
“Strong sensitizer” means a substance that will cause on normal living tissue, through an allergic or photodynamic process, a hypersensitivity that becomes evident on reapplication of the same substances and that is designated as such by the commissioner. Before designating any substance as a strong sensitizer, the commissioner, upon consideration of the frequency of occurrence and severity of the reaction, shall find that the substance has a significant potential for causing hypersensitivity;
- (20)
“Thermal” means of or pertaining to the transfer or manifestation of heat energy; an article may be determined to present a “thermal hazard” if it has surfaces or parts normally touched, handheld, or grasped that exceed a temperature of one hundred thirteen degrees Fahrenheit (113° F), or one hundred forty degrees Fahrenheit (140° F) in the case of surfaces other than metal, or if it has surfaces or parts exceeding one hundred forty degrees Fahrenheit (140° F), in normal use or when subjected to reasonably foreseeable damage or abuse, that may be touched accidentally, causing personal injury or illness. However, articles that have parts or surfaces exceeding a temperature of one hundred forty degrees Fahrenheit (140° F) that may be touched accidentally and are not normally touched, handheld, or grasped shall not be found to present a thermal hazard, if the following three (3) conditions are met:
- (A)
The article requires such surfaces or parts in order to perform the normal function or purpose of the article;
- (B)
The article bears labeling giving directions and warnings for safe use; and
- (C)
Because of such labeling and warnings or other factors, the article is likely to be used only by children who will comprehend the warning and use the toy safely. Temperature tests shall be made at an ambient room temperature of seventy-seven degrees Fahrenheit (77° F) (25° C); and
- (21)
“Toxic” applies to any substance, other than a radioactive substance, that has the capacity to produce personal injury or illness to a human through ingestion, inhalation or absorption through any body surface.
§ 68-131-103. Regulations declaring hazardous substances and establishing variations and exemptions.
- (a)
Whenever in the judgment of the commissioner such action will promote the objectives of this part by avoiding or resolving uncertainty as to application, the commissioner may by regulation declare to be a hazardous substance, for the purposes of this part, any substance or mixture of substances that the commissioner finds meets the requirements of § 68-131-102(10)(A)(i).
- (b)
If the commissioner finds that the requirements of § 68-131-102(16)(A) are not adequate for the protection of the public health and safety in view of the special hazard presented by any particular hazardous substance, the commissioner may by regulation establish such reasonable variations or additional label requirements as the commissioner finds necessary for the protection of the public health and safety; and any such hazardous substance intended, or packaged in a form suitable, for use in the household or by children, that fails to bear a label in accordance with such regulations shall be deemed to be a misbranded hazardous substance.
- (c)
If the commissioner finds that, because of the size of the package involved or because of the minor hazard presented by the substance contained in the package, or for other good and sufficient reasons, full compliance with the labeling requirements otherwise applicable under this part is impracticable or is not necessary for the adequate protection of the public health and safety, the commissioner shall promulgate regulations exempting such substances from these requirements to the extent the commissioner determines to be consistent with adequate protection of the public health and safety.
- (d)
If the commissioner finds that the hazard of an article subject to this part is such that labeling adequate to protect the public health and safety cannot be devised, or the article presents an imminent danger to the public health and safety, the commissioner may declare the article to be a banned hazardous substance and require its removal from commerce.
- (e)
A regulation issued in accordance with § 3(e) of the Federal Hazardous Substances Act (15 U.S.C. § 1261 et seq.) which restricts the sale or labeling of a toy or other article intended for use by children because of an electrical, mechanical or thermal hazard, shall be an acceptable regulation for the purpose of this part.
§ 68-131-104. Prohibited acts.
-
The following acts, and the causing of the acts are prohibited:
- (1)
The introduction or delivery for introduction into commerce in the state of Tennessee of any misbranded hazardous substance;
- (2)
The alteration, mutilation, destruction, obliteration, or removal of the whole or any part of the label of, or the doing of any other act with respect to, a hazardous substance, if such act is done while the substance is in commerce, or while the substance is held for sale, whether or not the first sale, after shipment in commerce, and results in the hazardous substance being a misbranded hazardous substance or a banned hazardous substance;
- (3)
The receipt in commerce of any misbranded hazardous substance or banned hazardous substance and the delivery or proffered delivery of the hazardous substance for pay or otherwise;
- (4)
The giving of a guarantee or undertaking referred to in § 68-131-105(b)(2), which guarantee or undertaking is false, except by a person who relied upon a guarantee or undertaking to the same effect signed by, and containing the name and address of, the person residing in the United States from whom such person received in good faith the hazardous substance;
- (5)
The failure to permit entry or inspection as authorized by § 68-131-110(a) or to permit access to and copying of any record as authorized by § 68-131-111;
- (6)
- (A)
The introduction or delivery for introduction into commerce, or the receipt in commerce and subsequent delivery or proffered delivery for pay or otherwise, of a hazardous substance in a reused food, drug or cosmetic container or in a container that, though not a reused container, is identifiable as a food, drug, or cosmetic container by its labeling or by other identification. The reuse of a food, drug, or cosmetic container as a container for a hazardous substance shall be deemed to be an act that results in the hazardous substance being a misbranded hazardous substance;
- (B)
As used in subdivision (6)(A), “food,” “drug” and “cosmetic” have the same meanings as in the Tennessee Food, Drug, and Cosmetic Act, compiled in title 53, chapter 1;
- (7)
The use by any person to such person's own advantage, or revealing other than to the commissioner or officers or employees of the department, or to the courts when relevant in any judicial proceeding under this part, of any information acquired under authority of § 68-131-110 concerning any method or process that as a trade secret is entitled to protection; and
- (8)
The introduction into commerce of any antifreeze that is adulterated or misbranded or in violation of the requirements of this part or regulations.
§ 68-131-105. Penalties.
- (a)
Any person who violates any of the provisions of § 68-131-104 commits a Class B misdemeanor.
- (b)
No person shall be subject to the penalties of subsection (a) for having violated:
- (1)
Section 68-131-104(3), if the receipt, delivery, or proffered delivery of the hazardous substance was made in good faith, unless such person refuses to furnish on request of an officer or employee duly designated by the commissioner, the name and address of the person from whom such person purchased or received such hazardous substance, and copies of all documents, if any there be, pertaining to the delivery of the hazardous substance to such person; or
- (2)
Section 68-131-104(1), if such person establishes a guarantee or undertaking signed by, and containing the name and address of, the person residing in the United States from whom such person received in good faith the hazardous substance, to the effect that the hazardous substance is not a misbranded hazardous substance or a banned hazardous substance within the meaning of those terms in this part.
§ 68-131-106. Injunction proceedings.
-
In addition to the remedies provided in this part, the commissioner is authorized to apply to a competent court in this state, and such court shall have jurisdiction upon hearing and for cause shown, to grant a temporary or permanent injunction restraining any person from violating any provision of § 68-131-104, irregardless of whether or not there exists an adequate remedy at law.
§ 68-131-107. Detention of misbranded or banned hazardous substances — Petition for libel of condemnation.
- (a)
Whenever a duly authorized agent of the commissioner finds or has probable cause to believe that any hazardous household substance is misbranded, or is a banned hazardous substance, within the meaning of this part, the agent shall affix to such article a tag or other appropriate marking, giving notice that such article is, or is suspected of being, misbranded or is a banned hazardous substance and has been detained or embargoed, and warning all persons not to remove or dispose of such article by sale or otherwise until permission for removal or disposal is given by such agent or the court. It is unlawful for any person to remove or dispose of such detained or embargoed article by sale or otherwise without such permission. An official order issued under authority of the federal Hazardous Substances Act (15 U.S.C. § 1261 et seq.) shall be probable cause for the commissioner to invoke the requirements of this section.
- (b)
- (1)
When an article detained or embargoed under subsection (a) has been found by such agent to be misbranded or a banned hazardous substance, the agent shall petition the court in whose jurisdiction the article is detained or embargoed for a libel of condemnation of such article. In an emergency and by agreement of all parties, the commissioner may detain such hazardous substance until final disposition can be made.
- (2)
When such agent has found that an article so detained or embargoed is not misbranded or a banned hazardous substance, the agent shall remove the tag or other marking.
- (c)
If the court finds that a detained or embargoed article is misbranded or a banned hazardous substance, such article shall, after entry of the decree, be destroyed at the expense of the claimant of the article, under supervision of such agent, and all court costs and fees, and storage and other proper expenses, shall be taxed against the claimant of the article or the claimant's agent; provided, that when the misbranding can be corrected by proper labeling of the article, the court, after entry of the decree and after such costs, fees, and expenses have been paid and a good and sufficient bond, conditioned that such article shall be so labeled, has been executed, may by order direct that such article be delivered to claimant of the article for such labeling under the supervision of an agent of the commissioner. The expense of such supervision shall be paid by the claimant. The article shall be returned to the claimant on the representation to the court by the commissioner that the article is no longer in violation of this part, and that the expenses of such supervision have been paid.
§ 68-131-108. Hearing before report of criminal violation.
-
It is the duty of each district attorney general, county attorney or city attorney to whom the commissioner reports any violation of this part, to cause appropriate proceedings to be instituted in the proper courts without delay and to be prosecuted in the manner required by law. Before any violation of this part is reported to any such attorney for the institution of a criminal proceeding, the person against whom such proceeding is contemplated shall be given appropriate notice and an opportunity to present such person's views before the commissioner, either orally or in writing, in person, or by attorney, with regard to such contemplated proceeding.
§ 68-131-109. Regulations.
- (a)
The authority to promulgate regulations for the efficient enforcement of this part is vested in the commissioner.
- (b)
The commissioner shall cause the regulations promulgated under this part to conform, insofar as practicable, with the regulations established pursuant to the federal Hazardous Substances Act (15 U.S.C. § 1261 et seq.).
§ 68-131-110. Examinations and investigations.
- (a)
For the purposes of enforcement of this part, officers or employees duly designated by the commissioner, upon presenting appropriate credentials to the owner, operator or agent in charge, are authorized to:
- (1)
Enter, at reasonable times, any factory, warehouse, or establishment in which hazardous substances are manufactured, processed, packed or held for introduction into commerce or are held after such introduction, or to enter any vehicle being used to transport or hold such hazardous substances in commerce;
- (2)
Inspect, at reasonable times, and within reasonable limits and in a reasonable manner, such factory, warehouse, establishment or vehicle, and all pertinent equipment, finished and unfinished materials, and labeling in the factory, warehouse, establishment or vehicle; and
- (3)
Obtain samples of such materials or packages of materials, or of such labeling.
- (b)
If the officer or employee obtains any sample prior to leaving the premises, the officer or employee shall pay or offer to pay the owner, operator, or agent in charge for such sample and give a receipt describing the samples obtained.
§ 68-131-111. Records of shipment.
-
For the purpose of enforcing this part, carriers engaged in commerce, and persons receiving hazardous substances in commerce or holding such hazardous substances so received, shall, upon the request of an officer or employee duly designated by the commissioner, permit such officer or employee at reasonable times, to have access to and to copy all records showing the movement in commerce of any such hazardous substances, or the holding of the hazardous substances during or after such movement, and the quantity, shipper, and consignee of the hazardous substances, and it is unlawful for any such carrier or person to fail to permit such access to and copying of any record so requested when such request is accompanied by a statement in writing specifying the nature or kind of such hazardous substance to which such request relates; provided, that evidence obtained under this section shall not be used in a criminal prosecution of the person from whom obtained; and provided further, that carriers shall not be subject to the other provisions of this part by reason of their receipt, carriage, holding, or delivery of hazardous substances in the usual course of business as carriers.
§ 68-131-112. Publicity.
- (a)
The commissioner may cause to be published, from time to time, summaries of any judgments, decrees, or court orders that have been rendered under this part, including the nature and the disposition of the charge.
- (b)
The commissioner may also cause to be disseminated information regarding hazardous substances in situations involving, in the opinion of the commissioner, imminent danger to health.
- (c)
Nothing in this section shall be construed to prohibit the commissioner from collecting, reporting and illustrating the results of the investigations of the department.
§ 68-131-113. Bittering agent added to antifreeze or engine coolant — Liability — Construction regarding sale of motor vehicle — Violations — Selection of alternative bittering agent.
- (a)
Any and all antifreeze or engine coolant containing at least ten percent (10%) ethylene glycol that is manufactured on or after January 1, 2010, shall contain a bittering agent in a minimum concentration of thirty parts per million (30 p.p.m.) but not to exceed a maximum concentration of fifty parts per million (50 p.p.m.).
- (b)
No manufacturer, processor, distributor, recycler or seller of antifreeze or engine coolant containing at least ten percent (10%) ethylene glycol that complies with this section in this state shall be liable for any personal injury, death, property damage, environmental damage or economic loss caused by the required inclusion of the bittering agent to the antifreeze or engine coolant. The limitation on liability provided in this subsection (b) does not apply to a particular liability to the extent that the cause of the liability is unrelated to the inclusion of denatonium benzoate in any engine coolant or antifreeze.
- (c)
The requirements of this section shall not be construed to apply to the sale of a motor vehicle that contains engine coolant or antifreeze.
- (d)
Any person violating this section commits a Class C misdemeanor, punishable only by a fine of fifty dollars ($50.00) per occurrence.
- (e)
Upon a determination by a federal or state authority that denatonium benzoate is unsuitable for use, based on a threat to health and safety or the environment, the commissioner of agriculture shall establish by rulemaking hearing, as required by the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, part 2, a bittering agent that shall be required instead; provided, however, that the initial rules establishing the bittering agent shall be promulgated as emergency rules in compliance with § 4-5-208.
§ 68-131-114. Sale of preparations or products containing sulfuric acid for use in the household.
-
Notwithstanding any provision of this part, or any rule or regulation to the contrary, liquid drain openers containing sulfuric acid and any preparation or product containing sulfuric acid in a concentration of ten percent (10%) or higher intended or packaged in a form suitable for use in households may be sold in this state if the product and packaging conforms to federal law, including, but not limited to, the federal Hazardous Substance Act (15 U.S.C. § 1261 et seq.), the Poison Prevention Packaging Act (15 U.S.C. §§ 1471-1477), and all applicable federal regulations.
Part 2 Hazardous Materials Good Samaritan Law
§ 68-131-201. Part definitions.
-
As used in this part, unless the context otherwise requires:
- (1)
“Compensation” shall not be construed to include the reimbursement of the actual expenses, exclusive of salaries, of any person rendering emergency care, assistance or advice;
- (2)
“Hazardous materials” includes:
- (A)
Materials designated as hazardous by any governmental agency; or
- (B)
Materials where the fire or explosion of or spillage, seepage or other discharge or release or possibility thereof creates a hazard to person, property or the environment; and
- (3)
“Person” includes any individual, partnership, corporation, association or other entity.
§ 68-131-202. General provisions.
- (a)
Any person, including medical personnel, who in good faith and without compensation renders emergency care, assistance or advice, or who provides care, assistance or advice upon the request of any police or fire department, rescue or emergency squad, or any governmental agency at the scene of an accident or an existing or impending disaster involving the use, handling, transportation, transmission or storage of hazardous materials shall not be liable for damages as a result of conduct in rendering such care, assistance or advice, unless the damage was caused by the gross negligence of the actor. Gross negligence also includes rendering care, assistance or advice with respect to matters in which the person rendering such care, assistance or advice does not possess the technical knowledge or skills concerning such matters.
- (b)
This part shall not apply to police, fire or other public officials or emergency service personnel who render emergency care, assistance or advice while on duty. This part shall not be construed to impose a level of liability upon police, fire, or other public officials or emergency service personnel greater than or in addition to the level of liability that may otherwise be provided by law.
§ 68-131-203. Limitation of immunity.
- (a)
The immunity from civil liability provided for by this part shall extend only to the actions taken by persons in rendering care, assistance or advice under § 68-131-202. This part does not confer any immunity from liability to any person for actions taken prior to or after the rendering of care, assistance or advice, and shall not affect any potential liability that any person may have arising from the manufacture, generation, transportation, storage or handling of any hazardous material.
- (b)
Any person who is in the business, for a compensation, of rendering care, assistance or advice in accidents or existing or impending disasters involving hazardous materials shall not be included under this part.
- (c)
This part shall not affect actions or remedies by or for any governmental agency pursuant to statutory authority.
Part 3 Toxic Art Supplies Labeling Act of Tennessee
§ 68-131-302. Legislative intent and purpose.
- (a)
It is the intent and purpose of this part to protect persons from exposure to art or craft materials containing toxic chemicals. This health risk threatens not only professional artists and craft persons, but art teachers, students at every educational level, hobbyists, and children. Toxic substances may be employed during the course and scope of creating art or craft objects of all varieties.
- (b)
The general assembly finds and declares that present labeling of ingredients and hazards of art or craft material is insufficient to adequately protect the consumers of this state from possible adverse health effects. Because many persons do not know the toxic chemical substances with which they work, proper precautionary actions cannot be taken. Disclosure of toxic ingredients, their potential adverse effects on health, and instructions on safe handling will substantially minimize unnecessary exposure to excessive risk.
- (c)
The general assembly further finds that it is consistent with the protection of the public interest to impose upon those who manufacture, repackage, distribute and sell art or craft materials a duty to convey to consumers information about the potential health hazards of the products they manufacture.
§ 68-131-303. Part definitions.
-
As used in this part, unless the context otherwise requires:
- (1)
“Art supplies” includes:
- (A)
Any raw or processed material or manufactured product marketed or being represented by the manufacturer, repackager or retailer as being suitable for use in any phase of the creation of any work of visual or graphic art of any medium. These media may include, but shall not be limited to, paintings, drawings, prints, sculpture, ceramics, enamels, jewelry, stained glass, plastic sculpture, photographs, leather, and textile goods;
- (B)
The term “art supplies” does not apply to economic poisons subject to the federal Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. §§ 135-135R) or the Tennessee Insecticide, Fungicide, and Rodenticide Act, compiled in title 43, chapter 8, or to foods, drugs, and cosmetics subject to the Tennessee Food, Drug and Cosmetic Act, compiled in title 53, chapter 1;
- (2)
“Commerce” means any and all commerce within the state of Tennessee and subject to the jurisdiction of the state of Tennessee, and includes the operation of any business or service establishment;
- (3)
“Commissioner” means the commissioner of agriculture or the commissioner's legally authorized representative or agent;
- (4)
“Department” means the department of agriculture;
- (5)
“Human carcinogen” means any substance listed as a human carcinogen by the International Agency for Research on Cancer;
- (6)
“Label” means a display of written, printed, or graphic matter upon the immediate container of any substance, or in the case of an article that is unpackaged or is not packaged in an immediate container intended or suitable for delivery to the ultimate consumer, a display of such matter directly upon the article involved or upon a tag or other suitable material affixed to the article, and a requirement made by or under authority of this part that any word, statement or other information appearing on the label shall not be considered to be complied with, unless such word, statement or other information also appears:
- (A)
On the outside container or wrapper, if any there be, unless it is easily legible through the outside container or wrapper; and
- (B)
On all accompanying literature where there are directions for use, written and otherwise; and
- (7)
“Toxic” includes any substance that, when ingested, inhaled or absorbed through the skin, has the capacity to produce personal injury or illness.
§ 68-131-304. Prohibitions — Labels — Warnings.
- (a)
No person shall distribute, sell, offer for sale, or expose for sale any art or craft material containing toxic substances causing chronic illness on which the person has failed to affix:
- (1)
A conspicuous label containing the signal word “WARNING,” to alert users of potential adverse health effects;
- (2)
A conspicuous label warning of the health-related dangers of the art or craft material;
- (A)
If the product contains a human carcinogen, the warning shall contain the statement “CANCER HAZARD! Overexposure may create cancer risk.”;
- (B)
If the product contains a toxic substance causing chronic illness, the warning shall contain, but not be limited to, the following statement or statements where applicable:
- (i)
May cause sterility or damage to reproductive organs;
- (ii)
May cause birth defects or harm to developing fetus;
- (iii)
May be excreted in human milk causing harm to nursing infant;
- (iv)
May cause central nervous system depression or injury;
- (v)
May cause numbness or weakness in the extremities;
- (vi)
Overexposure may cause damage to (specify organ); or
- (vii)
Heating above (specify degrees) may cause hazardous decomposition products;
- (C)
If a product contains more than one (1) chronically toxic substance, or if a single substance can cause more than one (1) chronic health effect, the required statements may be combined into one (1) warning statement;
- (3)
On the label a list of ingredients that are toxic substances causing chronic illness;
- (4)
On the label a statement or statements of safe use and storage instructions, conforming to the following list. The label shall contain, but not be limited to, as many of the following risk statements as are applicable:
- (A)
Keep out of reach of children;
- (B)
When using, do not eat, drink, or smoke;
- (C)
Wash hands after use and before eating, drinking, or smoking;
- (D)
Keep container tightly closed;
- (E)
Store in well ventilated area;
- (F)
Avoid contact with skin;
- (G)
Wear protective clothing (specify type);
- (H)
Wear national institute of occupational safety and health (NIOSH) certified masks for dusts, mists, or fumes;
- (I)
Wear NIOSH certified respirator with appropriate cartridge for (specify type);
- (J)
Wear NIOSH certified supplied-air respirator;
- (K)
Use window exhaust fan to remove vapors and assure adequate ventilation (specify explosion proof if necessary);
- (L)
Use local exhaust hood (specify type);
- (M)
Do not heat above (specify degrees) without adequate ventilation; or
- (N)
Do not use or mix with (specify material);
- (5)
On the label a statement on where to obtain more information, such as “Call your local poison control center for more health information”; or
- (6)
On the label the name and address of the manufacturer.
- (b)
- (1)
If all of the above information cannot fit on the package label, a package insert shall be required to convey all the necessary information to the consumer. In this event, the label shall contain a statement to refer to the package insert, such as “CAUTION: See package insert before use.” For purposes of this section, “package insert” means a display of written, printed, or graphic matter upon a leaflet or suitable material accompanying the art supply. The language on this insert shall be nontechnical and nonpromotional in tone and content.
- (2)
Art or craft material offered for sale in containers that contain less than one (1) fluid ounce (30 milliliters) or one (1) ounce net (29 grams) shall be deemed to comply with this section if there is affixed on the container a precautionary label that includes the words “USE WITH CAUTION: Contains Hazardous Substances.”
- (c)
The requirements set forth in subsections (a) and (b) shall not be considered to be complied with unless the required words, statements, or other information appear on the outside container or wrapper, or on a package insert that is easily legible through the outside container or wrapper and is painted in a color in contrast with the product or the package containing the product.
§ 68-131-305. Exemptions — Banning and removal of toxic substances — Compliance with act.
- (a)
If the commissioner finds that, because of the size of the package involved, or because of the minor hazard presented by the substance contained in the package, or for other good and sufficient reasons, full compliance with the labeling requirements otherwise applicable under this part is impracticable or is not necessary for the adequate protection of the public health and safety, the commissioner shall promulgate regulations exempting such substances from these requirements to the extent the commissioner determines to be consistent with adequate protection of the public health and safety.
- (b)
If the commissioner finds the hazard of an article subject to this part is such that labeling adequate to protect the public health and safety cannot be devised, the commissioner may declare such article to be a banned toxic substance and require its removal from commerce.
- (c)
If an art or craft material complies with labeling standards D-4236 of the American Society for Testing and Materials (ASTM), the material complies with this part, unless the department determines that the label on an art or craft material does not satisfy the purposes of this part.
Part 4 Tennessee Lead-Based Paint Abatement Certification Act of 1997
§ 68-131-401. Short title.
-
This part shall be known and may be cited as the “Tennessee Lead-Based Paint Abatement Certification Act of 1997.”
§ 68-131-402. Certification program for lead abatement professionals.
- (a)
The department of environment and conservation shall establish a certification program for lead abatement professionals.
- (b)
The program shall:
- (1)
Certify all individuals involved in lead-based paint abatement activities;
- (2)
Accredit training providers;
- (3)
Establish standards for such program;
- (4)
Insure compliance with regulations;
- (5)
Enforce the certification program;
- (6)
Revise regulations and procedures when necessary; and
- (7)
Establish reciprocity provisions with other state certification programs.
- (c)
The program shall conform to certification standards promulgated by the environmental protection agency for such programs, but shall not be more stringent than those standards. Furthermore, it is the intent of the general assembly that in this program the department shall only establish a certification program, and not provide the training for either the trainers or the lead-based paint professionals.
- (d)
The commissioner shall establish a program for the education of owners and occupants of target housing and child-occupied facilities concerning lead-based paint hazards. This program shall require persons who perform renovation in such facilities for compensation to provide owners and occupants with a lead hazard information pamphlet prior to commencing the renovation. The program shall meet the requirements of the federal program under the Lead Based Paint Exposure Reduction Act (15 U.S.C. § 2681 et seq.).
§ 68-131-403. Inspections — Where lead-based paint activities have occurred or are being conducted — Warrants.
- (a)
The commissioner and the commissioner's designated staff have the authority to enter the business premises of persons and firms certified to engage in lead-based paint activities during business hours upon presenting credentials identifying themselves as employees of the department.
- (b)
The commissioner and the commissioner's designated staff shall have the authority to enter any structure, including residences, where lead-based paint activities have occurred, or are being conducted, for the purpose of determining compliance with lead-based paint abatement requirements, provided they either:
- (1)
Obtain the consent of the owner or an adult occupant of the premises after presenting credentials identifying themselves as employees of the department; or
- (2)
Apply for and obtain a warrant from a court with jurisdiction, which shall be issued by the court upon a showing of probable cause that the inhabitants of the dwelling are likely to suffer adverse health effects from continued exposure to a lead-based paint hazard.
§ 68-131-404. Unlawful acts.
- (a)
- (1)
On and after the effective date of regulations promulgated by the commissioner pursuant to this chapter, no person shall perform or represent that such person is qualified to perform any lead-based paint activities without having received the appropriate certification from the department, unless such person is:
- (A)
An owner performing abatement upon that person's own residential property;
- (B)
An employee of a property management company doing routine cleaning and repainting upon property managed by that company, where there is insignificant damage to, wear of, or corrosion of existing lead-containing paint or coating substances; or
- (C)
An owner routinely cleaning or repainting the owner's property, where there is insignificant damage to, wear of, or corrosion of existing lead-containing paint or coating substances.
- (2)
“Lead based paint activities,” as used in this part has the same meaning as in the rules promulgated by the United States environmental protection agency for the federal lead-based paint program under the Toxic Substances Control Act (15 U.S.C. § 2601 et seq.). This includes lead-based paint inspection, risk assessment, and abatement activities, but does not include renovation, remodeling, landscaping, or other activities, when such activities are not designed to permanently eliminate lead-based paint hazards, but instead are designed to repair, restore or remodel a structure, even though these activities may incidentally result in a reduction or elimination of lead-based paint hazards.
- (b)
Failure of a lead-based paint abatement contractor to conduct lead-based paint activities in accordance with the requirements of the rules promulgated pursuant to this chapter is unlawful.
- (c)
Failure or refusal to establish, maintain, provide, copy, or permit access to records or reports required by the rules promulgated under this chapter is unlawful.
- (d)
Failure or refusal to permit entry or inspection as required by § 68-131-403 is unlawful.
- (e)
Failure of anyone, including a renovator of target housing, to comply with the requirements of the rules promulgated under this part is unlawful.
§ 68-131-405. Penalties.
- (a)
- (1)
Any person who violates any provision of § 68-131-404 or the rules promulgated pursuant to this part is subject to a civil penalty of up to ten thousand dollars ($10,000) per day for each day during which the act or omission continues or occurs.
- (2)
A civil penalty may be assessed and enforced in the following manner:
- (A)
The commissioner may issue a civil penalty assessment against any person responsible for the violation;
- (B)
Any person against whom an assessment has been issued may secure a review of such assessment by filing with the commissioner a written petition setting forth the grounds and reasons for the objections, and asking for a hearing in the matter involved. If a petition for review of the assessment is not filed within thirty (30) days after the date the assessment is served, the violator shall be deemed to have consented to the assessment and it shall become final;
- (C)
Whenever any assessment has become final because of a person's failure to appeal the commissioner's assessment, the commissioner may apply to the appropriate court for a judgment and seek execution of such judgment. The court, in such proceedings, shall treat a failure to appeal such assessment as a confession of judgment in the amount of the assessment;
- (D)
In lieu of the administrative assessment procedure pursuant to this subdivision (a)(2), the commissioner may also institute proceedings for assessment of a civil penalty in the chancery court of Davidson County or in the chancery court of the county in which all or part of the violation occurred;
- (E)
In assessing the civil penalty, the commissioner may consider the following factors:
- (i)
Whether the civil penalty imposed will be a substantial economic deterrent to the illegal activity;
- (ii)
The potential or actual harm posed to people or the environment by the violation;
- (iii)
The cause of the violation;
- (iv)
The effectiveness of action taken by the violator to cease the violation; and
- (v)
The economic benefit gained by the violator; and
- (F)
All such civil penalties and all fees collected pursuant to this part shall be deposited into a subaccount in the fund created by § 68-203-101 and treated accordingly.
- (b)
The commissioner may suspend or revoke a certification or accreditation for any person who violates any provision of §§ 68-131-403 — 68-131-405 or the rules promulgated pursuant to this chapter, in accordance with the procedures set forth in § 4-5-320.
- (c)
Any person knowingly failing, neglecting, or refusing to comply with any of the provisions of § 68-131-404, commits a Class C misdemeanor. Each day upon which such violation occurs constitutes a separate offense.
§ 68-131-406. Rules.
-
The commissioner of environment and conservation shall promulgate rules necessary to implement this part.
Chapter 135 Liquefied Petroleum
Part 1 Liquefied Petroleum Safety Act of Tennessee
§ 68-135-101. Short title — Purpose — “Dealer” defined — Dealers to be licensed.
- (a)
This part shall be known and may be cited as the “Liquefied Petroleum Safety Act of Tennessee.”
- (b)
The purpose of this part is to safeguard health and property and to promote the public safety and welfare by requiring that only properly qualified persons shall engage in business as liquefied petroleum gas dealers.
- (c)
- (1)
“Dealer,” as used in this part, means a person, firm or corporation engaged in the business of sale, storage or delivery of liquefied petroleum gas and/or the installation of liquefied petroleum gas equipment; and
- (2)
“Dealer” shall not be construed to include merchants whose sale of liquefied petroleum gas is restricted to containers of a capacity not exceeding two pounds (2 lbs.).
- (d)
A dealer shall be required to submit evidence to the state fire marshal as provided in this part that such dealer is qualified to engage in such business and, if qualified, shall be licensed as provided in this part. It is unlawful for any dealer to engage in the liquefied petroleum gas business in this state, unless such dealer has been duly licensed under this part.
§ 68-135-102. Application for license — Fee — Issuance by state fire marshal.
-
The state fire marshal shall, upon application on a form that the commissioner shall prescribe and supply and upon payment by the applicant of the fee prescribed, consider such application, and in each proper case issue a license to any person who submits evidence satisfactory to the state fire marshal that the applicant is fully qualified, as set forth in this part, to engage in business as a liquefied petroleum gas dealer.
§ 68-135-103. Qualifications and procedure prerequisite to issuance of license.
-
The qualifications and procedure prerequisite to the issuance of a license to a dealer are as follows:
- (1)
The applicant, or in the case of a firm or corporation, the person charged with the active management of the firm or corporation, must be twenty-one (21) years of age, and must submit evidence of at least three (3) years of experience in the liquified petroleum gas business or, alternatively, evidence of attendance at safety and handling training classes designed and established by the National Propane Gas Association;
- (2)
The applicant must file evidence of financial responsibility in the form of a certificate of liability insurance coverage in minimum limits of five hundred thousand dollars ($500,000) in the case of injury to any one (1) person and one million dollars ($1,000,000) in the case of any one (1) accident, or by the execution and filing of a bond for a like amount or by the deposit of one million dollars ($1,000,000) cash with the state fire marshal;
- (3)
The applicant shall also file evidence that the applicant is able to comply with such reasonable minimum storage requirements as the state fire marshal by regulation may from time to time determine to be necessary in the interest of public safety or welfare;
- (4)
The applicant must be of good character; and
- (5)
The applicant, or in the case of a firm or corporation, the person charged with the active management of the firm or corporation, shall be examined for the purpose of determining whether such applicant or representative has adequate knowledge of regulations promulgated by the state fire marshal; provided, that the state fire marshal may also require that any other person, employee or representative directly engaging in the delivering, installing or servicing of liquefied petroleum gas or liquefied petroleum gas equipment and appliances be likewise examined, and the state fire marshal shall prescribe such reasonable rules and regulations as the state fire marshal may deem necessary to safeguard life, health and property that will require as a prerequisite to issuance of a license, evidence of a completed, approved department of transportation inspection on all standard bob-tailed vehicles.
§ 68-135-104. Issuance of licenses — Classes — Fees — Requirements.
-
The state fire marshal shall, after approval of the application provided in this part for the issuance of a license, issue the following classes of permits, on the conditions indicated:
- (1) CLASS 1.
- (A)
May engage in any phase of the liquefied petroleum gas business, including the selling and delivering of liquefied petroleum gas, either by bulk delivery direct to the consumer or by filling cylinders at the plant of the Class 1 licensee; and may provide “satellite storage” facilities, with no container to be less than six thousand gallons (6,000 gals.). A “satellite storage” facility means a facility for decentralized storage of liquefied petroleum gas having no means for receiving orders or conducting any phase of liquefied petroleum gas business other than unloading, storage, and reloading of liquefied petroleum gas and related equipment;
- (B)
Shall furnish to the state fire marshal evidence of the following insurance:
- (i)
Manufacturers' and contractors' bodily injury liability insurance:
-
Each person $ 500,000
-
Each accident 1,000,000
- (ii)
Manufacturers' and contractors' property damage liability insurance:
-
Each accident $ 500,000
-
Aggregate 1,000,000
- (iii)
Products bodily injury liability insurance:
-
Each person $ 500,000
-
Each accident 1,000,000
-
Aggregate 1,000,000
- (iv)
Products property damage liability insurance:
-
Each person $ 500,000
-
Aggregate 1,000,000
- (v)
Automobile bodily injury liability insurance:
-
Each person $ 500,000
-
Each accident 1,000,000
- (vi)
Automobile property damage liability insurance:
-
Each accident $ 20,000
- (C)
Shall provide a bulk storage capacity of not less than thirty thousand (30,000) water gallons, with no container to be less than six thousand gallons (6,000 gals.) with minimum working pressure of two hundred pounds (200 lbs.), the location of which shall be approved by the state fire marshal in advance of the application. Storage containers being used in connection with cotton gins, manufacturing plants, or any other type commercial use, regardless of size, will not be accepted as bulk storage and cannot be included in the requirements for the thirty thousand gallons (30,000 gals.) storage. Maximum liquefied petroleum gas bulk storage containers within the state shall be determined by regulations issued by the state fire marshal's office;
- (D)
Shall provide equipment satisfactory to the state fire marshal;
- (E)
Shall provide sufficient switch track or tank loading and unloading facilities satisfactory to the state fire marshal for either tank car or tank transport operation. All auxiliary equipment such as pumps, hose, electrical switches, etc., shall be approved by the state fire marshal;
- (F)
Shall comply with all other applicable rules and regulations;
- (G)
Shall annually pay a permit fee in the sum of one hundred fifty dollars ($150) for each business location; and
- (H)
Shall not willingly or knowingly sell liquefied petroleum gas to another person, firm or corporation, for the purpose of resale, unless such person, firm or corporation holds a valid license issued by the authority of this part;
- (2) CLASS 2.
- (A)
May sell and install ICC liquefied petroleum gas cylinders and supply gas for the cylinders by one (1) of the following methods:
- (i)
Filling cylinders by weight at the plant of the applicant, or from approved mobile equipment; or
- (ii)
Furnishing a storage container of not less than five hundred (500) gallon capacity in connection with the proper type filling facilities;
- (B)
Shall furnish evidence of the following insurance:
- (i)
Products bodily injury liability insurance:
-
Each person $ 500,000
-
Each accident 1,000,000
-
Aggregate 1,000,000
- (ii)
Products property damage liability insurance:
-
Each accident $ 500,000
-
Aggregate 1,000,000
- (iii)
Automobile bodily injury liability insurance:
-
Each person $ 500,000
-
Each accident 1,000,000
- (iv)
Automobile property damage liability insurance:
-
Each accident $ 20,000
- (C)
The automobile bodily injury liability insurance and automobile property damage liability insurance requirements set forth in subdivisions (2)(B)(iii) and (iv) shall not apply to any Class 2 dealer not filling cylinders by weight from approved mobile equipment pursuant to subdivision (2)(A)(i). The state fire marshal shall, upon application for a Class 2 dealer's license, take from such applicant, on a form that the state fire marshal shall prescribe and supply, information sufficient to satisfy the state fire marshal that such applicant for a Class 2 dealer's license will not be filling cylinders by weight from approved mobile equipment; and
- (D)
Shall annually pay a permit fee in the sum of thirty-five dollars ($35.00);
- (3) CLASS 3.
- (A)
May operate liquefied petroleum gas service stations. May sell liquefied petroleum gas to operators of mobile equipment for motor fuel only. May not sell or install any type container or appliance;
- (B)
Shall provide storage and dispensing facilities that are consistent with standards established in NFPA pamphlet No. 58 and with requirements of the department of revenue;
- (C)
Shall furnish evidence of the following insurance:
- (i)
Manufacturers' and contractors' bodily injury liability insurance:
-
Each person $ 500,000
-
Each accident 1,000,000
- (ii)
Manufacturers' and contractors' property damage liability insurance:
-
Each accident $1,000,000
-
Aggregate 1,000,000
- (iii)
Products bodily injury liability insurance:
-
Each person $ 500,000
-
Each accident 1,000,000
-
Aggregate 1,000,000
- (iv)
Products property damage liability insurance or garage liability bodily injury liability insurance:
-
Each person $ 500,000
-
Each accident 1,000,000
-
Aggregate 1,000,000
- (v)
Garage liability property damage liability insurance:
-
Each accident $ 1,000,000
- (D)
Shall annually pay a permit fee in the sum of thirty-five dollars ($35.00);
- (4) CLASS 4.
- (A)
Includes, but is not limited to, refineries, jobbers, or sellers of liquefied petroleum gas. Shall not willingly or knowingly sell liquefied petroleum gas to another person, firm or corporation, for the purpose of resale, unless such person, firm or corporation holds a valid license issued by the authority of this part;
- (B)
Shall annually pay a permit fee in the sum of one hundred fifty dollars ($150);
- (C)
Shall furnish to the state fire marshal evidence of the following insurance:
- (i)
Manufacturers' and contractors' bodily injury liability insurance:
-
Each person $ 500,000
-
Each accident 1,000,000
- (ii)
Manufacturers' and contractors' property damage liability insurance:
-
Each accident $ 500,000
-
Aggregate 1,000,000
- (iii)
Products bodily injury liability insurance:
-
Each person $ 500,000
-
Each accident 1,000,000
-
Aggregate 1,000,000
- (iv)
Products property damage liability insurance:
-
Each person $ 500,000
-
Aggregate 1,000,000
- (v)
Automobile bodily injury liability insurance:
-
Each person $ 500,000
-
Each accident 1,000,000
- (vi)
Automobile property damage liability insurance:
-
Each accident $ 20,000
- (5) CLASS 5.
- (A)
May sell liquefied petroleum gas containers to permit holders exclusively;
- (B)
Shall furnish evidence of the following insurance:
- (i)
Manufacturers' and contractors' bodily injury liability insurance:
-
Each person $ 500,000
-
Each accident 1,000,000
- (ii)
Manufacturers' and contractors' property damage liability insurance:
-
Each accident $1,000,000
-
Aggregate 1,000,000
- (iii)
Products bodily injury liability insurance:
-
Each person $ 500,000
-
Each accident 1,000,000
-
Aggregate 1,000,000
- (C)
Before any liquefied petroleum gas containers are shipped into the state, blueprints and specifications shall be submitted in duplicate for each type of container, for approval by the state fire marshal. All fittings and the manufacturer thereof shall be listed and no variations from prints submitted will be permitted until such variations from the plans submitted have received approval by the state fire marshal. Excluded are containers manufactured under ICC specifications;
- (D)
On the date of shipment, the manufacturer shall forward a list of each container on an approved form, together with one (1) data sheet for each container shipped into the state, showing manufacturer's serial number, number of the National Board of Boiler and Pressure Vessel Inspectors, capacity in gallons, and to whom shipped. Excluded hereunder are containers manufactured under ICC specifications; and
- (E)
Shall annually pay a permit fee in the sum of one hundred dollars ($100).
§ 68-135-105. Expiration of licenses — Renewal — Notice.
-
Each license granted under this part shall expire on March 31 following its issuance or renewal and shall become invalid on such date unless renewed. Renewal may be effected at any time during the month of March by the payment of the fee prescribed in this part; provided, that the applicant has complied with the insurance requirements. It is the duty of the state fire marshal to notify every person licensed under this part of the date of expiration of such licensed person's license and the amount of the fee required for renewal for one (1) year, such notice to be mailed at least one (1) month in advance of the date of expiration of the license.
§ 68-135-106. Revocation or suspension of license or renewal — Procedure.
- (a)
The state fire marshal may refuse to issue, renew, suspend, or revoke a certificate of registration, license, or permit, if the state fire marshal finds that the applicant, registrant, licensee, or permit holder has violated this part or any rule relating to liquefied petroleum gas promulgated by the state fire marshal under this part or any other law.
- (b)
The Uniform Administrative Procedures Act, compiled in title 4, chapter 5, governs all matters and procedures respecting the hearing and judicial review of any contested case arising under this part.
§ 68-135-107. Rules and regulations — Reciprocal agreements.
- (a)
The state fire marshal is authorized and directed to make such rules and regulations consistent with this part and other laws of this state as the state fire marshal may deem necessary in order to carry out the purposes of this part, including, but not limited to, minimum storage regulation and inspection of measuring devices and other reasonable regulations with respect to out-of-state dealers operating within the state. Included in such regulations may be the latest approved safety regulations issued by the National Fire Protection Association.
- (b)
The state fire marshal is further authorized to enter into reciprocity agreements with the proper officials of other states for the purpose of waiving regulations as to out-of-state dealers; provided, that the state in which such dealers have their places of business agree to waive the requirements of such state as to Tennessee dealers. Nothing in this subsection (b) shall be construed to exclude the right of the state fire marshal from entering into reciprocity agreements with the proper officials of other states relative to the minimum storage requirements and the extent to which, if any, same shall be required of the out-of-state dealers operating within this state.
§ 68-135-108. Containers — Marking to identify owners — Restrictions governing the use.
- (a)
In order to promote the public safety by avoiding the contamination of containers and by assuring the proper reconditioning of service valves and containers, all dealers shall be required to mark, label or otherwise designate liquefied petroleum gas containers in such a manner as to identify such containers as being owned by the particular dealer, and no dealer shall sell, install, fill, refill, deliver or permit to be delivered, or use in any manner any liquefied petroleum gas container, unless such container is owned by such dealer or its use is authorized by the owner of such container.
- (b)
The state fire marshal is authorized and directed to make such rules and regulations as shall be consistent with this section in order to ensure proper identification, and it is unlawful for any dealer to permit any of the acts outlined in this section unless the containers are so identified in accordance with the rules and regulations.
- (c)
No liquefied petroleum gas dealer, including its agents and employees, may dismantle, disconnect, evacuate, repair, deface, fill, or refill a container belonging to another dealer unless:
- (1)
Prior written permission shall have been granted by the dealer who owns the container;
- (2)
Prior written permission shall have been granted by the owner or lessee of the premises where the container is located, except that the owner or lessee may not grant permission to fill or refill a container;
- (3)
The action is taken at the direction of the authority having jurisdiction as defined in NFPA Pamphlet No. 58; or
- (4)
The action is taken at the direction of an incident commander dealer with an emergency.
- (d)
Nothing in this section shall be construed as abrogating the right of the consumer to terminate a rental contract on a container with a dealer-owner in accordance with its terms and provisions as to legal notice.
- (e)
It is unlawful for any person to transport in the state of Tennessee any containers or cylinders in excess of twenty pounds (20 lbs.) capacity, unless the cylinders or containers are securely fastened, and equipped with approved valve guards or caps as provided in NFPA Pamphlet No. 58; furthermore, no containers of liquefied petroleum gas having a capacity in excess of two pounds (2 lbs.) shall be transported in the passenger portion of any vehicle, whether private or for hire. This does not preclude carrying of containers for the use of liquefied petroleum gas as a motor fuel in conjunction with the operation of a vehicle of any type.
- (f)
The containers are to be appropriately marked and easily identifiable to the inspector.
- (g)
No dealer shall fill any container, either bottle or bulk, that does not meet the acceptable standards of pressure as outlined in NFPA Pamphlet No. 58, nor shall any dealer fill a butane tank with propane gas. In addition, no dealer shall reinstall or deliver gas into a reinstalled underground storage tank regardless of size, unless it has been authorized by the state fire marshal.
§ 68-135-109. Reporting of fires, explosions or accidents by dealers.
-
It is mandatory for every dealer licensed under this part to report to the state fire marshal immediately any fire, explosion, or accident occurring on any premises served by containers and/or cylinders owned or supplied by the dealers, and thereafter, within three (3) days to make a written report of the fire, explosion or accident to the state fire marshal on forms required by the officer.
§ 68-135-110. Penalty for violation.
- (a)
A violation of any provision of this part is a Class B misdemeanor.
- (b)
In addition to the penalty set forth in subsection (a):
- (1)
The state fire marshal shall, upon receipt of the first violation, send a written notice of violation which shall include the possible actions that may be taken in response to any second or subsequent violation;
- (2)
The state fire marshal may issue the following civil penalties for second or subsequent violations of this part or the rules lawfully promulgated under this part:
- (A)
For a second violation, a civil penalty not to exceed one hundred dollars ($100);
- (B)
For a third violation, a civil penalty not to exceed five hundred dollars ($500); and
- (C)
For a fourth or subsequent violation, a civil penalty not to exceed one thousand dollars ($1,000).
§ 68-135-111. Injunctive relief.
- (a)
Jurisdiction is conferred on the circuit and chancery courts of this state to grant injunctive relief against any person, firm or corporation undertaking to engage in business as a liquefied petroleum gas dealer in violation of the terms of this part. Such injunction suits shall be filed by the state fire marshal in the name of the state of Tennessee without bond being required for the prosecution of the suit or for the issuance of injunctions. Nothing in this section shall be construed as conferring criminal jurisdiction upon any court not now possessing such criminal jurisdiction, nor shall any court as an incident to the injunctive proceedings authorized in this section have the power to assess the criminal penalties provided in this part.
- (b)
Any dealer licensed under this part who feels that such dealer is aggrieved by any violation of the terms of this part may pursue the relief granted under this part without the necessity of joining the state fire marshal in the proceedings; provided, that such dealer executes such bond as is required by the general statutes authorizing such act.
Part 2 Compressed Gases Good Samaritan Law
§ 68-135-201. “Good Samaritan” in instances involving compressed gases.
- (a)
Any person, including medical personnel, who, in good faith and without compensation, renders emergency care or aid or who provides assistance upon the request of any police or fire department, rescue or emergency squad, or any governmental agency at the scene of an accident or an existing or impending disaster involving the use, handling, transportation, transmission or storage of compressed gases shall not be liable for damages as a result of conduct in rendering such care, aid or assistance, unless the damage was caused by the gross negligence of the actor.
- (b)
Gross negligence also includes rendering care, assistance or advice with respect to matters in which the person rendering such care, assistance or advice does not possess the technical knowledge or skills concerning such matters.
- (c)
For purposes of this section, “compensation” shall not be construed to include the salaries of police, fire or other public officials or emergency service personnel who render such emergency care, aid or assistance, nor shall it include the reimbursement of the actual expenses exclusive of salaries of any person rendering such care, aid or assistance.
Chapter 140 Emergency Services
Part 1 Emergency Medical Service Area Telecommunications
§ 68-140-101. Legislative intent.
-
It is the intention and purpose of the general assembly that a statewide system of emergency medical service area telecommunications be employed to provide effective and rapid emergency medical service to the general population. To this end, all emergency medical service entities within the state are directed to provide the department of health with information the department requests for the purpose of implementing § 68-140-103, and such entities shall comply with the resultant provisions established pursuant to this part.
§ 68-140-102. Part definitions. [Effective until July 1, 2024. See the version effective on July 1, 2024.]
-
As used in this part, unless the context otherwise requires:
- (1)
“Category ‘B’ hospital” means a hospital facility within this state assigned to such category by the board for licensing health care facilities;
- (2)
“Commissioner” means the commissioner of health;
- (3)
“Department” means the department of health;
- (4)
“Emergency medical entity” means any singular facility, providing emergency medical services to the general public, either resident or transient, in this state;
- (5)
“Emergency medical service area” or “emergency medical services area” means that geographic area of this state that provides ninety-five percent (95%) or essentially all of the definitive emergency medical care for all emergencies and for critically ill and injured patients. The area shall contain adequate population, available medical resources, a category “B” hospital, and a sufficient economic base to implement and sustain an emergency medical services system;
- (6)
“Emergency medical services” means the services used in responding to the perceived individual need for immediate medical care in order to prevent loss of life or aggravation of physiological or psychological illness or injury;
- (7)
“Integrated and compatible” means all essentially alike and able to accomplish like tasks;
- (8)
“Interfacility telecommunications” means the exchange of ideas, instruction, or intelligence, pertaining to emergency medical services, between two (2) or more emergency medical entities;
- (9)
“Professional medical community” means those licensed, or permitted, individuals or institutions capable of rendering corrective action to human life threatening illness or injury;
- (10)
“Resource inventory” means the tabulation of all equipment capable of performing telecommunications actions within, from, or to an emergency medical entity;
- (11)
“Reviewing authority for applications” means that individual, or designated representative, capable of determining the validity of a request to any higher agency for a required permit or license;
- (12)
“Telecommunications” means those voice, data, and signaling transmissions and receptions between emergency medical service entities, including, but not limited to, ambulances, rescue vehicles, hospitals or other related emergency receiving facilities, emergency communications centers, physicians and emergency medical personnel, paging facilities, law enforcement agencies, fire control agencies, poison control centers, suicide prevention agencies, and disaster control centers;
- (13)
“Telecommunications resource coordination center” means that urban center of population within an emergency medical service area providing the facilities and manpower to maintain telecommunications contact, on a continuous basis, with other emergency medical entities within the emergency medical service area; and
- (14)
“Telecommunications subsystem” means any telecommunications system subordinate to, and under the control of, an established telecommunications system.
§ 68-140-102. Part definitions. [Effective on July 1, 2024. See the version effective until July 1, 2024.]
-
As used in this part, unless the context otherwise requires:
- (1)
“Category ‘B’ hospital” means a hospital facility within this state assigned to such category by the health facilities commission;
- (2)
“Commissioner” means the commissioner of health;
- (3)
“Department” means the department of health;
- (4)
“Emergency medical entity” means any singular facility, providing emergency medical services to the general public, either resident or transient, in this state;
- (5)
“Emergency medical service area” or “emergency medical services area” means that geographic area of this state that provides ninety-five percent (95%) or essentially all of the definitive emergency medical care for all emergencies and for critically ill and injured patients. The area shall contain adequate population, available medical resources, a category “B” hospital, and a sufficient economic base to implement and sustain an emergency medical services system;
- (6)
“Emergency medical services” means the services used in responding to the perceived individual need for immediate medical care in order to prevent loss of life or aggravation of physiological or psychological illness or injury;
- (7)
“Integrated and compatible” means all essentially alike and able to accomplish like tasks;
- (8)
“Interfacility telecommunications” means the exchange of ideas, instruction, or intelligence, pertaining to emergency medical services, between two (2) or more emergency medical entities;
- (9)
“Professional medical community” means those licensed, or permitted, individuals or institutions capable of rendering corrective action to human life threatening illness or injury;
- (10)
“Resource inventory” means the tabulation of all equipment capable of performing telecommunications actions within, from, or to an emergency medical entity;
- (11)
“Reviewing authority for applications” means that individual, or designated representative, capable of determining the validity of a request to any higher agency for a required permit or license;
- (12)
“Telecommunications” means those voice, data, and signaling transmissions and receptions between emergency medical service entities, including, but not limited to, ambulances, rescue vehicles, hospitals or other related emergency receiving facilities, emergency communications centers, physicians and emergency medical personnel, paging facilities, law enforcement agencies, fire control agencies, poison control centers, suicide prevention agencies, and disaster control centers;
- (13)
“Telecommunications resource coordination center” means that urban center of population within an emergency medical service area providing the facilities and manpower to maintain telecommunications contact, on a continuous basis, with other emergency medical entities within the emergency medical service area; and
- (14)
“Telecommunications subsystem” means any telecommunications system subordinate to, and under the control of, an established telecommunications system.
§ 68-140-103. Development of system.
-
The department is authorized and directed to develop a compatible statewide system of emergency medical service area telecommunications. In formulating such a system, the department shall develop a program that includes, but is not limited to, the following provisions:
- (1)
A provision that determines the basic telecommunications requirements for each emergency medical entity within an emergency medical service area;
- (2)
An interfacility telecommunications provision that depicts the telecommunications resource coordination center for each emergency medical service area and designate the responsibilities of the center;
- (3)
A telecommunications resource inventory provision that includes each emergency medical entity and the number of radio operating units, base, mobile, handheld, and other units, per entity;
- (4)
An operational provision that includes dispatching, logging, and operating procedures pertaining to telecommunications on an emergency medical service area basis;
- (5)
An emergency medical service access provision that includes the telephone and radio numbering plan throughout the emergency medical service areas for both the landline and wireless requirements; and
- (6)
Any dispatching entity receiving and dispatching calls for emergency medical services that provides pre-arrival medical care instructions may require persons assigned to handle such calls to be certified as emergency medical dispatchers as defined in § 68-140-302. All such dispatching entities shall have medically approved dispatch protocols.
§ 68-140-104. Coordination with state emergency preparedness plan.
- (a)
The statewide system of emergency medical service area telecommunications shall be developed by the department, which shall be responsible for the introduction and coordination of such system into the state emergency preparedness plan. The commissioner shall adopt such rules and regulations as are necessary to implement and coordinate such a system.
- (b)
The commissioner shall be designated as the reviewing authority for applications to operate in the emergency medical services telecommunications system. The commissioner may delegate the activities required by this designation.
§ 68-140-105. Director.
-
The commissioner is designated the director of the statewide telecommunications system for emergency medical services and, for the purpose of carrying out this part, may delegate the activities required by this designation.
§ 68-140-106. Approval of new systems.
-
No emergency medical telecommunications system or subsystem shall be established or present systems expanded without prior approval of the commissioner.
§ 68-140-107. Federal communications license.
-
No person, firm, corporation, association, county, municipality, or metropolitan government or agency, either as owner, agent, or otherwise, shall furnish, operate, conduct, maintain, advertise, or otherwise engage in, or profess to engage in, the activity of emergency medical service telecommunications, without holding a currently valid license to do so, such license issued solely, or coordinated, by the federal communications commission.
§ 68-140-108. Enforcement — Penalty — Injunctions.
- (a)
The chief official of any emergency medical entity shall see that there is compliance with this part and all of the regulations adopted under this part.
- (b)
Any person violating or willfully failing to comply with any provision of this part commits a Class C misdemeanor.
- (c)
Each day that any violation of, or willful failure to comply with, this part is committed or permitted to continue is a separate and punishable offense under this section; provided, that the court may, in appropriate cases, stay the cumulation of penalties.
- (d)
The commissioner may cause to be instituted a civil action, in the chancery court of the county in which any alleged offender of the act may reside or have the offender's principal place of business, to enjoin any violation of any provision of this part or any rule or regulation promulgated pursuant to this part.
§ 68-140-109. Monthly data on number of flight requests rejected by vendor and patient volumes transported into covered region.
- (a)
Unless prohibited by federal law, each regional medical communication center authorized by this part shall provide to the director by the tenth day of each month the number of flight requests rejected by a vendor, and the patient volumes transported into the covered region, for the previous month. The data must be divided into the following categories: burns, CVA, cardiac, medical, OB, psych, trauma, other, unanswered, and unknown.
- (b)
The director shall monthly post the data submitted pursuant to subsection (a) on the department's website in a manner accessible to the public.
Part 2 Emergency Hospital Services
§ 68-140-202. Purposes of part.
-
The purposes of this part are to require that medical need and available medical resources, rather than the financial resources of an applicant for emergency medical treatment or first aid, be the determining factors concerning the scope of medical services provided.
Part 3 Emergency Medical Services Act of 1983
§ 68-140-302. Part definitions.
-
As used in this part, unless the context otherwise requires:
- (1)
“Ambulance” means any privately or publicly owned land or air vehicle that is especially designed, constructed or modified and equipped and is intended to be used for and is maintained or operated for transportation upon the streets, highways or airways in this state for persons who are sick, injured, wounded, otherwise incapacitated, helpless, or in need of medical care;
- (2)
“Ambulance service” means the principal use of any privately or publicly owned ambulance for the transportation of injured or infirm persons;
- (3)
“Authorization” means any and all forms of official permission required by this part, including licenses, permits and certificates;
- (4)
“Board” means the Tennessee emergency medical services board;
- (5)
“Certificate” means official acknowledgment that an individual has successfully complied with all requirements to practice and has completed a training program accredited or recognized by the board;
- (6)
“Commissioner” means the commissioner of health, the commissioner's duly authorized representative, or in the event of the commissioner's absence or a vacancy in the office of commissioner, the deputy commissioner;
- (7)
“Community paramedic” means an individual who:
- (A)
Is licensed as a paramedic that delivers care in emergency and non-urgent pre-hospital settings with oversight of a physician;
- (B)
Has received specialized training in physiology, disease processes, injury and illness prevention, and medical system navigation, in addition to general paramedic training; and
- (C)
Meets the requirements for additional licensure as a community paramedic as established by the board;
- (8)
“Community paramedicine” means the practice by emergency medical services personnel, primarily in an out-of-hospital setting, that may include the provisions of such services as patient evaluation, advice, treatment directed at preventing or improving a particular medical condition, or referrals to other community resources, which may be provided occasionally or at irregular intervals;
- (9)
“Department” means the department of health;
- (10)
“Director” means the director of the division of emergency medical services of the department;
- (11)
“Emergency medical dispatcher” (EMD) means an individual certified by the department as having successfully completed a department-approved EMD course;
- (12)
“Emergency medical responder” or “(EMR)” means a person who has successfully completed an EMR training course and has qualified by examinations to perform lifesaving interventions and to assist higher-level personnel at the scene and during transport, under medical direction;
- (13)
“Emergency medical response vehicle” means any privately or publicly owned vehicle which is maintained or operated for the transportation of emergency medical care personnel, equipment, and supplies to the scene of a medical emergency for the provision of emergency medical services;
- (14)
“Emergency medical service director” means an individual who directs the planning, development, implementation, coordination, administration, monitoring and evaluation of services provided by a licensed ambulance service;
- (15)
“Emergency medical service medical director” means an individual who has an active, unencumbered license to engage in the practice of medicine pursuant to title 63, chapter 6, or chapter 9, and who provides medical advice, direction, oversight and authorization to emergency medical services personnel at a licensed ambulance service, and/or emergency medical services educational institution, including, but not limited to, quality assurance;
- (16)
“Emergency medical services” (EMS) means the services utilized in responding to the perceived need for immediate medical care in order to prevent loss of life or aggravation of illness or injury;
- (17)
“Emergency medical services – apprentice” or “(EMS-A)” means a person who does not possess an EMS license to provide emergency medical care in this state but meets all other requirements for operating an emergency vehicle;
- (18)
“Emergency medical services personnel” means individuals certified or licensed by the emergency medical services board in accordance with various categories and classifications of licenses or certificates that the board establishes;
- (19)
“Invalid vehicle” means any privately or publicly owned vehicle that is maintained, operated and intended to be used to transport persons who are convalescent, or otherwise nonambulatory, and do not require medical treatment while in transit;
- (20)
“License” means an authorization to a person to provide ambulance services; or an authorization to an individual to practice emergency medical care as emergency medical services personnel;
- (21)
“Medical direction” means the supervision by a physician licensed to practice in the state of Tennessee of all medical aspects of patient care within EMS;
- (22)
“Member” means a member of the Tennessee emergency medical service board;
- (23)
“Mobile integrated health care” means the provision of health care using patient-centered, mobile resources in the out-of-hospital environment under local medical control as part of a community-based team of health and social services providers to include, but not be limited to, home health organizations and community paramedics;
- (24)
“Mobile prehospital emergency medical care” means those emergency medical services rendered outside the hospital facility, precedent to and during transportation of such patients to emergency treatment facilities;
- (25)
“Patient” means an individual who, as a result of physical or mental condition, needs medical attention;
- (26)
“Permit” means an authorization issued for an ambulance vehicle as meeting the standards adopted pursuant to this part;
- (27)
“Person” means any individual, association, organization or any other business entity, either profit or nonprofit, any state or local governmental entity, and federal agencies to the extent permitted by federal law;
- (28)
“Practice” means the exercise of principles and skills for effective emergency medical care under medical direction recognized as acts and responsibilities within the discipline of emergency medical services;
- (29)
“Run records” means ambulance run reports relative to a response by an ambulance service or invalid vehicle operator during which a patient is evaluated, treated or transported;
- (30)
“Service” means the provision of organized response by ambulances or emergency response vehicles, or the provision of emergency care on an organized basis;
- (31)
“State” means the state of Tennessee;
- (32)
“State emergency medical services medical director” means an individual who has an unencumbered license to engage in the practice of medicine pursuant to title 63, chapter 6 or chapter 9 and who provides medical advice, direction, and oversight for statewide medical direction, including, but not limited to, quality assurance, protocols and standing orders; and
- (33)
“Volunteer personnel” means persons who provide emergency care without expectation of remuneration who do not receive payment for services rendered, and who do not depend on the provision of emergency care for their livelihood or a substantial portion of their livelihood.
§ 68-140-303. Emergency medical services board.
- (a)
There is created and established the Tennessee emergency medical services board by transfer and expansion of the duties and responsibilities of the EMS advisory council. The board consists of thirteen (13) members.
- (b)
Effective July 1, 2023, the existing membership of the Tennessee emergency medical services board is vacated and reconstituted, with the members of the board to be appointed by the governor as follows:
- (1)
One (1) physician licensed in this state who acts as the medical director of an ambulance service in this state;
- (2)
One (1) air-medical registered nurse with an EMS license (emergency medical technician (EMT) or paramedic) in this state;
- (3)
One (1) representative who is an administrator from a hospital that operates an ambulance service and is licensed to practice in this state under title 63 or this title;
- (4)
One (1) paramedic who is the director of a private ambulance service in this state;
- (5)
One (1) paramedic who is the director of a government-based ambulance service in this state;
- (6)
One (1) paramedic with medical first response or transport responsibilities who is employed by an ambulance service in this state;
- (7)
One (1) administrator with a paramedic license who is employed by a fire service in this state that operates a medical first response service or ambulance service;
- (8)
One (1) paramedic with medical first responder or transport responsibilities that is employed by a fire service in this state;
- (9)
One (1) official of a county in this state that operates an ambulance service or medical first response service;
- (10)
One (1) rescue squad member who maintains licensure as emergency medical services personnel;
- (11)
One (1) program director of an accredited paramedic program taught at an institution of higher education in this state;
- (12)
One (1) paramedic that is an instructor, coordinator, or program director for an EMT or paramedic program that is taught at an EMS agency in this state; and
- (13)
A paramedic that holds a community paramedicine endorsement in this state, or a paramedic employed by an agency providing mobile integrated healthcare (MIH) services in this state.
- (c)
In order to stagger the terms of the newly appointed board members, the governor shall make initial appointments as follows:
- (1)
The persons appointed under subdivisions (b)(1)-(4) are appointed for terms of one (1) year, which expire on June 30, 2024;
- (2)
The persons appointed under subdivisions (b)(5)-(7) are appointed for terms of two (2) years, which expire on June 30, 2025;
- (3)
The persons appointed under subdivisions (b)(8)-(10) are appointed for terms of three (3) years, which expire on June 30, 2026; and
- (4)
The persons appointed under subdivisions (b)(11)-(13) are appointed for terms of four (4) years, which expire on June 30, 2027.
- (d)
Members serving on the board as of June 30, 2023, may be reappointed to serve as members after such date.
- (e)
- (1)
Members, except as provided in subsection (c) and those appointed to complete the term of a former member, are appointed to full four-year terms, or until their successors are appointed. In making appointments to the board, the governor shall strive to ensure that at least one (1) member serving on the board is sixty (60) years of age or older, that at least one (1) person serving on the board is a member of a racial minority, and the membership on the board reflects the geographic diversity of the state.
- (2)
Following the expiration of the members' initial terms as prescribed in subsection (c), all four-year terms begin on July 1, and terminate on June 30, four (4) years thereafter. Vacancies must be filled by appointment of the governor.
- (f)
The chair must be a member who is elected by the board. The chair may certify the actions of the board.
- (g)
- (1)
The board shall meet at the call of the chair. The chair shall convene at least two (2) meetings per year, and shall convene such other meetings as are necessary to transact the business of the board, or upon receipt of a written request signed by three (3) or more members of the board. Seven (7) members of the board constitute a quorum for the transaction of business at meetings.
- (2)
- (A)
A member who misses more than fifty percent (50%) of the scheduled meetings in a calendar year must be removed as a member of the board.
- (B)
The emergency medical services director shall promptly notify, or cause to be notified, the appointing authority of a member who fails to satisfy the attendance requirement as prescribed in subdivision (g)(2)(A).
- (h)
The members of the board must be paid a per diem of fifty dollars ($50.00) for attending board meetings and must be reimbursed for their travel expenses incurred in attending board meetings, ad hoc committee activities, or other travel incurred in the performance of their official duties, in accordance with the comprehensive travel regulations as promulgated by the department of finance and administration and approved by the attorney general and reporter.
- (i)
The department shall provide administrative services to the board.
- (j)
The board shall keep accurate minutes of the proceedings of all its meetings, a copy of which must be kept on file in the office of the director and open to public inspection. Rules adopted by the board must be promulgated pursuant to the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.
- (k)
The commissioner shall appoint the director of the division of emergency medical services within the department.
§ 68-140-304. Powers and duties of board.
-
In addition to any other power, duty or responsibility given to the board by this part, the board has the power, responsibility and duty to:
- (1)
Approve schools, establish and prescribe courses, and establish and prescribe the curricula and minimum standards for training, as required to prepare persons for certification under this part;
- (2)
Promulgate regulations governing the issuance of such licenses, permits and certificates for services, vehicles or personnel as required by this part, and condition such issuance as necessary. These regulations may establish various categories and classifications of licenses, permits and certificates;
- (3)
Establish minimum standards governing the activities and operations of various categories of services, vehicles or personnel, licensed, permitted or certified by the board;
- (4)
Provide hearings in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, to persons seeking review of actions of the department, the board, or the commissioner, and hear and decide those enforcement and disciplinary matters presented by the department;
- (5)
Issue such orders as may be necessary or helpful to effectuate this part;
- (6)
Establish standards for the amounts and types of insurance coverage required for authorized providers of emergency medical services in this state; provided, however, that:
- (A)
Coverage shall extend to an EMS vehicle whether operated by the owner or the owner's agent; and
- (B)
In the case of a local government, the board may consider compliance with the Governmental Tort Liability Act, compiled in title 29, chapter 20, as satisfaction of this requirement;
- (7)
Regulate the development and operation of emergency medical services telecommunication systems;
- (8)
Promulgate rules establishing fees as provided in this part;
- (9)
Establish standards pursuant to the Uniform Administrative Procedures Act for emergency medical dispatch;
- (10)
Certify paramedic training centers operated by a fire department that operates its own fire training academy to provide training for career paramedics employed by the fire department;
- (11)
Enter into agreements or contracts with any person to assist impaired professionals who are licensed, permitted or certified by the board;
- (12)
Establish standards for a community paramedic through promulgation of rules pursuant to the Uniform Administrative Procedures Act. These standards shall provide that the evaluation, advice, and treatment are within the scope of practice of emergency medical services personnel when specifically requested or directed by a physician as a means of delivering mobile integrated health care; and
- (13)
Certify emergency medical technician (EMT) and advanced emergency medical technician (AEMT) training centers operated by ambulance services to provide training for career EMTs and AEMTs.
§ 68-140-305. Powers and duties of commissioner.
-
In addition to any power, duty, or responsibility given the commissioner or the department under this part, the commissioner has and shall exercise the following powers, duties and responsibilities set forth in this section. These powers and duties may be delegated in whole or part, in writing, to any official of the department, to:
- (1)
Exercise general supervision, coordination and control over the quality of the state emergency medical services program, and administer and enforce all statutes and regulations, relating to emergency medical services, vehicles and personnel. The commissioner shall designate an emergency medical services director to develop and administer the state emergency medical services program;
- (2)
Initiate enforcement and disciplinary actions before the board and as otherwise provided in this part;
- (3)
Issue such licenses, permits, and certificates for services, vehicles, and personnel in accordance with the regulations promulgated by the board and condition such issuances as may be necessary;
- (4)
Conduct examinations for emergency medical services personnel pursuant to the requirements of the board;
- (5)
Make inspections or investigations of any person providing emergency medical services, which may include personnel, vehicles, facilities, communications, equipment, methods, procedures, materials, records, documents and all other matters and things used in the provision of such services. Inspections shall be conducted annually, upon a complaint, or upon reasonable belief that a violation of this part has occurred;
- (6)
Enter into agreements with emergency medical services program agencies in other states to assure effective delivery of emergency medical services, to the extent permitted or in the manner required by law;
- (7)
Coordinate statewide development and operation of emergency medical services telecommunications systems;
- (8)
Collect fees pursuant to this part and the rules established by the board;
- (9)
Require the submission of such plans, specifications and other information as deemed necessary to carry out this part;
- (10)
Apply for, accept, administer, contract and utilize grants from the federal and state governments, and from any other source, public or private, for the operation and improvement of emergency medical services within the state; and
- (11)
Assess civil penalties as provided in this part.
§ 68-140-306. Licenses, permits, and certification.
- (a)
No person, either as owner, agent or otherwise, shall furnish, operate, conduct, maintain, advertise or otherwise engage in or profess to engage in the business or service of transporting patients upon the streets, highways or airways within this state, or the provision of emergency medical services in the state, unless such person complies with this part and regulations pursuant to this part.
- (b)
When an employee/member of a not-for-profit service licensed in another state, which at the request of a county or municipal government regularly operates in Tennessee, is certified as a class of emergency medical provider that has no equivalent in Tennessee, that person shall be allowed to practice at such person's level of certification in such other state when acting in Tennessee as an employee/member of that service.
- (c)
Any person desiring to be licensed, permitted or certified shall apply to the department on forms approved by the board, accompanied by the appropriate fee. The application shall contain such information as the board deems necessary for evaluation.
- (d)
Prior to issuance of any license under this part, the department shall cause to be inspected each ambulance service or emergency medical service, specifically vehicles, equipment, personnel, records, premises and operational procedures, annually, or whenever such inspection is deemed necessary. The periodic inspection shall be in addition to any other state or local safety or motor vehicle inspection required for ambulances or other motor vehicles under general law or ordinances.
- (e)
Renewal of any authorization issued under this part may be accomplished by paying an appropriate fee, submitting a renewal application, and otherwise complying with the applicable rules of the board.
- (f)
- (1)
Except as provided in subdivision (f)(2), a separate license is required for each service, county specific for each base of operations, and a separate permit required for each vehicle authorized for operation pursuant to this part. Licenses and permits shall expire on June 30 of the year after issuance. Those ambulance services that are licensed by operating in multiple county jurisdictions on July 1, 2007, shall be eligible to obtain the licenses for those identified counties of operation by remitting the appropriate service application renewal fee.
- (2)
- (A)
This part does not require an ambulance service that holds a valid and unencumbered license to operate in one (1) or more counties in this state to hold a license specific to, or establish a base of operations in, a county for which that ambulance service is not licensed in order to provide a secondary mental health transport to, from, or through that county.
- (B)
As used in this section, “secondary mental health transport” means the transportation of an individual from one (1) healthcare facility to another healthcare facility for the purposes of mental health evaluation or treatment.
- (g)
An ambulance service may renew the service license within sixty (60) days following the license expiration date upon payment of the renewal fee in addition to a late penalty established by the board for each month or fraction of a month that payment for renewal is late; provided, that the late penalty shall not exceed twice the renewal fee. If the ambulance service license is not renewed within sixty (60) days following the license expiration date, then the licensee shall reapply for licensure in accordance with the rules established by the board.
- (h)
The issuance of any authorization under this part shall not be construed so as to authorize any person to provide ambulance services or to operate any ambulance not in conformity with any ordinance or regulation enacted by any county, municipality or special purpose district or authority. No county or municipality shall adopt standards less stringent than state standards and regulations.
- (i)
Any service licensed in good standing in another state and based in that jurisdiction outside this state, that, at the request of a county or municipality, renders emergency medical services in this state, shall be exempt from licensure and authorized to operate, if the service agrees to subject itself to the jurisdiction of the emergency medical services board and the courts of this state in any matter arising from the conduct of ambulance service in this state, and submits a sworn affidavit providing the name, address, location of service, operating officers, and the nature of service to be provided; however, employees of such services shall be licensed in this state as provided by this part. Employees of a service rendering emergency medical services at a major scheduled public event in this state at the request of a county or municipality, as provided in this part, shall be deemed licensed in this state to the extent of their valid foreign license for the duration of the major scheduled public event and shall perform their services under the supervision of a physician licensed in this state.
- (j)
Notwithstanding another law to the contrary, an individual who has reached eighteen (18) years of age, has a valid driver license, and has completed an emergency vehicle operations class is eligible for service as an ambulance driver or operator. No further specialty endorsements are required.
§ 68-140-307. Standards for vehicles and equipment.
- (a)
Standards for the design, construction, equipment, sanitation, operation and maintenance of ambulances, invalid vehicles, and for the operations and minimum emergency care equipment for emergency response vehicles shall be promulgated by the board, including, but not limited to, restrictions on the amount of mileage of an operational vehicle and mandatory mechanical inspections for vehicles over a certain mileage. The board may authorize standards for the licensure of air ambulance services to provide for such special personnel equipment operation and activities as may be necessary. Permits shall not be required for individual aircraft. The board shall promulgate rules and regulations to require the inspection of air ambulance medical equipment and supplies and to require the issuance of a healthcare inspection verification sticker.
- (b)
Services performed by fixed wing air ambulance organizations that are provided without compensation pursuant to § 68-140-317(a)(2) shall be conducted under part 91 of the federal air regulations. Pilots of such aircraft shall possess a commercial certificate with instrument rating.
§ 68-140-308. Certificates for EMS personnel.
- (a)
Licenses, certificates, and authorizations issued for emergency medical services personnel, shall be valid for a period of up to two (2) years. The department shall establish a system of license renewals, which will allow for the distribution of the license workload. Such system shall provide for expiration of the applicant's professional license on the last day of the applicant's birth month within the license period. The fee imposed for any license issued under the interval method shall be proportional to biennial fees adopted pursuant to this part. The fee imposed under the interval method for a period of other than twenty-four (24) months shall be proportional and shall be rounded to the nearest dollar.
- (b)
Licenses shall be issued or renewed upon application to the department; provided, that the applicant meets the requirements set forth in rules and regulations promulgated pursuant to the Uniform Administrative Procedures Act, compiled in title 4, chapter 5. Such licenses may be conditioned as may be necessary by the department or board. Requirements for written or practical examinations and required grades for examination shall be established by rule and regulation of the board.
- (c)
A licensee, permit or certificate holder may renew the license within sixty (60) days following the license expiration date upon payment of the renewal fee in addition to a late penalty established by the board for each month or fraction of a month that payment for renewal is late; provided, that the late penalty shall not exceed twice the renewal fee. If a licensee fails to renew the license within sixty (60) days following the license expiration date, then the licensee shall reapply for licensure in accordance with the rules established by the board.
- (d)
An applicant currently certified or licensed in another state who meets the requirements for licensure and renewal as approved by the board shall be eligible for licensure without examination. Upon submission of an application and appropriate fees to the department, licenses shall be issued if the applicant is:
- (1)
A Tennessee resident;
- (2)
Employed by a service operating in Tennessee; or
- (3)
A nonresident applicant licensed in another state and in good standing in the applicant's state of residence, if the applicant's state of residence grants the same or similar reciprocity privileges to Tennessee residents who are licensed by and in good standing in Tennessee.
§ 68-140-309. Duties and authority of EMS personnel and physician on the scene.
- (a)
EMS personnel shall exercise the skills and abilities needed to render appropriate emergency medical care and provide emergency medical services in accordance with authorized procedures in the respective level of training, and shall administer care to patients based upon knowledge and application of principles derived from accepted practice and medical approval, and shall fully comply with the board's regulations governing activities and performance for the category of license or certification. Licensed emergency medical services personnel, a physician or a nurse shall accompany and attend every patient transported by ambulance in this state. Nothing in this part shall be construed to authorize or require any medical treatment or transportation to any hospital or emergency care facility of a patient who objects to the treatment or transport on religious grounds.
- (b)
If the licensed emergency medical services personnel and the physician on the scene disagree on the proper course of treatment, the physician should confer with the base hospital physician before ordering treatment. When no base hospital physician is available, the physician on the scene controls.
- (c)
Licensed emergency medical services personnel may function within hospital emergency services under nursing supervision in accordance with policies and procedures adopted by the hospital.
- (d)
Nothing in this part shall be construed so as to prevent emergency medical personnel under medical direction from:
- (1)
Providing care that is not EMS, as defined by § 68-140-302, including non-emergent care or transportation by ambulance; or
- (2)
Treating patients on scene who do not require transport.
- (e)
Nothing in this part shall be construed so as to allow a provider of emergency medical services, as defined by § 68-140-302, to function as a “home care organization” as defined under § 68-11-201.
§ 68-140-310. Training for epinephrine injections.
-
Subject to the availability of a volunteer physician, nurse or licensed paramedic, the department shall approve and coordinate training in a course in epinephrine injections for administration to those persons suffering from serious adverse reactions (anaphylaxis) to insect stings, and this training may authorize lay individuals eighteen (18) years of age or over to administer epinephrine in emergency situations. Further, such individuals must demonstrate a need for such training, which can be based upon occupational or family circumstances. Possession of the drug shall be limited to those persons suffering from the allergic condition and the dosage of epinephrine shall be pre-measured.
§ 68-140-311. Prohibited acts — Disciplinary action.
- (a)
Any person subject to regulation pursuant to this part may be subject to discipline or may be denied authorization for the following prohibited acts:
- (1)
Violation or attempted violation or assisting in or abetting the violation of or conspiring to violate any of the following:
- (A)
Any provision of this part;
- (B)
Any rule or regulation of the board;
- (C)
Any order issued pursuant to this part;
- (D)
Any terms or conditions of an authorization; or
- (E)
Any criminal statute of any state or Canadian province, or of the United States or Canada which involves moral turpitude or reflects upon the person's ability to fulfill such person's responsibilities under this part;
- (2)
Habitual intoxication or personal misuse of any drugs or the use of intoxicating liquors, narcotics, controlled substances, controlled substance analogues or other drugs or stimulants in such manner as to adversely affect the delivery, performance or activities in the care of the patients requiring medical care;
- (3)
Making false statements or representations, being guilty of fraud or deceit in obtaining authorization;
- (4)
Making false or materially incorrect or inconsistent entries in any patient records or in the records of any ambulance service, health care facility, school, institution or other work place location;
- (5)
Failure to report patient care which accurately reflects the evaluation and treatment of each patient;
- (6)
Abandoning or neglecting a patient requiring emergency care, following assumption of duty;
- (7)
Unauthorized use or removal of narcotics, drugs, supplies or equipment from any ambulance, health care facility, school, institution or other work place location;
- (8)
Performing or attempting emergency care techniques or procedures without proper permission, license, certification, training, medical direction, or otherwise engaging in unethical practices or conduct;
- (9)
Assigning persons to perform functions contrary to this part or rules and regulations of the board;
- (10)
Failing to submit an application, required documentation, or fee by the established expiration date;
- (11)
Permitting or allowing another person to use the licensed person's license or certificate for the purpose of practicing or impersonating an EMT or other certified or licensed health care provider;
- (12)
Discriminating in rendering emergency care because of race, sex, creed, religion, national origin or ability to pay;
- (13)
Gross health care liability or negligence, or a pattern of continued or repeated health care liability, ignorance, negligence or incompetence in the provision of emergency care;
- (14)
Failure of the owner or provider of any ambulance or emergency medical service to ensure compliance by such service and its personnel with this part and all regulations promulgated hereunder; or
- (15)
Refusing to follow the medical orders of a licensed medical doctor or doctor of osteopathy on the scene if such physician:
- (A)
Takes responsibility for the care of the patient;
- (B)
- (i)
Either travels with the patient to the hospital; or
- (ii)
Reaches an agreement with the base hospital physician that the patient has been stabilized and can be transported safely without the continued attendance of the physician; and
- (C)
Signs the trip records of the ambulance service relative to the orders and treatment given on the scene and in transit, if applicable.
- (b)
Disciplinary action against a person licensed to practice by another state of the United States for any acts or omissions which would constitute grounds for discipline of a person licensed in this state. A certified copy of the initial or final order or other equivalent document memorializing the disciplinary action from the disciplining state shall constitute prima facie evidence of a violation of this section, and shall be sufficient grounds upon which to deny, restrict, or condition licensure or renewal and/or otherwise discipline a licensee licensed in this state.
- (c)
In disciplinary actions against individuals holding a license, certificate, permit, or authorization in this state at the time of a disciplinary action in another reporting state, in the absence of justifying evidence to the contrary, there shall be a rebuttable presumption that the sanction proposed in any such proceeding will be comparable to that in the reporting state. However, no such presumption shall exist for those who are applying for licensure, certification, permit, or authorization in this state during or after the time the disciplinary action in the other state is pending or has become final. If the board denies, restricts, or conditions a licensure, certification, permit, or authorization based on a disciplinary action in another state, the applicant shall, upon written request, filed within thirty (30) days of the date of the action on the application, be entitled to a contested case hearing.
- (d)
Any person subject to regulation under this part must notify the Tennessee emergency medical services board of all convictions and pending charges, including arrests, citations for reckless driving under § 55-10-205, and indictments, for commission of a felony or misdemeanor in any jurisdiction within ten (10) business days of the occurrence of such actions. This subsection (d) shall apply to persons whose licenses are active, inactive, or suspended on the date of the conviction or the date the charges were filed. Failure to timely notify the Tennessee emergency medical services board of the occurrence of such actions shall result in the suspension of active and inactive licenses.
§ 68-140-312. Liability.
- (a)
Neither a physician nor a nurse who, in good faith, gives orders or instructions to emergency medical services personnel, operating within their technical abilities for emergency care authorized by this part, nor any personnel following such orders, shall be liable civilly or criminally by reason of having issued or followed the orders except insofar as the rules of law of negligence are applicable.
- (b)
Emergency medical services personnel shall not be liable for trespass when rendering services in good faith in compliance with this part. Any person who in good faith reports any alleged violations of this part shall not be civilly liable for damages.
§ 68-140-313. Enforcement of part.
-
Whenever the commissioner has reason to believe that a violation of this part, the regulations promulgated under this part, or an order of the board, is occurring, or is about to occur, the commissioner may initiate any of the following enforcement measures:
- (1)
The commissioner may initiate a proceeding before the board seeking any and all remedies hereinafter provided to the board;
- (2)
The commissioner may initiate a civil action in the chancery court of Davidson County or of the county in which the alleged offender resides or does business. In such action, the commissioner may seek and the court is authorized to grant any form of relief, injunctive and other, available at law or equity;
- (3)
If the activity involved appears to be a criminal offense, the commissioner may refer the matter to the appropriate district attorney general for prosecution;
- (4)
With respect to any person required to be licensed, permitted, or authorized by this part, the commissioner may assess a civil penalty against such person in an amount not to exceed fifty dollars ($50.00) per day for each violation. In assessing the civil penalty, the commissioner may consider the following:
- (A)
Whether the amount imposed will be a substantial economic deterrent to the violator;
- (B)
The circumstances leading to the violation of the board's order;
- (C)
The severity of the violation and the risk of harm to the public;
- (D)
Economic benefits gained by the violator as a result of non-compliance; and
- (E)
The interest of the public; and
- (5)
Civil penalties assessed by the commissioner pursuant to subdivision (4) are final thirty (30) days after the date the assessment is served unless the alleged violator, within that time, seeks review by the board. If the violator fails to pay an assessment when it becomes final, the commissioner may apply to the appropriate court for a judgment and seek execution of such judgment.
§ 68-140-314. Hearings — Remedies — Materials exempt from public records act — Prehearing discovery.
- (a)
Hearings before the board on enforcement or disciplinary actions shall be conducted in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5. The following remedies are available to the board in such actions:
- (1)
The board may suspend, modify, revoke or condition the authorization of any person who holds an authorization pursuant to this part;
- (2)
The board may issue an order requiring corrective action or the cessation of activities by any person as deemed necessary to correct or mitigate a violation. In particular, the board may issue an order against any person who conducts any of the activities regulated pursuant to this part without the proper authorization; and
- (3)
The board may affirm, modify or reverse any action of the commissioner.
- (b)
- (1)
All materials, documents, and other matters relating to, compiled or created in the course of an investigation conducted by the department pursuant to this section shall be exempt from the public records act until the filing of a notice of charges. After the filing of a notice of charges, only the information and those materials and documents upon which the charges are based are available for disclosure under the public records act, compiled in title 10, chapter 7; provided, that the identifying information of the following, as well as all investigator created documents and reports, shall remain confidential at all times, unless and until introduced in the proceedings of a hearing conducted by the board:
- (A)
A complainant;
- (B)
Any witness who requests anonymity;
- (C)
A patient; and
- (D)
Medical records.
- (2)
This section does not modify or limit the prehearing discovery provisions set forth in the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, part 3.
§ 68-140-315. Criminal offenses and penalties.
-
It is a Class C misdemeanor for any person to:
- (1)
Impersonate or fraudulently represent oneself as an emergency medical services provider, or interfere with a properly identified emergency care provider at the scene of an emergency, or to knowingly interfere with the performance of a duly authorized and identified representative of the department engaged in regulatory activities;
- (2)
Knowingly and willfully summon an ambulance or report that emergency medical service is needed when such person knows that such service is not needed; or
- (3)
Knowingly or willfully violate or fail to comply with this part.
§ 68-140-316. Application of part.
- (a)
This part applies to each person providing emergency medical services within the state. The board shall use all reasonable and lawful means to ensure that necessary emergency medical services are provided to all patients in the state, as required for the public health and safety.
- (b)
This part does not apply to the following:
- (1)
The occasional use of a privately or publicly owned vehicle not ordinarily used in the business of transporting persons who are sick, injured, wounded or otherwise incapacitated or helpless, and/or operating under the Good Samaritan Law, codified in § 63-6-218, in the performance of a lifesaving act;
- (2)
A vehicle rendering services as an ambulance in case of a major scheduled public event, catastrophe or emergency when ambulances with permits based in the localities of the major scheduled public event, catastrophe or emergency are insufficient to render the services required;
- (3)
Vehicles owned or operated by rescue squads, as defined by the board by rule and regulation, chartered by the state as corporations not for profit or otherwise existing as nonprofit associations which vehicles are not regularly used to transport sick, injured or otherwise incapacitated or helpless persons, except as a part of rescue operations; or
- (4)
Any ambulance service licensed in another state that does not regularly transport in this state when called in for transfer upon referral by any physician, health care facility, or ambulance service licensed in this state. A service licensed in another jurisdiction and called by a county or municipality no more than four (4) times in a calendar year for major scheduled public events shall not be deemed to be engaged in regular transportation in this state.
- (c)
For purposes of this part, a major scheduled public event shall be one for which the anticipated attendance is more than one hundred thousand (100,000) persons, or two-thirds (⅔) of the population of the county in which such public event is held, whichever is greater.
- (d)
Any emergency medical services agency licensed in another state that is requested to render emergency medical services at a major scheduled public event in Tennessee pursuant to this section and § 68-140-306 shall provide, upon request of the emergency medical services board, evidence that an emergency medical services agency licensed in Tennessee has granted permission for the emergency medical services agency licensed in another state to operate at the event under such Tennessee agency's license, and has accepted in writing responsibility for verifying the following relative to the emergency medical services agency licensed in another state:
- (1)
Such agency's current license;
- (2)
The current licensure status of all personnel of such agency;
- (3)
That all ambulances that may be used at such major scheduled public event are currently certified for use in the state in which such agency is licensed; and
- (4)
That a physician licensed in Tennessee has accepted in writing responsibility for acting as medical director for such agency and that such physician or such physician's designee, who is also a physician licensed in Tennessee, will participate as medical director for such agency at the major scheduled public event.
§ 68-140-317. Fees.
- (a)
- (1)
The board shall establish fees for licenses, permits, and for the licenses, certification and authorization of EMS personnel. The board may assess fees for the application, testing, inspection, or other services needed to carry out this part. Licensed emergency medical services personnel who are volunteer personnel associated with nonprofit corporations or associations providing emergency medical services, and otherwise non-salaried for their provision of emergency care, shall be exempt from license fees, but shall be liable for testing and training materials or other costs incurred by the board, and shall promptly notify and amend their fee status upon any change in the nature of their remuneration for activities involving emergency medical care.
- (2)
The board shall have the authority to waive any fees applicable to 501(c)(3) organizations that provide air ambulance service by way of fixed wing aircraft for indigent patients; provided, that such 501(c)(3) organizations shall not receive fee for service payments for such air ambulance services for indigent patients from insurance, private pay or third party reimbursement.
- (b)
Except as otherwise expressly provided by law, failure to remit any fees duly authorized by the board shall be grounds for denial of license or renewal, suspension of licenses or permits, or may otherwise constitute an offense within this part.
- (c)
Applications and fees submitted and received prior to or by expiration dates shall extend licenses, permits, and certificates for a period not to exceed sixty (60) days to allow administrative processing. An applicant with expired certification can apply for reinstatement upon good cause being shown to the board, and payment of all fees, including any reinstatement fees, and fulfilling any condition that may be established by the board.
§ 68-140-318. Continuation of rules, regulations, permits and agreements — Construction of part.
- (a)
Rules and regulations previously promulgated under the Emergency Medical Service Act of 1972, formerly compiled in part 1 of this chapter, which part was formerly chapter 39, part 1 of this title [repealed], shall remain in effect as the rules and regulations under this part. Any of these rules or regulations that may conflict with a statutory provision of this chapter is rendered void, but shall not affect the validity of the remaining rules and regulations. Further, standards for services, personnel, and vehicles established prior to this part shall remain in force until new standards are promulgated as regulations by the board pursuant to this part.
- (b)
All certificates, licenses and permits issued under part 1 of this chapter, which part was formerly chapter 39, part 1 of this title [repealed], shall remain in effect under this part until such times as they expire or are revoked or modified pursuant to this part.
- (c)
Any contracts, agreements, plans, grants, or other documents developed under the former Emergency Medical Service Act of 1972 [repealed] shall remain in effect under this part.
- (d)
This part is intended to supplement other provisions of the Tennessee Code Annotated and shall not be construed to repeal any other provisions specifically enacted for the provision of emergency medical services, except that the administration of any other laws pertaining to ambulance or emergency medical services shall be in accordance with the general policies and regulations adopted by the board.
- (e)
Nothing in this part is intended to change any provision of the Tennessee Medical Practices Act, compiled in title 63, chapter 6.
- (f)
Nothing in this part shall be construed as mandating that a county provide a county ambulance service.
§ 68-140-319. Records required to be kept by licensees and permittees — Disclosures.
- (a)
Each ambulance service and invalid vehicle operator, licensed or permitted by the department shall maintain the following:
- (1)
Run records;
- (A)
Information required to be contained in such records shall be promulgated by the board;
- (B)
All information contained in run records relative to, in whole or in part, a patient's medical histories, records, reports and summaries, diagnoses, prognoses, records of treatment and medication ordered and given, x-ray and radiology interpretations, physical therapy charts and notes, and lab reports, shall be considered “medical records”;
- (C)
Notwithstanding another law to the contrary, an ambulance service provider shall furnish to a patient or a patient's authorized representative a copy of the patient's run record or records within five (5) business days upon request in writing by the patient or the representative, and shall furnish a copy of a patient's run record or records to a surveyor employed by the health facilities commission within five (5) business days upon request in writing by the surveyor or health facilities commission staff; and
- (D)
Except as otherwise provided by law, such patient's run record or records are not a public record, and this part does not impair any privilege of confidentiality conferred by law on patients, their personal representatives, or heirs. This subdivision (a)(1)(D) does not impair or abridge the right of the patient or the patient's authorized representative to obtain copies of the patient's hospital records in the manner provided in § 68-11-304. This subdivision (a)(1)(D) does not prohibit a health facilities commission surveyor investigating an incident in a certified or licensed healthcare facility from obtaining a copy of this record without a subpoena incident to a health facility investigation. This subdivision (a)(1)(D) does not prohibit a patient's run record or records from being subpoenaed by a court of competent jurisdiction. As used in this subdivision (a)(1), “run record” includes any list of patients that is compiled or maintained by or for such patient's ambulance service provider, but does not include the dispatch log; and
- (2)
All other records deemed necessary and promulgated by the board.
- (b)
The department of health may disclose de-identified data that is collected pursuant to subsection (a), including for the purpose of providing opioid overdose response and resources throughout this state.
§ 68-140-320. Designation of government employee as officer for exposure control to perform infection control procedures.
- (a)
A local government or any licensed ambulance service may utilize one (1) or more of its employees licensed as a paramedic or critical care paramedic as its designated officer or officers for exposure control to perform infection control procedures necessary for prevention, exposure control and post-exposure evaluation on persons employed by that local government or licensed ambulance service as emergency response employees.
- (b)
For the purposes of this part, “emergency response employees” (EREs) include licensed emergency medical services personnel, certified emergency medical responders, and firefighters.
- (c)
All procedures authorized by this part shall be approved and performed under the medical direction of a Tennessee licensed physician.
- (d)
For the purposes of this part, infection control procedures shall include the following:
- (1)
Administering tuberculosis skin tests, influenza immunizations, hepatitis B immunizations, and other immunizations to EREs as ordered by the medical director;
- (2)
Conducting prevention, informational and education programs for EREs pertaining to airborne and bloodborne diseases; and
- (3)
Post-exposure evaluation of an ERE who may have been exposed to potentially life-threatening airborne or bloodborne diseases, including, but not limited to, tuberculosis, HIV or hepatitis B. The post-exposure evaluation shall consist of ascertaining information relative to the events regarding the perceived exposure, as well as assessing the degree or significance of the exposure for the purpose of informing the medical director. The medical director shall determine the potential public health risk and recommend the immediate course of action pertaining to the medical care of the ERE and any potential public health risk relative thereto. Further evaluation, treatment and follow-up of the ERE's condition shall be performed at a licensed hospital or physician's office.
- (e)
Nothing in this part shall relieve nor limit any entity employing EREs from the statutory obligations imposed under chapter 10 of this title, the Occupational Safety and Health Act of 1972, compiled in title 50, chapter 3, or from occupational safety and health standards promulgated pursuant to 29 CFR 1910.
§ 68-140-321. Rules and regulations — Intent of section — Adequate emergency medical care for children — Funding — Annual report. [Effective until July 1, 2024. See the version effective on July 1, 2024.]
- (a)
The emergency medical services board shall promulgate rules and regulations to provide optimal emergency medical services for pediatric patients served by the personnel and facilities it licenses and shall have the authority, when funding is available, to obtain assistance with development and implementation of its standards and to support delivery of educational services and equipment to the providers of emergency pediatric medical services it licenses. In developing, updating and implementing the rules and regulations and providing services and equipment, the board shall be guided by national standards and shall collaborate with the health facilities commission and health care facilities board and the committee on pediatric emergency care created pursuant to § 68-11-251.
- (b)
It is the intent of this section that the entire spectrum of emergency pediatric medical and critical care services, including primary prevention of illness and injury, a statewide pediatric trauma system, disaster planning and management, acute care, data analysis, evaluation of potential standards of care, and rehabilitation be incorporated into the rules and into any services and equipment provided or required to be furnished pursuant to this section or any grant or contract awarded under this section.
- (c)
The rules authorized by this section shall require adequate emergency medical care for children relative to the following and shall take into account the size and location of facilities and shall require appropriate triage, stabilization and referral of patients:
- (1)
Facility equipment standards;
- (2)
Qualifications of facility personnel; and
- (3)
Continuing professional education of facility personnel.
- (d)
To assist in the implementation of the purposes of this section, the health facilities commission shall have the authority to solicit and receive grants, donations, public and private funding. The funding may be used for grants or contracts with 501(c)(3) organizations, as defined in 26 U.S.C. § 501(c)(3), that are capable of providing the advice, services and equipment necessary to assist in the provision of state-of-the-art emergency medical and critical care for ill or injured pediatric patients.
- (e)
On or before July 1 of every year, the board for licensing health care facilities and the emergency medical services board, in collaboration with the committee on pediatric emergency care, shall jointly prepare a report on the current status of emergency medical services for children and on continuing efforts to improve such services. The joint report shall be submitted to the health and welfare committee of the senate and to the health committee of the house of representatives.
§ 68-140-322. Oaths and subpoenas.
- (a)
- (1)
Any elected officer of the board, or any duly appointed or elected chair has the authority to administer oaths to witnesses. Upon probable cause being established, the board, by a vote of two-thirds (⅔) of the members to which the board is entitled, may issue subpoenas for the attendance of witnesses and the production of documents and records.
- (2)
Service of a subpoena issued by the board shall be made by the sheriff of the county of residence of the licensee or person upon whom the subpoena is served.
- (b)
- (1)
A licensee or person served by subpoena shall have thirty (30) days to request in writing a hearing before the board for the sole purpose of making a special appearance to quash or modify the subpoena. The subpoena for attendance of the person or the production of books and records shall be stayed until the board votes upon the request to quash or modify the subpoena. A majority vote of the members to which the board is entitled shall be required to quash or modify a subpoena.
- (2)
A motion to appeal from a decision by the board regarding a request to quash or modify a subpoena shall be made to the chancery court in Davidson County within fifteen (15) days of such decision.
- (c)
If any witness fails or refuses to obey a subpoena issued by it, the board is authorized to make application to any court of record in this state within the jurisdiction of which the witness is found or resides, and the court shall have power to attach the body of the witness and compel the witness to appear before the board and give testimony or produce books, records or papers as ordered, and any failure to obey the court order may be punished by the court issuing the order as a civil contempt.
- (d)
Each witness who appears before the board by order of the board shall receive for attendance the compensation provided by law for attendance of witnesses in a court of record, which shall be paid from the funds of the board in the same manner as all other expenses of the board are paid.
§ 68-140-325. Criminal background check as condition of employment.
- (a)
As a condition for employment of any licensed, certificated or authorized emergency medical services personnel, employers shall be allowed to initiate a criminal background check on any person applying for employment, or any employee that is currently employed by such employer, and such criminal background investigation shall be at the expense of the employer.
- (b)
Applicants shall:
- (1)
Provide past work history and personal references to be checked by the employer;
- (2)
Agree to the release of only such information and investigative records to the employer, or to any agency that contracts with this state, necessary for the purpose of verifying whether the individual has been convicted of a felony in this state;
- (3)
Supply a fingerprint sample and submit to a criminal history records check to be conducted by the Tennessee bureau of investigation, the federal bureau of investigation, other law enforcement agency, or any legally authorized entity; and
- (4)
Release any information required for a criminal background investigation by a professional background screening organization or criminal background check service or registry.
- (c)
Any cost incurred by the Tennessee bureau of investigation, federal bureau of investigation, professional background screening organization, law enforcement agency or other legally authorized entity, in conducting such investigations of such applicants shall be paid by such applicants. In the event that such applicants fail to pay for these incurred expenses, the responsibility for payment will fall to the employer originally requesting such criminal background checks. Payments of such cost to the Tennessee bureau of investigation are to be made in accordance with §§ 38-6-103 and 38-6-109.
§ 68-140-326. Color schemes for ambulances in certain jurisdictions.
- (a)
Notwithstanding department of health rule 1200-12-1.02(3)(a)-(f), or any other provision of law to the contrary, any municipality, located within any county having a population of more than eight hundred thousand (800,000), according to the 2000 federal census or any subsequent federal census, that owns, operates or maintains ambulances as a part of the services provided by the municipality is authorized to select the color of its ambulances; provided, that the color scheme is the same as is used by the fire department in the municipality.
- (b)
Subsection (a) shall also apply in any county having a metropolitan form of government and a population in excess of five hundred thousand (500,000), according to the 2000 federal census or any subsequent federal census.
- (c)
Subsection (a) shall also apply in any county having a population of not less than one hundred fifty-three thousand (153,000) nor more than one hundred fifty-three thousand one hundred (153,100), according to the 2000 federal census or any subsequent federal census.
§ 68-140-327. Certification by paramedic training centers.
- (a)
In order to be certified by the board pursuant to § 68-140-304(10), the training program offered by the paramedic training center must follow the United States department of transportation paramedic national standard curriculum. In addition, only paid career members of a fire department that operates its own fire training academy to provide training for career paramedics employed by the fire department are eligible to enter and graduate from the paramedic training program. Upon written intergovernmental agreement, paid career members of any fire department that operates within the county are also eligible to enter and graduate from the paramedic training program.
- (b)
Pursuant to § 68-140-304(10), any fire department that operates its own fire training academy shall have the option of permitting a fire fighter recruit to have between three (3) and five (5) years to complete the training for certification as a paramedic.
§ 68-140-328. Treatment of heart attack patients.
- (a)
The department shall recognize hospitals that meet the criteria of a ST-elevation myocardial infarction (STEMI) receiving center or STEMI referring center. Such recognition is limited to inclusion on a list, maintained by the department, of STEMI receiving centers and STEMI referring centers. The list shall be published on the department's division of emergency medical services' website.
- (b)
The department may recognize certification or accreditation from a department-approved nationally recognized certifying or accrediting organization, as sufficient to recognize a hospital as a STEMI receiving center or a STEMI referring center.
- (c)
To be recognized as a STEMI receiving center or a STEMI referring center by the department, a hospital must submit written notification to the board for licensing healthcare facilities and submit proof that the hospital meets the applicable criteria set forth by a department-approved nationally recognized certifying or accrediting organization.
- (d)
If a hospital loses its certification or accreditation, it shall notify the board for licensing healthcare facilities. The department must then remove the hospital from the department's list.
- (e)
Each ambulance service shall develop and implement pre-hospital care protocol plans related to the assessment, treatment, and transport of STEMI heart attack patients by licensed emergency medical services personnel. The protocol shall include plans for the triage and transport of STEMI heart attack patients to the closest or most appropriate STEMI receiving center, or, when appropriate, to a STEMI referring center, based on nationally recognized clinical practice guidelines. The emergency medical services board has the authority to promulgate rules to implement and enforce this section.
- (f)
STEMI receiving centers are encouraged to coordinate, through agreement, with STEMI referring centers throughout the state to provide appropriate access to care for acute heart attack patients.
§ 68-140-329. Treatment of stroke patients.
- (a)
The emergency medical services board shall promulgate rules establishing protocol guidelines for evidence-based pre-hospital assessment, treatment, education, and transport of stroke patients by emergency medical providers.
- (b)
Based on the protocol guidelines established by the board, each ambulance service shall establish and implement pre-hospital care protocol plans related to the assessment, triage, and transport of stroke patients. The protocol guidelines shall include specific language incorporating entry and transfer plans for patients with suspected large vessel occlusion to the most appropriate stroke-ready facility.
- (c)
Each licensed ambulance service in this state shall refer to protocol guidelines, as part of current training requirements, to assure that licensed emergency medical services personnel receive regular training on the assessment and treatment of stroke patients, including those most severe stroke cases, which may include a large vessel occlusion.
§ 68-140-330. Waiver of initial licensure fees for low-income persons.
- (a)
As used in this section:
- (1)
“Licensing” means the procedure through which the privilege to engage in a profession regulated under this part is granted by the board;
- (2)
“Licensure fee” means a fee imposed by the board on persons licensed to practice a profession for the privilege of services;
- (3)
“Low-income persons” means persons who are enrolled in a state or federal public assistance program, including, but not limited to, temporary assistance for needy families (TANF), medicaid, or supplemental nutrition assistance program (SNAP); and
- (4)
“Veteran” means a former member of the United States armed forces, including the reserves and national guard, who was trained and certified as a combat medic or corpsman.
- (b)
- (1)
When a license is required for persons to practice in a profession under this part, the board shall waive all initial licensure fees for low-income persons and veterans.
- (2)
- (A)
Persons seeking a waiver of initial licensure fee requirements shall apply to the board in a format prescribed by the board.
- (B)
The board shall process the application within thirty (30) days of its receipt from the applicant.
- (3)
The board shall promulgate rules to effectuate the purposes of this section.
§ 68-140-331. EMT/AEMT training centers.
- (a)
The board may authorize a total of thirty (30) EMT/AEMT training centers operated by ambulance services licensed in this state.
- (b)
In order to be certified by the board pursuant to § 68-140-304(13), a training program offered by an EMT/AEMT training center must follow the National EMS Scope of Practice Model for Emergency Medical Service Personnel as promulgated by the United States department of transportation, national highway traffic safety administration. Ambulance services licensed in this state may establish an EMT/AEMT training program. The ambulance service must:
- (1)
Have an instructor coordinator approved by the division of emergency medical services who serves as the training coordinator or lead instructor for the ambulance service; and
- (2)
Charge a special enrollment fee of one hundred seventy-five dollars ($175) to each student to be paid directly to the division of emergency medical services to be allocated to the general fund.
- (c)
- (1)
A training program offered by an EMT/AEMT training center must not offer training to more than three (3) classes of students per year, per type of class.
- (2)
A training program offered by an EMT/AEMT training center must not have more than twenty (20) total students per class.
- (d)
A training program offered by an EMT/AEMT training center may utilize online or virtual interactive training for didactic instruction subject to the same rules and regulations for online and virtual interactive training provided by accredited EMS education institutions.
- (e)
The general assembly urges ambulance services operating EMT/AEMT training centers in accordance with this section and the Tennessee board of regents to develop partnerships as practicable to increase the capacity of this state to prepare EMTs, AEMTs, and paramedics.
§ 68-140-332. Proof of license, registration, or certification by electronic means.
-
Notwithstanding any law to the contrary, a person who is licensed, registered, or certificated to provide emergency medical services in this state and who is required by statute or rule to keep proof of their license, registration, or certification on their person may satisfy that requirement by providing the proof by electronic means.
§ 68-140-333. Use of EMS-A by licensed ambulance service.
- (a)
An EMS-A may be utilized by a licensed ambulance service if the EMS-A:
- (1)
Satisfies all necessary pre-employment background screening, including a criminal background check and sex offender registry check;
- (2)
Is accompanied with at least one (1) EMT while responding to a request for emergency medical care;
- (3)
Does not engage in patient care above the EMS-A's scope of training and licensure;
- (4)
Becomes licensed as an EMR or EMT within twelve (12) months of the EMS-A's initial employment date; and
- (5)
Is not included in a compact between states.
- (b)
For the purposes of the department's emergency medical services standards and categories, an EMS-A must be regarded as an EMT.
§ 68-140-334. Use of EMR by licensed ambulance service.
- (a)
An EMR may be utilized by a licensed ambulance service if the EMR:
- (1)
Satisfies all necessary pre-employment background screening to include criminal background and sex offender registry;
- (2)
Is accompanied with at least one (1) EMT while responding to a request for emergency medical care;
- (3)
Does not engage in patient care above the EMR's scope of training and licensure;
- (4)
Becomes licensed as an EMT within twelve (12) months of the EMR's initial employment date as an EMR employee or twelve (12) months following the EMR's initial licensure as an EMR while employed; and
- (5)
Is not included in a compact between states.
- (b)
For the purposes of the department's emergency medical services standards and categories, an EMR must be regarded as an EMT.
§ 68-140-335. Pay supplement for in-service training course — Eligibility — Eligibility for service members. [Effective on January 1, 2024.]
- (a)
A licensed Tennessee ambulance service with full-time employed emergency medical services personnel who successfully complete in each year an in-service training course, appropriate to the emergency medical services personnel's rank and responsibility, of at least forty (40) hours duration at a training center must receive from the board of emergency medical services a pay supplement of eight hundred dollars ($800) for each emergency medical services personnel who completes the in-service training course to be paid to the emergency medical services personnel in addition to the emergency medical services personnel's regular salary.
- (b)
Full-time, ambulance service-employed emergency medical services personnel are eligible for the educational incentive described in subsection (a) upon satisfactory completion, as determined by the board, of forty (40) hours of such training in each year.
- (c)
Notwithstanding another law to the contrary, emergency medical services personnel who served, or serve, on active duty in the armed forces of the United States during a period of armed conflict prescribed by presidential proclamation or federal law must receive the cash salary supplement provided pursuant to this section, if such service prevented, or prevents, such emergency medical services personnel from attending the in-service training program pursuant to this section.
Part 4 Automated External Defibrillators
§ 68-140-401. Legislative intent.
-
It is the intent of the general assembly that an automated external defibrillator (AED) may be used in accordance with § 68-140-403 for the purpose of saving the life of another person in cardiac arrest.
§ 68-140-402. Part definitions.
-
As used in this part, unless the context otherwise requires:
- (1)
“AED” or “defibrillator” means an automated external defibrillator; and
- (2)
“Automated external defibrillator (AED)” means a medical device heart monitor and defibrillator that:
- (A)
Has received approval of its premarket notification, filed pursuant to 21 U.S.C. § 360(R), from the United States food and drug administration;
- (B)
Is capable of recognizing the presence or absence of ventricular fibrillation or rapid ventricular tachycardia, and is capable of determining, without intervention by an operator, whether defibrillation should be performed; and
- (C)
Upon determining that defibrillation should be performed, automatically charges and requests delivery of an electrical impulse to an individual’s heart.
§ 68-140-403. Use of AED devices — Training — Maintenance — Registration encouraged.
-
In order to ensure public health and safety:
- (1)
A person or entity that acquires an automated external defibrillator (AED) shall ensure that:
- (A)
Expected defibrillator users receive American Heart Association CPR and AED or an equivalent nationally recognized course in defibrillator use and cardiopulmonary resuscitation;
- (B)
The defibrillator is maintained and tested according to the manufacturer's operational guidelines; and
- (C)
Any person who renders emergency care or treatment on a person in cardiac arrest by using an AED activates the emergency medical services system as soon as possible.
- (2)
Any person or entity that acquires an AED shall, within a reasonable time after the placement of an AED, register the existence and location of the defibrillator with the emergency communications district or the ambulance dispatch center of the primary provider of emergency medical services where the AED is to be located.
§ 68-140-404. Program for use of AEDs.
-
In order for an entity to use or allow the use of an automated external defibrillator, the entity shall:
- (1)
Establish a program for the use of an AED that includes a written plan that complies with subdivisions (2)-(6) and rules adopted by the department of health. The plan must specify:
- (A)
Where the AED will be placed;
- (B)
The individuals who are authorized to operate the AED;
- (C)
How the AED will be coordinated with an emergency medical service providing services in the area where the AED is located;
- (D)
The maintenance and testing that will be performed on the AED;
- (E)
Records that will be kept by the program;
- (F)
Reports that will be made of AED use;
- (G)
Other matters as specified by the department; and
- (H)
A plan of action for proper usage of the AED;
- (2)
Adhere to the written plan required by subdivision (1);
- (3)
Ensure that before using the AED, expected users receive appropriate training approved by the department in cardiopulmonary resuscitation and the proper use of an AED;
- (4)
Maintain, test, and operate the AED according to the manufacturer's guidelines and maintain written records of all maintenance and testing performed on the AED;
- (5)
Each time an AED is used for an individual in cardiac arrest, require that an emergency medical service is summoned to provide assistance as soon as possible and that the AED use is reported to the supervising physician or the person designated by the physician and to the department as required by the written plan; and
- (6)
Before allowing any use of an AED, provide to the emergency communications district or the primary provider of emergency medical services where the defibrillator is located:
- (A)
A copy of the plan prepared pursuant to this section; and
- (B)
Written notice, in a format prescribed by department rules, stating:
- (i)
That an AED program is established by the entity;
- (ii)
Where the AED is located; and
- (iii)
How the use of the AED is to be coordinated with the local emergency medical service system.
§ 68-140-405. Rules relating to AED's — Adoption — Scope and contents.
-
The department of health shall adopt rules specifying the following:
- (1)
The contents of the written notice required by § 68-140-404;
- (2)
Reporting requirements for each use of an AED;
- (3)
The contents of a plan prepared in accordance with § 68-140-404 and requirements applicable to the subject matter of the plan;
- (4)
Training requirements in cardiopulmonary resuscitation and AED use that are consistent with the scientific guidelines of the American Heart Association for any individual authorized by an AED program plan to use an AED;
- (5)
Requirements for medical supervision of an AED program; and
- (6)
Performance requirements for an AED in order for the AED to be used in an AED program.
Part 5 Epinephrine Auto-Injectors
§ 68-140-501. Part definitions.
-
As used in this part, unless the context otherwise requires:
- (1)
“Authorized entity” means an entity or organization at which allergens capable of causing anaphylaxis may be present, including, but not limited to, a recreation camp, college, university, place of worship, youth sports league, amusement park, restaurant, place of employment, and sports arena. The term does not include a public or nonpublic school that is authorized to maintain and administer an epinephrine auto-injector on the premises of the school pursuant to § 49-50-1602;
- (2)
“Department” means the department of health;
- (3)
“Emergency public access station (EPAS)” means a locked, secure container for the storage of epinephrine auto-injectors that:
- (A)
Is maintained by and under the general supervision of a medical professional and that allows a layperson, after consulting with the medical professional in real time by audio, televideo, or other similar means of electronic communication, to unlock the container and access the epinephrine auto-injectors; and
- (B)
Is approved for use under any applicable provisions of title 21 of the United States Code;
- (4)
“Epinephrine auto-injector” means a single-use device used to administer by automatic injection a premeasured dose of epinephrine into the body of a person;
- (5)
“Health care prescriber” means a medical doctor or doctor of osteopathic medicine who is licensed pursuant to title 63, chapter 6 or 9; a nurse practitioner licensed pursuant to title 63, chapter 7; and a physician assistant licensed pursuant to title 63, chapter 19; and
- (6)
“Medical professional” means a medical doctor or doctor of osteopathic medicine who is licensed to practice medicine or osteopathic medicine in this state or in any other state or territory of the United States.
§ 68-140-502. Prescribers of epinephrine auto-injectors — Stock and storage — Training for administration of epinephrine auto-injectors — Training programs — Liability.
- (a)
A health care prescriber may prescribe epinephrine auto-injectors in the name of an authorized entity for use in accordance with this part, and pharmacists and health care prescribers may dispense epinephrine auto-injectors pursuant to a prescription issued in the name of an authorized entity.
- (b)
An authorized entity may acquire and stock a supply of epinephrine auto-injectors pursuant to a prescription issued in accordance with subsection (a). Except as otherwise provided in subsection (g), if an authorized entity acquires and stocks a supply of epinephrine auto-injectors pursuant to this subsection (b), the authorized entity shall:
- (1)
Store epinephrine auto-injectors in a location readily accessible in an emergency, and in accordance with the epinephrine auto-injector's instructions for use and any rules promulgated by the department for the maintenance of epinephrine auto-injectors by an authorized entity; and
- (2)
Designate one (1) or more employees or agents who have completed the training required by subsection (d) to be responsible for the storage, maintenance, control, and general supervision of the epinephrine auto-injectors.
- (c)
An employee or agent of an authorized entity who has completed the training required by subsection (d), or a layperson who is provided access to an EPAS in accordance with subsection (g), may:
- (1)
Provide an epinephrine auto-injector to a person who the employee, agent, or person believes in good faith is experiencing anaphylaxis, or to the parent, guardian, or caregiver of the person, for immediate administration to the person, regardless of whether the person has a prescription for an epinephrine auto-injector or has previously been diagnosed with an allergy; and
- (2)
Administer an epinephrine auto-injector to a person who the employee, agent, or person believes in good faith is experiencing anaphylaxis, regardless of whether the person has a prescription for an epinephrine auto-injector or has previously been diagnosed with an allergy.
- (d)
Before an employee or agent of an authorized agency is designated pursuant to subdivision (b)(2) or authorized to provide or administer an epinephrine auto-injector pursuant to subsection (c), the employee or agent shall complete an initial anaphylaxis training program and shall complete the training program at least every two (2) years thereafter. The training program shall be conducted by a nationally recognized organization experienced in training laypersons in emergency health treatment, by an entity or person approved by the department, or as part of a class approved by the department. An employee or agent may complete the training required pursuant to this subsection (d) in a live setting or on the internet.
- (e)
A training program conducted pursuant to subsection (d) shall include training on:
- (1)
Methods for recognizing signs and symptoms of severe allergic reactions, including anaphylaxis;
- (2)
Standards and procedures for the storage and administration of an epinephrine auto-injector; and
- (3)
Emergency follow-up procedures.
- (f)
An entity or person that conducts an anaphylaxis training program shall issue a certificate of completion to each person who successfully completes the training program. The department may create or approve a form for use in accordance with this subsection (f).
- (g)
An authorized entity that acquires a stock supply of epinephrine auto-injectors pursuant to subsection (b) may store a supply of epinephrine auto-injectors in an EPAS for the purpose of making the epinephrine auto-injectors available to a layperson under the remote supervision of a medical professional. A layperson may access an epinephrine auto-injector from an EPAS only upon remote authorization by a medical professional and after consultation with the medical professional by audio, televideo, or other similar means of electronic communication. A layperson who is provided access to an epinephrine auto-injector in accordance with this subsection (g) may administer or provide the epinephrine auto-injector to a person in accordance with subsection (c) regardless of whether the layperson has completed an anaphylaxis training program conducted pursuant to subsection (d).
- (h)
The following entities and persons are immune from civil liability in the absence of gross negligence for any action authorized by this section or the failure to take any action authorized by this section:
- (1)
An authorized entity that acquires, stocks, and makes available epinephrine auto-injectors;
- (2)
An employee or agent of an authorized entity, or a layperson, who administers or provides an epinephrine auto-injector;
- (3)
A health care prescriber who prescribes epinephrine auto-injectors to an authorized entity;
- (4)
A pharmacist or health care prescriber who dispenses epinephrine auto-injectors to an authorized entity;
- (5)
A third party that facilitates the availability of epinephrine auto-injectors to an authorized entity;
- (6)
A medical professional who maintains and supervises, and provides remote access to, an EPAS; and
- (7)
An organization, entity, or person that conducts a training program.
- (i)
An authorized entity located in this state is immune from civil liability for any injuries or related damages resulting from the provision or administration of an epinephrine auto-injector by an employee or agent of the authorized entity that occurs outside of this state if the authorized entity:
- (1)
Would not be liable for the injuries or related damages had the provision or administration of the epinephrine auto-injector occurred within this state; or
- (2)
Is not liable for the injuries or related damages under any applicable law of the state in which the provision or administration of the epinephrine auto-injector occurred.
- (j)
This section shall not be deemed to eliminate, limit, or reduce any other immunity or defense that may be available to an authorized entity or person under any applicable law of this state, including § 63-6-218.
- (k)
An action authorized pursuant to this section shall not be deemed to be the practice of medicine or any other profession that otherwise requires licensure.
- (l)
An authorized entity that possesses and makes available epinephrine auto-injectors shall submit to the department a report of each incident on the premises of the authorized entity involving the administration or provision of an epinephrine auto-injector pursuant to subsection (c). The department may create or approve a form for use in accordance with this subsection (l).
Part 6 Emergency Medical Services Personnel Licensure Interstate Compact
§ 68-140-601. Short title.
-
This part shall be known and may be cited as the “Recognition of Emergency Medical Services Personnel Licensure Interstate Compact Act” or “REPLICA.”
§ 68-140-602. Text of compact. [Contingent implementation date. See Section 14.]
-
-
- Section 1. Purpose.
-
The purpose of this compact is to protect the public through verification of competency and ensure accountability for patient care related activities of all states' licensed emergency medical services (EMS) personnel, such as emergency medical technicians (EMTs), advanced EMTs, and paramedics. This compact is intended to facilitate the day-to-day movement of EMS personnel across state boundaries in the performance of their EMS duties as assigned by an appropriate authority and authorize state EMS offices to afford immediate legal recognition to EMS personnel licensed in a member state. This compact recognizes that states have a vested interest in protecting the public's health and safety through their licensing and regulation of EMS personnel and that such state regulation shared among the member states will best protect public health and safety. This compact is designed to achieve the following purposes and objectives:
- 1.
Increase public access to EMS personnel;
- 2.
Enhance the states' ability to protect the public's health and safety, especially patient safety;
- 3.
Encourage the cooperation of member states in the areas of EMS personnel licensure and regulation;
- 4.
Support licensing of military members who are separating from an active duty tour and the spouses of military members;
- 5.
Facilitate the exchange of information between member states regarding EMS personnel licensure, adverse action, and significant investigatory information;
- 6.
Promote compliance with the laws governing EMS personnel practice in each member state; and
- 7.
Invest all member states with the authority to hold EMS personnel accountable through the mutual recognition of member state licenses.
-
- Section 2. Definitions.
-
As used in this compact:
- A.
“Advanced emergency medical technician” or “AEMT” means an individual licensed with cognitive knowledge and a scope of practice that corresponds to that level in the National EMS Education Standards and National EMS Scope of Practice Model.
- B.
“Adverse action” means any administrative, civil, equitable, or criminal action permitted by a state's laws that may be imposed against licensed EMS personnel by a state EMS authority or state court, including, but not limited to, actions against an individual's license such as revocation, suspension, probation, consent agreement, monitoring, or other limitation or encumbrance on the individual's practice; letters of reprimand or admonition; fines; criminal convictions; and state court judgments enforcing adverse actions by the state EMS authority.
- C.
“Alternative program” means a voluntary, non-disciplinary substance abuse recovery program approved by a state EMS authority.
- D.
“Certification” means the successful verification of entry-level cognitive and psychomotor competency using a reliable, validated, and legally defensible examination.
- E.
“Commission” means the national administrative body of which all states that have enacted the compact are members.
- F.
“Emergency medical technician” or “EMT” means an individual licensed with cognitive knowledge and a scope of practice that corresponds to that level in the National EMS Education Standards and National EMS Scope of Practice Model.
- G.
“Home state” means a member state where an individual is licensed to practice emergency medical services.
- H.
“License” means the authorization by a state for an individual to practice as an EMT, AEMT, paramedic, or at a level between EMT and paramedic.
- I.
“Medical director” means a physician licensed in a member state who is accountable for the care delivered by EMS personnel.
- J.
“Member state” means a state that has enacted this compact.
- K.
“Paramedic” means an individual licensed with cognitive knowledge and a scope of practice that corresponds to that level in the National EMS Education Standards and National EMS Scope of Practice Model.
- L.
“Privilege to practice” means an individual's authority to deliver emergency medical services in remote states as authorized under this compact.
- M.
“Remote state” means a member state in which an individual is not licensed.
- N.
“Restricted” means the outcome of an adverse action that limits a license or the privilege to practice.
- O.
“Rule” means a written statement by the interstate commission promulgated pursuant to Section 12 of this compact that is of general applicability; implements, interprets, or prescribes a policy or provision of the compact; or is an organizational, procedural, or practice requirement of the commission and has the force and effect of statutory law in a member state. “Rule” includes the amendment, repeal, or suspension of an existing rule.
- P.
“Scope of practice” means defined parameters of various duties or services that may be provided by an individual with specific credentials. Whether regulated by rule, statute, or court decision, it tends to represent the limits of services an individual may perform.
- Q.
“Significant investigatory information” means:
- 1.
Investigative information that a state EMS authority, after a preliminary inquiry that includes notification and an opportunity to respond if required by state law, has reason to believe, if proved true, would result in the imposition of an adverse action on a license or privilege to practice; or
- 2.
Investigative information that indicates that the individual represents an immediate threat to public health and safety, regardless of whether the individual has been notified and had an opportunity to respond.
- R.
“State” means any state, commonwealth, district, or territory of the United States.
- S.
“State EMS Authority” means the board, office, or other agency with the legislative mandate to license EMS personnel.
-
- Section 3. Home state licensure.
- A.
Any member state in which an individual holds a current license is deemed a home state for purposes of this compact.
- B.
Any member state may require an individual to obtain and retain a license to be authorized to practice in the member state under circumstances not authorized by the privilege to practice under the terms of this compact.
- C.
A home state's license authorizes an individual to practice in a remote state under the privilege to practice only if the home state:
- 1.
Currently requires the use of the National Registry of Emergency Medical Technicians (NREMT) examination as a condition of issuing initial licenses at the EMT and paramedic levels;
- 2.
Has a mechanism in place for receiving and investigating complaints about individuals;
- 3.
Notifies the commission, in compliance with the terms of the compact, of any adverse action or significant investigatory information regarding an individual;
- 4.
No later than five (5) years after activation of the compact, requires a criminal background check of all applicants for initial licensure, including the use of the results of fingerprint or other biometric data checks compliant with the requirements of the federal bureau of investigation, with the exception of federal employees who have suitability determination in accordance with 5 CFR § 731.202, and submits documentation of the requirement as promulgated in the rules of the commission; and
- 5.
Complies with the rules of the commission.
-
- Section 4. Compact privilege to practice.
- A.
Member states shall recognize the privilege to practice of an individual licensed in another member state that is in conformance with Section 3 of this compact.
- B.
To exercise the privilege to practice under the terms and provisions of this compact, an individual must:
- 1.
Be at least eighteen (18) years of age;
- 2.
Possess a current, unrestricted license in a member state as an EMT, AEMT, paramedic, or state recognized and licensed level with a scope of practice and authority between EMT and paramedic; and
- 3.
Practice under the supervision of a medical director.
- C.
An individual providing patient care in a remote state under the privilege to practice shall function within the scope of practice authorized by the home state unless and until modified by an appropriate authority in the remote state, as may be defined in the rules of the commission.
- D.
Except as provided in subsection C of this Section 4, an individual practicing in a remote state is subject to the remote state's authority and laws. A remote state may, in accordance with due process and that state's laws, restrict, suspend, or revoke an individual's privilege to practice in the remote state and may take any other necessary actions to protect the health and safety of its citizens. If a remote state takes action, the remote state shall promptly notify the home state and the commission.
- E.
If an individual's license in any home state is restricted or suspended, the individual is not eligible to practice in a remote state under the privilege to practice until the individual's home state license is restored.
- F.
If an individual's privilege to practice in any remote state is restricted, suspended, or revoked, the individual is not eligible to practice in any remote state until the individual's privilege to practice is restored.
-
- Section 5. Conditions of practice in a remote state.
-
An individual may practice in a remote state under a privilege to practice only in the performance of the individual's EMS duties as assigned by an appropriate authority, as defined in the rules of the commission, and under the following circumstances:
- 1.
The individual originates a patient transport in a home state and transports the patient to a remote state;
- 2.
The individual originates in the home state and enters a remote state to pick up a patient and provide care and transport of the patient to the home state;
- 3.
The individual enters a remote state to provide patient care or transport within that remote state;
- 4.
The individual enters a remote state to pick up a patient and provide care and transport to a third member state; or
- 5.
Other conditions as determined by rules promulgated by the commission.
-
- Section 6. Relationship to emergency management assistance compact.
-
Upon a member state's governor's declaration of a state of emergency or disaster that activates the Emergency Management Assistance Compact (EMAC), all relevant terms and provisions of EMAC shall apply, and to the extent any terms or provisions of this compact conflict with EMAC, the terms of EMAC shall prevail with respect to any individual practicing in the remote state in response to such declaration.
-
- Section 7. Veterans, service members separating from active duty military, and their spouses.
- A.
Member states shall consider a veteran, active military service member, and member of the national guard and reserves separating from an active duty tour, and a spouse of the veteran or member, who holds a current, valid, and unrestricted NREMT certification at or above the level of the state license being sought, as satisfying the minimum training and examination requirements for licensure.
- B.
Member states shall expedite the processing of licensure applications submitted by veterans, active military service members, and members of the national guard and reserves separating from an active duty tour, and their spouses.
- C.
All individuals functioning with a privilege to practice under this section remain subject to the adverse actions provisions of Section 8 of this compact.
-
- Section 8. Adverse actions.
- A.
A home state shall have exclusive power to impose adverse action against an individual's license issued by the home state.
- B.
If an individual's license in any home state is restricted or suspended, the individual is not eligible to practice in a remote state under the privilege to practice until the individual's home state license is restored.
- C.
All home state adverse action orders shall include a statement that the individual's compact privileges are inactive. The order may allow the individual to practice in remote states with prior written authorization from both the home state and remote state's EMS authority.
- D.
An individual currently subject to adverse action in the home state shall not practice in any remote state without prior written authorization from both the home state and remote state's EMS authority.
- E.
A member state shall report adverse actions and any occurrences that the individual's compact privileges are restricted, suspended, or revoked to the commission in accordance with the rules of the commission.
- F.
A remote state may take adverse action on an individual's privilege to practice within that state.
- G.
Any member state may take adverse action against an individual's privilege to practice in that state based on the factual findings of another member state, so long as each state follows its own procedures for imposing an adverse action.
- H.
A home state's EMS authority shall investigate and take appropriate action with respect to reported conduct in a remote state as it would if the conduct had occurred within the home state. In these cases, the home state's law controls in determining the appropriate adverse action.
- I.
Nothing in this compact overrides a member state's decision that participation in an alternative program may be used in lieu of adverse action and that participation remains confidential if required by the member state's laws. Member states must require individuals who enter any alternative programs to agree not to practice in any other member state during the term of the alternative program without prior authorization from the other member state.
-
- Section 9. Additional powers invested in a member state’s EMS authority.
-
A member state's EMS authority, in addition to any other powers granted under state law, is authorized under this compact to:
- 1.
Issue subpoenas for both hearings and investigations that require the attendance and testimony of witnesses and the production of evidence. Subpoenas issued by a member state's EMS authority for the attendance and testimony of witnesses, or the production of evidence from another member state are enforceable in the remote state by any court of competent jurisdiction, according to that court's practice and procedure in considering subpoenas issued in its own proceedings. The issuing state's EMS authority shall pay any witness fees, travel expenses, mileage, and other fees required by the service statutes of the state where the witnesses or evidence are located; and
- 2.
Issue cease and desist orders to restrict, suspend, or revoke an individual's privilege to practice in the state.
-
- Section 10. Establishment of the interstate commission for EMS personnel practice.
- A.
- 1.
The compact states hereby create and establish a joint public agency known as the Interstate Commission for EMS Personnel Practice.
- 2.
The commission is a body politic and an instrumentality of the compact states.
- 3.
Venue is proper, and judicial proceedings by or against the commission shall be brought solely and exclusively in a court of competent jurisdiction where the principal office of the commission is located. The commission may waive venue and jurisdictional defenses to the extent it adopts or consents to participate in alternative dispute resolution proceedings.
- 4.
Nothing in this compact waives sovereign immunity.
- B.
Membership, voting, and meetings.
- 1.
Each member state shall have and be limited to one (1) delegate. The responsible official of the state EMS authority or his or her designee shall be the delegate to this compact for each member state. Any delegate may be removed or suspended from office as provided by the law of the state from which the delegate is appointed. Any vacancy occurring in the commission shall be filled in accordance with the laws of the member state in which the vacancy exists. If more than one (1) board, office, or other agency with the legislative mandate to license EMS personnel at and above the level of EMT exists, the governor of the state will determine which entity will be responsible for assigning the delegate.
- 2.
Each delegate shall be entitled to one (1) vote with regard to the promulgation of rules and creation of bylaws and shall otherwise have an opportunity to participate in the business and affairs of the commission. A delegate shall vote in person or by other means as provided in the bylaws. The bylaws may provide for delegates' participation in meetings by telephone or other means of communication.
- 3.
The commission shall meet at least once during each calendar year. Additional meetings shall be held as set forth in the bylaws.
- 4.
All meetings are open to the public, and public notice of meetings shall be given in the same manner as required under the rulemaking provisions in Section 12 of this compact.
- 5.
The commission may convene in a closed, non-public meeting if the commission must discuss:
- a.
Non-compliance of a member state with its obligations under the compact;
- b.
The employment, compensation, discipline, or other personnel matters, practices, or procedures related to specific employees or other matters related to the commission's internal personnel practices and procedures;
- c.
Current, threatened, or reasonably anticipated litigation;
- d.
Negotiation of contracts for the purchase or sale of goods, services, or real estate;
- e.
An accusation of a crime against any person or formally censuring any person;
- f.
Disclosure of trade secrets or commercial or financial information that is privileged or confidential;
- g.
Disclosure of information of a personal nature where disclosure would constitute a clearly unwarranted invasion of personal privacy;
- h.
Disclosure of investigatory records compiled for law enforcement purposes;
- i.
Disclosure of information related to any investigatory reports prepared by or on behalf of or for use of the commission or other committee charged with investigating or determining compliance issues pursuant to the compact; or
- j.
Matters specifically exempted from disclosure by federal or member state statute.
- 6.
If a meeting, or portion of a meeting, is closed pursuant to this section, the commission's legal counsel or designee shall certify that the meeting may be closed and shall reference each relevant exempting provision. The commission shall keep minutes that fully and clearly describe all matters discussed in a closed meeting and shall provide a full and accurate summary of actions taken, and the reasons for the actions, including a description of the views expressed. All documents considered in connection with an action shall be identified in the minutes. All minutes and documents of a closed meeting shall remain under seal, subject to release by a majority vote of the commission or order of a court of competent jurisdiction.
- C.
The commission shall, by a majority vote of the delegates, prescribe bylaws or rules to govern its conduct as may be necessary or appropriate to carry out the purposes and exercise the powers of the compact, including:
- 1.
Establishing the fiscal year of the commission;
- 2.
Providing reasonable standards and procedures:
- a.
For establishment and meetings of other committees; and
- b.
Governing any general or specific delegation of any authority or function of the commission;
- 3.
Providing reasonable procedures for calling and conducting meetings of the commission, ensuring reasonable advance notice of all meetings, and providing an opportunity for attendance of commission meetings by interested parties, with enumerated exceptions designed to protect the public's interest, the privacy of individuals, and proprietary information, including trade secrets. The commission may meet in closed session only after a majority of the commission members vote to close a meeting in whole or in part. As soon as practicable, the commission must make public a copy of the vote to close the meeting, revealing the vote of each member with no proxy votes allowed;
- 4.
Establishing the titles, duties, and authority, and reasonable procedures for the election of the officers of the commission;
- 5.
Providing reasonable standards and procedures for establishing the personnel policies and programs of the commission. Notwithstanding any civil service or other similar laws of any member state, the bylaws exclusively govern the personnel policies and programs of the commission;
- 6.
Promulgating a code of ethics to address permissible and prohibited activities of commission members and employees; and
- 7.
Providing a mechanism for winding up the operations of the commission and the equitable disposition of any surplus funds that may exist after the termination of the compact and after the paying or reserving of all of its debts and obligations.
- D.
The commission shall publish its bylaws and file a copy of its bylaws, and any amendments to the bylaws, with the appropriate agency or officer in each of the member states, if any.
- E.
The commission shall maintain its financial records in accordance with the bylaws.
- F.
The commission shall meet and take actions consistent with this compact and commission bylaws.
- G.
The commission shall have the following powers:
- 1.
To promulgate uniform rules to facilitate and coordinate implementation and administration of this compact. The rules shall have the force and effect of law and shall be binding in all member states;
- 2.
To bring and prosecute legal proceedings or actions in the name of the commission; provided, that the standing of any state EMS authority or other regulatory body responsible for EMS personnel licensure to sue or be sued under applicable law shall not be affected;
- 3.
To purchase and maintain insurance and bonds;
- 4.
To borrow, accept, or contract for services of personnel, including, but not limited to, employees of a member state;
- 5.
To hire employees, elect or appoint officers, fix compensation, define duties, grant those individuals appropriate authority to carry out the purposes of the compact, and establish the commission's personnel policies and programs relating to conflicts of interest, qualifications of personnel, and other related personnel matters;
- 6.
To accept any appropriate donations and grants of money, equipment, supplies, materials, and services, and to receive, utilize, and dispose of the donations and grants; provided, that at all times the commission shall strive to avoid any appearance of impropriety or conflict of interest;
- 7.
To lease, purchase, accept appropriate gifts or donations of, or otherwise to own, hold, improve, or use any real, personal, or mixed property; provided, that at all times the commission shall strive to avoid any appearance of impropriety;
- 8.
To sell, convey, mortgage, pledge, lease, exchange, abandon, or otherwise dispose of any real, personal, or mixed property;
- 9.
To establish a budget and make expenditures;
- 10.
To borrow money;
- 11.
To appoint committees, including advisory committees, comprised of members, state regulators, state legislators or their representatives, consumer representatives, and other interested persons as may be designated in this compact and the bylaws;
- 12.
To provide and receive information from, and to cooperate with, law enforcement agencies;
- 13.
To adopt and use an official seal; and
- 14.
To perform other functions as may be necessary or appropriate to achieve the purposes of this compact that are consistent with the state regulation of EMS personnel licensure and practice.
- H.
Financing of the commission.
- 1.
The commission shall pay, or provide for the payment of, the reasonable expenses of its establishment, organization, and ongoing activities.
- 2.
The commission may accept any appropriate revenue sources, donations, and grants of money, equipment, supplies, materials, and services.
- 3.
The commission may levy on and collect an annual assessment from each member state or impose fees on other parties to cover the cost of the operations and activities of the commission and its staff, which must be in a total amount sufficient to cover its annual budget as approved each year for which revenue is not provided by other sources. The aggregate annual assessment amount shall be allocated based upon a formula to be determined by the commission, which shall promulgate a rule binding upon all member states.
- 4.
The commission shall not incur obligations of any kind prior to securing the funds adequate to meet the same; nor shall the commission pledge the credit of any of the member states, except by and with the authority of the member state.
- 5.
The commission shall keep accurate accounts of all receipts and disbursements. The receipts and disbursements of the commission shall be subject to the audit and accounting procedures established under its bylaws. However, all receipts and disbursements of funds handled by the commission shall be audited yearly by a certified or licensed public accountant, and the report of the audit shall be included in and become part of the commission's annual report.
- I.
Qualified immunity, defense, and indemnification.
- 1.
The members, officers, executive director, employees, and representatives of the commission shall be immune from suit and liability, either personally or in their official capacity, for any claim for damage to or loss of property or personal injury or other civil liability caused by or arising out of any actual or alleged act, error, or omission that occurred, or that the person against whom the claim is made had a reasonable basis for believing occurred, within the scope of commission employment, duties, or responsibilities; provided, that nothing in this paragraph 1 protects any person from suit or liability for any damage, loss, injury, or liability caused by the intentional or willful or wanton misconduct of that person.
- 2.
The commission shall defend any member, officer, executive director, employee, or representative of the commission in any civil action seeking to impose liability arising out of any actual or alleged act, error, or omission that occurred within the scope of commission employment, duties, or responsibilities, or that the person against whom the claim is made had a reasonable basis for believing occurred within the scope of commission employment, duties, or responsibilities, unless the actual or alleged act, error, or omission resulted from that person's intentional or willful or wanton misconduct. Nothing in this paragraph 2 prohibits that person from retaining his or her own counsel.
- 3.
The commission shall indemnify and hold harmless any member, officer, executive director, employee, or representative of the commission for the amount of any settlement or judgment obtained against that person arising out of any actual or alleged act, error, or omission that occurred within the scope of commission employment, duties, or responsibilities, or that the person had a reasonable basis for believing occurred within the scope of commission employment, duties, or responsibilities, unless the actual or alleged act, error, or omission resulted from the intentional or willful or wanton misconduct of that person.
-
- Section 11. Coordinated database.
- A.
The commission shall provide for the development and maintenance of a coordinated database and reporting system containing licensure, adverse action, and significant investigatory information on all licensed individuals in member states.
- B.
Notwithstanding any other provision of state law to the contrary, a member state shall submit a uniform data set to the coordinated database on all individuals to whom this compact is applicable as required by the rules of the commission, including:
- 1.
Identifying information;
- 2.
Licensure data;
- 3.
Significant investigatory information;
- 4.
Adverse actions against an individual's license;
- 5.
An indicator that an individual's privilege to practice is restricted, suspended, or revoked;
- 6.
Nonconfidential information related to alternative program participation;
- 7.
Any denial of application for licensure and the reason for the denial; and
- 8.
Other information that may facilitate the administration of this compact, as determined by the rules of the commission.
- C.
The coordinated database administrator shall promptly notify all member states of any adverse action taken against, or significant investigative information on, any individual in a member state.
- D.
Member states contributing information to the coordinated database may designate information that may not be shared with the public without the express permission of the contributing state.
- E.
Any information submitted to the coordinated database that is subsequently required to be expunged by the laws of the member state contributing the information shall be removed from the coordinated database.
-
- Section 12. Rulemaking.
- A.
The commission shall exercise its rulemaking powers pursuant to the criteria set forth in this section and the rules adopted under this section. Rules and amendments are binding as of the date specified in the rule or amendment.
- B.
If a majority of the legislatures of the member states rejects a rule, by enactment of a statute or resolution in the same manner used to adopt the compact, the rule shall have no further force and effect in any member state.
- C.
Rules or amendments to the rules shall be adopted at a regular or special meeting of the commission.
- D.
Prior to promulgating and adopting a final rule, and at least sixty (60) days in advance of the meeting at which the rule will be considered and voted upon, the commission shall file a notice of proposed rulemaking:
- 1.
On the commission's web site; and
- 2.
On the web site of each member state's EMS authority or the publication in which each state would otherwise publish proposed rules.
- E.
The notice of proposed rulemaking shall include:
- 1.
The proposed time, date, and location of the meeting in which the rule will be considered and voted upon;
- 2.
The text of the proposed rule or amendment and the reason for the proposed rule;
- 3.
A request for comments on the proposed rule from any interested person; and
- 4.
The manner in which interested persons may submit to the commission notice of intent to attend the public hearing and any written comments.
- F.
Prior to adopting a proposed rule, the commission shall allow persons to submit written data, facts, opinions, and arguments, which the commission shall make available to the public.
- G.
The commission shall grant an opportunity for a public hearing before it adopts a rule or amendment if a hearing is requested by:
- 1.
At least twenty-five (25) persons;
- 2.
A governmental subdivision or agency; or
- 3.
An association having at least twenty-five (25) members.
- H.
- 1.
If a hearing is held on the proposed rule or amendment, the commission shall publish the place, time, and date of the scheduled public hearing.
- 2.
All persons wishing to be heard at the hearing shall notify the executive director of the commission or other designated member in writing of their desire to appear and testify at the hearing not less than five (5) business days before the scheduled date of the hearing.
- 3.
Hearings shall be conducted in a manner providing each person who wishes to comment a fair and reasonable opportunity to comment orally or in writing.
- 4.
No transcript of the hearing is required, unless a written request for a transcript is made, in which case the person requesting the transcript shall bear the cost of producing the transcript. A recording may be made in lieu of a transcript under the same terms and conditions as a transcript. This paragraph 4 shall not preclude the commission from making a transcript or recording of the hearing if it so chooses.
- 5.
Nothing in this section requires a separate hearing on each rule. Rules may be grouped for the convenience of the commission at hearings required by this section.
- I.
Following the scheduled hearing date, or by the close of business on the scheduled hearing date if the hearing was not held, the commission shall consider all written and oral comments received.
- J.
The commission shall, by majority vote of all members, take final action on the proposed rule and shall determine the effective date of the rule, if any, based on the rulemaking record and the full text of the rule.
- K.
If the commission does not receive written notice of intent to attend the public hearing by interested parties, the commission may proceed with promulgation of the proposed rule without a public hearing.
- L.
Upon determination that an emergency exists, the commission may consider and adopt an emergency rule without prior notice, opportunity for comment, or hearing, but the usual rulemaking procedures provided in the compact and in this section shall be retroactively applied to the rule as soon as reasonably possible, in no event later than ninety (90) days after the effective date of the rule. For the purposes of this subsection L, an emergency rule is one that must be adopted immediately in order to:
- 1.
Meet an imminent threat to public health, safety, or welfare;
- 2.
Prevent a loss of commission or member state funds;
- 3.
Meet a deadline for the promulgation of an administrative rule that is established by federal law or rule; or
- 4.
Protect public health and safety.
- M.
The commission or an authorized committee of the commission may direct revisions to a previously adopted rule or amendment for purposes of correcting typographical, format, consistency, or grammatical errors. Public notice of any revisions shall be posted on the commission's web site. The revision shall be subject to challenge by any person for a period of thirty (30) days after posting. The revision may be challenged only on grounds that the revision results in a material change to a rule. A challenge shall be made in writing and delivered to the chair of the commission prior to the end of the notice period. If no challenge is made, the revision will take effect without further action. If the revision is challenged, the revision may not take effect without the approval of the commission.
-
- Section 13. Oversight, dispute resolution, and enforcement.
- A.
Oversight.
- 1.
The executive, legislative, and judicial branches of state government in each member state shall enforce this compact and take all actions necessary and appropriate to effectuate the compact's purposes and intent. The provisions of this compact and the rules promulgated under the compact shall have standing as statutory law.
- 2.
All courts shall take judicial notice of the compact and the rules in any judicial or administrative proceeding in a member state pertaining to the subject matter of this compact which may affect the powers, responsibilities, or actions of the commission.
- 3.
The commission is entitled to receive service of process in any judicial or administrative proceeding and has standing to intervene in the proceeding for all purposes. Failure to provide service of process to the commission renders a judgment or order void as to the commission, this compact, or promulgated rules.
- B.
Default, technical assistance, and termination.
- 1.
If the commission determines that a member state has defaulted in the performance of its obligations or responsibilities under this compact or the promulgated rules, the commission shall:
- a.
Provide written notice to the defaulting state and other member states of the nature of the default, the proposed means of curing the default, and any other action to be taken by the commission; and
- b.
Provide remedial training and specific technical assistance regarding the default.
- 2.
If a state in default fails to cure the default, the defaulting state may be terminated from the compact upon an affirmative vote of a majority of the member states, and all rights, privileges, and benefits conferred by this compact may be terminated on the effective date of termination. A cure of the default does not relieve the offending state of obligations or liabilities incurred during the period of default.
- 3.
Termination of membership in the compact shall be imposed only after all other means of securing compliance have been exhausted. The commission shall give notice of intent to suspend or terminate to the governor of the defaulting state, the majority and minority leaders of the defaulting state's legislature, and each of the member states.
- 4.
A state that has been terminated is responsible for all assessments, obligations, and liabilities incurred through the effective date of termination, including obligations that extend beyond the effective date of termination.
- 5.
The commission shall not bear any costs related to a state that is found to be in default or that has been terminated from the compact, unless agreed upon in writing between the commission and the defaulting state.
- 6.
The defaulting state may appeal the action of the commission by petitioning the United States District Court for the District of Columbia or the federal district where the commission has its principal offices. The court shall award all costs of the litigation, including reasonable attorney's fees, to the prevailing party.
- C.
Dispute resolution.
- 1.
Upon request by a member state, the commission shall attempt to resolve disputes related to the compact that arise among member states and between member and non-member states.
- 2.
The commission shall promulgate a rule providing for both mediation and binding dispute resolution for disputes as appropriate.
- D.
Enforcement.
- 1.
The commission, in the reasonable exercise of its discretion, shall enforce the provisions and rules of this compact.
- 2.
By majority vote, the commission may initiate legal action in the United States District Court for the District of Columbia or the federal district where the commission has its principal offices against a member state in default to enforce compliance with the compact and its promulgated rules and bylaws. The relief sought may include both injunctive relief and damages. If judicial enforcement is necessary, the court shall award all costs of the litigation, including reasonable attorney's fees, to the prevailing party.
- 3.
The remedies contained in this section shall not be the exclusive remedies available to the commission. The commission may pursue any other remedies available under federal or state law.
-
- Section 14. Date of implementation of the interstate commission for EMS personnel practice and associated rules, withdrawal, and amendment.
- A.
The compact takes effect on the date on which the compact statute is enacted into law in the tenth member state. The provisions that become effective at that time are limited to the powers granted to the commission relating to assembly and the promulgation of rules. Thereafter, the commission shall meet and exercise rulemaking powers necessary to implement and administer the compact.
- B.
Any state that joins the compact after the commission's initial adoption of the rules is subject to the rules as they exist on the date on which the compact becomes law in that state. Any rule that has been previously adopted by the commission has the full force and effect of law on the day the compact becomes law in that state.
- C.
- 1.
Any member state may withdraw from this compact by enacting a statute repealing the statute.
- 2.
A member state's withdrawal shall not take effect until six (6) months after enactment of the repealing statute.
- 3.
Withdrawal does not affect the continuing requirement of the withdrawing state's EMS authority to comply with the investigative and adverse action reporting requirements of this compact prior to the effective date of withdrawal.
- D.
Nothing contained in this compact invalidates or prevents any EMS personnel licensure agreement or other cooperative arrangement between a member state and a non-member state that does not conflict with the provisions of this compact.
- E.
The member states may amend the compact. An amendment to this compact is not effective and binding upon any member state until it is enacted into the laws of all member states.
-
- Section 15. Construction and severability.
-
This compact shall be liberally construed so as to effectuate the purposes of the compact. If a court finds that this compact is contrary to the constitution of any member state, the compact shall remain in full force and effect as to the remaining member states. Nothing in this compact supersedes state law or rules related to licensure of EMS agencies.
§ 68-140-603. Compact definitions.
-
As used in this part:
- (1)
“Emergency Management Assistance Compact” or “EMAC” means the national interstate mutual aid agreement adopted by all fifty (50) states, the District of Columbia, the United States Virgin Islands, Puerto Rico and ratified by the 104th United States Congress in 1996 (PL-104-321) that enables states to share resources during times of disaster created during the 104th Congress; and
- (2)
“Responsible official of the state EMS authority” means the commissioner of health.
Chapter 141 Poison Control
§ 68-141-101. Establishment of poison control centers.
-
The department of health is authorized to establish and maintain a system of poison control centers in Tennessee that:
- (1)
Serves public and health care professionals in urban and rural areas;
- (2)
Designates regions within the network; and
- (3)
Designates regional poison control centers within the network.
§ 68-141-102. Designation of regional control centers — Criteria.
-
The commissioner of health may consider the following criteria in designating regional control centers:
- (1)
Compliance or expected compliance with the state poison control standards;
- (2)
Location in relation to the geographical distribution of persons served;
- (3)
Whether the facility is presently providing poison control services; and
- (4)
The capacity of such providers to deliver and coordinate poison prevention awareness programs to the general public.
§ 68-141-103. Prohibited activities — Exceptions.
- (a)
No person or persons, business, agency, organization or other entity, whether public or private, may hold itself out as providing a poison advice service or use the term “poison control center,” “poison center,” or any other term that implies that it is qualified to provide advice on the treatment of poison exposures in its advertising, name, or in printed material information it furnishes to the general public unless that entity meets one of the following conditions:
- (1)
Has been designated by the commissioner of health a regional poison control center; or
- (2)
Is a company or organization which provides a poison information service for products or chemicals which it manufactures or distributes.
- (b)
Nothing in this section prohibits a qualified health care professional, within such professional's level of professional expertise, from providing advice regarding poisoning or poisons to such professional's patient or patients upon request or whenever such professional deems it warranted in the exercise of such professional's professional judgment, as otherwise permitted by law.
§ 68-141-104. Designation as regional control center — Standards.
-
The commissioner of health may establish minimum standards for designation as a regional control center. Such standards may require regional poison control centers to do all of the following:
- (1)
Answer requests by telephone for poison information and make recommendations for appropriate emergency management and treatment referrals of poisoning exposures. These services, provided twenty-four (24) hours a day, may involve the following:
- (A)
Determining whether a true poisoning emergency exists;
- (B)
Determining whether treatment can be accomplished at the scene of the incident, or whether transport to an emergency treatment facility is required;
- (C)
Recommending treatment measures to appropriate personnel; and
- (D)
Carrying out follow-up to assure that adequate care is provided;
- (2)
Utilize physicians, pharmacists, nurses and supportive personnel trained in various aspects of toxicology, poison control, poison prevention and poison information retrieval;
- (3)
Provide public awareness programs on poison prevention and utilization of regional poison control centers; and
- (4)
Maintain a data collection program of poison exposures and prepare an annual report.
§ 68-141-105. Services — Confidentiality.
-
A regional poison control center may provide the services described in § 68-141-104, either directly or through contract with other facilities or agencies. Appropriate measures shall be taken to ensure the confidentiality of information about individuals to whom treatment for poison exposures is provided in accordance with guidelines established by the commissioner of health.
§ 68-141-106. Tennessee poison control network advisory committee.
-
The commissioner of health may appoint the members of the Tennessee poison control network advisory committee, which is created to advise the department on matters pertaining to the designation, standards and coordination of regional poison control centers participating in the Tennessee poison control network. The committee shall consist of no more than nine (9) members, which shall include the commissioner or the commissioner's designee, at least one (1) representative from each regional poison control center, knowledgeable members of the general public, and representatives of governmental agencies involved in poison safety or public health. Members of the committee shall receive no compensation, but shall be reimbursed for their actual and necessary expenses incurred in the performance of their official duties.
§ 68-141-107. Limitation of liability — Exceptions.
-
No act done or omitted in good faith while performing duties as a medical director, consultant, or specialist in poison information of a regional poison control center shall impose any liability on the poison control center, its officers, volunteers, medical directors, consultants, specialists in poison information, other employees or a person, organization or institution that advises a regional poison control center, unless the advice or assistance is given in a manner that constitutes willful or wanton misconduct.
§ 68-141-108. Commissioner — Reports.
-
The commissioner of health may annually report to the general assembly findings and recommendations concerning the experience and benefits of the Tennessee poison control network.
Chapter 142 Child Fatality Review and Prevention
Part 1 Child Fatality Review and Prevention Act of 1995
§ 68-142-101. Short title.
-
This part shall be known as and may be cited as the “Child Fatality Review and Prevention Act of 1995.”
§ 68-142-102. Child fatality prevention team.
-
There is created the Tennessee child fatality prevention team, otherwise known as the state team. For administrative purposes only, the state team shall be attached to the department of health.
§ 68-142-103. Composition.
-
The state team shall be composed as provided in this section. Any ex officio member, other than the commissioner of health, may designate an agency representative to serve in such person's place. Members of the state team shall be as follows:
- (1)
The commissioner of health, who shall chair the state team;
- (2)
The attorney general and reporter;
- (3)
The commissioner of children's services;
- (4)
The director of the Tennessee bureau of investigation;
- (5)
A physician nominated by the state chapter of the American Medical Association;
- (6)
A physician to be appointed by the commissioner of health who is credentialed in forensic pathology, preferably with experience in pediatric forensic pathology;
- (7)
The commissioner of mental health and substance abuse services;
- (8)
A member of the judiciary selected from a list submitted by the chief justice of the Tennessee supreme court;
- (9)
The executive director of the commission on children and youth;
- (10)
A representative from a professional organization working to prevent abuse of children;
- (11)
A team coordinator, to be appointed by the commissioner of health;
- (12)
Two (2) members of the house of representatives to be appointed by the speaker of the house of representatives, at least one (1) of whom shall be a member of the health committee;
- (13)
Two (2) senators to be appointed by the speaker of the senate, at least one (1) of whom shall be a member of the health and welfare committee;
- (14)
The commissioner of education or the commissioner's designee; and
- (15)
The commissioner of intellectual and developmental disabilities.
§ 68-142-105. Duties of state team.
-
The state team shall:
- (1)
Review reports from the local child fatality review teams;
- (2)
Report to the governor and the general assembly concerning the state team's activities and its recommendations for changes to any law, rule, and policy that would promote the safety and well-being of children;
- (3)
Undertake annual statistical studies of the incidence and causes of child fatalities in this state. The studies shall include an analysis of community and public and private agency involvement with the decedents and their families prior to and subsequent to the deaths;
- (4)
Provide training and written materials to the local teams established by this part to assist them in carrying out their duties. Such written materials may include model protocols for the operation of local teams;
- (5)
Develop a protocol for the collection of data regarding child deaths;
- (6)
Upon request of a local team, provide technical assistance to such team, including the authorization of another medical or legal opinion on a particular death; and
- (7)
Periodically assess the operations of child fatality prevention efforts and make recommendations for changes as needed.
§ 68-142-106. Local teams — Composition — Vacancy — Chair — Meetings.
- (a)
There shall be a minimum of one (1) local team in each judicial district.
- (b)
Each local team shall include the following statutory members or their designees:
- (1)
A supervisor of social services in the department of children's services within the area served by the team;
- (2)
The regional health officer in the department of health in the area served by the team, who shall serve as interim chair pending the election by the local team;
- (3)
A medical examiner who provides services in the area served by the team;
- (4)
A prosecuting attorney appointed by the district attorney general;
- (5)
An employee of the local education agency, to be appointed by the director of schools; and
- (6)
The interim chair of the local team shall appoint the following members to the local team:
- (A)
A local law enforcement officer;
- (B)
A mental health professional;
- (C)
A pediatrician or family practice physician;
- (D)
An emergency medical service provider or firefighter; and
- (E)
A representative from a juvenile court.
- (c)
Each local child fatality team may include representatives of public and nonpublic agencies in the community that provide services to children and their families.
- (d)
The local team may include non-statutory members to assist them in carrying out their duties. Vacancies on a local team shall be filled by the original appointing authority.
- (e)
A local team shall elect a member to serve as chair.
- (f)
The chair of each local team shall schedule the time and place of the first meeting, and shall prepare the agenda. Thereafter, the team shall meet no less often than once per quarter and often enough to allow adequate review of the cases meeting the criteria for review.
§ 68-142-107. Duties of local teams.
- (a)
The local child fatality review teams shall:
- (1)
Be established to cover each judicial district in the state;
- (2)
Review, in accordance with the procedures established by the state team, all deaths of children seventeen (17) years of age or younger;
- (3)
Collect data according to the protocol developed by the state team;
- (4)
Submit data on child deaths quarterly to the state team;
- (5)
Submit annually to the state team recommendations, if any, and advocate for system improvements and resources where gaps and deficiencies may exist; and
- (6)
Participate in training provided by the state team.
- (b)
Nothing in this part shall preclude a local team from providing consultation to any team member conducting an investigation.
- (c)
Local child fatality review teams may request a second medical or legal opinion to be authorized by the state team in the event that a majority of the local team's statutory membership is in agreement that a second opinion is needed.
§ 68-142-108. Powers of local team — Limitations — Confidentiality of state and local team records.
- (a)
The department of health, state team and local teams are public health authorities conducting public health activities pursuant to the federal Health Insurance Portability and Accountability Act (HIPAA) (42 U.S.C. § 1320d et seq.). Notwithstanding §§ 63-2-101(b) and 68-11-1502, and regardless of any express or implied contracts, agreements or covenants of confidentiality based upon those sections, the records of all health care facilities and providers shall be made available to the local team for inspection and copying as necessary to complete the review of a specific fatality and effectuate the intent of this part. The local team is authorized to inspect and copy any other records from any source as necessary to complete the review of a specific fatality and effectuate the intent of this part, including, but not limited to, police investigations data, medical examiner investigative data, vital records cause of death information, and social services records, including records of the department of children's services.
- (b)
The local team shall not, as part of the review authorized under this part, contact, question or interview the parent of the deceased child or any other family member of the child whose death is being reviewed.
- (c)
The local team may request that persons with direct knowledge of circumstances surrounding a particular fatality provide the local team with information necessary to complete the review of the particular fatality; such persons may include the person or persons who first responded to a report concerning the child.
- (d)
Meetings of the state team and each local team shall not be subject to title 8, chapter 44, part 1. Any minutes or other information generated during official meetings of state or local teams shall be sealed from public inspection. However, the state and local teams may periodically make available, in a general manner not revealing confidential information about children and families, the aggregate findings of their reviews and their recommendations for preventive actions.
- (e)
- (1)
All otherwise confidential information and records acquired by the state team or any local child fatality review team in the exercise of the duties are confidential, are not subject to discovery or introduction into evidence in any proceedings, and may only be disclosed as necessary to carry out the purposes of the state team or local teams and for the purposes of the Sudden, Unexplained Child Death Act, compiled in chapter 1, part 11 of this title.
- (2)
In addition, all otherwise confidential information and records created by a local team in the exercise of its duties are confidential, are not subject to discovery or introduction into evidence in any proceedings, and may only be disclosed as necessary to carry out the purposes of the state or local teams and for the purposes of the Sudden, Unexplained Child Death Act. Release to the public or the news media of information discussed at official meetings is strictly prohibited. No member of the state team, a local team nor any person who attends an official meeting of the state team or a local team, may testify in any proceeding about what transpired at the meeting, about information presented at the meeting, or about opinions formed by the person as a result of the meeting.
- (3)
This subsection (e) shall not, however, prohibit a person from testifying in a civil or criminal action about matters within that person's independent knowledge.
- (f)
Each statutory member of a local child fatality review team and each non-statutory member of a local team and each person otherwise attending a meeting of a local child fatality review team shall sign a statement indicating an understanding of and adherence to confidentiality requirements, including the possible civil or criminal consequences of any breach of confidentiality.
§ 68-142-109. Staff and consultants.
-
To the extent of funds available, the state team may hire staff or consultants to assist the state team and local teams in completing their duties.
Part 2 Tennessee Fetal and Infant Mortality Review (FIMR) Act of 2007
§ 68-142-201. Short title.
-
This part shall be known as and may be cited as the “Tennessee Fetal and Infant Mortality Review (FIMR) Act of 2007.”
§ 68-142-202. Tennessee fetal and infant mortality review program.
-
The commissioner of health is authorized to create the Tennessee fetal and infant mortality review (FIMR) program. The intent of the Tennessee FIMR program, following the goals of the national fetal and infant mortality review program, is to enhance the health and well-being of women, infants, and families by improving community resources and service programs through the review of fetal and infant deaths and the identification of related social, economic, cultural, safety, and health issues.
§ 68-142-203. Part definitions.
-
As used in this part, unless the context otherwise requires:
- (1)
“Fetal death” means a death as described in § 68-3-504;
- (2)
“FIMR” means the Tennessee fetal and infant mortality review program; and
- (3)
“Infant death” means a person born alive who dies prior to reaching one (1) year of age.
§ 68-142-204. Promulgation of rules.
-
The commissioner of health is authorized to promulgate such rules, pursuant to the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, as are necessary to carry out the intent of this part. In doing so, the commissioner may rely upon, but not be bound by, the national fetal and infant mortality review program's methodology and protocol. The rules authorized pursuant to this section may address, but not be limited to, the following:
- (1)
The creation, composition and functions of review teams, community action teams and program staffing;
- (2)
The protocols, procedures, methods, manner and extent of all investigations and reviews; and
- (3)
The manner in and extent to which information shall be disseminated in accordance with the intent of this part.
§ 68-142-205. Confidentiality.
- (a)
The department of health, FIMR, and its review teams are public health authorities conducting public health activities pursuant to the Health Insurance Portability and Accountability Act (HIPAA) (42 U.S.C. § 1320d et seq.). Notwithstanding §§ 63-2-101(b) and 68-11-1502, and regardless of any express or implied contracts, agreements or covenants of confidentiality based upon those sections, the records of all health care facilities and medical services providers, case management providers, emergency medical personnel and transport services and home visitors shall be made available to FIMR for inspection and copying as necessary to complete the review of a specific fatality and to carry out the intent of this part. The program is authorized to inspect and copy any other records from any source as necessary to complete the review of a specific fatality and to carry out the intent of this part, including, but not limited to, medical examiner investigative records and data, social services records, including records of the department of children's services, vital records information, and educational records.
- (b)
Any meetings conducted pursuant to this part or to rules and regulations promulgated under this part shall not be subject to the public meetings law, compiled in title 8, chapter 44, part 1. Except as required to be disseminated by rules and regulations promulgated pursuant to this part, any meeting minutes, documents, records, or other information acquired, generated, or reviewed during the meetings or while otherwise carrying out FIMR duties and responsibilities shall be confidential and not be subject to disclosure as public records.
- (c)
Except as required to be disseminated by rules and regulations promulgated pursuant to this part, none of the information acquired, generated, or reviewed in subsection (b) is subject to discovery or introduction into evidence in any proceeding, nor may any person testify in any proceeding about the information or the opinions formed as a result of the review of the information. This subsection (c) shall not, however, prohibit a person from testifying in a civil or criminal action about matters within that person's independent knowledge.
- (d)
All persons involved in the review process pursuant to this part, or to rules promulgated under this part, shall sign a statement indicating an understanding of and adherence to confidentiality requirements, including the possible civil or criminal consequences of any breach of confidentiality.
§ 68-142-209. Funding.
-
Nothing in this part shall be construed as requiring its implementation unless and until sufficient funding is either appropriated or specifically allocated for it.
Chapter 143 Shaken Baby Syndrome
§ 68-143-101. Legislative findings and declarations.
-
The general assembly finds and declares all of the following:
- (1)
Shaken baby syndrome is a medically serious, sometimes fatal, matter affecting newborns and very young children. Shaking an infant or child in anger is particularly dangerous;
- (2)
Vigorous shaking of an infant or child can result in bleeding inside the head, causing irreversible brain damage, blindness, cerebral palsy, hearing loss, spinal cord injury, seizures, learning disabilities, and even death;
- (3)
While doctors have long recognized that shaking an infant or child can cause injuries, many adults remain unaware of how dangerous this practice can be;
- (4)
Studies have shown that exposure to materials about the dangers of shaking a baby improved understanding of the effects of shaking an infant or child;
- (5)
Shaken baby syndrome is preventable. Knowledge about shaken baby syndrome can be significantly raised through education and public awareness campaigns; and
- (6)
It is the intent of the general assembly to encourage public and private collaboration in developing instructional materials regarding shaken baby syndrome, and to encourage that these materials be supplied to health facilities, nurse midwives, and providers of child care free of charge.
§ 68-143-102. Purpose of chapter.
-
The purpose of this chapter is to prevent the occurrence of injuries and deaths to infants and children as a result of shaken baby syndrome by creating a statewide public awareness education campaign. The campaign shall include the distribution of readily understandable information and instructional materials regarding shaken baby syndrome, explaining its medical effects upon infants and children and emphasizing preventive measures.
§ 68-143-103. Duties of departments of health and human services.
- (a)
The departments of health and human services shall jointly develop information and instructional materials as described in § 68-143-102 for distribution, free of charge, to health care facilities, midwives, and child care agencies. The information and instructional materials provided pursuant to this section shall focus upon the serious nature of the risk to infants and young children presented by shaken baby syndrome. The department of health shall be the lead agency in developing such information and instructional materials.
- (b)
The department of health shall provide the information and instructional materials free of charge to health care facilities and nurse midwives. Such information and instructional materials shall be provided free of charge by each health care facility to parents or guardians of each newborn, upon discharge from the health care facility. If a home birth is attended by a nurse midwife, the nurse midwife shall provide the information and instructional materials to the parents or guardians of the newborn.
- (c)
The department of human services shall provide the information and instructional materials free of charge to child care agencies under the jurisdiction of such department upon licensure and at the time of site visits.
- (d)
The requirement that informational and instructional materials be provided pursuant to this section applies only when those materials have been supplied to those persons or entities that are required to provide the materials. The persons or entities required to provide these materials shall not be subject to any legal cause of action whatsoever based on the requirements of this section.
- (e)
For persons or agencies providing these materials pursuant to this section, this section does not require the provision of duplicative or redundant informational and instructional materials.
Environmental Protection (Chapters 201-221)
Chapter 201 Tennessee Air Quality Act
Part 1 Tennessee Air Quality Act
§ 68-201-102. Part definitions.
-
As used in this part, unless the context otherwise requires:
- (1)
“Air contaminant” means particulate matter, dust, fumes, gas, mist, smoke, or vapor, or any combinations thereof;
- (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)
“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)
“Board” means the air pollution control board;
- (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)
“Department” means the department of environment and conservation;
- (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)
“Political subdivision” means any municipality, city, incorporated town, county, district or authority, or any portion or combination of two (2) or more thereof;
- (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)
“Technical secretary” means the technical secretary of the air pollution control board.
§ 68-201-103. Intent and purpose.
-
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.
- (a)
There is created an agency to be known as the air pollution control board.
- (b)
- (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:
- (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;
- (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;
- (C)
One (1) shall be engaged in a field which is directly related to agriculture or conservation;
- (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;
- (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;
- (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;
- (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;
- (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;
- (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;
- (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
- (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)
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)
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.
- (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.
- (a)
- (1)
The board has the power and duty to:
- (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;
- (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)
Hold hearings and issue such orders and determinations as may be necessary to effect the intent and purpose of this part;
- (3)
Establish, modify, or amend, without hearing, policies, practices, rules or regulations with respect to procedural aspects of board activities; and
- (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.
- (b)
The department has the power and duty to:
- (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)
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)
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)
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)
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)
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)
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)
Cause to be instituted in a court of competent jurisdiction legal proceedings to compel compliance with any order issued by the board.
- (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.
- (d)
- (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)
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.
- (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.
-
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)
The character and degree of injury to, or interference with, the protection of the health, general welfare and physical property of the people;
- (2)
The social and economic value of the air contaminant source;
- (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)
The technical practicability and economic reasonableness of reducing or eliminating the emission of such air contaminants;
- (5)
The economic benefit gained by the air contaminant source through any failure to comply with this part and regulations promulgated thereunder; and
- (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.
-
The technical secretary or such secretary's authorized representative has the power and duty to:
- (1)
Attend all meetings of the board, but not be entitled to a vote;
- (2)
Exercise general supervision over all persons employed by the board and by the air pollution control division or service of the department;
- (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)
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)
Issue formal notice of complaint and prosecute such complaints before the board;
- (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)
Initiate alert, warning and emergency action in accordance with emergency episode plans and procedures promulgated as rules or regulations by the board;
- (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)
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.
- (a)
- (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)
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)
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.
- (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.
-
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.
-
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.
§ 68-201-112. Penalty for violations — Duty of district attorneys general — Abatement of public nuisance.
- (a)
Any person who knowingly:
- (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)
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)
Falsifies, tampers with, or renders inaccurate any monitoring device or method required to be maintained or followed; or
- (4)
Fails to pay a fee established by the air pollution control board;
-
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.
- (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.
- (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.
- (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.
§ 68-201-114. Intent of remedies — Rights of action unaffected.
-
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.
- (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.
- (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)
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)
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)
The certificate of exemption shall be granted if the board determines that:
- (A)
The municipality or county has enacted provisions for the control of air pollution not less stringent than this part;
- (B)
The enactments referenced in subdivision (b)(3)(A) are being, or will be, adequately enforced; and
- (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)
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)
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)
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)
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.
- (c)
- (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:
- (A)
At least one (1) person shall be constantly present at the burning during the entire time of the burn;
- (B)
Each burn shall not exceed forty-eight (48) hours in duration;
- (C)
Burning shall not occur more than twice in any thirty-day period; and
- (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)
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).
- (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.
- (e)
- (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)
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)
Nothing in this subsection (e) shall be construed as eliminating or limiting the sanctions or obligations imposed by title 39, chapter 14, part 3.
- (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.
- (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.
- (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).
- (b)
- (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)
Any civil penalty or damages shall be assessed in the following manner:
- (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;
- (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
- (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.
- (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.
- (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.
- (e)
- (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:
- (A)
The chancery court of Davidson County, if the final order or assessment is from the board, the commissioner or the technical secretary; or
- (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)
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)
- (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.
- (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)
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.
-
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.
- (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.
- (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.
- (c)
The petitioner shall be given written notice at the earliest practicable time as to the time and place of such hearing.
- (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.
- (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.
- (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.
- (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.
- (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.
- (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.
- (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.
- (k)
The burden of proof in such hearings shall be upon the petitioner.
- (l)
- (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 (l).
- (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:
- (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
- (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)
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.
- (a)
The Tennessee air pollution control board shall promulgate rules that:
- (1)
Specify the type of vehicle inspection and maintenance program to be established and implemented; and
- (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.
- (b)
- (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)
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.
- (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.
- (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.
-
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.]
- (a)
As used in this section:
- (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)
“Environmental protection agency” or “EPA” means the United States environmental protection agency;
- (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)
“State” means the state of Tennessee;
- (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)
“TACIR” means the Tennessee Advisory Commission on Intergovernmental Relations.
- (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)
The electric power sector, including:
- (A)
The ability of this state to provide affordable electricity through diversified sources of electricity generation;
- (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;
- (C)
Stranded investment in electric-generating capacity and other infrastructure;
- (D)
The amount of investment necessary to offset the retirement of electric-generating capacity and maintain generation reserve margins;
- (E)
Potential risks to reliable sources of electricity, including resource adequacy risks and transmission constraints; and
- (F)
The amount by which retail electricity prices within this state are predicted to increase;
- (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)
Employment within this state, both directly and indirectly, including jobs lost within affected sectors of this state's economy;
- (4)
Economic development in this state, including the effects on manufacturing, commercial, and other sectors of this state's economy;
- (5)
The competitive position of this state relative to neighboring states and other economic competitors;
- (6)
State and local governments, including the potential impacts resulting from changes in tax revenues; and
- (7)
Existing state laws, and any proposed legislation that may be necessary to implement the state plan.
- (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.
- (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)
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)
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.
Part 2 Local Ordinances
§ 68-201-202. Local ordinances.
- (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.
- (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.
-
As used in this part, unless the context otherwise requires:
- (1)
“Atomic energy” means all forms of energy released in the course of nuclear fission or nuclear transformation;
- (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)
“Production facility” means:
- (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
- (B)
Any important component part especially designed for such equipment or device.
- (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)
“Source material” means any material other than special nuclear material which contains by weight one-twentieth of one percent (0.05%) or more of:
- (A)
Uranium;
- (B)
Thorium; or
- (C)
Any combination thereof;
- (6)
“Special nuclear material” means:
- (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
- (B)
Any material artificially enriched by any of the foregoing; and
- (7)
“Utilization facility” means:
- (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
- (B)
Any important component part especially designed for such equipment or device.
§ 68-202-102. United States licenses or permits required.
-
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.
- (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.
- (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.
- (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.
- (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.
- (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.
Part 2 Radiological Health Service Act
§ 68-202-202. Part definitions.
-
As used in this part, unless the context otherwise requires:
- (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)
“Commissioner” means the commissioner of environment and conservation or the commissioner's designated representative;
- (3)
“Department” refers to the department of environment and conservation;
- (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)
“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)
“Radiation machine” refers to apparatus which produces or may produce when the associated controls are operated, one (1) or more forms of radiation;
- (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)
“Radioactive material” refers to any material, solid, liquid, or gas, which emits radiation spontaneously;
- (9)
- (A)
“Source material” means:
- (i)
Uranium or thorium, or any combination thereof, in any physical or chemical form; or
- (ii)
Ores which contain by weight one-twentieth of one percent (0.05%) or more of:
- (a)
Uranium;
- (b)
Thorium; or
- (c)
Any combinations thereof;
- (B)
“Source material” does not include special nuclear material; and
- (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.
- (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)
The collection of information pertaining to radiological health and the dissemination of such to persons or groups of persons interested in radiation;
- (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)
The application of controls and regulations with respect to radiological safety to protect the health and well-being of people in the state;
- (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)
The measurement of radiation and the monitoring and surveillance of the environment for radioactive materials.
- (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.
-
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.
-
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.
- (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)
Requirements and standards regarding the manufacture, use, receipt, possession, storage and disposal of radiation sources;
- (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)
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)
Provision for the assessment and collection of fees for processing, issuance, maintenance or modification of licenses as provided in this part.
- (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.
-
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.
- (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.
- (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).
- (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.
-
No person shall be required to register due to the ownership or possession of the following:
- (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)
Radiation machines which are deemed to be totally unusable except for salvage parts;
- (3)
Radiation machines being transported in conformity with regulations adopted by any federal agency having jurisdiction over safety during transportation;
- (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)
Radiation sources which may be licensed as provided for by § 68-202-206.
§ 68-202-211. Provisions supplemental.
-
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.
- (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.
- (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.
- (c)
- (1)
Any civil penalty or damages shall be assessed in the following manner:
- (A)
The commissioner may issue an assessment against any person responsible for the violation or damages. Such person shall receive notice of such assessment by certified mail, return receipt requested, or by any other method authorized by law;
- (B)
Any person against whom an assessment has been issued may request a hearing before the commissioner for a review of the assessment;
- (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;
- (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
- (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)
In assessing a civil penalty, the following factors may be considered:
- (A)
The harm or potential harm done to the public or the environment;
- (B)
The economic benefit gained by the violators;
- (C)
The amount of effort put forth by the violator to attain compliance;
- (D)
Any unusual or extraordinary enforcement cost incurred by the state; and
- (E)
The need for an economic deterrent from future violations.
- (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.
-
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.
- (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.
- (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.
- (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.
- (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.
- (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)
The Tennessee board of medical examiners;
- (2)
The Tennessee board of dentistry;
- (3)
The Tennessee board of chiropractic examiners;
- (4)
American registry of radiologic technologists;
- (5)
American registry of clinical radiography technologists; and
- (6)
Any other professional licensing board of this state which obtains the authority to issue certificates.
- (c)
- (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)
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.
- (d)
- (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)
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.
-
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.
-
The following definitions apply in the interpretation and enforcement of this part:
- (1)
“Commissioner” refers to the commissioner of environment and conservation or the commissioner's designated representative;
- (2)
“Department” refers to the department of environment and conservation;
- (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)
“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)
“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.
-
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.
-
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.
-
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.
-
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.
- (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.
- (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.
-
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.
§ 68-202-309. Civil and criminal penalties.
- (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.
- (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)
Any civil penalty or damages shall be assessed in the following manner:
- (A)
The commissioner may issue an assessment against any person responsible for the violation or damages. Such person shall receive notice of such assessment by certified mail, return receipt requested, or by any other method authorized by law;
- (B)
Any person against whom an assessment has been issued may request a hearing before the commissioner for a review of the assessment;
- (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;
- (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
- (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)
In assessing a civil penalty, the following factors may be considered:
- (A)
The harm or potential harm done to the public or the environment;
- (B)
The economic benefit gained by the violators;
- (C)
The amount of effort put forth by the violator to attain compliance;
- (D)
Any unusual or extraordinary enforcement cost incurred by the state; and
- (E)
The need for an economic deterrent from future violations.
- (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.
-
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.
- (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.
- (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.
- (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.
-
As used in this part, unless the context otherwise requires:
- (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)
“Commissioner” means the commissioner of environment and conservation or the commissioner's designated representative;
- (3)
“Department” means the department of environment and conservation;
- (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)
“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)
“Radiation machine” means an apparatus which produces or may produce when the associated controls are operated, one (1) or more forms of radiation;
- (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)
“Radioactive material” refers to any material, solid, liquid or gas, which emits radiation spontaneously;
- (9)
- (A)
“Source material” means:
- (i)
Uranium or thorium, or any combination thereof, in any physical or chemical form; or
- (ii)
Ores which contain by weight one-twentieth of one percent (0.05%) or more of:
- (a)
Uranium;
- (b)
Thorium; or
- (c)
Any combinations thereof;
- (B)
“Source material” does not include special nuclear material;
- (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)
“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)
“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.
- (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.
- (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.
- (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.
-
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.
- (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.
- (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.
- (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.
- (b)
All forfeited bonds shall be deposited in a special account in the name of the state entitled “the radiation reclamation trust fund.”
- (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.
- (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.
- (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.
- (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.
-
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.
- (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.
- (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.
-
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.
-
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.
- (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.
- (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.
-
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.
-
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.
-
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.
-
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.
- (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.
- (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)
Any civil penalty or damages shall be assessed in the following manner:
- (A)
The commissioner may issue an assessment against any person responsible for the violation or damages. Such person shall receive notice of such assessment by certified mail, return receipt requested, or by any other method authorized by law;
- (B)
Any person against whom an assessment has been issued may request a hearing before the commissioner for a review of the assessment;
- (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;
- (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
- (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)
In assessing a civil penalty, the following factors may be considered:
- (A)
The harm or potential harm done to the public or the environment;
- (B)
The economic benefit gained by the violators;
- (C)
The amount of effort put forth by the violator to attain compliance;
- (D)
Any unusual or extraordinary enforcement cost incurred by the state; and
- (E)
The need for an economic deterrent from future violations.
- (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.
-
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)
In such suits, the court may grant temporary or permanent injunctions or restraining orders.
- (2)
Such proceedings shall not be tried by jury.
§ 68-202-417. Show cause meetings — Written complaints — Emergency orders.
- (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.
- (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.
- (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
§ 68-202-503. Inspection of machines.
- (a)
All radiation machines required to be registered as provided in this part shall be inspected on the following basis:
-
CLASS I — Once every four (4) years
-
CLASS II and V — Once every two (2) years
-
CLASS III, IV, VI, and VII — Annually.
- (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.
- (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.
- (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.
-
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.
- (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.
- (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)
Any civil penalty or damages shall be assessed in the following manner:
- (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;
- (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;
- (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;
- (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
- (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)
In assessing a civil penalty, the following factors may be considered:
- (A)
The harm or potential harm done to the public or the environment;
- (B)
The economic benefit gained by the violators;
- (C)
The amount of effort put forth by the violator to attain compliance;
- (D)
Any unusual or extraordinary enforcement cost incurred by the state; and
- (E)
The need for an economic deterrent from future violations.
- (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.
- (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)
Willful and knowing;
- (2)
Grossly negligent; or
- (3)
A continuation of an established pattern of failure to timely register or reregister dental radiation machines.
§ 68-202-507. Injunctions.
-
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.
- (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.
- (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.
- (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.
-
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:
-
- Article I. Policy and Purpose
-
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.
- Article II. The Board
- (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.
- (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.
- (c)
The board shall have a seal.
- (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.
- (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.
- (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.
- (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.
- (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.
- (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.
- (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.
- (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.
- Article III. Finances
- (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.
- (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.
- (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.
- (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.
- (e)
The accounts of the board shall be open at any reasonable time for inspection.
- Article IV. Advisory Committees
-
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.
- Article V. Powers
-
The board has power to:
- (a)
Ascertain and analyze on a continuing basis the position of the South with respect to energy, energy-related industries, and environmental concerns.
- (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.
- (c)
Collect, correlate and disseminate information relating to civilian uses of energy and energy-related materials and products.
- (d)
Conduct, or cooperate in conducting, programs of training for state and local personnel engaged in any aspects of:
- (1)
Energy, environment, and application of energy, environmental and related concerns to industry, medicine, or education or the promotion or regulation thereof.
- (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.
- (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.
- (f)
Undertake such nonregulatory functions with respect to sources of radiation as may promote the economic development and general welfare of the region.
- (g)
Study industrial, health, safety, and other standards, laws, codes, rules, regulations, and administrative practices in or related to energy and environmental fields.
- (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.
- (i)
Prepare, publish and distribute (with or without charge), such reports, bulletins, newsletters or other material as it deems appropriate.
- (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.
- (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.
- (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.
- Article VI. Supplemental Agreements
- (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.
- (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.
- (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.
- Article VII. Other Laws and Relationships
-
Nothing in this compact shall be construed to:
- (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.
- (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.
- (c)
Alter the relations between the respective internal responsibilities of the government of a party state and its subdivisions.
- (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.
- Article VIII. Eligible Parties, Entry into Force and Withdrawal
- (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.
- (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.
- (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.
- (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.
- Article IX. Severability and Construction
-
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.
- (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.
- (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.
§ 68-202-604. Cooperation of state with board.
-
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.
-
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:
-
- Article I. Policy and Purpose
-
There is hereby created the southeast interstate low-level radioactive waste compact.
-
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.
-
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.
-
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)
Expeditious enforcement of federal rules, regulations and laws;
- (2)
Imposing sanctions against those found to be in violation of federal rules, regulations and laws;
- (3)
Timely inspection of their licenses to determine their capability to adhere to such rules, regulations and laws; and
- (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.
- Article II. Definitions
-
As used in this compact, unless the context clearly requires a different construction:
- (a)
“Commission” or “compact commission” means the southeast interstate low-level radioactive waste management commission;
- (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;
- (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;
- (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;
- (e)
“Host state” means any state in which a regional facility is situated or is being developed;
- (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;
- (g)
“Party state” means any state which is a signatory party to this compact;
- (h)
“Person” means any individual, corporation, business enterprise or other legal entity (either public or private);
- (i)
“Region” means the collective party states;
- (j)
“Regional facility” means:
- (1)
A facility as defined in this section which has been designated, authorized, accepted or approved by the commission to receive waste; or
- (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;
- (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;
- (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
- (m)
“Waste management” means the storage, treatment or disposal of waste.
- Article III. Rights and Obligations
-
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.
- (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.
- (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.
- (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).
- (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.
- (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.
- (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.
- Article IV. The Commission
- (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.
- (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.
- (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.
- (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.
- (e)
The commission has the following powers, to:
- (1)
Receive and approve the application of a non-party state to become an eligible state in accordance with Article VII(b);
- (2)
Receive and approve the application of an eligible state to become a party state in accordance with Article VII(c);
- (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)
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)
Provide the party states with reference guidelines for establishing the criteria and procedures for evaluating alternative locations for emergency or permanent regional facilities;
- (6)
- (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.
- (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.
- (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)
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)
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)
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)
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)
Revoke the membership of a party state in accordance with Article VII(f).
- (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.
- (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.
- (h)
Funding for the commission shall be provided as follows:
- (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)
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:
- (a)
Must be sufficient to cover the annual budget of the commission;
- (b)
Must represent the financial commitments of all party states to the commission; and
- (c)
Must be paid to the commission;
-
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)
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.
- (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).
- (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.
- (k)
The commission is not responsible for any costs associated with:
- (1)
The creation of the facility;
- (2)
The operation of any facility;
- (3)
The stabilization and closure of any facility;
- (4)
The post-closure observation and maintenance of any facility; or
- (5)
The extended institutional control, after post-closure observation and maintenance of any facility.
- (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.
- (m)
- (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)
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.
- Article V. Development and Operation of Facilities
- (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.
- (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.
- (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.
- (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.
- (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.
- Article VI. Other Laws and Regulations
- (a)
Nothing in this compact shall be construed to:
- (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)
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)
Make inapplicable to any person or circumstance any other law of a party state which is not inconsistent with this compact;
- (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)
Prohibit any storage or treatment of waste by the generator on its own premises;
- (6)
Affect any judicial or administrative proceeding pending on the effective date of this compact;
- (7)
Alter the relations between, and the respective internal responsibilities of, the government of a party state and its subdivisions;
- (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)
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.
- (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.
- (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.
- (d)
Restrictions of waste management of regional facilities pursuant to Article IV(l) shall be enforceable as a matter of state law.
- Article VII. Eligible Parties, Withdrawal, Revocation, Entry into Force, Termination
- (a)
This compact shall have as initially eligible parties the states of Alabama, Florida, Georgia, Mississippi, North Carolina, South Carolina, Tennessee and Virginia.
- (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.
- (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.
- (d)
- (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)
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)
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(l) as approved by congress. The congress may by law withdraw its consent only every five (5) years.
- (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.
- (f)
- (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)
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.
- (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.
- (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.
- (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.
- Article VIII. Penalties
- (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.
- (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.
- Article IX. Severability and Construction
-
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.
§ 68-202-703. Reimbursement for travel expenses.
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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.
§ 68-202-705. Commissioner's authority — Rules and regulations.
-
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.
-
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.
- (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.
- (b)
Any civil penalty or damages shall be assessed in the following manner:
- (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)
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)
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)
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)
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.
- (c)
In assessing a civil penalty, the following factors may be considered:
- (1)
The harm or potential harm done to the public or the environment;
- (2)
The economic benefit gained by the violators;
- (3)
The amount of effort put forth by the violator to attain compliance;
- (4)
Any unusual or extraordinary enforcement cost incurred by the state; and
- (5)
The need for an economic deterrent from future violations.
- (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.
-
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.
- (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.
- (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.
- (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.
- (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.”
- (b)
- (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:
- (A)
Chapter 221, part 4 of this title, relative to subsurface sewage disposal;
- (B)
The Tennessee Safe Drinking Water Act of 1983, compiled in chapter 221, part 7 of this title;
- (C)
The Water Environmental Health Act, compiled in chapter 221, part 9 of this title;
- (D)
The Wastewater Facilities Act of 1987, compiled in chapter 221, part 10 of this title;
- (E)
The Radiological Health Service Act, compiled in chapter 202, part 2 of this title;
- (F)
The Medical Radiation Inspection Safety Act, compiled in chapter 202, part 5 of this title;
- (G)
The Tennessee Air Quality Act, compiled in chapter 201, part 1 of this title;
- (H)
The Tennessee Solid Waste Disposal Act, compiled in chapter 211, part 1 of this title;
- (I)
The Tennessee Hazardous Waste Management Act, compiled in chapter 212, part 1 of this title;
- (J)
The Water Quality Control Act of 1977, compiled in title 69, chapter 3;
- (K)
Title 69, chapter 10, relative to water wells;
- (L)
The Safe Dams Act of 1973, compiled in title 69, chapter 11;
- (M)
Production of oil and gas, title 60, chapter 1, parts 1, 2, and 5; and
- (N)
Section 11-1-101 relative to those fees charged by the commissioner other than ones related to parks.
- (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).
- (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.
- (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.
- (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.
- (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.
-
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.
- (a)
- (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)
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)
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.
- (b)
The fees shall be adopted by regulations by the following authorities:
- (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)
The fees under the Tennessee Air Quality Act shall be set by the air pollution control board;
- (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)
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)
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.
- (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.
- (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.
- (e)
- (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)
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)
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)
- (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.
- (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.
- (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.
- (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.
- (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.
- (g)
- (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)
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)
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)
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.
- (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)
Filing/processing fee for state water quality permit: five thousand dollars ($5,000);
- (2)
Annual maintenance fee for NPDES permit or state water quality permit: fifteen thousand dollars ($15,000);
- (3)
Inspection fee for a major public water or wastewater treatment system: two thousand five hundred dollars ($2,500);
- (4)
Engineering plans review for water or wastewater systems: one thousand five hundred dollars ($1,500);
- (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)
Filing/processing fee for permit modification for an air emission source: seven hundred fifty dollars ($750);
- (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)
Filing/processing fee for solid waste processing facility: two thousand five hundred dollars ($2,500);
- (9)
Filing/processing fee for solid waste landfill permit: ten thousand dollars ($10,000);
- (10)
Annual maintenance fee for a solid waste processing facility: five thousand dollars ($5,000);
- (11)
Annual maintenance fee for a solid waste landfill: fifteen thousand dollars ($15,000);
- (12)
Filing/processing fee for a commercial hazardous waste storage or treatment facility: thirty-seven thousand five hundred dollars ($37,500);
- (13)
Filing/processing fee for a commercial hazardous waste disposal facility or landfill site: seventy-five thousand dollars ($75,000);
- (14)
Annual maintenance fee for a commercial hazardous waste storage or treatment facility: thirty-seven thousand five hundred dollars ($37,500);
- (15)
Annual maintenance fee for a commercial hazardous waste disposal facility or landfill site: seventy-five thousand dollars ($75,000);
- (16)
Filing/processing fee for an on-site hazardous waste storage or treatment facility: fifteen thousand dollars ($15,000);
- (17)
Filing/processing fee for an on-site hazardous waste disposal facility or landfill site: thirty thousand dollars ($30,000);
- (18)
Annual maintenance fee for an on-site hazardous waste storage or treatment facility: eighteen thousand seven hundred fifty dollars ($18,750);
- (19)
Annual maintenance fee for an on-site hazardous waste disposal facility or landfill site: twenty-two thousand five hundred dollars ($22,500);
- (20)
- (A) Class I.
Dental radiation machines: all diagnostic equipment used exclusively for dental diagnostic procedures: ninety-eight dollars ($98.00);
- (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);
- (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
- (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)
Well driller annual license fee: two hundred fifty dollars ($250);
- (22)
Well pump and treatment device installer annual license fees: one hundred fifty dollars ($150);
- (23)
Safe dams plans review fee: five thousand dollars ($5,000);
- (24)
Safe dams safety inspection fee: one thousand dollars ($1,000);
- (25)
Permit application fee for oil or gas well: one thousand two hundred dollars ($1,200); and
- (26)
Mineral test hole permit application fee: one hundred dollars ($100).
§ 68-203-104. Fee schedules.
- (a)
- (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)
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)
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)
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)
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.
- (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.
- (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.
- (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)
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:
- (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%);
- (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%);
- (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)
For the division of water resources: environmental protection fees, fifty-eight percent (58%); state appropriations, forty-two percent (42%).
§ 68-203-105. Federal requirements.
-
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
§ 68-204-103. Duties and responsibilities of council.
- (a)
The council is created to advise and make recommendations to the governor and to the general assembly on how to:
- (1)
Identify all state energy resources to ensure a secure, stable, and more predictable energy supply;
- (2)
Manage the use of energy resources; and
- (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.
- (b)
The council shall have the following general duties and responsibilities:
- (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)
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)
Create an annual energy policy plan that recommends:
- (A)
Necessary energy legislation to the governor and to the general assembly;
- (B)
The promulgation of necessary rules to regulatory boards charged with administering this title; and
- (C)
The implementation and modification of energy policy, plans, and programs as the council considers necessary and desirable;
- (4)
Continually review and coordinate all state government research, education, and management programs relating to energy matters;
- (5)
Educate and inform the general public regarding any energy matters; and
- (6)
Actively engage in discussions with federal government agencies and leaders to identify opportunities to increase domestic energy supply within this state.
- (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.
- (a)
The council shall be comprised of fifteen (15) members as follows:
- (1)
The governor or the governor's designee shall serve as an ex officio, voting member of the council;
- (2)
The governor shall appoint:
- (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)(2)(A) to determine qualified persons to fill the position on the council;
- (B)
One (1) representative of a commercial, industrial, or agricultural energy consumer; and
- (C)
One (1) representative of an institution of higher education in this state;
- (3)
The speaker of the house of representatives shall appoint:
- (A)
One (1) representative of the energy research and development industry, who may be selected from lists of qualified persons submitted by interested research and development industries, including, but not limited to, the Oak Ridge National Laboratory. The speaker shall consult with the industries described in this subdivision (a)(3)(A) to determine qualified persons to fill the position on the council;
- (B)
One (1) representative of the Tennessee Valley authority;
- (C)
One (1) representative of a local distribution utility; and
- (D)
One (1) representative of a transportation-related industry; including, but not limited to, wholesalers, transportation equipment manufacturers, shipping companies, and local transit authorities;
- (4)
The speaker of the senate shall appoint:
- (A)
One (1) residential energy user;
- (B)
One (1) representative of environmental groups;
- (C)
One (1) representative of the industries that provide natural gas to consumers in this state; and
- (D)
One (1) representative who is knowledgeable of and has expertise in energy efficiency and energy conservation as it relates to the built environment, who may be selected from lists of qualified persons submitted by interested parties from the engineering and architectural professions in this state. The speaker shall consult with the professions described in this subdivision (a)(4)(D) to determine qualified persons to fill the position on the council;
- (5)
The state treasurer or the treasurer's designee shall serve as an ex officio, nonvoting member of the council;
- (6)
One (1) nonvoting student member with expertise in energy issues and energy policy, who, during the person's tenure as a member of the council, is enrolled as a graduate student in an institution of higher education in this state. The student member shall be appointed by the council from nominations submitted by university faculty members at such institutions; and
- (7)
The chair of the Tennessee public utility commission or the chair's designee serves as an ex officio, voting member of the council.
- (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.
- (c)
- (1)
All appointments to the council shall be made by July 1, 2017.
- (2)
In order to stagger the terms of the newly appointed council members, initial appointments shall be made as follows:
- (A)
The members listed in subdivision (a)(2) shall serve initial terms of one (1) year, which shall expire on June 30, 2018;
- (B)
The members listed in subdivision (a)(3) shall serve initial terms of two (2) years, which shall expire on June 30, 2019; and
- (C)
The members listed in subdivision (a)(4) shall serve initial terms of three (3) years, which shall expire on June 30, 2020.
- (3)
The student member appointed pursuant to subdivision (a)(6) shall serve a term of two (2) years, but shall not serve more than two (2) consecutive terms as a member of the council.
- (d)
- (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)
All members shall serve until the expiration of the term to which they were appointed and until their successors are appointed and qualified.
- (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.
- (e)
The appointing authorities may remove any member of the council for misconduct, incompetency, willful neglect of duty, or other just cause.
- (f)
Prior to beginning their duties, each member of the council shall take and subscribe to the oath of office provided for state officers.
- (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.
- (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.
- (b)
Each member, upon expiration of the member's term, shall continue to hold office until a successor is appointed.
- (c)
A majority of those members serving on the council shall constitute a quorum.
- (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.
- (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.
- (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.
- (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.
- (b)
The council shall:
- (1)
Adopt its own rules of procedure;
- (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)
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.
- (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.
- (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.
- (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.
- (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.
- (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.
- (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.
- (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)
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)
A report to create a comprehensive state energy policy plan as prescribed in § 68-204-103(b)(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)
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)
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.
- (c)
The comprehensive state energy policy plan, as prescribed in subdivision (a)(2) shall include, but not be limited to, the following:
- (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)
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.
- (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.”
- (b)
The comptroller may disburse moneys in the energy resources fund to the council for the following purposes:
- (1)
Developing the comprehensive state energy policy plan, as prescribed in § 68-204-103;
- (2)
In furtherance of the purposes of this chapter; and
- (3)
To offset the cost of administering this chapter.
- (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.
- (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.
- (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.
- (a)
This chapter is known and may be cited as the “Commercial Property Assessed Clean Energy and Resilience Act.”
- (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.
-
As used in this chapter:
- (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)
“Commercial property” means:
- (A)
Privately owned commercial, industrial, or agricultural real property;
- (B)
Privately owned residential real property consisting of five (5) or more dwelling units, including property owned by nonprofit, charitable, or religious organizations; and
- (C)
Property owned by this state or a local government entity, but leased to a privately owned entity, including:
- (i)
Industrial development corporations;
- (ii)
Housing authorities; or
- (iii)
Health, educational and housing facility boards;
- (3)
“C-PACER program” or “program” means a commercial property assessed clean energy program established under this chapter;
- (4)
“Financing” means financing and refinancing for qualified projects under this chapter;
- (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)
“Local government” means a county, metropolitan government, municipality, or other political subdivision of this state;
- (7)
“Program administrator” means the entity designated by a local government to administer a C-PACER program, including:
- (A)
A department or individual within a local government;
- (B)
A quasi-governmental organization such as an industrial development corporation, housing authority, or health, educational, and housing facility board;
- (C)
A capital provider; or
- (D)
Another private and independent third party designated by the local government;
- (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:
- (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;
- (B)
A form local government Notice of Assessment and C-PACER lien; or
- (C)
A form Notice of Assignment of Assessment and C-PACER lien between a local government and a capital provider;
- (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)
“Property owner” means the owner or owners on title, duly recorded, of a commercial property;
- (11)
“Qualified improvement” means a permanent improvement installed and affixed to commercial property and intended to:
- (A)
Decrease energy consumption or demand through the use of efficiency technologies, products, or activities that reduce or support the reduction of energy consumption;
- (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;
- (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;
- (D)
Allow for the reduction or elimination of lead from water that may be used for drinking or cooking; or
- (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)
“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)
“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)
“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.
- (a)
A local government may impose a voluntary special assessment to repay the financing of qualified projects on commercial property located in a region.
- (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.
- (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.
- (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.
- (a)
A local government may establish a C-PACER program and exercise all powers granted under this chapter.
- (b)
- (1)
The local government shall designate a region within its boundaries as an area in which C-PACER activities are eligible.
- (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.
- (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.
- (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).
- (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.
- (f)
The financing for assessments imposed may include, but is not limited to:
- (1)
The cost of materials and labor necessary for the installation or modification of a qualified improvement;
- (2)
Permit fees;
- (3)
Inspection fees;
- (4)
Lender fees;
- (5)
Program application and administrative fees;
- (6)
Project development and engineering fees;
- (7)
Interest reserves;
- (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)
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.
- (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.
- (a)
To establish a C-PACER program under this chapter, the local government must act in the following order:
- (1)
Adopt a resolution of intent that includes:
- (A)
A finding that the financing of qualified projects through special assessments is a valid public purpose;
- (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;
- (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;
- (D)
A description of the types of qualified projects that may be subject to special assessments;
- (E)
A description of the boundaries of the region;
- (F)
A description of any proposed arrangements for administration of the program, including administration pursuant to this chapter, to be available;
- (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);
- (H)
A statement of the time and place for a public hearing on the proposed program as required in subdivision (a)(2); and
- (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)
Hold a hearing for the public to comment on the proposed program; and
- (3)
Adopt a resolution establishing the program and its terms.
- (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.
- (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.
-
The terms of a program established pursuant to § 68-205-105(a)(3) must include:
- (1)
Appropriate eligibility factors, including certification by the property owner that:
- (A)
The property owner requesting to participate in the program:
- (i)
Is the legal owner of the benefited property;
- (ii)
Is current on mortgage and property tax payments; and
- (iii)
Is not insolvent or in bankruptcy proceedings; and
- (B)
The title of the benefited property is not in dispute;
- (2)
A requirement that:
- (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
- (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)
A description of the types of qualified projects that may be subject to special assessments;
- (4)
A statement identifying the local government official authorized to enter into and execute written contracts on behalf of the local government;
- (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)
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.
- (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)
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)
For an existing building:
- (A)
Where energy or water usage improvements are proposed, an applicant must provide:
- (i)
An energy analysis by a licensed engineering firm, engineer, or other qualified professional listed in the program guidebook; and
- (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
- (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)
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:
- (i)
Energy efficiency;
- (ii)
Water efficiency;
- (iii)
Renewable energy;
- (iv)
Renewable water; or
- (v)
Resilience; and
- (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.
- (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.
- (c)
The local government's duties also include:
- (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)
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.
- (d)
A local government may choose to bill, collect, and enforce the C-PACER assessment and lien, subject to the following guidelines:
- (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:
- (A)
Delinquent installments of the assessment incur interest and penalties in the same manner as delinquent property taxes;
- (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
- (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)
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)
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.
- (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.
- (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.
§ 68-205-109. Filing and recording of notice of assessment, C-PACER lien, and assignments — Segregation of funds.
- (a)
A local government that authorizes financing through special assessments under this chapter shall:
- (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:
- (A)
The amount of the assessment;
- (B)
The legal description of the property;
- (C)
The name of each property owner;
- (D)
A copy of the written assessment contract; and
- (E)
A reference to this section authorizing the placement of the assessment and C-PACER lien on the property;
- (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:
- (A)
The legal description of the eligible property;
- (B)
The name of each property owner;
- (C)
The date on which the lien was created;
- (D)
The principal amount of the lien; and
- (E)
The term of the lien; and
- (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.
- (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.
- (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)
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)
Has the same priority status as a lien for any other ad valorem tax.
- (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.
- (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.
Chapter 211 Solid Waste Disposal
Part 1 Tennessee Solid Waste Disposal Act
§ 68-211-102. Public policy.
- (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)
Provide for safe and sanitary processing and disposal of solid wastes;
- (2)
Develop long-range plans for adequate solid waste disposal systems to meet future demands;
- (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)
Encourage efficient and economical solid waste disposal systems.
- (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.
-
As used in this part, unless the context otherwise requires:
- (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)
“Board” means, unless otherwise indicated, the underground storage tanks and solid waste disposal control board created in § 68-211-111;
- (3)
“Commissioner” means the commissioner of environment and conservation or the commissioner's authorized representative;
- (4)
“Department” means the department of environment and conservation;
- (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)
“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)
“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)
- (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;
- (B)
“Solid waste” does not include:
- (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);
- (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
- (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)
“Solid waste disposal” means the process of permanently or indefinitely placing, confining, compacting, or covering solid waste; and
- (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.
-
It is unlawful to:
- (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)
Burn solid wastes except in a manner and under conditions prescribed by the department and the Tennessee air pollution control board;
- (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)
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.
- (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.
- (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.
- (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.
- (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.
- (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.
- (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.
- (g)
The commissioner shall not approve any plans submitted in accordance with subsection (b), unless the applicant has submitted:
- (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)
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.
- (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.
- (a)
- (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)
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.
- (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.
- (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.
- (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.
- (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.
- (f)
- (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:
- (A)
Posting in the post office and public places of the municipality nearest the site under consideration; or
- (B)
Publishing in local newspapers and periodicals, or, if appropriate, in a daily newspaper of general circulation.
- (2)
Public notice of a proposed site approval shall include the following:
- (A)
Name, address, and telephone number of the solid waste management division;
- (B)
Name and address of the site owner and/or operator;
- (C)
Location and size of the proposed site;
- (D)
Brief description of the type of operation to be operated at the site and the type of waste that will be accepted;
- (E)
A description of the time frame and procedures for making a final determination on the facility application approval or disapproval; and
- (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)
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)
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)
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)
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:
- (A)
Publication in a newspaper of general circulation within the geographical area of the site; and
- (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)
Each notice of a public hearing shall include at least the following contents:
- (A)
Name, address and telephone number of the solid waste management division;
- (B)
Name and address of each site and site owner or operator that will be heard at the hearing;
- (C)
A description of the type of facility that will be located on the site;
- (D)
A brief reference to the public notice issued for each proposed site;
- (E)
Information regarding the time and location for the hearing;
- (F)
The purpose of the hearing;
- (G)
A concise statement of the issues raised by the persons requesting the hearing;
- (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
- (I)
A brief description of the nature of the hearing, including the rules and procedures to be followed.
- (g)
- (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)
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)
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.
- (h)
- (1)
As used in this subsection (h), unless the context otherwise requires:
- (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;
- (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;
- (C)
“Responsible party” means:
- (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
- (ii)
Any official or management committee member of the state or political subdivision thereof that is an applicant;
- (D)
“Solid Waste Disposal Act” means this chapter; and
- (E)
“Tennessee Hazardous Waste Management Act” means chapter 212 of this title.
- (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:
- (A)
Intentionally misrepresented or concealed any material fact which would have resulted in the denial of the application submitted to the department;
- (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;
- (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;
- (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
- (E)
Been convicted of a violation of either state or federal racketeer influenced and corrupt organization (RICO) statutes;
- (3)
- (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).
- (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)
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:
- (A)
The nature and seriousness of the offense;
- (B)
The circumstances in which the offense occurred;
- (C)
The date of the offense;
- (D)
Whether the offense was an isolated offense or part of a series of related incidents;
- (E)
The applicant's environmental record and history of compliance regarding waste management in this state;
- (F)
The number and types of facilities operated by the applicant;
- (G)
Any evidence that the applicant reported or investigated the offense itself and took action to halt or mitigate the offense;
- (H)
Disassociation from any persons convicted of felony environmental criminal activity;
- (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;
- (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
- (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)
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).
- (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.
- (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.
- (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.
- (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.
- (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.
§ 68-211-109. Federal grants to counties and municipalities — Review and approval.
-
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.
-
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.
- (a)
- (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:
- (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;
- (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;
- (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;
- (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;
- (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;
- (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;
- (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;
- (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;
- (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;
- (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;
- (xi)
One (1) person engaged in the business of management of solid wastes or hazardous materials;
- (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
- (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.
- (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)
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.
- (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.
- (c)
- (1)
All vacancies in appointed positions shall be filled by the original appointing authority to serve the remainder of the unexpired term.
- (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)
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.
- (d)
- (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)
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.
- (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.
- (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.
- (g)
- (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)
- (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.
- (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).
- (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.
- (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.
-
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.
- (a)
- (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)
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.
- (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.
- (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.
- (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.
- (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.
- (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.
-
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.
-
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.
- (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.
- (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)
A bond issued by a fidelity or surety company authorized to do business in this state;
- (2)
A corporate guarantee provided that the corporation passes any financial test specified by the board in regulations; and
- (3)
A personal bond supported by cash, securities, insurance policies, letters of credit or other collateral specified by the board in regulations.
- (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.
- (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.
- (a)
- (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)
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.
- (b)
Any civil penalty or damages shall be assessed in the following manner:
- (1)
The commissioner may issue an assessment against any person responsible for the violation or damages. Such person shall receive notice of the assessment by certified mail, return receipt requested;
- (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)
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)
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)
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.
- (c)
In assessing a civil penalty, the following factors may be considered:
- (1)
The harm done to public health or the environment;
- (2)
The economic benefit gained by the violators;
- (3)
The amount of effort put forth by the violator to attain compliance; and
- (4)
Any unusual or extraordinary enforcement costs incurred by the commissioner.
- (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.
- (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.
- (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.
- (a)
Baled waste may only be disposed of in a landfill that has received a permit pursuant to § 68-212-108, unless:
- (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:
- (A)
The waste was visually inspected before baling;
- (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:
- (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
- (ii)
Returned to the transporter as unacceptable;
- (C)
The baling facility, by processing such waste, did not violate this part; and
- (D)
The waste was properly manifested; or
- (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:
- (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);
- (B)
Each bale was physically opened, visually inspected and rebaled;
- (C)
All waste which could not visually be determined to be of a type which the facility is permitted to receive was either:
- (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
- (ii)
Returned to the transporter as unacceptable;
- (D)
The landfill, by accepting such waste, did not violate this part; and
- (E)
The waste was properly manifested.
- (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.
- (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)
Names and addresses of the transporter;
- (2)
Name and address of the facility at which the waste was baled;
- (3)
A description of the waste;
- (4)
The name and address of the destination of the waste; and
- (5)
Such other information specified in regulations promulgated by the board.
- (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.
-
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.
-
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.
§ 68-211-124. Use of treated ash aggregate as a building material.
- (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.
- (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
§ 68-211-202. Purpose.
-
The general assembly finds and declares that:
- (1)
Mercury is a persistent and toxic pollutant that bioaccumulates in the environment;
- (2)
According to recent studies, mercury deposition is a significant problem in the southeast; and
- (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.
-
As used in this part, unless the context otherwise requires:
- (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)
“Board” means, unless otherwise indicated, the underground storage tanks and solid waste disposal control board established by § 68-211-111;
- (3)
“Commissioner” means the commissioner of environment and conservation or the commissioner's authorized representative;
- (4)
“Covered generator” means any generator that:
- (A)
Employs ten (10) or more employees;
- (B)
Owns or maintains a building, excluding private residences, of at least three thousand square feet (3,000 sq. ft.);
- (C)
Owns or maintains electrical distribution systems;
- (D)
Owns or operates a business that demolishes buildings, excluding private residences; or
- (E)
Owns or operates a tanning bed salon business;
- (5)
“Department” means the department of environment and conservation;
- (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)
“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)
“Generator” means the person who owns or otherwise controls the fate of a discarded mercury-added consumer product;
- (9)
“Hazardous waste” shall have the same meaning as provided in by Tenn. Comp. R. & Regs. 0400-12-01-.02(1)(c);
- (10)
“Hazardous waste management facility” means:
- (A)
All contiguous land and structures, other appurtenances, and improvements on the land, used for treating, storing, transporting, or disposing of hazardous waste. A facility may consist of several treatment, storage, transportation, or disposal operational units (e.g., one (1) or more landfills, surface impoundments, or combinations of them);
- (B)
For the purpose of implementing corrective action under Tenn. Comp. R. & Regs. 0400-12-01-.06(6)(l) or § 68-212-111, all contiguous property under the control of the owner or operator seeking a permit under the Hazardous Waste Management Act, compiled in chapter 212, part 1 of this title; and
- (C)
Notwithstanding subdivision (10)(B), a remediation waste management site if such site is located within a facility that is subject to Tenn. Comp. R. & Regs. 0400-12-01-.06(6)(l);
- (11)
- (A)
“Mercury-added consumer product” means any material, device, or part of a device including, but not limited to, those materials, devices, or parts listed in subdivision (11)(B):
- (i)
Into which elemental mercury or mercury compounds are intentionally added during the formulation or manufacture of such material or device; and
- (ii)
In which the continued presence of mercury is required to provide a specific characteristic, appearance or quality, or to perform a specific function;
- (B)
“Mercury-added consumer product” includes, but is not limited to:
- (i)
Thermostats;
- (ii)
Thermometers;
- (iii)
Switches (whether individually or as part of another product);
- (iv)
Medical or scientific instruments;
- (v)
Electrical relays and other electrical devices;
- (vi)
Lamps and light bulbs; and
- (vii)
Batteries other than those defined as mercury-containing excluded products;
- (12)
“Mercury-containing excluded product” means:
- (A)
Photographic film and paper;
- (B)
Pharmaceutical products;
- (C)
Biological products;
- (D)
Any substance that can lawfully be sold over the counter without a prescription under the Federal Food, Drug and Cosmetics Act (21 U.S.C. § 301 et seq.);
- (E)
Any device or material from which the elemental mercury or mercury compounds have been removed;
- (F)
Button batteries used in hearing aids, radios, cameras, and other devices;
- (G)
Medical devices; or
- (H)
Restorative dental materials;
- (13)
“Person” means any and all persons, natural or artificial, including any individual, firm or association, or 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;
- (14)
- (A)
“Solid waste” means:
- (i)
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; or
- (ii)
Without limitation, recyclable material when it is discarded or when it is used in a manner constituting disposal;
- (B)
“Solid waste” does not include 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);
- (15)
“Universal waste” means any of the hazardous wastes listed in Tenn. Comp. R. & Regs. 0400-12-01-.12(1)(a) that are managed under the universal waste requirements of Tenn. Comp. R. & Regs. 0400-12-01-.12;
- (16)
“Universal waste destination facility” means a facility that treats, disposes of, or recycles universal waste, except those management activities described in Tenn. Comp. R. & Regs. 0400-12-01-.12(2)(d)1 and 3 and Tenn. Comp. R. & Regs. 0400-12-01-.12(3)(d)1 and 3. For the purpose of managing universal waste, “universal waste destination facility” does not include a facility at which universal waste is only accumulated; and
- (17)
- (A)
“Universal waste handler” means:
- (i)
Any person, by site, whose act or process produces universal waste or whose act causes universal waste to become subject to regulation; or
- (ii)
The owner or operator of a facility, including all contiguous property, that receives universal waste from other universal waste handlers, accumulates universal waste, and sends universal waste to another universal waste handler, to a universal waste destination facility, or to a foreign destination;
- (B)
“Universal waste handler” does not include:
- (i)
A person who treats, except under Tenn. Comp. R. & Regs. 0400-12-01-.12(2)(d)1 or 3, or Tenn. Comp. R. & Regs. 0400-12-01-.12(3)(d)1 or 3, disposes of, or recycles universal waste; or
- (ii)
A person engaged in the off-site transportation of universal waste by air, rail, highway, or water, including a universal waste transfer facility.
§ 68-211-204. Duties of covered generator.
- (a)
On or after January 1, 2011:
- (1)
No covered generator shall dispose of a mercury-added consumer product as non-hazardous solid waste under Tenn. Comp. R. & Regs. 1200-1-7; and
- (2)
A covered generator shall ensure that its discarded mercury-added consumer products are:
- (A)
Shipped for recycling, treatment, or disposal to either a universal waste destination facility or a hazardous waste management facility that has been permitted to manage such materials by the federal environmental protection agency (EPA) pursuant to the federal Resource Conservation and Recovery Act (“RCRA”) (42 U.S.C. § 6901 et seq.) by a state program that has been authorized by the EPA to implement the pertinent portions of RCRA in the state, or by a foreign government; and
- (B)
Managed prior to receipt at such universal waste destination facility or hazardous waste management facility in accordance with, as applicable, either:
- (i)
The hazardous waste management requirements of Tenn. Comp. R. & Regs. 0400-12-01-.03 — 0400-12-01-.07; or
- (ii)
The universal waste management requirements of Tenn. Comp. R. & Regs. 0400-12-01-.11.
- (b)
Any person who separates and collects from a municipal solid waste stream either mercury-added consumer products from generators that are not covered generators, or mercury-containing excluded products shall be subject to the same requirements as covered generators as provided in subsection (a).
§ 68-211-205. Development and publication of educational materials.
-
The department may develop and publish educational materials on the requirements of this part relative to discarded mercury-added consumer products and the effects of improper mercury disposal. For purposes of this section, publication shall include, but is not limited to, prominently posting the content of such materials on the department's website.
§ 68-211-206. Inspections of structures — Printing of forms.
- (a)
When making an inspection of any structure pursuant to § 62-3-128, § 62-4-127, this title or title 69, the inspector shall make the following inquiry to the owner of the structure, or, if the owner is not present at the time of an inspection, any other person with the authority to exercise control over the structure who is present at such structure at the time of the inspection:
-
Are you aware that, if any of the following criteria apply to your business and your business utilizes mercury-added consumer products, such as fluorescent light bulbs, the Mercury Product Control Act applies to your business:
- (1)
Employs ten (10) or more employees;
- (2)
Owns or maintains a building of at least three thousand square feet (3,000 sq. ft.), excluding private residences;
- (3)
Owns or maintains one (1) or more electrical distribution systems;
- (4)
Engages in the demolition of buildings, excluding private residences; or
- (5)
Owns or operates a tanning bed salon?
-
The Mercury Product Control Act requires proper recycling of mercury-added consumer products rather than disposing of such products in the solid waste stream. Do you have a plan for recycling mercury-added consumer products?
- (b)
Any governmental entity or contractor that is required to update a form, whether in paper or electronic format, or both, in order to add the question required by subsection (a), shall only do so upon the occasion of the next regularly scheduled printing of such form or software update of a website, which immediately follows April 30, 2010.
§ 68-211-207. Establishment and maintenance of link on the department of revenue's website.
-
The department of revenue shall establish and maintain a link on the department of revenue's website to information concerning the Mercury Product Disposal Control Act. The link shall appear on a prominent page on the department of revenue's website in a location that the department of revenue determines is likely to direct taxpayers to such information. The department shall provide information to the department of revenue that is necessary to establish and maintain the link, including any necessary updates.
Part 3 Tire Environmental Act
§ 68-211-302. Part definitions.
-
As used in this part, unless the context otherwise requires:
- (1)
“Fee” means the tire environmental fee created by this part;
- (2)
“Fund” means the tire environmental fund created by this part;
- (3)
“Motor vehicle” means any vehicle that is self-propelled and designed to be used on public highways; and
- (4)
“Tire” means a continuous solid or pneumatic rubber covering encircling the wheel of a motor vehicle.
§ 68-211-303. Tire environmental fee.
- (a)
There is imposed on each purchase of a new motor vehicle to be titled and registered in this state a tire environmental fee as follows:
- (1)
Five dollars ($5.00) for a motor vehicle with four (4) or fewer wheels;
- (2)
Ten dollars ($10.00) for a motor vehicle with more than four (4) but fewer than eleven (11) wheels; and
- (3)
Fifteen dollars ($15.00) for a motor vehicle with eleven (11) or more wheels.
- (b)
The fee imposed by this section shall be collected by the seller from the purchaser at the time of purchase.
- (c)
Fees collected shall be remitted to the department of revenue in a manner prescribed by the commissioner. All fees collected, less an amount to cover the actual expenses of administration by the department, shall be credited to the tire environmental fund.
- (d)
Notwithstanding any law to the contrary, fees imposed by this section shall be exempt from sales and use tax and business tax liability regardless of whether the fee is included in the purchase price of a new motor vehicle or is paid separately at the time of purchase.
§ 68-211-304. Tire environmental fund.
- (a)
There is created a special account in the state treasury to be known as the tire environmental fund.
- (b)
Moneys shall be deposited in the fund as provided in § 68-211-303(c).
- (c)
Moneys in the fund shall be used exclusively by the department of environment and conservation in accordance with § 68-211-305.
- (d)
Moneys in the fund may be invested by the state treasurer in accordance with § 9-4-602.
- (e)
Notwithstanding any law to the contrary, interest accruing on investments and deposits of the fund shall be credited to such fund, shall not revert to the general fund, and shall be carried forward into the subsequent fiscal year.
- (f)
Any balance in the fund remaining unexpended at the end of a fiscal year shall not revert to the general fund but shall be carried forward into the subsequent fiscal year.
§ 68-211-305. Tire environmental program — Program expenditures.
- (a)
The department of environment and conservation shall administer a tire environmental program with moneys available from the fund as appropriated by the general assembly.
- (b)
The program expenditures may include:
- (1)
Grants to develop and implement programs to provide direct incentives to local governments, for-profit entities, and nonprofit entities to enhance collection, transportation, and processing related to further encourage Tennessee end-markets for waste tires;
- (2)
Grants, subsidies, or loans to encourage research, technologies, or processes for waste tire management, the use of tires as alternative fuels, or the use of tires in innovative infrastructure developments;
- (3)
Creation of a database and operation of an interactive information clearinghouse;
- (4)
Expenses of administering the tire environmental program; and
- (5)
Market development services.
- (c)
Program expenditures shall be reported to the office of legislative budget analysis and the chair of the transportation and safety committee of the senate, chair of the transportation committee of the house of representatives, and the chairs of the finance, ways and means committees of the senate and house of representatives on an annual basis.
Part 4 Gasification and Pyrolysis
§ 68-211-401. Part definitions.
- (a)
For the purposes of this part, unless the context otherwise requires:
- (1)
“Gasification” means a process through which recoverable feedstocks are heated and converted into a fuel-gas mixture in an oxygen-deficient atmosphere and the mixture is converted into valuable raw, intermediate, and final products, including, but not limited to, monomers, chemicals, waxes, lubricants, chemical feedstocks, crude oil, diesel, gasoline, diesel and gasoline blendstocks, home heating oil, and other fuels including ethanol and transportation fuel;
- (2)
“Gasification facility” means a manufacturing facility that is engaged solely in the storage and gasification of recoverable feedstocks for resale or reuse and that complies with statutes and rules applicable to recovered materials processing facilities;
- (3)
“Post-use polymer” means a plastic polymer that:
- (A)
Is derived from any community, domestic, institutional, industrial, commercial, or other source of operations or activities and may contain incidental contaminants or impurities such as paper labels or metal rings but is not mixed with solid waste, medical waste, hazardous waste, e-waste, tires, or construction demolition debris; and
- (B)
Has been diverted or removed from the solid waste stream for gasification by a gasification facility or pyrolysis by a pyrolysis facility;
- (4)
“Pyrolysis” means a process through which post-use polymers are heated in the absence of oxygen until melted and thermally decomposed, and then cooled, condensed, and converted into valuable raw, intermediate, and final products, including, but not limited to, monomers, chemicals, waxes, lubricants, chemical feedstocks, crude oil, diesel, gasoline, diesel and gasoline blendstocks, home heating oil, and other fuels including ethanol and transportation fuel;
- (5)
“Pyrolysis facility” means a manufacturing facility that is engaged solely in the storage and pyrolysis of post-use polymers for resale or reuse and that complies with statutes and rules applicable to recovered materials processing facilities; and
- (6)
“Recoverable feedstock” means:
- (A)
Post-use polymers; and
- (B)
A fuel or feedstock for which the environmental protection agency has made a non-waste determination pursuant to 40 CFR 241.3(c) when it is used in gasification by a gasification facility and is not discarded or used in a manner constituting disposal.
- (b)
Unless the context requires otherwise or this section defines a term differently, the definitions set forth in §§ 68-211-103 and 68-211-802 and in any rules promulgated pursuant to this chapter, apply to terms used in this part.
Part 5 Municipal Resource and Energy Recovery Facilities
§ 68-211-501. Part definitions.
-
As used in this part, unless the context otherwise requires:
- (1)
“Construction” means the erection, building, acquisition, alteration, reconstruction, improvement, or extension of energy recovery and/or energy recovery facilities, the engineering, architectural designs, plans, working drawings, specifications, procedures, and other action necessary in the construction of such facilities, and the inspection and supervision of the construction of such facilities;
- (2)
“Energy recovery facility” means a facility for the recovery of energy or energy producing materials from the controlled processing of solid waste and the production of energy from such solid waste and other materials, including coal, for a heating and cooling system and/or for the production of electricity and process steam;
- (3)
“Municipal corporation” or “municipality” means any county, incorporated town or city, metropolitan government, or special district of this state, empowered to provide solid waste disposal services, or any not-for-profit corporation authorized by the laws of Tennessee to act for the benefit or on behalf of any one (1) or more of such local governments; provided, that the jurisdiction, control and management of any facility as authorized herein may be delegated by the municipality to any of its appropriate agencies or divisions;
- (4)
“Resource recovery facility” means a facility for the systematic separation and recovery of recyclable materials from solid waste and a processing of solid waste, sewage sludge, and other solids for fuel mixtures or fuel supplements; and
- (5)
“Solid waste” means garbage, refuse, including, without limitations, recyclable materials when they become discarded, and other discarded solid waste materials, including waste materials of a solid nature resulting from industrial, commercial, and agricultural operations, and from community activities.
§ 68-211-502. Powers of municipality.
-
A municipality has the power to construct, purchase, improve, operate and maintain within its corporate limits, or within the limits of the county wherein it is located, an energy recovery facility or facilities and/or resource recovery facility or facilities for the production of energy from the energy recovery facility for heating or cooling, and/or the production of electricity or process steam and/or the production of fuel mixtures or fuel supplements and recovery of recyclable materials from solid waste and the sale of the fuel supplements, and recyclable materials. The construction of the facility shall include all necessary land, rights-of-way, easements, buildings and all other appurtenances usual to such plants, as well as the building of all necessary means of transportation, including pipelines for energy or fuel supplements, including obtaining all necessary rights of way or easements necessary thereto.
§ 68-211-503. Rates charged by municipality — Right to enter into agreements.
-
The municipality, for the production of any energy, shall charge the usual rates for such heating or cooling and may combine it with any other energy source produced. The municipality shall also have the right to enter into any agreements necessary for the sale of recyclable materials and sale of fuel mixtures and supplements including the right to pledge the revenue from the sale of such energy to pay bonds or loans issued under any bond legislation or any other state legislation permitting energy recovery facilities and resource recovery facilities.
§ 68-211-504. Action of governing body by resolution.
-
All action required or authorized to be taken under this part by the governing body of any municipal corporation or county may be by resolution, which resolution may be adopted at the meeting of the governing body at which such resolution is introduced, and shall take effect immediately upon its adoption.
§ 68-211-505. Provisions supplemental.
-
This part shall be in addition and supplemental to any other law providing for energy recovery facilities and/or resource recovery facilities and shall not be deemed to amend or repeal any other law.
Part 6 Tennessee Solid Waste Planning and Recovery Act
§ 68-211-602. Purpose.
- (a)
The general assembly finds that the public health, safety and welfare require comprehensive planning for the disposal of solid waste on a local, regional and state level. The general assembly further finds that whenever economically and technically feasible, solid waste should be reduced at the source or recycled, consistent with market demand for recyclable materials, to decrease the volume of waste which must be disposed of by incineration or landfilling.
- (b)
The general assembly further finds that some areas of the state have inadequate and rapidly diminishing capacity for disposal of solid waste by landfilling. It is also becoming difficult for many local governments to site and pay for new landfills which comply with existing and proposed environmental regulations. Therefore, the removal of certain materials from the solid waste stream by mulching, composting, recycling, and waste-to-energy incineration (resource recovery) will substantially lessen our dependence on landfills as a means of disposing of solid waste, aid in the conservation and recovery of valuable resources, conserve energy in the process, increase the supply of reusable materials, and reduce substantially the required capacity of resource recovery facilities and contribute to their overall combustion efficiency, thereby resulting in significant cost savings in the planning, construction, and operation of these facilities.
- (c)
The general assembly therefore declares that to protect the public health, safety and welfare from the short-term and long-term dangers of transportation, processing, treatment, storage and disposal of solid waste, it is advisable to develop a regional planning process to facilitate the safe and responsible disposal of such waste. The general assembly further declares that such planning should promote the use of private enterprise, whenever feasible, to accomplish the objectives of an effective, comprehensive solid waste management plan which will facilitate economic and industrial development through the improvement of the solid waste infrastructure.
§ 68-211-603. Solid waste management plans.
- (a)
The commissioner of environment and conservation shall establish a comprehensive solid waste management plan for the state. The state plan shall have as its priority the reduction of the volume of wastes going to incinerators or landfills by means of local and regional recycling programs, mulching and composting of yard wastes and other suitable materials, and any other means of ensuring that incinerators and landfills operate in an environmentally and economically sound manner. The state plan shall identify incentives and systems that political subdivisions of this state may use to facilitate recycling and reuse of construction waste.
- (b)
The state plan shall include provisions for planning, funding, and implementation of the plan, technical and financial assistance and educational programs. Educational programs shall be designed to teach persons living or working in the state the economic, environmental, and energy value of solid waste reduction and encourage them through a variety of means to participate in such activities.
- (c)
In preparing the state plan, the commissioner may evaluate the use of composting as a method of diverting waste from landfills across all of the political subdivisions of this state. The state plan shall include recommendations for:
- (1)
Large scale composting in major metropolitan areas; and
- (2)
Composting strategies that may be applied by specific types of waste producers, including higher education institutions, food service establishments, food retailers, and neighborhood groups.
- (d)
The state plan shall include recommendations for a statewide system of collecting recyclable plastics that is based on regional collection centers.
- (e)
The state plan shall also encourage governmental entities, to the greatest extent practicable, to procure and use products and materials with recycled content and to procure and use materials that are recyclable.
- (f)
The commissioner has the following authority and responsibilities in the development of the state and regional solid waste management plans:
- (1)
Formulate goals, standards, and criteria for the planning, funding, implementation, and effective maintenance of the comprehensive solid waste management program;
- (2)
Assist in the preparation and adoption of regional solid waste management plans by the state's nine (9) development districts, in accordance with the state plan;
- (3)
Ensure that each regional solid waste management plan and the state plan include effective citizen participation programs;
- (4)
Establish time frames for the timely completion of regional solid waste management plans;
- (5)
Contract with public or private entities to provide services necessary to comply with this part;
- (6)
Develop a cost accounting system for use in the development of the state and regional plans and for use by local governments in assessing current and future costs, including avoided costs, for any methods of solid waste management deemed appropriate, including at least recycling, mulching, composting, incinerating and landfilling; and
- (7)
Describe in the state plan, on a county by county basis, the solid waste management methods utilized in each county and an inventory of facilities, services, and programs (both profit and not-for-profit) utilized for solid waste management and management of recycling.
- (g)
The nine (9) development districts shall prepare and adopt regional solid waste management plans, consistent with the priorities and criteria of the state plan.
- (h)
The commissioner shall supplement the state plan that was established most recent to March 23, 2016, by conducting a study to define the processing of organic waste and incorporating the findings and recommendations that are derived from such study into the state plan.
§ 68-211-604. Content of plans — Means of reducing solid wastes.
- (a)
The state plan shall establish goals for reduction of solid wastes which are disposed of by landfilling.
- (b)
In order to attain such goals, each plan shall:
- (1)
Identify needed facilities, services and programs (both for-profit and not-for-profit) for solid waste management and management of recycling at the regional level or multi-jurisdictional areas at the subregional level. Facilities, services, and programs to be considered shall include regional landfills or resource recovery facilities, or both, supported by coordinated regional services and programs of mulching, composting, recycling, or other methods of waste reduction;
- (2)
Set forth plans and strategies for funding, implementation and operation of the various planned facilities, services, and programs;
- (3)
Provide appropriate guidelines for development of recycling plans by municipalities and counties which are economically and technically feasible and which are consistent with market demand for recyclable material;
- (4)
Provide municipalities and counties with strategies for funding their solid waste management plans; and
- (5)
Provide for the use of any other method of waste reduction and any other waste reduction technology deemed appropriate by the local governments involved.
§ 68-211-605. Development and distribution of guidelines.
-
The commissioner, in consultation with the department of education and other state departments and agencies, shall develop guidelines for source separation and collection of recyclable materials and for waste reduction in all state departments and in primary and secondary schools, colleges and universities (whether the schools, colleges and universities are public or nonpublic). At a minimum, the guidelines shall address materials generated in administrative offices, classrooms, dormitories and cafeterias. The department shall distribute these guidelines and encourage their implementation.
§ 68-211-606. Department of general services — Purchase of paper or paper products.
- (a)
The department of general services shall, to the fullest extent possible when contracting for paper or paper products, purchase or approve for purchase only such paper or paper products that are manufactured or produced from recycled paper as specified in subsection (b).
- (b)
Subsection (a) shall be implemented by the department so that, of the total volume of paper purchased, recycled paper composes at least ten percent (10%) of the volume in 1990, at least twenty-five percent (25%) of the volume in 1992, and at least forty percent (40%) of the volume in 1994.
- (c)
In the case of the purchase of newsprint and newsprint products, at least forty percent (40%) of the fiber contained in recycled newsprint shall be postconsumer newspaper waste.
- (d)
This section shall not apply to the purchase of paper containers for food or beverages.
- (e)
As used in this section, “postconsumer waste” includes any product generated by a business or consumer which has served its intended end use, and which has been separated from solid waste for the purposes of collection, recycling and disposition.
Part 7 Local Approval of Solid Waste Facilities
§ 68-211-701. Required approval — Submission of proposal to accept waste that would change classification of landfill.
- (a)
No construction shall be initiated for any new landfill for solid waste disposal or for solid waste processing until the plans for such new landfill have been submitted to and approved by:
- (1)
The county legislative body in which the proposed landfill is located, if such new construction is located in an unincorporated area;
- (2)
Both the county legislative body and the governing body of the municipality in which the proposed landfill is located, if such new construction is located in an incorporated area; or
- (3)
Both the county legislative body of the county in which such proposed landfill is located and the governing body of any municipality which is located within one (1) mile of such proposed landfill.
- (b)
Prior to accepting any waste that would require a change in the classification of a landfill under rules promulgated pursuant to this chapter to a classification with higher standards including, but not limited to, changing the classification from a Class III or IV to a Class I or II or from a Class II to a Class I, the plans for which were approved pursuant to subsection (a), the landfill operator shall first submit the proposal to accept the waste to:
- (1)
The county legislative body in which the landfill that is the subject of the proposed change in classification is located, if such landfill is located in an unincorporated area;
- (2)
Both the county legislative body and the governing body of the municipality in which the landfill that is the subject of the proposed change in classification is located, if such landfill is located in an incorporated area; or
- (3)
Both the county legislative body of the county in which the landfill that is the subject of the proposed change in classification is located and the governing body of any municipality which is located within one (1) mile of such landfill.
- (c)
After submission to the county legislative body or municipality under subsection (b), the county legislative body or the municipality or both shall give public notice and an opportunity for public hearing on the proposal and then approve or disapprove it in accordance with § 68-211-704(a) and (b). Judicial review of the decision shall be available in accordance with § 68-211-704(c).
§ 68-211-703. Public notice — Comments — Public hearing.
- (a)
In order to inform interested persons in the area of a proposed landfill, public notice shall be circulated by the county legislative body, the municipal governing body, or both such entities within the geographical area of the proposed landfill approval by any of the following means:
- (1)
Posting in the post office and public places of the municipality nearest the landfill under consideration; or
- (2)
Publishing in local newspapers and periodicals, or, if appropriate, in a daily newspaper of general circulation.
- (b)
Public notice of a proposed landfill approval includes the following:
- (1)
Name, address and telephone number of the local city/county/official/department/agency reviewing the application;
- (2)
Name and address of the proposed landfill owner and/or operator;
- (3)
Location and size of the proposed landfill;
- (4)
Brief description of the type operation to be operated at the landfill, the location of the landfill and the type waste that will be accepted;
- (5)
A description of the time frame and procedures for making a final determination on the landfill application approval or disapproval; and
- (6)
Address and telephone number of the premises at which persons may obtain further information, request copies of data on the landfill, and inspect this data.
- (c)
A copy of the public notice and fact sheet shall be sent to any person who specifically requests one. A copy of each notice of application and fact sheet shall also be sent to those persons who have requested the addition of their names to a mailing list.
- (d)
Interested persons may submit written comments on the proposed landfill within thirty (30) days of the public notice or such greater period as is allowed. All written comments submitted shall be retained and made available to the department of environment and conservation in its final determination of registration of the proposed site.
- (e)
Interested persons may request in writing that the county legislative body, municipal governing body or both such entities hold a public hearing on any proposed new construction for solid waste disposal by landfilling or solid waste processing by landfilling prior to approval of such new construction. 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, one (1) hearing shall be held in the geographical area of the proposed landfill. Instances of doubt should be resolved in favor of holding a hearing. The comments made at the hearing shall be transcribed or recorded to assist in the final determination of approval of the proposed new landfill.
- (f)
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 landfill approval. The procedure for circulation of public notice for the hearing shall include the following:
- (1)
Publication in a newspaper of general circulation within the geographical area of the landfill; and
- (2)
Sending notice to all persons who received a copy of the notice or fact sheet for the proposed landfill approval and any person who specifically requests a copy of the notice of the hearing.
- (g)
Each notice of a public hearing shall include at least the following contents:
- (1)
Name, address and telephone number of the city/county official/department/agency who/which was responsible for the review of the application;
- (2)
Name and address of each proposed landfill owner or operator who will be heard at the hearing;
- (3)
A description of the proposed landfill and the type of disposal methods to be used;
- (4)
A brief reference to the public notice issued for each proposed landfill;
- (5)
Information regarding the time and location for the hearing;
- (6)
The purpose of the hearing;
- (7)
A concise statement of the issues raised by the persons requesting the hearing;
- (8)
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)
A brief description of the nature of the hearing, including the rules and procedures to be followed.
- (h)
- (1)
In addition to all other notice requirements of this section, the proposed landfill owner shall provide notice to persons owning property within a three-mile radius of such landfill no less than fifteen (15) days in advance of any hearing scheduled in accordance with this part by having signs erected on all roads leading directly to the proposed landfill site. The signs shall contain the information required in subdivision (h)(2), shall be erected on such roads at the perimeter of the three-mile radius and be clearly visible to persons traveling into the area.
- (2)
The signs shall be at least three feet (3′) high and five feet (5′) wide and include the following in legible type:
- (A)
Name of the local city/county/official/department/agency reviewing the application;
- (B)
Name and address of the proposed landfill owner and/or operator;
- (C)
Location and size of the proposed landfill;
- (D)
Brief description of the type operation to be operated at the landfill and the type waste that will be accepted;
- (E)
A description of the time frame for making a final determination on the landfill application approval or disapproval; and
- (F)
Address and telephone number of the premises at which persons may obtain further information, request copies of data on the landfill, and inspect this data.
- (3)
The highway department for the county in which the landfill is proposed to be located may erect and maintain the signs, and remove the signs within ten (10) days of the completion of all hearings related to the application for a proposed landfill.
- (4)
All costs associated with the erection of the signs including, but not limited to, their design, construction, delivery and removal shall be borne by the proposed landfill owner.
- (5)
A violation of this subsection (h) shall be a Class B misdemeanor punishable by a fine only of up to five hundred dollars ($500). Each day a violation occurs constitutes a separate offense.
§ 68-211-704. Time limit for determination — Criteria considered.
- (a)
Within thirty (30) days after notice and an opportunity for a public hearing as provided in § 68-211-703, the county legislative body, the municipal governing body or both such entities shall approve or disapprove the proposed new construction for solid waste disposal by landfilling or solid waste processing by landfilling.
- (b)
The following criteria shall be considered in evaluating such construction:
- (1)
The type of waste to be disposed of at the landfill;
- (2)
The method of disposal to be used at the landfill;
- (3)
The projected impact on surrounding areas from noise and odor created by the proposed landfill;
- (4)
The projected impact on property values on surrounding areas created by the proposed landfill;
- (5)
The adequacy of existing roads and bridges to carry the increased traffic projected to result from the proposed landfill;
- (6)
The economic impact on the county, city or both;
- (7)
The compatibility with existing development or zoning plans; and
- (8)
Any other factor which may affect the public health, safety or welfare.
- (c)
Judicial review of the legislative body's determination shall be a de novo review before the chancery court for the county in which the landfill is proposed to be located.
§ 68-211-706. Applicability — Private, municipal or county landfills.
- (a)
This part shall not apply to any private landfill that accepts solid waste solely generated by its owner if the waste is solely generated within the county subject to this part and if the private landfill does not accept county or municipal solid waste or ordinary household garbage.
- (b)
This part shall not apply to any municipal or county owned and/or operated landfill.
§ 68-211-707. Applicability — Requirement of local approval.
- (a)
Sections 68-211-701 — 68-211-704 and [former] 68-211-705 [repealed] and this section shall only apply in any county or municipality in which it is approved by a two-thirds (⅔) vote of the appropriate legislative body. Sections 68-211-701 — 68-211-704 and [former] 68-211-705 [repealed] and this section are for local review and approval and shall be conducted prior to issuance of a permit by the department of environment and conservation or the commissioner.
- (b)
In any county or municipality in which §§ 68-211-701 — 68-211-704 and this section have been approved by a two-thirds (⅔) vote of the appropriate legislative body prior to May 13, 2013, § 68-211-701(b) shall only apply if it is approved by a two-thirds (⅔) vote of the appropriate legislative body.
- (c)
Any county or municipality which has approved this part by a two-thirds (⅔) vote of the appropriate legislative body pursuant to subsection (a) shall have the authority to later reject this part by a two-thirds (⅔) vote of the appropriate legislative body. If the appropriate legislative body votes by two-thirds (⅔) to reject this part after having previously voted to approve this part, then this part shall no longer apply to such county or municipality.
Part 8 Solid Waste Management Act of 1991
§ 68-211-802. Part definitions.
- (a)
As used in this part, unless the context otherwise requires:
- (1)
“Authority” or “solid waste authority” means any public instrumentality organized pursuant to part 9 of this chapter;
- (2)
“Board” means a board, established to manage the affairs of a municipal solid waste management region, except in §§ 68-211-119 — 68-211-121, [former] 68-211-852 [repealed], 68-211-853, 68-211-867 and 68-211-871 where “board” means the underground storage tanks and solid waste disposal control board created in § 68-211-111;
- (3)
“Commissioner” means the commissioner of environment and conservation;
- (4)
“Convenience center” means any area which is staffed and fenced that has waste receptacles on site that are open to the public, when an attendant is present, to receive household waste, municipal solid waste and recyclable materials;
- (5)
“Department” means the department of environment and conservation;
- (6)
“Development district” means a development district organized pursuant to title 13, chapter 14;
- (7)
“Household hazardous waste” means solid wastes discarded from homes or similar sources as listed in 40 CFR 261.4(b)(1), that are either hazardous wastes as listed by the EPA in 40 CFR 261.33(e) or (f), or wastes that exhibit any of the following characteristics as defined in 40 CFR 261.21 — 261.24: ignitability, corrosivity, reactivity and TCLP toxicity;
- (8)
“Household waste” means any waste material, including garbage, trash and refuse, and yard waste derived from households. Households include single and multiple residences, campgrounds, picnic grounds and day-use recreation areas;
- (9)
“Landfill” means a facility, permitted pursuant to part 1 of this chapter, where solid wastes are disposed of by burial in excavated pits or trenches or by placement on land and covering with soil or other approved material;
- (10)
“Municipal solid waste” means any garbage, refuse, industrial lunchroom or office waste, household waste, household hazardous waste, yard waste, and any other material resulting from the operation of residential, municipal, commercial or institutional establishments and from community activities; provided, that “municipal solid waste” does not include the following:
- (A)
Radioactive waste;
- (B)
Hazardous waste as defined in § 68-212-104;
- (C)
Infectious waste;
- (D)
Materials that are being transported to a facility for reprocessing or reuse; provided further, that reprocessing or reuse does not include incineration or placement in a landfill; and
- (E)
Industrial waste which may include office, domestic or cafeteria waste, managed in a privately owned solid waste disposal system or resource recovery facility, if such waste is generated solely by the owner of the solid waste disposal system or resource recovery facility;
- (11)
“Operator” means the person who is in charge of the actual, on-site operation of a solid waste management facility during any period of operation;
- (12)
“Person” means “person” as defined in § 68-211-103;
- (13)
“Recovered materials” means those materials which have been diverted or removed from the solid waste stream for sale, use, reuse or recycling, whether or not requiring subsequent separation processing. Such recovered materials are not solid waste;
- (14)
“Recovered materials processing facility” means a facility engaged solely in the storage, processing and resale or reuse of recovered materials. A recovered materials processing facility is not a solid waste processing facility;
- (15)
“Recyclable materials” means those materials which are capable of being reused or returned to use in the form of raw materials or products, whether or not such materials have been diverted or removed from the solid waste stream;
- (16)
“Recycling” means the process by which recovered materials are transformed into new products, including the collection, separation, processing, and reuse of recovered materials either directly or as raw materials for the manufacture of new products;
- (17)
“Region” means a municipal solid waste region organized pursuant to § 68-211-813(a);
- (18)
“Shredded” means shredded, chipped, chopped, quartered, sliced at least circumferentially, or otherwise processed and rendered not whole in a manner to effectively prevent a tire from floating, as determined by the board;
- (19)
“Solid waste stream” means the system through which solid waste and recoverable materials move from the point of discard to recovery or disposal;
- (20)
“Tire” means the continuous solid or pneumatic rubber covering encircling the wheel of a motor vehicle;
- (21)
“Transporter” means a person engaged in the transportation of municipal solid waste collected or to be baled or processed, or disposed of in Tennessee by rail, highway or water, in significant amounts. The amounts deemed significant shall be determined by the board and established by regulation;
- (22)
“Used oil” means any oil which has been refined from crude or synthetic, or recovered oil and, as a result of use, storage or handling, has become unsuitable for its original purpose due to the presence of impurities or loss of original properties, but which may be suitable for further use and may be economically recycled or may be burned as fuel;
- (23)
“Waste tire” means a tire that is no longer suitable for its original intended purpose because of wear, damage or defect; and
- (24)
“Yard waste” means vegetative matter resulting from landscaping, lawn maintenance and land clearing operations other than mining, agricultural and forestry operations.
- (b)
Unless the context requires otherwise or this section defines a term differently, the definitions set forth in §§ 68-211-103, 68-212-104 and 68-212-303, and in any regulations promulgated pursuant to this chapter and chapter 212 of this title, apply to terms used in this part.
§ 68-211-803. Public policy.
- (a)
It is declared to be the policy of this state, in furtherance of its responsibility to protect the public health, safety and well-being of its citizens and to protect and enhance the quality of its environment, to institute and maintain a comprehensive, integrated, statewide program for solid waste management, which will assure that solid waste facilities, whether publicly or privately operated, do not adversely affect the health, safety and well-being of the public and do not degrade the quality of the environment by reason of their location, design, method of operation or other means and which, to the extent feasible and practical, makes maximum utilization of the resources contained in solid waste.
- (b)
It is further declared to be the policy of this state to educate and encourage generators and handlers of solid waste to reduce and minimize to the greatest extent possible the amount of solid waste which requires collection, treatment, incineration or disposal through source reduction, reuse, composting, recycling and other methods.
- (c)
It is further declared to be the policy of this state to promote markets for, and engage in the purchase of, goods made from recovered materials and goods which are recyclable.
§ 68-211-804. Applicability.
-
Unless specifically otherwise provided, this part does not apply to:
- (1)
Hazardous waste, regulated pursuant to chapter 212 of this title, except household hazardous waste;
- (2)
Infectious waste;
- (3)
Radioactive waste; or
- (4)
Industrial waste, which may include office, domestic or cafeteria waste, managed in a privately owned solid waste disposal system or resource recovery facility, if such waste is generated solely by the owner of the solid waste disposal system or resource recovery facility.
§ 68-211-805. Liberal construction.
-
This part is remedial in nature and shall be liberally construed to effect its purpose of providing for a systematic and efficient means of solid waste disposal and encouraging the best utilization and conservation of energy and natural resources.
§ 68-211-806. Research and development regarding using solid waste materials as raw materials to create jobs, business and compost.
- (a)
Tennessee State University and Middle Tennessee State University may research and develop methods to address how to use the materials in solid waste as raw materials to create jobs, business and compost.
- (b)
Such research by the universities may include how to divert food waste and yard waste, which make up twenty-five percent (25%) of the waste stream, from landfills to create useful compost and clean methane gas.
- (c)
Such methods and research may be made available to government agencies and others involved in solid waste reform. Such research and work shall be funded entirely from nonstate sources.
- (d)
The universities will demonstrate the extent to which such reforms are cost effective. For example, that diversion of materials in solid waste as raw materials in business and compost creates jobs and profits.
§ 68-211-811. Municipal solid waste planning district — District needs assessment.
- (a)
The counties within each development district, as established pursuant to title 13, chapter 14, including all municipalities therein, shall constitute a municipal solid waste planning district. Each district shall submit a district needs assessment for all of the counties within the district to the department of environment and conservation by September 30, 1992. The needs assessment for the municipal solid waste planning district shall be conducted by the staff of the development district. Such staff shall coordinate and maintain the plan. The needs assessment shall be revised to reflect subsequent developments in the district by April 1, 1999, and every five (5) years thereafter.
- (b)
In conjunction with the commissioner, each development district shall sponsor a district-wide meeting to deliver the findings of the district needs assessment to the citizens of the district.
- (c)
The district needs assessment will identify rational waste disposal areas within the district and include at least the following information:
- (1)
Demographic information and projections for a ten-year planning period;
- (2)
An analysis of economic activity within the district;
- (3)
Characterization of the solid waste stream;
- (4)
Projections of solid waste generation for the ten-year planning period;
- (5)
Evaluation of the collection systems for every municipality and county within the district;
- (6)
Evaluation of existing solid waste capacity and management facilities within the district and evaluation of any planned new or expanded facilities;
- (7)
A statement of district goals that are consistent with the state plan;
- (8)
An analysis of existing or potential waste flows within the district and between adjacent districts;
- (9)
A comparison of projected demands from waste generation and importation of waste with available and projected capacity and an identification of potential shortfalls in capacity; and
- (10)
Any additional information as the commissioner may require.
§ 68-211-813. Municipal solid waste regions — Board — Plan for disposal capacity and waste reduction — Regional municipal solid waste advisory committee.
- (a)
- (1)
After consideration of the needs assessment is completed, municipal solid waste regions shall be established by resolutions of the respective county legislative bodies by December 12, 1992. A municipal solid waste region shall consist of one (1) county or two (2) or more contiguous counties. If the region consists of more than one (1) county, an agreement establishing the region shall be approved by the legislative body of each county that is a party to the agreement.
- (2)
Once established, municipal solid waste regions shall continue to exist until dissolved, a successor region or regions established and the requirements of this section are met. A municipal solid waste region may be dissolved and a new region or reconfigured region established upon completion of the following procedure:
- (A)
The approval of the dissolution of the existing region by resolution of the county legislative body of each county in the existing region;
- (B)
The approval of the proposed new or reconfigured region by resolution of the county legislative body of each county that is to be a part of the new or reconfigured region;
- (C)
The submittal to the department of environment and conservation of a list of the new board members, their addresses, phone numbers, terms of office and a new or revised plan for any new or reconfigured region that complies with the requirements of this part; and
- (D)
The approval of the department of environment and conservation of all of the new or revised plans for all of the new or reconfigured regions.
- (3)
Each county and region shall continue to follow the existing approved plan until new or revised plans are approved by the department of environment and conservation for each new or reconfigured region.
- (4)
The preferred organization of the regions shall be multi-county. Any county adopting a resolution establishing a single-county region shall state the reasons for acting alone in the resolution.
- (b)
- (1)
- (A)
The resolution establishing a region for a county or approving an agreement to establish a region with other counties shall provide for the establishment of a board to administer the activities of the region. This board shall consist of an odd number, not less than five (5) nor more than fifteen (15). Each county that is a member of a region shall be represented by at least one (1) member on the board. Municipalities that provide solid waste collection services or provide solid waste disposal services, directly or by contract, shall be represented on the board. The members of the board shall be appointed by the county mayors and municipal mayors, respectively, of the counties and eligible municipalities within the region. Municipalities entitled to representation on the board may agree to joint or multiple representation by a board member or for a county member to represent one (1) or more municipalities upon agreement of all local governments who share representation by a board member. Any such agreement shall specify the method of making the appointment for a member representing more than one (1) local governmental entity. Members of county and municipal governing bodies, county mayors, municipal mayors, county and municipal officers and department heads may be appointed to the board. Appointments must be approved by the legislative or governing bodies of the respective counties and eligible municipalities within the region. The members of the board shall serve for terms of six (6) years or until their successors are elected and are qualified by taking an oath of office, except that the initial board shall have approximately one-third (⅓) of the members with terms of two (2) years, and approximately one-third (⅓) of the members with terms of four (4) years, so as to stagger the terms of office.
- (B)
The county and municipal mayors, and any other authorities, who appoint members to regional boards created under subdivision (b)(1)(A) must strive to ensure that at least two (2) elected officials serve on each regional board.
- (2)
Any county that has a solid waste authority, not organized pursuant to part 9 of this chapter and in existence on July 1, 1991, may designate such authority as the board to administer the activities of the region, if such county chooses to be a region unto itself. The legislative body of the county and of each municipality that provides solid waste collection services or solid waste disposal services in the region shall approve such designation by the passage of an appropriate resolution.
- (3)
Appointments made after July 1, 1994, to the board for a municipal solid waste region consisting of counties having a population less than two hundred thousand (200,000), according to the 1990 federal census or any subsequent federal census, shall be made so that rural landowners shall have representation on the board, and by December 31, 1998, at least thirty percent (30%) of the membership shall consist of members who own at least a fifty percent (50%) equitable or fee simple interest in land that is eligible for classification as agricultural, forest or open space land under the terms of the Agricultural, Forest and Open Space Land Act of 1976, compiled in title 67, chapter 5, part 10.
- (c)
Each region shall develop a plan for a ten-year disposal capacity, and for achieving compliance with the waste reduction and recycling goal required by § 68-211-861.
- (d)
The legislative body of any municipality which lies within the boundaries of two (2) or more regions shall select by resolution in which region it shall participate.
- (e)
Within each municipal solid waste region, the board of the region shall establish a regional municipal solid waste advisory committee whose composition shall be determined by the board.
- (f)
The department shall maintain materials designed to assist municipal solid waste region board members with administering their regions. The department shall publish the materials on its website and send an electronic copy of the materials to the appropriate appointing authorities by July 1, 2018.
§ 68-211-814. Municipal solid waste region plans — Authority of region or solid waste authority after approval.
- (a)
- (1)
Each region shall submit its plan to the department of environment and conservation by July 1, 1994. The plan shall be formulated in strict compliance with § 68-211-815. After receiving a plan, the department shall approve or disapprove the plan within ninety (90) days. The department shall approve the plan if it adequately addresses each element required by § 68-211-815. If a plan is disapproved, the department shall state in detail the reasons for such disapproval. The region shall review any disapproved plan and shall resubmit a plan which corrects all deficiencies to the department within sixty (60) days of receiving the letter of disapproval.
- (2)
The plan may be revised at any time to reflect subsequent developments in the region. Each revised plan shall be submitted to, reviewed by and approved or disapproved by the department of environment and conservation in the same manner as the initial plan.
- (3)
Each municipal solid waste region shall submit an annual progress report to the department covering the next ten (10) years that includes, at a minimum, the information contained in § 68-211-815(b).
- (b)
- (1)
- (A)
If the commissioner approves the plan, the region or solid waste authority, if one has been formed pursuant to part 9 of this chapter, by resolution and subsequent adoption of ordinances by counties and municipalities in the region, may also regulate the flow of collected municipal solid waste generated within the region. Prior to the adoption of any resolution declaring the necessity of requiring mandatory flow of municipal solid waste, the region or authority, following one (1) or more public hearings, shall demonstrate in writing to the commissioner that it has considered the utilization of any municipal solid waste management facility in existence within the region on July 1, 1991, which meets the proposed or final federal Resource Conservation and Recovery Act (RCRA) (42 U.S.C. § 6901 et seq.), Subtitle D regulations. The region or authority must show that its decision not to use the existing facility is based on the fact that:
- (i)
Such facility is environmentally unsound or inadequate to meet the region's ten-year capacity assurance plan;
- (ii)
- (a)
Costs for the use of such facility are inconsistent with comparable facilities within the state; or
- (b)
The existing facility is operating in a manner that is inconsistent with the plan; and
- (iii)
The waste subject to flow control will be sent only to a facility or facilities that meet all state and federal regulations.
- (B)
The region or authority may restrict access to any landfills and incinerators which dispose of municipal solid waste by excluding waste originating with persons or entities outside the region in order to effectuate the plan. If a facility within a region has accepted waste from a specific source outside the region prior to July 1, 1991, the region may not prohibit that facility from continuing to accept waste from that source, unless the facility's acceptance of that waste significantly impairs the region's ability to effectuate its plan.
- (C)
Appeal of final actions of the region or authority, including any determinations under subdivision (b)(1), shall be taken by an aggrieved person within thirty (30) days to any chancery court in the region or authority which took such final action.
- (D)
After the plan is approved, the region must approve any application for a permit for a solid waste disposal facility or incinerator within the region as is consistent with the region's disposal needs before any permit is issued by the commissioner pursuant to this chapter.
- (2)
- (A)
An applicant for a permit for construction or expansion of a solid waste disposal facility or incinerator shall submit a copy of the application to the region at or before the time the application is submitted to the commissioner. The region shall review the application for compliance with this section, and shall conduct a public hearing after public notice has been given in accordance with title 8, chapter 44, prior to making the determination provided for in this subdivision (b)(2). The hearing must afford all interested persons an opportunity to submit written and oral comments, and the proceeding must be recorded and transcribed. The region shall render a decision on the application within ninety (90) days after receipt of a complete application. The region shall immediately notify the commissioner of its acceptance or rejection of an application. If no decision is rendered by the region on the application within ninety (90) days after receipt of a complete application, then the commissioner may continue processing of the application.
- (B)
The region may reject an application for a new solid waste disposal facility or incinerator or expansion of an existing solid waste disposal facility or incinerator within the region only upon determining that the application is inconsistent with the solid waste management plan adopted by the county or region and approved by the department, and the region shall document in writing the specific grounds on which the application is inconsistent with such plan.
- (C)
- (i)
Appeal of a final action of the region under this subdivision (b)(2) must be made by an aggrieved person within thirty (30) days to the chancery court of Davidson County. The court shall exercise the same review as it would in a case arising under the Uniform Administrative Procedures Act, compiled in title 4, chapter 5. For the purposes of this section, an “aggrieved person” is limited to a person applying for permits, a person who owns property or lives within a three-mile radius of the facility or site that is proposed for permitting, or cities or counties in which the proposed facility is located.
- (ii)
A permit that is the subject of an appeal made to the chancery court of Davidson County within the time prescribed in subdivision (b)(2)(C) must not be:
- (a)
Processed by the commissioner until there is a final adjudication of the appeal on the merits; or
- (b)
Issued in contravention of the final adjudication on the merits.
- (D)
If an aggrieved party does not appeal a final action of the region in accordance with subdivision (b)(2)(C), then the commissioner may issue the permit unless the commissioner finds that the decision of the region to reject the application is arbitrary and capricious and unsupported in the record developed before the region.
- (E)
The region shall provide for reasonable public notice of meetings. The region is subject to title 10, chapter 7, part 5, and shall act in accordance with title 8, chapter 44.
- (3)
If the region has formed a solid waste authority pursuant to part 9 of this chapter, then the authority shall approve any permit applications as provided for in this section instead of the region.
- (4)
A region or solid waste authority may not impair the obligations of contracts entered into before the date of approval of the region's plan in violation of the Constitution of Tennessee, Article I, § 20 .
- (5)
A region or solid waste authority may not restrict the movement of recovered materials into, out of, or within the region.
- (6)
Before submitting a plan required by this part, each municipal solid waste region shall hold a public hearing on the proposed plan or revised plan.
§ 68-211-815. Municipal solid waste region plans — Contents.
- (a)
Each plan and revised plan submitted by a municipal solid waste region pursuant to this part shall be consistent with the state solid waste plan, with this part, with all other applicable law and with any regulation promulgated by the department.
- (b)
At a minimum, each plan and revised plan submitted by a municipal solid waste region shall include the following:
- (1)
Demographic information;
- (2)
A current system analysis of:
- (A)
Waste streams, including data concerning types and amounts generated;
- (B)
Collection capability, including data detailing the different types of collection systems and the populations and areas which receive and do not receive such services;
- (C)
Disposal capability, including an analysis of the remaining life expectancy of landfills or other disposal facilities;
- (D)
Costs, using a full-cost accounting model developed by the commissioner, including costs of collection, disposal, maintenance, contracts and other costs; and
- (E)
Revenues, including cost reimbursement fees, appropriations and other revenue sources;
- (3)
Adoption of the uniform financial accounting system required by § 68-211-874;
- (4)
Anticipated growth trends for the next ten-year period;
- (5)
Anticipated waste capacity needs;
- (6)
Planned capacity assurance, including descriptions of planned or needed facilities;
- (7)
A recycling plan, including a description of current public and private recycling efforts and planned efforts to enhance recycling within the county or region;
- (8)
A plan for the disposal of household hazardous wastes;
- (9)
Adoption of uniform reporting requirements as required by this part;
- (10)
A description of waste reduction and recycling activities designed to attain the goal required by § 68-211-861;
- (11)
A description of education initiatives aimed at businesses, industries, schools, citizens and others, which addresses recycling, waste reduction, collection and other goals of this part;
- (12)
An evaluation of multi-county solid waste disposal region options with an explanation of the reasons for adopting or failing to adopt a multi-county regional approach;
- (13)
A timetable for implementation of the plan;
- (14)
A description of the responsibilities of the various participating jurisdictions;
- (15)
A certification from the region's title 68, chapter 211, part 9 solid waste authority, if such an authority has been formed, or if no such authority has been formed, the county legislative body of each county in the region that they have reviewed and approved of the region's plan and/or revised plan;
- (16)
A plan for managing solid waste generated as a result of disasters or emergencies; and
- (17)
Any other information as the commissioner may deem relevant to the implementation of this part.
§ 68-211-816. Municipal solid waste regions — Failure to submit adequate plan — Noncompliance with part — Sanctions and penalties.
- (a)
If a municipal solid waste region fails to submit an adequate plan in a timely fashion or if the commissioner does not approve any plan submitted to it, or for any other noncompliance with a provision of this part, then the commissioner shall impose the following sanctions, as appropriate, on the noncompliant county or region:
- (1)
On the first instance of noncompliance, the commissioner shall issue a letter of warning to the noncompliant county or region indicating the reasons for noncompliance, setting forth the sequence of graduated sanctions for noncompliance and offering technical assistance to remedy the causes of noncompliance.
- (2)
Any noncompliance shall be resolved as soon as possible. If noncompliance continues for thirty (30) days after receipt of the warning letter, the noncomplying county or region shall lose eligibility for funds from the solid waste management fund, unless the commissioner states in writing that, due to particular circumstances, a longer time is appropriate.
- (3)
If noncompliance continues for sixty (60) days after receipt of the warning letter, then, in addition to any other penalty imposed by law, the commissioner may impose a civil penalty of not more than five thousand dollars ($5,000) for each day of noncompliance beyond the sixty-day period.
- (b)
Any civil penalty shall be assessed in the same manner as provided in § 68-211-117(b). Any penalty collected pursuant to this section shall be deposited in the solid waste management fund.
- (c)
Any person who violates § 68-211-608, § 68-211-866(a) or § 68-211-867(d) shall be subject to the penalties provided for in § 68-211-117.
§ 68-211-821. Solid waste management fund — Funding — State-wide comprehensive goals for solid waste management programs.
- (a)
There is established a general fund reserve to be allocated by the general appropriations act which shall be known as the “solid waste management fund.” Moneys from the fund may be expended to fund activities authorized by this part. Any revenues deposited in this reserve shall remain in the reserve until expended for purposes consistent with this part, and shall not revert to the general fund on any June 30. Any excess revenues on interest earned by such revenues shall not revert on any June 30, but shall remain available for appropriation in subsequent fiscal years. Any appropriation from such reserve shall not revert to the general fund on any June 30, but shall remain available for expenditure in subsequent fiscal years. In addition to appropriations of solid waste management funds made by the annual appropriations act, at any time during the fiscal year, the commissioner of environment and conservation, subject to the approval of the commissioner of finance and administration, may use any additional funds available from the solid waste management fund to fund activities authorized by this part.
- (b)
It is the legislative intent that all appropriations which are required for the implementation of this part and which are in addition to the funds available from the solid waste management fund established by this section shall be funded from appropriations which are otherwise available for solid waste management and related activities as appropriated in the general appropriations act.
- (c)
The commissioner is directed to develop, with the input and advice of the underground storage tanks and solid waste disposal control board, comprehensive goals for the system of solid waste management programs throughout the state. These goals should address waste avoidance, waste reduction, recycling, composting, and household hazardous waste objectives and should incorporate a strategy of education, technical assistance, and incentives for assuring compliance by all solid waste regions. This program shall be put in place for grants given out after July 1, 2000; provided, that there is sufficient information available on the waste reduction and diversion activities of the counties at that time.
§ 68-211-823. Annual plan maintenance grants — Planning assistance grants.
-
From available funds in the solid waste management fund established in § 68-211-821, the department shall award:
- (1)
Annual plan maintenance grants to development districts in order to assist such districts in revising data, maintaining district needs assessments, and assisting counties within the district; and
- (2)
Planning assistance grants to each county or solid waste region in order to assist such counties or regions in developing, revising and maintaining regional plans required by § 68-211-814.
§ 68-211-824. Matching grant assistance to establish or upgrade convenience centers.
-
From funds available in the solid waste management fund established by § 68-211-821, the department shall offer matching grant assistance to counties for the purpose of establishing or upgrading convenience centers required by § 68-211-851. Such grant funds may be applied to expenses for land, paving, fencing, shelters for attendants, containers and basic equipment including, but not limited to, balers, crushers, grinders and fencing. Such funds may also be applied to expenditures for developing and printing of operating manuals, but such funds may not be used for regular operating expenses of a recurring nature. The local share of the match shall be determined by the department, using an economic index promulgated by the board based upon factors which include, but are not limited to, per capita income and property values of the county applicant. Counties falling within the lower one-half (½) of the economic scale on the index shall be eligible for lower matching rates. The board shall promulgate regulations regarding the appropriate index and matching rates.
§ 68-211-825. Matching grant program — Recycling collection site equipment — State surcharge on tipping fee — Rebate.
- (a)
From funds available from the solid waste management fund established by § 68-211-821, the department shall establish a matching grant program for the purchase of equipment needed to establish or upgrade recycling at a public or not-for-profit recycling collection site. Such equipment may include, but is not limited to, containers, balers, crushers and grinders. No grant shall be awarded for the purchase of mechanical processing equipment to be used at a public or not-for-profit recycling collection site if there is adequate mechanical processing equipment at privately owned facilities which serve the relevant geographical area, unless the grant applicant demonstrates to the department's satisfaction that the mechanical processing equipment is an indispensable component of an otherwise eligible grant project and will not be used to compete with a privately owned facility. The local share of the match shall be determined by the department, using an economic index based upon factors which include, but are not limited to, per capita income and property values of the jurisdiction to be served. Areas falling within the lower economic scale on the index shall be eligible for lower matching rates. The department shall establish criteria under which applicants for such matching grants will receive preference if their program employs adults with a developmental disability, as defined in § 33-1-101, in such a manner that improves the recycling rate of the city or county and thereby contributes to progress towards meeting or exceeding its solid waste reduction and diversion goal under § 68-211-861.
- (b)
- (1)
For the five (5) most populous counties according to the annual estimated census released in April by the United States census bureau, the state shall grant a rebate against the amount due to the state under the state surcharge on the tipping fee imposed by this part. The state shall rebate the amount of a county's credit to the county on an annual basis. The total amount of credits shall not exceed an amount equal to one hundred percent (100%) of the funds allocated for recycling equipment grants and shall be allocated proportionately by population to each county. Municipalities that manage solid waste within the five (5) counties shall be offered a proportionate share of their county's rebate, based on population.
- (2)
Such rebate shall be in lieu of recycling equipment grants for these five (5) counties. Within a county, the rebate shall be allocated proportionately by population among the municipalities in the county which provide collection or disposal services and the county for the remaining population of the county. A county or municipality may only expend such rebate for recycling purposes and they must expend from local funds an amount equal to the amount of the rebate towards such purposes.
§ 68-211-826. Office of cooperative marketing for recyclables — Duties.
- (a)
From funds available from the solid waste management fund established by § 68-211-821, the department of environment and conservation shall establish an office of cooperative marketing for recyclables.
- (b)
The duties of the office of cooperative marketing for recyclables include:
- (1)
Preparing and maintaining a directory of regional buyers, which shall include current information on product specifications, markets and price ranges;
- (2)
Preparing and maintaining a directory of public and private, for profit and nonprofit recycling programs;
- (3)
Collecting information on the quantity and quality of materials offered for sale by recycling programs;
- (4)
Assisting counties in contract negotiation;
- (5)
Creating a data base for and operating an interactive information clearinghouse and marketing service, which shall include pricing information; and
- (6)
Maintaining an inventory of available quantities, qualities and locations of recyclable materials in Tennessee, and marketing such sites to industries which can utilize available materials.
§ 68-211-828. Competitive grants for collection of household hazardous waste.
- (a)
From funds available from the solid waste management fund, the department shall award competitive grants for collection of household hazardous waste at a permanent site to municipalities with a population of one hundred thousand (100,000) or more in counties with a population of two hundred eighty-seven thousand seven hundred (287,700), or more, according to the 1980 federal census or any subsequent federal census, and to the municipalities or counties that are determined by the department to be the next largest in terms of population or level of participation, or both, in mobile household hazardous waste collection events.
- (b)
An eligible municipality or county may only receive one (1) grant for the establishment of a permanent household hazardous waste collection site; however, if funds are available from the solid waste management fund, the department may award a municipality or county that has established a permanent household hazardous waste collection site annual grants to assist the municipality or county in maintaining or operating, or both, the permanent household hazardous waste collection site.
- (c)
A municipality or county that receives a grant pursuant to this section shall allow all residents of the county in which the site is located to use the site on the same basis. The mobile household hazardous waste collection service authorized by § 68-211-829 shall not be provided in a county in which there is a permanent household hazardous waste collection site that was funded through a grant pursuant to this section.
§ 68-211-829. Household hazardous wastes — Mobile collection units.
-
From funds available from the solid waste management fund established by § 68-211-821, except as provided in § 68-211-828, the department shall, directly or by contract, provide for the collection of household hazardous wastes on designated days in each county. Each county, or solid waste authority under part 9 of this chapter, if such authority has been created, shall provide a service site and shall advertise in newspapers of general circulation in the county the day or days and hours and location where the household hazardous wastes will be collected. The advertisements shall also identify examples of household hazardous wastes that the mobile unit will receive. The county or solid waste authority shall also furnish at least one (1) person to represent the county or solid waste authority at the service site on the days of collection, who will assist the persons operating the mobile collection unit.
§ 68-211-830. Matching grants for promoting new technologies.
-
From funds available from the solid waste management fund established by § 68-211-821, the department may award matching grants to persons to promote the development of new technology for solid waste and recovered materials management, the use of solid waste as a fuel substitute, or innovative solid waste management infrastructure development. Such matching grants shall be made on a competitive basis with appropriate criteria for such competition to be established by the commissioner of environment and conservation. When the recipient is a local government, the local share of the match shall be determined by the department, using an economic index based upon factors which include, but are not limited to, per capita income and property values of the local government. Jurisdictions falling within the lower economic scale on the index shall be eligible for lower matching rates.
§ 68-211-832. Grants for investigation and corrective action at landfills causing contamination of ground water.
- (a)
From funds available in the solid waste management fund, the department may award a grant or grants to any county or municipality that operated a Class I landfill permitted by the department that is now closed and does not have a composite liner system in place, if the department determines that the landfill is causing harm to health or the environment through contamination of ground water.
- (b)
The grant shall be used by the county or municipality for the purpose of investigation or corrective action at the landfill. The amount of the grant shall be set at an amount sufficient to reimburse a county or municipality for not more than fifty percent (50%) of the total cost of investigation and corrective action of the ground water contamination as of the date of application for the grant.
- (c)
The underground storage tanks and solid waste disposal control board may promulgate rules it deems necessary or appropriate to effectuate this grant program.
§ 68-211-833. Disposal of hazardous waste in public schools.
-
Funds available in the solid waste management fund may be used by the department to provide for the proper disposal of hazardous waste or other materials, deemed by the department to pose a hazard to students or the environment, in public kindergarten through grade twelve (K-12) schools.
§ 68-211-835. Tipping fee — Amount — Collection — Expenditure of revenues — Joint ventures — Surcharges — Solid waste disposal fees — Collection — Penalty for nonpayment — Use of fee.
- (a)
Each county, municipality, or solid waste authority which owns a municipal solid waste disposal facility or incinerator may impose a tipping fee upon each ton of municipal solid waste or its volume equivalent received at such solid waste disposal facility or incinerator. Such a tipping fee shall be set by the governing body of the county or municipality, or by the board of directors of the solid waste authority. This tipping fee shall be collected by the operator of the publicly owned municipal solid waste disposal facility or incinerator and remitted to the owner. The fee imposed may be equal to, or a portion of, the estimated cost of providing solid waste management services on a per ton or volume equivalent. Such full cost shall be determined pursuant to the uniform solid waste accounting system developed by the comptroller of the treasury.
- (b)
Revenue from tipping fees at publicly owned solid waste disposal facilities and incinerators received by counties, municipalities and solid waste authorities shall be expended only for solid waste management purposes.
- (c)
When a municipal solid waste disposal facility is operated as a joint venture by more than one (1) city or county, or combination thereof, or by an authority, the tipping fee authorized under this section shall be imposed by the joint operators or authority, and the tipping fee received shall be remitted to the participating local governments or authorities for expenditure for solid waste management purposes only.
- (d)
- (1)
In addition to any tipping fee imposed by any local government under this section, there shall also be imposed a surcharge of ninety cents ($0.90) on each ton of municipal solid waste received at all Class I solid waste disposal facilities or incinerators.
- (2)
The operator of the municipal solid waste disposal facility or incinerator shall collect this surcharge and remit it to the state treasury, except that the operator shall be allowed a deduction of the surcharge due, reported and paid to the department in the amount of one percent (1%) of the amount due on the report. No deduction from the fee shall be allowed if the report or payment of the surcharge is delinquent. Of the funds received from this surcharge, for a period of three (3) years starting July 1, 2009, the state shall credit an amount not to exceed two million six hundred thousand dollars ($2,600,000) to the general fund annually, if the annual general appropriations act so provides, and the remainder shall be credited to the solid waste management fund. On July 1, 2012, and thereafter, all of the funds received from this surcharge shall be credited to the solid waste management fund.
- (e)
In order to encourage regional use of solid waste disposal facilities or incinerators, a county that is host to a solid waste disposal facility or incinerator used by other counties in the same region formed pursuant to this part may impose a surcharge on municipal solid waste received at any such solid waste disposal facility or incinerator by resolution of its county legislative bodies in the region. The surcharge shall be imposed on each ton or volume equivalent of municipal solid waste so received. The revenue received by a county from the surcharge authorized by this subsection (e) shall be expended for solid waste management purposes, or for purposes related to offsetting costs incurred and other impacts resulting from the county being host to the solid waste disposal facility or incinerator. If any municipality in the host county incurs costs as a result of such a municipal solid waste facility or incinerator, then the county shall appropriate funds derived from the surcharge revenue to the municipality which shall be used by the municipality to offset such costs.
- (f)
- (1)
In addition to any fee authorized by title 5, and to any tipping fee imposed by any local government under this section, a county, municipality or solid waste authority is authorized to impose:
- (A)
A surcharge on each ton of municipal solid waste received at a solid waste disposal facility or incinerator for expenditure for solid waste collection, processing, or disposal purposes consistent with this part; and/or
- (B)
A solid waste disposal fee authorized by subsection (g).
- (2)
The surcharge authorized to be imposed by a county by subdivision (f)(1)(A) shall not take effect until a regional solid waste plan is approved for such county.
- (g)
- (1)
In addition to any power authorized by title 5, a county, municipality or solid waste authority is authorized to impose and collect a solid waste disposal fee. Funds generated from such fees may only be used to establish and maintain solid waste collection and disposal services, including, but not limited to, convenience centers. All residents of the county shall have access to these services. The amount of the fee shall bear a reasonable relationship to the cost of providing the solid waste disposal services. Such fees shall be segregated from the general fund and shall be used only for the purposes for which they were collected.
- (2)
Subject to any other requirement of law, a county, municipality or solid waste authority may enter into an agreement with an electric utility to collect the solid waste disposal fee as a part of the utility's billing process. The agreement shall be approved by the governing body of the county or municipality entering into the agreement, or, in the case of a solid waste authority, the agreement shall be approved by the authority's board of directors.
- (3)
A solid waste disposal fee shall not be imposed on any generator of solid waste when the generator's solid waste is managed in a privately owned solid waste disposal system or resource recovery facility owned by the generator.
- (4)
In any county having a population of not less than nineteen thousand three hundred (19,300) nor more than nineteen thousand six hundred (19,600) or not less than twenty-two thousand two hundred (22,200) nor more than twenty-two thousand five hundred (22,500) or not less than twenty-three thousand three hundred (23,300) nor more than twenty-three thousand four hundred (23,400), according to the 1990 federal census or any subsequent federal census, or any county having a population of not less than sixteen thousand two hundred (16,200) nor more than sixteen thousand three hundred (16,300), according to the 2020 federal census or any subsequent federal census, the solid waste disposal fee authorized by this subsection (g) shall be subject to the same penalty and interest as delinquent property taxes if not paid within thirty (30) days after notice of such fee is mailed. The unpaid fees, penalty, interest and cost shall be a lien on the real estate and improvements thereon upon filing of a notice with the office of the register of deeds of the county in which the property lies. Such lien shall be in favor of the jurisdiction, second only to liens of the state, county and municipality for taxes, any lien of the municipality for special assessments, and any valid lien, right or interest in such property duly recorded or duly perfected by filing, prior to the filing of such notice. The notice shall identify the debtor, owner of record of the real property, contain the property address, describe the property sufficiently to identify it and recite the amount of the obligation secured by the lien. No sale or transfer, including, but not limited to, a transfer to an heir-at-law, assignee or legatee of such real property may be legally closed and recorded until the lien has been satisfied. The same shall apply if the property is to be made the subject of a contract of sale. Upon the sale or transfer of the real property, the successor, successors or assigns shall be required to withhold a sufficient amount of the purchase money to cover the amount of the fees, interest, penalty and cost. The jurisdiction may collect the delinquent fees, penalty, interest and cost through an action for debt filed in any court of competent jurisdiction.
- (h)
- (1)
As used in this subsection (h), “county” means any county having a metropolitan form of government with a population of more than five hundred thousand (500,000), according to the 2010 federal census or any subsequent federal census.
- (2)
In addition to any power authorized by title 5, a county is authorized to impose and collect a solid waste collection, processing, and disposal fee, referred to in this subsection (h) as the “fee.” Funds generated from the fee shall only be used to:
- (A)
Establish and maintain solid waste collection, processing, and disposal services including, but not limited to, convenience centers;
- (B)
Establish and maintain material recovery venues and programs; and
- (C)
Cover costs borne by a county as a consequence of disposal, including the expenses incurred in determining such costs.
- (3)
All residents of the county imposing the fee shall have access to the services, venues, and programs established and maintained pursuant to subdivisions (h)(2)(A) and (B).
- (4)
The amount of the fee shall bear a reasonable relationship to the cost of providing the services, venues, and programs established and maintained pursuant to subdivisions (h)(2)(A) and (B). The fee to be imposed by the county shall be set by the county in consultation with and subject to the approval of the underground storage tanks and solid waste disposal control board created in § 68-211-111.
- (5)
All moneys collected from the fee shall be segregated from the general fund.
§ 68-211-842. Education program — Guidelines — Funding.
- (a)
The commissioner shall issue guidelines for the education program element of the municipal solid waste region plan. Each solid waste regional plan shall include an education program to assist adults and children to understand solid waste issues, management options and costs, and the value of waste reduction and recycling.
- (b)
The adult education program shall be funded at a level no less than four percent (4%) of the waste disposal surcharge collected in fiscal year 1996-97; five percent (5%) of the waste disposal surcharge collected in fiscal year 1997-98; and six percent (6%) of the waste disposal surcharge collected in fiscal year 1998-99.
§ 68-211-843. Information clearinghouse — Regional workshops and conferences.
-
The commissioner shall establish an information clearinghouse to acquire, review, evaluate and distribute a catalog of materials on source reduction and recycling. The commissioner shall also organize and conduct statewide and regional workshops and conferences on solid waste management, source reduction and recycling.
§ 68-211-844. Educational and training programs.
-
The commissioner shall collect, prepare and disseminate information and conduct educational and training programs designed to assist in the implementation of solid waste management programs and inform the public of the relationship between an individual's consumption of goods and services and the generation of different types and quantities of solid waste. The commissioner, in consultation with the department of education, shall prepare the information and programs on a statewide basis for the following groups:
- (1)
Municipal, county and state officials and employees;
- (2)
Kindergarten through graduate students and teachers;
- (3)
Businesses that use or could use recycled materials or that produce or could produce projects from recycled materials, and persons who provide support services to those businesses; and
- (4)
The general public.
§ 68-211-845. Promotion of education concerning solid waste management.
-
In order to promote education of children in grades kindergarten through twelve (K-12) concerning solid waste management, source reduction and recycling, the University of Tennessee Waste Management Research and Education Institute, in conjunction with the commissioner of environment and conservation, shall:
- (1)
Review, evaluate and publish a list of approved curriculum materials relative to solid waste management, source reduction and recycling;
- (2)
Sponsor workshops on the curriculum materials for educators;
- (3)
Provide in-service training for teachers on solid waste management, recycling and source reduction, environmental protection and conservation of materials; and
- (4)
Establish peer assistance programs for teachers within a solid waste management region.
§ 68-211-847. Matching grants to implement education program.
-
After a region's plan is approved, the department of environment and conservation may award matching grants for implementing the education program component of the plan from funds available in the solid waste management fund. The local share of the match shall be determined by the department, using an economic index based upon factors which include, but are not limited to, per capita income and property values of the local government. Jurisdictions falling within the lower economic scale on the index shall be eligible for lower matching rates.
§ 68-211-851. Municipal solid waste collection and disposal systems — Convenience centers — Technical assistance — Separate receptacles.
- (a)
Each county shall assure that one (1) or more municipal solid waste collection and disposal systems are available to meet the needs of the residents of the county. Such systems shall complement and supplement those provided by any municipality. The minimum level of service that the county shall assure is a system consisting of a network of convenience centers throughout the county. Unless a higher level of service, such as household garbage pickup, is available to the residents, a county shall provide directly, by contract, or through a solid waste authority, convenience centers which shall meet minimum design standards to be developed by the department and established by regulation. The department shall also develop regulations to be promulgated by the board for determining the minimum requirements for and number of convenience centers or other forms of collection that a county shall maintain. Such regulations shall consider county population, area, distances to possible convenience center sites, and staffing requirements.
- (b)
As part of the local plan required by § 68-211-814, each county or multi-county municipal solid waste disposal region shall submit a plan for the adequate provision of collection services to the department. Such plan shall identify unmet needs and shall be updated annually.
- (c)
If requested, the University of Tennessee county technical assistance service and municipal technical advisory service shall provide technical assistance to a county or region for siting, designing, constructing, upgrading and developing and maintaining a system of convenience centers which meets the minimum design standards which the department will establish by regulation. The county shall develop an operating manual, and the department shall offer training to operators and attendants.
- (d)
- (1)
Not later than July 1, 1997, each county which maintains and uses receptacles for the collection of municipal solid waste from the general public at sites separate from a convenience center for the needs of the residents of the county shall submit the following information to the department:
- (A)
The number of receptacles in the county;
- (B)
The location of all receptacles;
- (C)
Collection times for such receptacles;
- (D)
Operation procedures and security measures adopted and enforced to maintain and service the receptacles and to ensure the protection of public health and safety; and
- (E)
Such other information required by the department.
- (2)
The board created pursuant to § 68-211-111 shall promulgate rules and regulations on the requirements for operation and use of such receptacles as it deems necessary to ensure the protection of public health and safety and to provide for the proper management of solid waste disposed in such receptacles. Any county which does not submit the information required by subdivision (d)(1) or which violates the rules and regulations of the board created pursuant to § 68-211-111 shall not use such receptacles for such purposes.
- (3)
This subsection (d) shall only apply to counties which had receptacles in use on January 1, 1996. A county which did not have receptacles in use on January 1, 1996, or which subsequent to such date discontinues use of any receptacle permitted under this section, shall be prohibited from installing or maintaining additional receptacles after July 1, 1996.
§ 68-211-853. Landfills — Certification of operators, attendants and participating persons — Training — Suspension or revocation of operating license or operator's certification.
- (a)
By March 19, 1994, or any subsequently designated date for Tenn. Comp. R. & Regs. 1200-01-07-.04(1)(b)(3)(ii) to take effect, the board shall, by rule, establish a program for the certification of operators, attendants and other persons participating in or responsible for the operation of any Class I landfill regulated by the department. The department shall:
- (1)
Identify those persons or positions involved in the operation of a solid waste disposal facility who are required to obtain certification;
- (2)
Establish the requirements for and term of initial certification and requirements for recertification upon expiration of that term. At a minimum, the department shall require applicants to complete a program of training and pass an examination in order to receive initial certification;
- (3)
Establish different levels of certification and requirements for certification for different sizes or types of facilities, as the department determines is appropriate;
- (4)
Impose fees for the operator or attendant training and certification program; and
- (5)
Require that there be one (1) or more certified attendants on the site of a Class I landfill at all times during the facility's hours of operation.
- (b)
The training required under subdivision (a)(2) may be conducted by the department or by another person with the approval of the department.
- (c)
The department may suspend or revoke the operating license of any landfill regulated by the department if persons at the facility fail to obtain certification required under subdivision (a)(1) or for failure to have a certified operator on the site as required under subdivision (a)(5).
- (d)
The department may suspend or revoke an operator's certification for failure to comply with this part, rules promulgated under this part or conditions of operation made applicable to a solid waste disposal facility by the department.
§ 68-211-854. Contracting with private entities.
-
No provision of this part shall prohibit a county, municipality or solid waste authority from contracting with a private individual or entity for the provision of collection or recycling services in a county, municipality or solid waste authority.
§ 68-211-861. State waste reduction and diversion goal — Credit — Basis for goal — Sanction for failure to meet goal — Rule promoting recycling and waste reduction. [For contingent amendment, see the Compiler's Notes.]
- (a) [For contingent amendment, see the Compiler's Notes.]
The goal of the state is to reduce by twenty-five percent (25%) the amount of solid waste disposed of at Class I municipal solid waste disposal facilities and incinerators, measured on a per capita basis within Tennessee by weight. As an alternative to calculating the waste reduction and diversion goal on a per capita basis, regions shall have the option of calculating the goal on an economic growth basis using the method prescribed by the department and approved by the underground storage tanks and solid waste disposal control board. The goal shall also apply to each municipal solid waste region; provided, that the goal shall not apply to individual disposal facilities or incinerators. The base year from which reductions are to be measured is 1995, unless a region can demonstrate that 1995 data is clearly in error. The method of calculating goals based on economic growth using the method prescribed by the department and approved by the underground storage tanks and solid waste disposal control board shall be promulgated as a rule in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.
- (b) [For contingent amendment, see the Compiler's Notes.]
If a region does not meet the twenty-five percent (25%) waste reduction and diversion goal, then the department will objectively assess the activities and expenditures of the region and the local governments in the region to determine whether the region's program is qualitatively equivalent to other regions that meet the goal and whether the failure is due to factors beyond the control of the region. This qualitative assessment method shall be developed by the department and approved by the underground storage tanks and solid waste disposal control board. The qualitative assessment method prescribed by the department and approved by the underground storage tanks and solid waste disposal control board shall be promulgated as a rule in accordance with the Uniform Administrative Procedures Act.
- (c) [For contingent amendment, see the Compiler's Notes.]
- (1)
A county or region may receive credit toward the waste reduction and diversion goal established by this section for documented reductions from recycling and source reduction programs prior to 1995, but no earlier than 1985.
- (2)
- (A)
As used in this subdivision (c)(2):
- (i)
“Aluminum cans” means aluminum beverage cans, aluminum food cans, and aluminum bottles; and
- (ii)
“Plastic bottles” means recyclable plastic beverage containers that have a neck smaller than the body of the container.
- (B)
Any region shall be permitted to multiply by three (3) the gross weight of any aluminum cans and plastic bottles that are diverted from Class I municipal solid waste disposal facilities and incinerators located within the geographic area encompassed by the region for purposes of calculating the total percentage waste reduction and diversion that the region has achieved.
- (d) [For contingent amendment, see the Compiler's Notes.]
The twenty-five percent (25%) goal pertains only to facilities which accept municipal solid waste for disposal or incineration. Measurements of waste are to be based on the amount of waste entering a disposal facility prior to combustion or landfilling. Measurements of waste disposed of shall not include materials that are recovered or collected for recycling. The department shall issue guidelines concerning, and promulgate by rule, a method for calculating source reduction and recycling.
- (e) [For contingent amendment, see the Compiler's Notes.]
Failure of the region either to meet the twenty-five percent (25%) waste reduction and diversion goal, or to receive a favorable qualitative assessment of its activities by the department pursuant to subsection (b), may subject the offending counties and municipalities, including any solid waste authority created by such counties and municipalities, to sanctions in the same manner as a region may receive sanctions pursuant to § 68-211-816. In the event the failure of a region to meet its waste reduction and diversion goals is due to the failure of less than all of the constituent counties or municipalities of the region, the commissioner may apply sanctions only to the counties, municipalities or solid waste authorities that have caused the failure.
- (f) [For contingent amendment, see the Compiler's Notes.]
A county or region has the flexibility to design its own plan and methods which take into account local conditions for attaining the waste reduction and diversion goal set by this section. This plan shall be included as a part of the county or regional plan required by § 68-211-814.
- (g)
The general assembly recognizes that the ways in which solid waste is generated and managed are very dynamic. The opportunities for recycling and for reduction of waste generated change with both market factors and technological developments. These in turn, affect the costs of solid waste management and recycling. Also, there are many factors that change the feasibility of different approaches among the counties. In addition to population and amount of commercial and industrial activity, these include proximity to markets for recyclable materials and the solid waste activities of municipalities. In order to better address all of these changing circumstances, the underground storage tanks and solid waste disposal control board is authorized to adopt a rule promoting recycling and waste reduction. In so doing, the board shall consider the use of incentives, disincentives, public education, costs and benefits of recycling, and the widely varying circumstances of the different solid waste regions. Upon the effective date of the rule, subsections (a)-(f) shall be repealed and of no further force and effect and the rule shall be enforceable according to its terms and in accordance with § 68-211-816.
§ 68-211-862. Records of origin and amount of solid waste received at transfer stations, disposal facilities, and incinerators — Exclusion — Measurement of amount of solid waste received.
- (a)
The owner or operator of each Class I municipal solid waste disposal facility, incinerator, or transfer station shall be responsible for:
- (1)
Maintaining an accurate written record of all amounts and county of origin of solid waste, measured in tons, received at the facility; and
- (2)
Submitting the information required under subdivision (a)(1) to the department.
- (b)
Measurement in tons of solid waste received shall be accomplished by one (1) or more of the following methods:
- (1)
The provision of stationary or portable scales at the disposal facility or incinerator or transfer station for weighing incoming waste; or
- (2)
Implementation of contractual or other arrangements for the use of scales at a location other than the disposal facility, incinerator, or transfer station for weighing all waste destined for disposal at the facility.
§ 68-211-863. Sites for collection of recyclable materials — Annual reports.
-
Effective January 1, 1996, each county shall provide directly, by contract or through a solid waste authority, one (1) or more sites for collection of recyclable materials within the county, unless an adequate site for collection of recyclable materials is otherwise available to the residents of the county.
§ 68-211-864. Technical assistance.
-
The institute for public service of the University of Tennessee shall provide technical assistance in the design and management of a recycling program to each county, municipality, authority or region which requests assistance.
§ 68-211-865. Duties of the department of general services and of the department of environment and conservation.
- (a)
The department of general services shall:
- (1)
Recycle surplus state property to the maximum extent practicable, under the program authorized by this part and under § 12-2-404, that cannot be sold for reuse, notwithstanding the existence of any other law, rules or regulations to the contrary;
- (2)
Revise product specifications to require, to the extent economically feasible, the procurement of recycled products or products with recycled content;
- (3)
Encourage all departments of state government to purchase products with recycled content or recyclable products from state contracts;
- (4)
Encourage county governments to purchase materials with recycled content from state contracts in transactions under title 12, chapter 3, part 10; and
- (5)
Effect procurement contracts that are subject to competitive bidding using specifications revised according to subdivision (a)(2).
- (b)
The department of environment and conservation shall:
- (1)
Expand to the maximum extent practicable the department's state recycling program for paper, aluminum cans and bottles;
- (2)
Expand the department's state recycling program to the maximum extent practicable to include other kinds of recyclable materials, including, but not limited to, newsprint, plastic bottles, mixed paper and steel cans;
- (3)
Demonstrate new uses of recovered materials; and
- (4)
Encourage all state facilities to offer recycling opportunities where practicable, including, but not limited to, increasing the availability of recycling receptacles and conducting employee education.
§ 68-211-866. Whole waste tires — Lead-acid batteries — Used oil — When acceptance for disposal prohibited — Storage sites.
- (a)
No municipal solid waste disposal facility or incinerator shall accept for disposal any whole waste tires, lead-acid batteries or used oil when an operator or attendant either knew, or should have known, of the presence of such prohibited materials; provided, that, subject to other applicable law and regulations, whole waste tires may be incinerated.
- (b)
Each county shall provide directly, by contract or through a solid waste authority at least one (1) site to receive and store waste tires, used automotive oils and fluids, and lead-acid batteries, if adequate sites are not otherwise available in the county for the use of the residents of the county. A single site need not receive all of the items for which collection is required by this section, but all items listed above shall have at least one (1) site for reception and storage in the county. The operator of any such sites provided by a county shall sell and/or cause the transfer of the recyclable materials stored at these sites to a commercial recycler or a regional receiving facility for such wastes as often as is practicable.
§ 68-211-867. Waste tire disposal.
- (a)
The department of environment and conservation is directed to develop a program to manage the waste tire program for beneficial end use.
- (b)
For the purposes of this section, “beneficial end use” includes the following:
- (1)
Cement manufacturing;
- (2)
Burning of tire-derived fuel in contained industrial boilers for the capture of energy;
- (3)
Production of tire-derived fuel, provided the department approves the planned use of the processed tire material;
- (4)
The crumbling or pyrolysis of tire material, provided the processor provides for the planned use of the processed tire material under such requirements established by the department;
- (5)
Recreational applications, including, but not limited to, playgrounds, running tracks, and walking paths; or
- (6)
Any use otherwise deemed appropriate by the department of environment and conservation and for which either the board has promulgated rules or the department has developed and published policies; provided, that this section shall not be construed to require or mandate the use of products or materials resulting from waste tires. The board shall not promulgate any rules, and the department shall not establish any policies mandating the use of products or materials resulting from waste tires. It is the specific intent of the general assembly that any use of products resulting from the waste tire program is entirely voluntary on the part of the end user.
- (c)
- (1)
The department is authorized to use funds available from the solid waste management fund to contract directly with an approved beneficial end user or its designated agent for recycling of waste tires. Each beneficial end user or agent awarded such a contract shall demonstrate to the department's satisfaction the ability to provide collection, management and transportation to its facility of all eligible and available waste tires generated within the area or county specified by the department. Any such contract shall be subject to approval by the county legislative body of each county in whose territory the contract shall be operative. Any such contract shall also require an appropriate performance bond from any entity producing tire-derived fuel or crumbling or pyrolysis of tire material to ensure proper storage, transportation and ultimate sale or disposal of such materials.
- (2)
From funds available from the solid waste management fund, the department may provide grants to assist counties in locating, collecting and appropriately disposing of waste tires. Any county receiving a grant under this subdivision (c)(2) after July 1, 2000, shall not assess a tipping fee on the waste tires received at a county waste tire collection site so long as the amount of the grant covers the cost of the county's waste tire management program.
- (3)
From funds available from the solid waste management fund, the department may provide grants to local education agencies, municipalities or counties to utilize recycled shredded tires for recreational applications.
- (4)
Any county or entity requesting or applying for a grant or entering a contract with the department shall submit, prior to being approved for a grant or contract, a workplan and budget to reflect the expenditures of the grant or contract. The grants or contracts are to fulfill the objective of recycling waste tires and to assure that all expenditures of the contracts, grants, or any additional local tipping fees are not exceeding the cost of the county's waste tire management program.
- (d)
- (1)
A landfill shall not accept whole, unshredded waste tires for disposal. Landfill operators shall segregate whole, unshredded waste tires at landfills and provide a temporary storage area for such tires until transported to an appropriate facility to be used for an approved beneficial end use as defined in this section, or the tires are shredded and disposed of pursuant to subdivision (d)(2) and regulations promulgated by the board.
- (2)
A county may not dispose of shredded waste tires in a landfill after July 1, 2002, if the county's net cost for shredding, transporting and disposing of waste tires exceeds the cost of an available beneficial end use. Nothing in this subsection (d) shall prohibit a county from electing to participate in a beneficial end use for waste tires at a cost that exceeds the county's net cost for shredding, transporting and disposing of waste tires in a landfill.
§ 68-211-871. Annual report — Contents — Annual progress report — Sanctions for noncompliance — Annual reports by recovered materials facilities.
- (a)
The department shall make available on its website, by January 1 of each year, the forms and information to be used by the regions to file an annual progress report. Each region shall submit the annual report to the commissioner by March 31 for the immediately preceding calendar year, in a format to be determined by the commissioner, which will include data on the following:
- (1)
Collection;
- (2)
Recycling;
- (3)
Transportation;
- (4)
Disposal;
- (5)
Public costs; and
- (6)
Any other information that the board, by rule, deems relevant to solid waste planning and management.
- (b)
After approval of the plan required by § 68-211-814, the commissioner shall require that a region submit an annual progress report on implementation of such plan in conjunction with the annual report required by this section.
- (c)
The region may require each person actively and regularly engaged in the collection, transportation and disposal of municipal solid waste, or the recovery or recycling of materials, in the county or counties constituting the region to provide any information necessary for the region to comply with the reporting requirements of this section.
- (d)
The region may bring an action for mandatory injunction in the chancery court against any person failing to properly report in accordance with this section in order to compel compliance. The region shall be entitled to recover all costs and attorney's fees from any person failing to comply with the reporting requirements of this section.
- (e)
Any person operating a recovered materials processing facility shall report annually the quantities of recovered materials processed at that facility, by type of material, directly to the department or its designee, in a manner approved by the department. The department may enter into agreements with private recycling organizations to facilitate the gathering of such information. Such information shall be treated as proprietary information but may be compiled and reported in cumulative statewide totals, by type of recovered material. Such information may not be released to the public in such a manner as to identify it with an individual recovered materials processing facility. A recovered materials processing facility which fully complies with the reporting requirements of this subsection (e) shall not be subject to the reporting requirements of subsection (c), for information solely related to the operation of the recovered materials processing facility.
§ 68-211-872. Solid waste planning and management data base — Guidelines and best practices.
- (a)
The commissioner shall establish and maintain a statewide solid waste planning and management data base which can aggregate and analyze county reports on waste generation, collection, recycling, transportation, disposal and costs.
- (b)
The department may provide guidelines and best practices for composting and recycling to regional board members, advisory committees, and Class I, Class III, and Class IV landfill owners and operators.
§ 68-211-873. Annual report to governor and general assembly.
- (a)
The department shall prepare an annual report to the governor and general assembly on the state's solid waste management system.
- (b)
The report required by subsection (a) shall include progress implementation updates, including projected implementation steps, on each specific component of the state's comprehensive solid waste management plan, as listed in § 68-211-603.
§ 68-211-874. Accounting for financial activities — Funds — Uniform solid waste financial accounting system — Development — Approval — Requirement for state funds.
- (a)
Each county, solid waste authority and municipality shall account for financial activities related to the management of solid waste in accordance with generally accepted accounting principles (GAAP). The activities related to the management of solid waste must be accounted for in either a special revenue or enterprise fund, unless explicitly prohibited by GAAP. Where GAAP prohibits the use of a special revenue or enterprise fund, the solid waste financial activities may be individually accounted for in the general fund, as a separate department, program or function and sufficient detail shall be reported in the annual financial report to identify all applicable revenues and expenditures related to the management of solid waste. Any county, solid waste authority or municipality that operates a landfill and/or incinerator shall account for financial activities related specifically to that landfill and/or incinerator in an enterprise fund. Each county, solid waste authority and municipality shall use a uniform solid waste financial accounting system and chart of accounts developed by the comptroller of the treasury.
- (b)
The comptroller of the treasury is directed to develop a uniform financial accounting system conforming to generally accepted accounting principles for use as required by this section.
- (c)
Such uniform accounting system shall be subject to the approval of the commissioner of finance and administration. Upon such approval, each county shall establish and maintain the uniform solid waste financial accounting system.
- (d)
No state funds for solid waste management shall be released to a county, solid waste authority or municipality unless financial activities related to the management of solid waste are accounted for in accordance with GAAP. The activities related to the management of solid waste must be accounted for in either a special revenue or enterprise fund unless explicitly prohibited by GAAP. Where GAAP prohibits the use of a special revenue or enterprise fund, the solid waste financial activities may be individually accounted for in the general fund as a separate department, program or function and sufficient detail shall be reported in the annual financial report to identify all applicable revenues and expenditures related to the management of solid waste. No state funds for solid waste management shall be released to a county, solid waste authority or municipality that operates a landfill and/or incinerator unless financial activities related to that landfill and/or incinerator are accounted for in an enterprise fund.
Part 9 Solid Waste Authority Act of 1991
§ 68-211-902. Part definitions.
-
As used in this part, unless the context otherwise requires:
- (1)
“Authority” or “solid waste authority” means any public instrumentality organized pursuant to this part;
- (2)
“Bonds” or “revenue bonds” means bonds, notes, interim certificates or other obligations of an authority issued pursuant to this part, or pursuant to any other law, as supplemented by, or in conjunction with, this part;
- (3)
“Contracting party” or “other contracting party” means any party to a sale contract or loan agreement except the authority;
- (4)
“Governing body” means the body in which the general legislative powers of a municipal corporation are vested and, in the case of counties, means the legislative body of the respective counties;
- (5)
“Person” means person as defined in § 68-211-103;
- (6)
“Project” means any solid waste disposal facility or resource recovery facility, or any combination thereof;
- (7)
“Resource recovery facility” means land, rights in land, buildings, facilities and equipment suitable or necessary for the recovery or production of energy or energy producing materials in any form resulting from the controlled processing or disposal of solid waste or the systematic separation, extraction and recovery of recyclable materials from the solid waste stream, including facilities or systems for the storage, conversion or transportation thereof;
- (8)
“Revenue” means all rents, fees and other charges received by the authority for use of its projects, facilities and services including, without limitation, all amounts received for the collection, transportation, disposal or processing of solid waste, the operation of any project, or the sale, storage, distribution or transportation of energy, energy producing materials or other materials or commodities by the authority;
- (9)
“Solid waste” means solid waste as defined in § 68-211-103;
- (10)
“Solid waste facility” means land, rights in land, buildings, facilities and equipment suitable or necessary for collecting, receiving, transferring, placing, confining, compacting, treating or covering solid waste or for processing solid waste by, without limitation, incinerating, composting, separating, grinding, shredding, reducing or otherwise modifying the characteristics or properties thereof, including all property, real and personal, appurtenant thereto or connected with such work; and
- (11)
“State of Tennessee” means the state of Tennessee and, unless otherwise indicated by the context, any agency, authority, branch, bureau, commission, corporation, department or instrumentality thereof now or hereafter existing.
§ 68-211-903. Solid waste authority — Creation — Resolutions — Agreements among creating counties and municipalities — Name.
- (a)
A county or any of the counties in a municipal solid waste region may create a solid waste authority, by resolution of the respective county governing bodies; provided, that opportunity shall be provided for public comment on such resolution. Any municipality, the majority of the territory of which lies within a county that is creating or participating with other counties in creating an authority, may join in creating the authority upon such terms as may be agreed upon and adopted by resolution of the respective county and municipal governing bodies. If more than one (1) county or municipality participates in creating an authority, an agreement creating the authority shall be approved by the governing body of each county and municipality that is a party to the agreement as part of the resolution creating the authority. The resolutions creating the authority may be amended by the agreement of all of the participating governments to add or subtract participating governments or to dissolve the authority. The creating resolutions shall give the authority a name which shall identify it with the county or region. This name shall be used by the authority unless the name is amended by resolution approved by all participating counties and municipalities. Any resolutions creating, amending or dissolving an authority shall be certified by the county clerk or municipal clerk or recorder of the counties and municipalities participating in creating the authority and sent to the secretary of state and the commissioner.
- (b)
- (1)
Notwithstanding this part and part 8 of this chapter requiring municipal solid waste regions to be created prior to the formation of a regional solid waste authority, any county which, by resolution of its county legislative body adopted prior to April 14, 1992, created a regional solid waste authority referencing this part and part 8 of this chapter, and which has appointed a governing board prior to April 14, 1992, is authorized to operate such authority in the manner established pursuant to such statutes and resolution only within the political boundaries of any such county and political subdivisions thereof to which this section applies. Any such resolution shall have the force and effect for which it was adopted from the date of passage; provided, that all flow control provisions established pursuant to §§ 68-211-813(b), 68-211-906(b) and 68-211-907 cannot be exercised by such authority until such time as those provisions become effective as provided by general law.
- (2)
If such county becomes part of a multi-county region pursuant to § 68-211-813(a), then within thirty (30) days following such action such authority, in agreement with the legislative bodies of those counties included in such municipal solid waste region, may:
- (A)
Continue the operation of such authority by retaining the same board of directors appointed to such authority pursuant to this subsection (b);
- (B)
Expand such board to include representation of members from such additional counties; or
- (C)
Dissolve the authority operating pursuant to this section and form a new regional authority pursuant to this part.
- (3)
If such county forms a single-county region pursuant to § 68-211-813(a), then such authority may remain as an authority, authorized to operate under this part.
§ 68-211-904. Board of directors — Members — Compensation.
- (a)
A resolution, creating or amending the resolution creating an authority for a county or approving an agreement to create an authority with other counties or municipalities, shall provide for the establishment of a board of directors to administer the activities of the authority. The authority's board of directors may be the same board as that of the municipal solid waste region or it may be a separate board. If a board separate from that of the region is chosen, the board of directors shall consist of an odd number, not less than five (5) nor more than fifteen (15) members. Each county and municipality that is a member of an authority shall be represented by at least one (1) member on the board. The members of the board shall be appointed by the county mayors and municipal mayors of the participating counties and municipalities, respectively, whose appointments must be approved by the respective county or municipal governing bodies. The members of the board shall serve for terms of six (6) years or until their successors are elected and are qualified by taking an oath of office, except that the initial board shall have approximately one-third (⅓) of the members with terms of two (2) years and approximately one-third (⅓) of the members with terms of four (4) years, so as to stagger the terms of office.
- (b)
Members of county and municipal governing bodies, county mayors, municipal mayors, county and municipal officers and department heads may serve as directors, but the board of directors is not required to include such members.
- (c)
Directors may receive compensation if provided for by the resolution approved by all of the county and municipal governing bodies participating in the authority. The resolution establishing the compensation may differentiate between municipal and county officials and department heads so as to compensate only those directors who are not officials or employees of a municipal or county government, except for reimbursement for actual expenses.
§ 68-211-905. Board of directors — Officers — Quorum — Vacancies — Removal of members.
- (a)
The directors shall meet and organize as a board and shall elect one (1) of its members as chair, one (1) as vice chair, one (1) as secretary and one (1) as treasurer, and such officers shall annually be elected thereafter in like manner. The duties of secretary and treasurer may be performed by the same director. In the absence of any of the chair, vice chair, secretary or treasurer, another member may be elected to fill the vacancy for the anticipated term thereof. Any action taken by the directors under this chapter may be authorized by resolution at any regular or special meeting, and such resolution shall take effect immediately and need not be published or posted. A majority of the board of directors shall constitute a quorum for the transaction of business. The concurring vote of a majority of all the directors shall be necessary for the exercise of any of the powers granted by this chapter.
- (b)
Any vacancy on the board shall be filled for the unexpired term by the same governing body which filled the position becoming vacant. Any member appointed to the board may, for reasonable cause, be removed from such member's office in the same manner and by the same governing body as such member was appointed to the office; provided, that such removal shall be preceded by a full hearing before the remaining members of the board after adequate notice of such hearing, and a report of such hearing shall be forwarded to such appointing authority. “Reasonable cause” includes, but shall not be limited to, misconduct in office, failure to perform duties prescribed by this part, part 8 of this chapter or other applicable law, or failure to diligently pursue the objectives for which the authority was created.
§ 68-211-906. Solid waste authorities — Public instrumentalities — Powers — Exclusive jurisdiction and right to control collection of solid waste within boundaries — Disposal of waste by manufacturing firms.
- (a)
Each solid waste authority created pursuant to this part shall be a public instrumentality of the county and municipal government or governments participating in its creation or participating by agreement after its creation. The authority shall have the following powers, together with all powers incidental thereto or necessary for the performance of such powers, to:
- (1)
Have succession by the name given in the resolution or resolutions creating the authority, unless dissolved as provided in this part;
- (2)
Sue and be sued and prosecute and defend, at law or in equity, in any court having jurisdiction of the subject matter and of the parties;
- (3)
Have and use a corporate seal and alter the same at pleasure;
- (4)
Plan, establish, acquire, whether by purchase, exchange, gift, devise, lease, the exercise of the power of eminent domain or otherwise, and construct, equip, furnish, improve, repair, extend, maintain and operate one (1) or more projects, which projects shall be situated within the boundaries of the county or counties with respect to which the authority shall have been created, including all real and personal property, facilities and appurtenances which the board of directors of the authority may deem necessary in connection therewith and regardless of whether or not any such project shall then be in existence;
- (5)
Acquire, whether by purchase, exchange, gift, devise, lease, the exercise of the power of eminent domain or otherwise, any and all types of property, whether real, personal or mixed, tangible or intangible and whether or not subject to mortgages, liens, charges or other encumbrances and hold, sell, lease, exchange, donate or convey any or all of its properties, facilities or services, whenever the board of directors of the authority shall find such action to be in furtherance of the purposes for which the authority is created;
- (6)
Remove, receive, transport, collect, purchase, transfer or otherwise obtain solid waste for disposal or processing from any municipality, county, the state of Tennessee, the United States government or any agency thereof, the Tennessee Valley authority or any person, and enter into contracts, agreements or other arrangements in connection therewith;
- (7)
Sell, transfer, distribute or otherwise dispose of electricity, steam, or other forms of power or energy or energy producing material or any other material, product or commodity resulting from the operation of any project, facility or service of the authority to any municipality, county, the state of Tennessee, the United States or any agency thereof, the Tennessee Valley authority or any person, and enter into contracts, agreements or other arrangements in connection therewith;
- (8)
Make and enter into all contracts, trust instruments, agreements and other instruments with any municipality, the state of Tennessee, the United States government or any agency thereof, the Tennessee Valley authority or any person, including, without limitation, bonds and other forms of indebtedness and contracts for the management and operation of any project, facility or service of the authority or the treatment, processing, storage, transfer or disposal of solid waste;
- (9)
Incur debts, borrow money, issue bonds and provide for the rights of the holders of such bonds;
- (10)
Pledge all or any part of the revenues and receipts of the authority to the payment of any indebtedness of the authority, and make covenants in connection with the issuance of bonds or other indebtedness or to secure the payment of such bonds or other indebtedness;
- (11)
Have control of its projects, facilities and services with the right and duty to establish and charge fees, rentals, rates and other charges for the use of the facilities and services of the authority, and the sale of materials or commodities by the authority, and collect revenues and receipts therefrom, not inconsistent with the rights of holders of its bonds;
- (12)
Apply for and accept donations, contributions, loans, guaranties, financial assistance, capital grants or gifts from any municipality, county, the state of Tennessee, the United States government or any agency thereof, the Tennessee Valley authority or any person for or in aid of the purposes of the authority and enter into agreements in connection therewith;
- (13)
Operate, maintain, manage, and enter into contracts for the operation, maintenance and management of any project undertaken, and make rules and regulations with regard to such operation, maintenance and management;
- (14)
Exercise all powers expressly given in this part and in the creation and amendment of resolutions and establish bylaws and make all rules and regulations not inconsistent with the creation and amendment of resolutions or this chapter, deemed expedient for the management of the affairs of the authority;
- (15)
Enter onto any lands, waters and premises for the purpose of making surveys, soundings and examinations in and for the furtherance of the purposes authorized by this part and part 8 of this chapter at reasonable times and with written notice to property owners;
- (16)
Employ and pay compensation to such employees and agents, including attorneys, accountants, engineers, architects and financial advisors, as the board of directors shall deem necessary for the business of the authority;
- (17)
Authorize its employees to participate in the Tennessee consolidated retirement system pursuant to § 8-35-243, and guarantee any outstanding liability incurred by such participation out of any funds or money of the authority available therefor;
- (18)
Use in the performance of its functions the officers, agents, employees, services, property, facilities, records, equipment, rights and powers of any county or counties, or municipalities with respect to which the authority shall have been created, with the consent of such county or counties, or municipalities and subject to such terms and conditions as may be agreed upon; and
- (19)
Exercise all powers expressly given to it and establish and make rules and regulations not inconsistent with this part and part 8 of this chapter, deemed expedient for the management of the authority's affairs.
- (b)
Except as otherwise provided in this part, an authority, with the concurrence of the county governing body in any county for the territory outside of municipal boundaries, and the governing body of any municipality for the territory of the municipality, may exercise exclusive jurisdiction and exclusive right to control the collection of solid waste within its boundaries, and to control the disposition of solid waste collected within its boundaries.
- (c)
The power granted to an authority by this section shall not prevent a manufacturing firm which holds a permit from the state of Tennessee to dispose of or utilize its own solid wastes on the property of the manufacturing firm.
§ 68-211-907. Exclusion or regulation of waste.
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To the extent that a region's plan permits, an authority may restrict access to its solid waste disposal facilities by excluding waste originating with persons or entities outside the region. An authority may regulate the flow of all municipal solid waste within the county or counties constituting the authority. The authority may require the disposal of any transported waste at a specific solid waste disposal facility.
§ 68-211-908. Power of condemnation.
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The authority is authorized and empowered to condemn in its own name any land, rights in land, easements or rights-of-way situated within the territorial limits of the authority which, in the judgment of the board of directors, are necessary for carrying out the purposes for which the authority is created, and such property or interest in such property may be so acquired, whether or not the same is owned or held for public use by persons having the power of eminent domain, or otherwise held or used for public purposes; provided, that such prior public use will not be interfered with by the use to which such property will be put by the authority. Such power of condemnation may be exercised in the manner prescribed by title 29, chapter 16, or in the manner prescribed by any other applicable statute for the exercise of the power of eminent domain.
§ 68-211-910. Bonds — Issuance — Execution — Sale — Negotiability — Refunding bonds — Amount — Notice of issuance — Application of proceeds.
- (a)
The authority has the power to issue bonds from time to time in order to accomplish its purposes. Except as herein otherwise expressly provided, all bonds issued by the authority shall be payable solely out of the revenue and receipts derived from the authority's projects or of any thereof as may be designated in the proceedings of the board of directors under which the bonds shall be authorized to be issued, including debt obligations of the lessee or contracting party obtained from or in connection with the financing of a project. Such bonds may be issued in one (1) or more series, may be executed and delivered by the authority at any time and from time to time, may be in such form and denomination and of such terms and maturities, may be subject to redemption prior to maturity either with or without premium, may be in fully registered form or in bearer form registerable either as to principal or interest, or both, may bear such conversion privileges and be payable in such installments and at such time or times not exceeding forty (40) years from the date thereof, may be payable at such place or places whether within or without the state of Tennessee, may bear interest at such rate or rates payable at such time or times and at such place or places and evidenced in such manner, and may contain such provisions not inconsistent herewith, all as shall be provided in the proceedings of the board of directors whereunder the bonds shall be authorized to be issued.
- (b)
Bonds of the authority shall be executed in the name of the authority by such officers of the authority and in such manner as the board of directors may direct, and shall be sealed with the corporate seal of the authority. If so provided in the proceedings authorizing the bonds, the facsimile signature of any of the officers of the authority may appear on such bonds, and a facsimile of the corporate seal of the authority may appear on the bonds in lieu of the manual signature of such officer and the manual impress of such seal; provided, that at least one (1) of the signatures appearing on such bonds shall be a manual signature. Interest coupons attached to such bonds shall be executed with the facsimile signatures of the officers who shall execute the bonds, who shall adopt as and for their own signatures their respective facsimile signatures appearing on such coupons. Bonds issued under this chapter, and the coupons appurtenant thereto, bearing the signature of any officer in office on the date of signing thereof shall be valid and binding obligations, notwithstanding that before the delivery thereof such person shall have ceased to be an officer of the authority.
- (c)
Any bonds of the authority may be sold at public or private sale for such price and in such manner and from time to time as may be determined by the board of directors of the authority to be most advantageous, and the authority may pay all expenses, premiums and commissions which its board of directors may deem necessary or advantageous in connection with the issuance thereof.
- (d)
All bonds of the authority and the interest coupons applicable thereto are hereby made and shall be construed to be negotiable instruments.
- (e)
Interim certificates or notes or other temporary obligations issued by the authority pending the issuance of its revenue bonds shall be payable out of revenues and receipts in like manner as such revenue bonds, and shall be retired from the proceeds of such bonds upon the issuance thereof, and shall be in such form and contain such terms, conditions and provisions consistent with this part and part 8 of this chapter as the board of directors may determine.
- (f)
- (1)
Any bonds or notes of the authority at any time outstanding may at any time and from time to time be refunded by the authority by the issuance of its refunding bonds in such amount as the board of directors may deem necessary, but not exceeding the sum of the following:
- (A)
The principal amount of the obligations being refinanced;
- (B)
Applicable redemption premiums thereon;
- (C)
- (i)
Unpaid interest on such obligations to the date of delivery or exchange of the refunding bonds;
- (ii)
In the event the proceeds from the sale of the refunding bonds are to be deposited in trust as hereinafter provided, interest is to accrue on such obligations from the date of delivery to the first or any subsequent available redemption date or dates selected, in its discretion, by the board of directors, or to the date or dates of maturity, whichever shall be determined by the board of directors to be most advantageous or necessary to the authority;
- (D)
A reasonable reserve for the payment of principal of and interest on such bonds and/or a renewal and replacement reserve;
- (E)
If the project to be constructed from the proceeds of the obligations being refinanced has not been completed, an amount sufficient to meet the interest charges on the refunding bonds during the construction of such project, and for two (2) years after the estimated date of completion (but only to the extent that interest charges have not been capitalized from the proceeds of the obligations being refinanced); and
- (F)
Expenses of the authority, including bond discount, deemed by the board of directors to be necessary for the issuance of the refunding bonds.
- (2)
A determination by the board of directors that any refinancing is advantageous or necessary to the authority, or that any of the amounts provided in subdivision (f)(1)(F) should be included in such refinancing, or that any of the obligations to be refinanced should be called for redemption on the first or any subsequent available redemption date or permitted to remain outstanding until their respective dates of maturity, shall be conclusive; provided, that prior to the adoption by the board of directors of the resolution authorizing the issuance of refunding bonds under this section, the plan for refunding shall be submitted to the comptroller of the treasury or the comptroller's designee for review, and the comptroller of the treasury or the comptroller's designee may report thereon to the board of directors within fifteen (15) days from the date the plan is received by the comptroller of the treasury or the comptroller's designee, and the comptroller of the treasury or the comptroller's designee shall immediately acknowledge receipt in writing of the proposed refunding plan. After receiving the report of the comptroller of the treasury or the comptroller's designee or after the expiration of fifteen (15) days from the date the refunding plan is received by the comptroller of the treasury or the comptroller's designee, whichever date is earlier, the board of directors may take such action with reference to such proposed refunding plan as it deems advisable.
- (g)
Any such refunding may be effected whether the obligations to be refunded shall have then matured or shall thereafter mature, either by sale of the refunding bonds and the application of the proceeds thereof to the payment of the obligations to be refunded thereby, or by the exchange of the refunding bonds for the obligations to be refunded thereby with the consent of the holders of the obligations so to be refunded, and regardless of whether or not the obligations to be refunded were issued in connection with the same projects or separate projects, and regardless of whether or not the obligations proposed to be refunded shall be payable on the same date or different dates or shall be due serially or otherwise.
- (h)
Unless the obligations to be refunded are to be retired at the time of delivery of the refunding bonds, the board of directors shall, prior to the issuance of the refunding bonds, cause notice of its intention to issue the refunding bonds to be given to the holders of the outstanding obligations by publication of an appropriate notice one (1) time each in a newspaper having general circulation in a municipality with respect to which the corporation was organized, and in a financial newspaper published in New York, New York, and having national circulation. Such notice shall identify the obligations proposed to be refunded and set forth the estimated date of delivery of the refunding bonds. As soon as practicable after the delivery of the refunding bonds, and whether or not any of the obligations to be refunded are to be called for redemption, the board of directors shall cause notice of the issuance of the refunding bonds to be given in the manner provided in this subsection (h). If any of the obligations to be refunded are to be called for redemption, the board of directors shall cause notice of redemption to be given in the manner required by the resolution or ordinance authorizing such outstanding obligations.
- (i)
The principal proceeds from the sale of any refunding bonds shall be applied, only as follows, to either:
- (1)
The immediate payment and retirement of the obligations being refunded; or
- (2)
To the extent not required for the immediate payment of the obligations being refunded, then such proceeds shall be deposited in trust and together with any investment income thereon to provide for the payment and retirement of the obligations being refunded, and to pay any expenses incurred in connection with such refunding, but provision may be made for the pledging and application of any surplus for any purposes of the authority including, without limitation, provision for the pledging of any such surplus to the payment of the principal of and interest on any issue or series of refunding bonds or other obligations of the authority. Money in any such trust fund may be invested in direct obligations of, or obligations the principal of and interest on which are guaranteed by, the United States government, or obligations of any agency or instrumentality of the United States government, or in certificates of deposit issued by a bank or trust company located in the state of Tennessee, if such certificates shall be secured by a pledge of any of the obligations having an aggregate market value, exclusive of accrued interest, equal at least to the principal amount of the certificates so secured. Nothing herein shall be construed as a limitation on the duration of any deposit in trust for the retirement of obligations being refunded but which shall not have matured and which shall not be presently redeemable or, if presently redeemable, shall not have been called for redemption.
§ 68-211-911. Principal of and interest on bonds — Security — Guarantees.
- (a)
The principal of and interest on any bonds issued by the authority shall be secured by a pledge of such revenues and receipts out of which the same may be made payable. The proceedings under which the bonds are authorized to be issued may contain any agreements and provisions respecting the maintenance of the projects or other facilities covered thereby, the fixing and collection of rents, fees or payments with respect to any projects, facilities, or systems or portions thereof covered by such proceedings, the creation and maintenance of special funds from such revenues and from the proceeds of such bonds, and the rights and remedies available in the event of default, all as the board of directors shall deem advisable and not in conflict with this part and part 8 of this chapter. To the extent provided in the proceedings authorizing any bonds of the authority, each pledge and agreement made for the benefit or security of any of the bonds of the authority shall continue effective until the principal of and interest on the bonds for the benefit of which the same were made shall have been fully paid, or adequate provision for the payment thereof shall have been made by the authority. In the event of default in such payment or in any agreements of the authority made as a part of the proceedings under which the bonds were issued, such payment or agreement may be enforced by suit, mandamus, or the appointment of a receiver in equity, or any one (1) or more of such remedies, all as provided in the proceedings under which the bonds are issued.
- (b)
Any county or municipality that participates in the creation or organization of an authority may guarantee or otherwise secure the payment of bonds, notes or similar obligations of the authority by resolution of the county governing body or by municipal ordinance. Any county or municipality seeking to guarantee or secure the payment of a bond obligation of an authority may pledge any discretionary revenues and/or may pledge the full taxing powers of the county or municipality. Prior to any meeting of a county or municipal governing body considering action to guarantee or secure the payment of any bond, note or similar obligation of an authority, reasonable public notice shall be published describing the matter to be considered and containing an estimate of the dollar amount of any contingent liability that may be authorized. Any resolution or ordinance of a county or municipality approving of a guarantee or otherwise providing security for the payment of an authority's bonds, notes or similar obligations shall specify the officer or officers of the county or municipality authorized to execute documents necessary to implement the governing body's action.
§ 68-211-912. Counties and municipalities — Liability.
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No county or municipality shall be liable for the payment of the principal or interest on any bonds, notes or other instruments evidencing indebtedness of the authority except as provided in this part. Neither shall any county or municipality be liable for the performance of any pledge, mortgage, obligation or agreement of any kind whatsoever which may be undertaken by the authority except as provided in this part.
§ 68-211-914. Authority as public instrumentality — Exemption from taxation — Bonds deemed to be securities.
- (a)
The authority is declared to be performing a public function in behalf of each county or municipality with respect to which it is organized and to be a public instrumentality of such county, counties, municipality or municipalities. Accordingly, the authority and all properties at any time owned by it and the income therefrom and all bonds issued by it and the income therefrom shall be exempt from all taxation in the state of Tennessee.
- (b)
For purposes of the Tennessee Securities Act of 1980, compiled in title 48, chapter 1, part 1, bonds issued by the authority shall be deemed to be securities issued by a public instrumentality or a political subdivision of the state of Tennessee.
§ 68-211-915. Annual audit — Cost — Copies of audit available to public.
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Except as otherwise approved by the comptroller of the treasury, any authority created pursuant to this chapter has the power and shall cause to be made an annual audit of the accounts and records of the authority. The audit shall include all funds of the authority, whether held by the authority or pursuant to trust indentures. The comptroller of the treasury shall be responsible for ensuring that the audits are prepared in accordance with generally accepted governmental auditing standards and determining if the audits meet minimum audit standards which shall be prescribed by the comptroller of the treasury. No audit may be accepted as meeting the requirements of this section until such audit has been approved by the comptroller of the treasury. The audits may be prepared by certified public accountants, public accountants or by the comptroller of the treasury. In the event the authority shall fail or refuse to have the audit prepared, then the comptroller of the treasury may appoint a certified public accountant or public accountant or direct the department of audit to prepare the audit. The cost of such audit shall be paid by the authority. All such audits shall be completed as soon as practicable after the end of the authority's fiscal year. One (1) copy of the audit shall be furnished to each member of the board of directors, the chief executive officer or officers of the county or counties with respect to which the authority has organized and the comptroller of the treasury. Copies of each audit shall also be made available to the public.
§ 68-211-916. Contracts with governmental entities authorized — Duration — Payments to authority — Funding.
- (a)
The state of Tennessee or any county or municipality within the solid waste region is authorized, whenever the same shall be found desirable by its governing body, to enter into contracts, agreements or other arrangements with the authority regarding any project, facility or service of the authority, including, without limitation, the collection, transfer, storage, transportation, processing or disposal of solid waste or the purchase, sale, lease or other disposition of energy, energy producing materials and other materials, commodities or properties of the authority. Any such contract or agreement may extend for any period not exceeding forty (40) years from the date thereof.
- (b)
Any payments to be made to the authority pursuant to an agreement may be payable from general funds, to the extent permitted by law, or from such limited source as may be agreed upon between the authority and such entity, and in the case of payments to be made from general funds, the governing body of any municipality having the taxing power may provide for the levy and collection of a direct, annual tax sufficient to make such payments to the authority when the same become due. Such tax shall be assessed, levied, collected and paid in like manner as other taxes of such municipality and shall be in addition to all other taxes now or hereafter authorized to be levied by such municipality. Such tax shall not be included within any statutory or other limitation as to rate or amount for such municipality, but shall be excluded therefrom and be in addition thereto and in excess thereof.
- (c)
The governing body of any municipality not having the taxing power shall, upon entering into an agreement with the authority, make adequate provision for the timely payment of all amounts to be paid to the authority.
- (d)
No payments shall be construed to be an indebtedness of a municipality within the meaning of any constitutional or statutory provision.
§ 68-211-917. Powers of authorities cumulative — Powers of governmental entities.
-
Neither this part nor anything herein contained shall be construed as a restriction or a limitation upon any powers which the authority might otherwise have under any laws of this state, but shall be construed as cumulative of and supplemental to any such powers. No proceeding notice or approval shall be required with respect to the issuance of any bonds of the authority or any instrument as security therefor except as provided in this part, notwithstanding any law to the contrary; provided, that nothing herein shall be construed to deprive the state of Tennessee and its governmental subdivisions of their respective police powers over properties of the authority, or to impair any power of any official or agency of this state and its governmental subdivisions which may be otherwise provided by law.
§ 68-211-918. Counties and municipalities — Powers — Violation of ordinances or resolutions — Penalty — Injunctive relief.
- (a)
Any county or municipality with respect to which the authority was organized has all necessary powers in order to further the purposes of this part, including, without limitation, the power to:
- (1)
Provide that any funds available to it for solid waste or resource recovery purposes shall be paid directly to the authority; and
- (2)
Sell, lease, dedicate, donate or otherwise convey to the authority any of its interest in any existing solid waste disposal or resource recovery facility or other related property, or grant easements, licenses or other rights or privileges therein to the authority.
- (b)
The governing body of each county or municipality participating in the organization of the authority may appropriate general funds or unappropriated moneys from any other fund, to pay expenses of the authority or provide for the operation of any of the projects, facilities and systems authorized by this part, and each such governing body may levy a tax, in addition to all other taxes, upon all taxable property within the respective county or municipality, sufficient to pay such appropriation to the authority. Any such tax on property shall be collected in the same manner as other property taxes of the county or municipality are collected and, similarly, all laws for the enforcement of county and municipal tax liens shall apply.
- (c)
Any person who willfully violates any of the ordinances or resolutions passed by any of the municipalities or any county or counties with respect to which the authority was organized or willfully fails, neglects or refuses to comply with such ordinances or resolutions commits a Class A misdemeanor. Each day of continued violation constitutes a separate offense.
- (d)
In addition to the penalties provided herein, the municipalities and any county or counties with respect to which the authority was organized may enforce any ordinances, resolutions or contracts issued or entered into to carry out this section by instituting legal proceedings to enjoin the violation of this section, in any court of competent jurisdiction, and such court may grant a temporary or permanent injunction restraining the violation of this section.
§ 68-211-919. Acquisition of project sites — Method — Authorization.
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Any county or municipality with respect to which the authority was organized may acquire a project site by gift, purchase, lease or condemnation, and may transfer any project site to the authority by sale, lease or gift. Such transfer may be authorized by a resolution of the governing body of such county or municipality without submission of the question to the voters, and without regard to the requirements, restrictions, limitations or other provisions contained in any other law.
§ 68-211-920. Contracts with solid waste authorities — Municipal corporations and counties — With taxing power — Without taxing power.
- (a)
Whenever, and as often as, a municipal corporation or county having taxing power enters into a contract with a solid waste authority or other contracting party under this part, the governing body of such municipal corporation or county shall provide by resolution for the levy and collection of a tax sufficient to pay when due the annual amount payable under such contract as and when it becomes due and payable, and to pay any expenses of maintaining and operating the project required to be paid by the municipal corporation or county under the terms of such contract or by instrument collateral thereto and, furthermore, to pledge such tax and the full faith and credit of the municipal corporation or county to such payments. Such tax shall be assessed, levied, collected and paid in like manner as other taxes of the municipal corporation or county. Such tax shall not be included within any statutory or other limitation of rate or amount for such municipal corporation or county, but shall be excluded therefrom and be in addition thereto and in excess thereof, notwithstanding and without regard to the prohibitions, restrictions or requirements of any other law, whether public or private. There shall be set aside from such tax levy into a special fund an amount sufficient for the payment of the annual amount due under any such contract, and the money in such fund shall be used exclusively for such purpose and shall not be used for any other purpose until such annual amount has been paid in full. The foregoing shall not be construed to limit the power of the authority or other contracting party to enter into contracts with a municipal corporation not having the power of taxation.
- (b)
The governing body of any municipal corporation not having the power of taxation and the state of Tennessee shall, upon entering into a lease, loan agreement or sales contract with a public building authority or other contracting party, make adequate provision for the payment of the annual amount payable under the lease, loan agreement or sales contract.
§ 68-211-921. Execution of written instruments by authorities.
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Except as otherwise provided in this chapter, all leases, contracts, deeds of conveyance, or instruments in writing executed by the authority shall be executed in the name of the authority by the chair and secretary of the authority, or by such other officers as the board of directors, by resolution, may direct, and the seal of the authority shall be affixed thereto.
§ 68-211-923. Cumulative powers of authorities — Police powers of governmental entities — Projects.
- (a)
Neither this part nor anything herein contained shall be construed as a restriction or limitation upon any powers which an authority, as a public corporation, might otherwise have under any laws of this state, but shall be construed as cumulative of any such powers.
- (b)
No proceedings, notice or approval shall be required for the organization of the authority or the issuance of any bonds or any instrument as security therefor, except as herein provided, notwithstanding any other law to the contrary; provided, that nothing herein shall be construed to deprive the state and its governmental subdivisions of their respective police powers over properties of the authority, or to impair any power thereover of any official or agency of the state and its governmental subdivisions which may be otherwise provided by law.
- (c)
Projects may be acquired, purchased, constructed, reconstructed, improved, bettered and extended and bonds may be issued under this chapter for such purposes, notwithstanding that any other general, special or local law may provide for the acquisition, purchase, construction, reconstruction, improvement, betterment and extension of a like project, or the issuance of bonds for like purposes, and without regard to the requirements, restrictions, limitations or other provisions contained in any other general, special or local law.
§ 68-211-924. Dissolution of authority — Procedure — Allocation of assets.
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An authority may be dissolved by a resolution approved by all county and municipal governmental bodies participating in the organization of the authority. A resolution to dissolve the authority shall contain adequate provisions to divide the assets and liabilities of the authority among the participating county and municipal governments in an equitable manner if the authority has assets in excess of liabilities. In the event that the authority has liabilities in excess of assets, the resolution of dissolution shall provide for the allocation of assets of the authority among the creditors of the authority by agreement between the creditors of the authority and the board of directors of the authority. In the event that such an agreement cannot be reached within ninety (90) days after the approval of the resolution to dissolve the insolvent authority, then the board of directors of the authority shall petition the chancery court for an equitable allocation of assets. The chancery court shall hear the cause and shall enter a decree for the allocation of the assets of the authority among the authority's creditors. After the final disposition of the assets of the authority, the board of directors of the authority shall notify, in writing, the governing bodies of the participating governments, the secretary of state, and the department of environment and conservation of these actions, whereupon the board of directors and the authority shall cease to exist.
§ 68-211-925. Liberal construction.
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This part is remedial in nature and shall be liberally construed to effect its purpose of providing for a systematic and efficient means of solid waste disposal and encouraging the best utilization and conservation of energy and natural resources.
Part 10 Used Oil Collection Act of 1993
§ 68-211-1002. Part definitions.
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As used in this part, unless the context otherwise requires:
- (1)
“Automotive fluid collection center” means a facility, including, without limitation, a fixed location, tank, truck, and container, that accepts used oil or any other automotive fluid from DIYers;
- (2)
“Automotive oil” means any oil classified for use in an internal combustion engine, crankcase, transmission, gear box or differential for an automobile, bus or truck, lawnmower, or household power equipment;
- (3)
“Department” means the department of environment and conservation;
- (4)
“Distributor” means any person who engages in the business in this state of refining, manufacturing, producing, or compounding of automotive oil, and selling or storing the same in this state; and it also means any person who engages in the business in this state of transporting, importing, or causing to be imported, automotive oil into this state, and distributing, storing, or making original sales of the same in this state, for any purpose whatsoever;
- (5)
“Do-It-Yourselfer (DIYer)” means an individual who removes used oil or any other automotive fluid from the engine of a light duty motor vehicle, small utility engine owned or operated by such individual, noncommercial motor vehicle or farm equipment;
- (6)
“Fund” means the used oil collection fund created by this part;
- (7)
“Oil for use with industrial machinery” is limited to any oil specifically purchased for and necessary for the operation of industrial machinery as defined in § 67-6-102;
- (8)
“Other automotive fluid” means antifreeze, transmission fluid, or power steering fluid;
- (9)
“Recycle oil” means to prepare used oil for reuse as a petroleum product by reclaiming, reprocessing, energy recovery, re-refining or other means to utilize properly treated used oil as a substitute for petroleum products;
- (10)
“Used oil” means any oil which has been refined from crude or synthetic oil and, as a result of use, becomes unsuitable for its original purpose due to loss of original properties, or presence of impurities, but which may be suitable for further use and may be economically recyclable. “Used oil” does not include oil filters; and
- (11)
“Used oil collection center” means an automotive fluid collection center that accepts from DIYers only used oil or used oil in addition to other automotive fluids and that constitutes an approved centralized collection center for used oil.
§ 68-211-1003. Legislative intent and purpose.
- (a)
It is the intent of the general assembly to reduce the amount of improperly disposed used oil and other automotive fluids by providing incentives to increase the number of collection facilities for used oil and other automotive fluids.
- (b)
It is the purpose of this part to provide for:
- (1)
The establishment and maintenance of automotive fluid collection centers and programs that support the collection and recycling of used oil and other automotive fluids;
- (2)
The development of management standards for automotive fluid collection centers and used oil collection centers, transporters, and recyclers; and
- (3)
The promotion of educational programs to encourage the public to dispose of used oil and other automotive fluids properly.
§ 68-211-1004. Used oil collection fund.
- (a)
There is established a general fund reserve to be allocated by the general appropriations act which shall be known as the “used oil collection fund.” Any revenues deposited in this reserve shall remain in the reserve until expended for purposes consistent with this part, and shall not revert to the general fund on any June 30. Any excess revenues or interest earned by such revenues shall not revert on any June 30, but shall remain available for appropriation in subsequent fiscal years. Any appropriation from such reserve shall not revert to the general fund on any June 30, but shall remain available for expenditure in subsequent fiscal years. All fees, civil penalties, and fines collected pursuant to this part shall be deposited in the fund.
- (b)
The department may apply for, request, solicit, contract for, receive, and accept gifts, grants, donations, and other assistance from any source to carry out its powers and duties under this part. Any such monetary gifts, grants or donations shall be deposited in the fund.
§ 68-211-1005. Toll-free telephone number of used oil and other automotive fluids — Use of moneys in fund — Personnel.
-
The fund may be used as follows:
- (1)
A toll-free telephone number shall be established by the department and maintained for the purpose of disseminating information concerning the locations and operating hours of automotive fluid collection centers within the state; information concerning the availability, dates and requirements for collection where available; information regarding alternate locations that accept commercial used oil and other automotive fluids; and other information regarding used oil and other automotive fluids.
- (2)
The department may award grants, subsidies and/or loans to municipalities, counties and counties having a metropolitan form of government to establish and operate automotive fluid collection centers at publicly owned facilities or other suitable public or private locations; and provide technical assistance to persons who organize such programs.
- (3)
The department may award grants or subsidies to local governments to purchase equipment which burns used oil as fuel. In awarding such grants or subsidies, priority shall be given to local governments who establish used oil collection centers.
- (4)
The department shall provide technical assistance to and reimburse public or private operators of used oil collection centers to dilute, decontaminate or dispose of used oil which has been contaminated by any substance which would require such contaminated oil to be disposed of as a hazardous waste in accordance with chapter 212 of this title if such dilution, decontamination or disposal is approved by the department prior to such dilution, decontamination or disposal. However, such reimbursement shall only be awarded to operators who have complied with management standards and rules and regulations of the department and shall be limited to no more than eight thousand dollars ($8,000) per year per used oil collection center. No reimbursement shall be made to any operator who is disqualified pursuant to rules or regulations of the department.
- (5)
The department may award grants to develop and implement educational programs to encourage proper handling, disposal and recycling of used oil and other automotive fluids.
- (6)
The department may award grants to develop and implement programs to provide direct incentives to DIYers to properly handle and dispose of used oil and other automotive fluids.
- (7)
The department may award grants to develop and implement programs to provide direct incentives to for-profit and not-for-profit entities to establish and operate automotive fluid collection centers.
- (8)
The department shall provide signs in accordance with § 68-211-1017.
- (9)
The department may hire personnel necessary to implement this part and expend moneys in the fund for other necessary administrative costs; provided, that only direct costs of administration and implementation of this part shall be expended from the fund and only that portion of salaries and benefits of personnel which are directly utilized to implement and administer this part shall be expended from the fund.
§ 68-211-1006. Fee on sales of automotive oil — Rules and regulations.
- (a)
There is levied on every distributor of automotive oil a two cent (2¢) per quart fee on the sale of automotive oil to fund the used oil collection fund.
- (b)
The fee shall apply only to sales of automotive oil, as herein defined, in packaged form. The use of automotive oil by a distributor shall constitute a sale for the purposes of this section unless that use is exempted under other provisions of this part. It is the intention of this part that the fee shall be due only once on any given quantity of automotive oil.
- (c)
The fee established in this part shall be collected by the department of revenue and deposited to the used oil collection fund. Of the funds received from this fee, for a period of three (3) years starting July 1, 2009, the state shall credit an amount not to exceed four hundred thousand dollars ($400,000) to the general fund annually, if the annual general appropriations act so provides, and the remainder shall be credited to the used oil collection fund. On July 1, 2012, and thereafter, all of the funds received from this fee shall be credited to the used oil collection fund.
- (d)
The commissioner of revenue is authorized to promulgate rules and regulations in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, to implement, administer and enforce this section and §§ 68-211-1007 — 68-211-1010.
§ 68-211-1007. Exemptions from fees on sales of automotive oil — Certification.
- (a)
The fee on the sale of automotive oil shall not be imposed on automotive oil:
- (1)
Exported from this state by a distributor, or sold by a distributor to a wholesaler or retailer who certifies to the distributor, in accordance with subsection (b), that the automotive oil will be exported from this state by the wholesaler or retailer, or resold to a user who will export the automotive oil from this state;
- (2)
Sold by a distributor to a wholesaler, retailer, or user who certifies to the distributor, in accordance with subsection (b), that the oil is oil for use with industrial machinery.
- (b)
The certification required in this section shall be in writing, and shall include an acknowledgement on the part of the person giving certification that such person shall be liable to the department of revenue for the fee imposed under § 68-211-1006, if the automotive oil is not sold or used in an exempt manner. Where a wholesaler or retailer certifies that the automotive oil is exempt from the fee on the basis of a subsequent resale to a person who will export the automotive oil, or use the automotive oil for an exempt purpose, the wholesaler or retailer must also obtain a certification from the purchaser that the automotive oil will be exported or used for an exempt purpose.
- (c)
Good faith acceptance of a certification by a distributor, wholesaler or retailer shall relieve the distributor, wholesaler or retailer from any liability to the department of revenue for the fee otherwise applicable under § 68-211-1006. If a person certifies that the automotive oil will be sold or used in an exempt manner, and the automotive oil is subsequently resold or used in a manner that does not qualify as exempt, the person making the resale or putting the automotive oil to use shall be liable to the department of revenue for the fee.
§ 68-211-1009. Payment of fees — Returns.
- (a)
The fee imposed by this part shall be payable for quarterly periods as follows:
- (1)
January 1 through March 31;
- (2)
April 1 through June 30;
- (3)
July 1 through September 30; and
- (4)
October 1 through December 31.
- (b)
It is the duty of all distributors of automotive oil on or before the twenty-fifth day of the month following the close of the periods set out above to transmit to the commissioner of revenue, upon forms prescribed and furnished by such commissioner, returns showing such information as such commissioner considers pertinent to the administration of this part. A separate return shall be filed for each separate location or business.
- (c)
The return shall be accompanied by payment of all fees due.
- (d)
Failure to file a return and/or pay the fee due under this part prior to the date provided by this section shall cause the fee to become delinquent and subject to interest and penalty as provided in title 67, chapter 1, part 8.
§ 68-211-1010. Deduction granted to distributors paying fees.
-
For the purposes of compensating the distributor in accounting for and remitting the fee, a distributor shall be allowed a deduction of the fee due, reported and paid to the department of revenue in the amount of two percent (2%) of the amount due on the report, but such deduction shall be limited to fifty dollars ($50.00) per report. No deduction from the fee shall be allowed if any such report or payment of the fee is delinquent.
§ 68-211-1011. Used oil collection centers.
- (a)
- (1)
All used oil collection centers must meet management standards established by the department and must be attended during hours of operation of such centers. Used oil collection centers shall establish a maximum amount of used oil that such centers will accept from any person in any one (1) day. Such maximum shall be at least five gallons (5 gal.) but no more than ten gallons (10 gal.).
- (2)
Used oil collection centers shall transfer used oil only to certified transporters and shall maintain records of all volumes of material collected on an annual basis, including the identity of the hauler and the name and location of the recycling facility to which such oil is transported.
- (b)
Used oil shall not be listed as a hazardous waste or hazardous substance by this state or any subdivision of this state.
- (c)
An automotive fluid collection center that accepts any other automotive fluid shall meet any management standards established by the department for other automotive fluids pursuant to § 68-211-1013(b).
§ 68-211-1012. Administration and enforcement.
- (a)
The commissioner of environment and conservation shall administer and enforce this part.
- (b)
The commissioner may:
- (1)
Issue orders for correction to enforce this part and rules and regulations promulgated pursuant to this part in the manner specified in § 68-211-112 and such orders may be reviewed in the manner specified in § 68-211-113;
- (2)
Institute proceedings to enjoin violations of this part, rules and regulations promulgated pursuant to this part or orders issued pursuant to subdivision (b)(1) in the manner specified in § 68-211-115; and
- (3)
Assess civil penalties against any person who violates or fails to comply with this part or rules and regulations promulgated pursuant to this part in the manner specified in § 68-211-117.
§ 68-211-1013. Development of management standard.
- (a)
The department shall develop management standards for used oil collection centers that require, as a minimum, that such centers:
- (1)
Accept uncontaminated used oil from the general public in quantities up to five gallons (5 gal.), per person, per day;
- (2)
Participate in the state toll-free telephone information system established by the department pursuant to § 68-211-1005; and
- (3)
Demonstrate that it complies with all state and federal regulations concerning tank structure and integrity, maintenance, supervision, employee training and housekeeping.
- (b)
The department may develop management standards for the collection of other automotive fluids by automotive fluid collection centers if the department determines that the standards will promote the health and welfare of the public.
§ 68-211-1014. Certification of used oil transporters — Annual reports.
- (a)
The department shall develop certification procedures for transporters accepting used oil from public, private and commercial collection facilities. Such certification shall include:
- (1)
A requirement that the transporter demonstrates familiarity with state regulations and proper used oil management rules;
- (2)
A requirement that the equipment used in such transportation is in good mechanical condition and is suitable for the transportation of used oil;
- (3)
A requirement of proof of liability insurance or other means of financial responsibility, as established by the department;
- (4)
A showing that all recordkeeping and reporting practices are in compliance with all applicable regulations; and
- (5)
Documentation that all used oil is delivered to qualified customers or certified recyclers. Such documentation shall include the names and addresses of such customers and recyclers.
- (b)
The department shall require that transporters file an annual report which specifies the type and quantity of used oil transported, collected and recycled during the preceding year.
- (c)
Any person who annually transports over public highways more than one thousand gallons (1,000 gal.) of used oil shall be a certified transporter. Persons who transport one thousand gallons (1,000 gal.) or less may also apply to the department for certification as a transporter.
§ 68-211-1015. Development of management standards for collection and recycling.
- (a)
The department shall develop management standards for used oil recycling and collection. Such standards shall comply with all rules and regulations of the federal environmental protection agency but shall not exceed such rules and regulations.
- (b)
The underground storage tanks and solid waste disposal control board is authorized to promulgate rules and regulations to effectuate the purposes of this part. All such rules and regulations shall be promulgated in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.
§ 68-211-1016. Prohibited acts — Penalty.
- (a)
Other than as provided for in a state or federal discharge permit, no person shall:
- (1)
Discharge used oil into sewers, drainage systems, septic tanks, surface waters, groundwaters, water courses or marine waters;
- (2)
Collect, store, recycle, use or dispose of used oil in any manner which endangers the public health or welfare;
- (3)
Mix or comingle used oil with hazardous waste or polychlorinated biphenyls (PCBs) that make it unsuitable for recycling or beneficial use; or
- (4)
Utilize used oil for road oiling, dust control, weed abatement or similar uses which have the potential to cause harm to the environment.
- (b)
Any person who:
- (1)
Fails to comply with any provision of this part or any rule adopted pursuant to this part;
- (2)
Fails to file any reports, records or documents required pursuant to this part;
- (3)
Fails, neglects, or refuses to comply with any order issued pursuant to this part; or
- (4)
Knowingly gives or causes to be given any false information in any reports, records, or documents required pursuant to this part;
-
commits a Class C misdemeanor. Each day such violation continues constitutes a separate offense.
§ 68-211-1017. Notice to public concerning proper oil collection and recycling — Signs.
- (a)
- (1)
A retailer of automotive oil that is not a used oil collection center shall post and maintain on the retailer's premises, at or near the point of the automotive oil display or sale, a durable and legible sign (minimum size of eight and one-half by eleven inches (8½″ x 11″)) that informs the public of the importance of the proper collection and disposal of used oil from DIYers and that contains the toll-free number established by the department pursuant to § 68-211-1005. The department shall design and provide the signs upon request.
- (2)
A retailer of any other automotive fluid may request from the department a sign to post on the retailer's premises that informs the public of the importance of the proper collection and disposal of other automotive fluids from DIYers and that contains the toll-free number established by the department pursuant to § 68-211-1005. The department shall design and provide the signs upon request.
- (b)
The department shall, upon the request of:
- (1)
A used oil collection center, design and provide a sign that identifies used oil collection centers; and
- (2)
An automotive fluid collection center that accepts other automotive fluids, design and provide a sign that identifies automotive fluid collection centers.
- (c)
The department may approve signs for display by retailers or collection centers that are submitted for such approval and, if approved, such signs may be displayed in lieu of signs designed by the department.
- (d)
Any sign provided or approved by the department pursuant to subsection (a), (b), or (c) shall be exempt from any sign regulation by local government. Such signs shall not be included as part of any maximum sign allowance pursuant to any local government regulation.
§ 68-211-1018. Release — Cleanup.
-
Upon detection of a release of used oil or any other automotive fluid to the environment at an automotive fluid collection center and notification to the department, the following cleanup steps must be performed:
- (1)
Stop the release;
- (2)
Contain the released used oil or other automotive fluid;
- (3)
Clean up and manage properly the released used oil or other automotive fluid and other materials; and
- (4)
If necessary to prevent future releases, repair or replace any leaking used oil or other automotive fluid storage containers or tanks prior to returning them to service.
§ 68-211-1019. Used oil filters.
- (a)
Used oil filters shall be:
- (1)
Punctured and hot-drained for a minimum of twelve (12) hours;
- (2)
Punctured and cold-drained for a minimum of twenty-four (24) hours;
- (3)
Drained and crushed; or
- (4)
Prepared for disposal as otherwise provided by rules and regulations promulgated by the underground storage tanks and solid waste disposal control board.
- (b)
Subsequent to such draining, draining and crushing or other preparation for disposal, such used oil filters shall be recycled or disposed of in accordance with this chapter and rules and regulations promulgated pursuant to this chapter.
Chapter 212 Hazardous Waste Management
Part 1 Tennessee Hazardous Waste Management Act of 1977
§ 68-212-102. Public policy.
-
In order to protect the public health, safety and welfare, to prevent degradation of the environment, conserve natural resources and provide a coordinated statewide hazardous waste management program, it is declared to be the public policy of the state of Tennessee to regulate hazardous waste management to:
- (1)
Provide for safe storage, transportation, treatment and disposal of hazardous wastes;
- (2)
Provide a coordinated statewide program of control of hazardous wastes in cooperation with federal, state and local agencies responsible for the prevention, control or abatement of air, water and land pollution, such that adequate control is achieved without unnecessary duplication of regulatory programs;
- (3)
Develop long-range plans for adequate hazardous waste management systems to meet future demands; and
- (4)
Promote efficient and economical hazardous waste management systems, the reuse or recycling of hazardous waste, and efforts to minimize the amounts of hazardous waste generated.
§ 68-212-103. Exemptions.
-
Exempted from this part are:
- (1)
Hazardous wastes which are generated within a residence and are incident to the operation of that residence; and
- (2)
The following wastes generated within a farm and incident to the operation of that farm:
- (A)
Wastes from the growing and harvesting of agricultural crops or from the raising of animals (including animal manures), which are returned to the soils as fertilizers; and
- (B)
Waste pesticides, provided the farmer triple-rinses each emptied pesticide container (using a capable solvent) and disposes of the pesticide residues on the farmer's own farm in a manner consistent with the disposal instructions on the pesticide label.
§ 68-212-104. Part definitions.
-
As used in this part, unless the context otherwise requires:
- (1)
“Board” means the underground storage tanks and solid waste disposal control board as established by § 68-211-111, unless otherwise indicated;
- (2)
“Commercial facility” means any hazardous waste management facility that stores, treats or disposes of hazardous waste generated off-site. However, a facility shall not be deemed to be a commercial facility if the only hazardous waste that it receives from off-site is either:
- (A)
Hazardous waste generated from material manufactured by a corporation, generated only at a site or sites owned or operated by the same manufacturing corporation, or subsidiaries of such corporation, or product distribution sites under contract to such corporation; provided, that the volume of hazardous waste received from such sites and placed in storage for more than thirty (30) days does not exceed ten percent (10%) of the permitted or interim status storage capacity at the facility; and provided further, that during no annual period may more than ten percent (10%) of the total hazardous waste treated or disposed at the facility be from such sites;
- (B)
Mixed hazardous waste (hazardous waste that is also regulated as a radioactive material) that is received for storage and treatment (but not disposal or incineration) pursuant to an order, compliance plan or similar plan or agreement in which such receipt for storage and treatment is specifically approved by the commissioner or board; provided, that any such order, compliance plan or similar plan or agreement also requires that the ultimate land disposal of such mixed hazardous waste or waste from its treatment be at a commercial facility permitted under this part or a properly authorized facility in another jurisdiction; or
- (C)
Hazardous wastes in the same waste codes and generated from the same industrial operations that a combustion facility was permitted to receive on July 1, 2001, notwithstanding any change of ownership of such operations since such date. The volume of such waste treated annually shall not exceed ten percent (10%) of the combustion facility's July 1, 2001, permitted treatment capacity;
- (3)
“Commissioner” means the commissioner of environment and conservation, the commissioner's authorized representatives, or, in the event of the commissioner's absence or a vacancy in the office of commissioner, the deputy commissioner;
- (4)
“Department” means the department of environment and conservation;
- (5)
“Disposal” means the discharge, deposit, injection, dumping, spilling, leaking, or placing of any hazardous waste into or on any land, water or air so that such hazardous waste or any constituent thereof may enter the environment or be emitted into the air or discharged into any waters, including ground waters;
- (6)
“Facility” means all contiguous land, and structures, other appurtenances and improvements on the land, used for treating, storing, or disposing of hazardous waste. A facility may consist of several treatment, storage, or disposal operational units;
- (7)
“Generation” means the act or process of producing hazardous wastes;
- (8)
“Hazardous secondary material” means a secondary material, such as spent material, by-product or sludge, that when discarded would be identified as hazardous waste under the rules promulgated pursuant to this part;
- (9)
“Hazardous waste” means waste, or combination of wastes, which because of its quantity, concentration, or physical, chemical, or infectious characteristics may:
- (A)
Cause, or significantly contribute to an increase in mortality or an increase in serious irreversible illness or incapacitating reversible illness; or
- (B)
Pose a substantial present or potential hazard to human health or the environment when improperly treated, stored, transported, disposed of, or otherwise managed;
- (10)
“Manifest” means the form used for identifying the quantity, composition, and the origin, routing, and destination of hazardous waste during its transportation from the point of generation to the point of disposal, treatment or storage;
- (11)
“Off-site” means any property that is not classified as on-site by subdivision (12);
- (12)
“On-site” means on the site of generation. “On-site” further means the same or geographically contiguous property which may be divided by public or private right(s)-of-way. Noncontiguous property owned by the hazardous waste generator that is connected by a right-of-way which such hazardous waste generator controls and to which the public does not have access is also considered on-site property;
- (13)
“Permit” means the whole or part of any written authorization of the commissioner pursuant to regulations to own or operate a facility for the treatment, storage, or disposal of or transportation of hazardous waste;
- (14)
“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, and governmental agency of this state and any department, agency, or instrumentality of the executive, legislative and judicial branches of the federal government;
- (15)
“Portable commercial unit” means any commercial facility, as defined by subdivision (2), which is transportable from site to site for the purpose of storage, treatment or disposal of hazardous waste;
- (16)
“State” means the state of Tennessee;
- (17)
“Storage” means the containment of hazardous waste in such a manner as not to constitute disposal of such hazardous waste;
- (18)
“Transporter” means any person engaged in the transportation of hazardous waste;
- (19)
“Treatment” means any method, technique, or process, including neutralization, designed to change the physical, chemical or biological character or composition of any hazardous waste so as to neutralize such waste or so as to render such waste nonhazardous, safer for transport, amenable for recovery, amenable for storage, or reduced in volume. “Treatment” includes any activity or processing designed to change the physical form or chemical composition of hazardous waste so as to render it nonhazardous;
- (20)
“Waste” means any garbage, refuse, sludge from a waste treatment plant, water supply treatment plant, or air pollution control facility and other discarded material, including solid, liquid, semisolid, or contained gaseous material resulting from industrial, commercial, mining and agricultural operations, and from community activities, but does not include solid or dissolved material in domestic sewage, or solid or dissolved materials in irrigation return flows or industrial discharges which are point sources subject to permits under § 402 of the Federal Water Pollution Control Act (33 U.S.C. § 1342), as amended, 92 P.L. 500, or source, special nuclear, or byproduct material as defined in the Atomic Energy Act of 1954, as amended, 83 P.L. 703 (42 U.S.C. § 2011 et seq.). In addition, 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; and
- (21)
“Waste management” means the orderly control of storage, transportation, treatment, and disposal of hazardous waste.
§ 68-212-105. Unlawful acts.
-
It is unlawful to:
- (1)
Place or deposit any hazardous 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)
Burn hazardous waste except in a manner and under the conditions prescribed by the department or the air pollution control board;
- (3)
Construct, alter, operate, own, close, or maintain after closure a hazardous waste treatment, storage, or disposal facility in violation of the rules and regulations established under this part or in violation of orders of the commissioner or board, or in such a manner as to create a public nuisance or a hazard to public health;
- (4)
Store, containerize, label, transport, treat or dispose of hazardous waste or fail to provide information in violation of the rules, regulations, or orders of the commissioner or board, or in such a manner as to create a public nuisance or a hazard to the public health;
- (5)
Refuse or fail to pay to the department fees assessed pursuant to this part and in violation of the rules, regulations, or orders of the commissioner or board; or
- (6)
Site a new commercial hazardous waste facility less than one thousand five hundred feet (1,500′) from residential, child care, church, park or school property.
§ 68-212-106. Criteria for determining hazardous wastes — Notification regarding wastes generated — Manifest systems — Landfill disposal sites.
- (a)
- (1)
The board shall establish criteria for determining if a substance is a hazardous waste and will prepare a list of wastes which are considered hazardous in order to aid in determining the generators of hazardous waste in the state. However, such list shall not limit the regulatory authority over substances which meet established criteria for a hazardous waste.
- (2)
Any person who is generating a waste which is considered hazardous by the established criteria or list shall notify the department in writing of the quantities and composition of wastes generated and the method by which such person intends to store, treat or dispose of such wastes.
- (3)
All generators, transporters, and owners and operators of hazardous waste storage, treatment, and disposal facilities shall utilize a manifest system to assure that such hazardous waste transported off-site is stored, treated, or disposed of in storage, treatment, or disposal facilities in compliance with regulations promulgated pursuant to this part.
- (b)
- (1)
The commissioner shall notify the register of deeds in each county in which a landfill disposal facility or site is located and currently being used for landfilling of hazardous waste of the precise location of such facility or site. Such notice shall include the following:
- (A)
The name of the person who owns the property upon which the disposal facility or site is located;
- (B)
The book and page number in which the deed to such property is recorded; and
- (C)
The hazardous wastes which are disposed of on such property.
- (2)
The commissioner is authorized to require any person owning or operating a landfill disposal facility or site to provide such information prior to landfilling on such facility or site.
- (3)
As used in this section:
- (A)
“Landfill disposal facility or site” includes any settlement pond or lagoon which is not regulated by the division of water quality control and also includes open dumping; and
- (B)
“Open dumping” means the depositing of solid wastes into a body or stream of water or onto the surface of the ground without compacting the wastes and covering with suitable material as prescribed in the regulations of the department.
- (4)
This subsection (b) is to be administered by the division of solid and hazardous waste management.
§ 68-212-107. Powers and duties of commissioner, department, and board.
- (a)
The commissioner shall exercise general supervision over the construction, operation, maintenance, closure, and where applicable, post-closure care of hazardous waste storage facilities, treatment facilities, and disposal facilities throughout the state. Such general supervision shall apply to all features of construction, operation, maintenance, closure, and, where applicable, post-closure care of such facilities which do or may affect the public health and safety or the quality of the environment, and which do or may affect the proper storage, treatment, or disposal of hazardous wastes.
- (b)
For the purpose of developing or enforcing any rule or regulation authorized by this part, or enforcing any requirement of this part or order issued by the commissioner or board pursuant to this part, the commissioner is authorized to at any reasonable time:
- (1)
Enter any place where wastes (which the commissioner has reason to believe may be hazardous) are, may be, or may have been generated, stored, transported, treated, disposed of, or otherwise handled;
- (2)
Inspect and obtain samples of any waste (which the commissioner has reason to believe may be hazardous), samples of any containers or labeling for such wastes, and samples of ambient air, surface waters, and ground waters at the facility or site; and
- (3)
Inspect and copy any records, reports, test results, or other information relating to the purposes of this part.
- (c)
The board is authorized to request the commissioner or the commissioner's representatives to investigate, inspect and obtain samples from hazardous waste storage, treatment, or disposal facilities throughout the state.
- (d)
The board is empowered to promulgate and adopt, in accordance with the rulemaking requirements of the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, 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, but shall not necessarily be limited to:
- (1)
Regulations setting out the criteria, lists, and any other necessary mechanisms for the determination of whether any substance is a hazardous waste for the purposes of this part;
- (2)
Regulations providing procedures and requirements for the use of a manifest during the transportation of hazardous waste;
- (3)
Regulations providing requirements for the location, design, construction, operation, maintenance, closure, and, where appropriate, post-closure care of hazardous waste treatment, storage, and disposal facilities as may be necessary or desirable for the safe storage, treatment, and disposal of hazardous wastes in the state;
- (4)
Regulations providing appropriate requirements (including joint and several liability for owners and operators and submission of plans and specifications) and procedures governing application for issuance, renewal, modification, suspension, revocation, or denial of permits for hazardous waste treatment, storage, and disposal facilities; which requirements and procedures shall be consistent with the Uniform Administrative Procedures Act, and shall include provisions for public notice and comment and an opportunity for a public hearing prior to permit determinations;
- (5)
Regulations providing requirements for the transportation, containerization, and labeling of hazardous waste which shall be consistent with those issued by the United States department of transportation and the Tennessee department of safety, to include requirements and procedures governing application for and issuance, renewal, modification, suspension, renovation or denial of permits for hazardous waste transporters;
- (6)
Regulations providing requirements and procedures for notification by generators of hazardous waste and for the establishment, maintenance, and reporting of other information as necessary or desirable to achieve the purposes of this part;
- (7)
Regulations providing for the assessment and collection of fees as provided in § 68-212-110;
- (8)
Regulations establishing a schedule of administrative penalty amounts as provided in § 68-212-114(c);
- (9)
Regulations which prohibit the land disposal of certain hazardous wastes if the board determines that such a prohibition is required in order to protect human health and the environment for as long as the waste remains hazardous, taking into account:
- (A)
The long-term uncertainties associated with land disposal;
- (B)
The goal of managing hazardous waste in an appropriate manner in the first instance; and
- (C)
The persistence, toxicity, mobility, and propensity to bioaccumulate of such hazardous wastes and their hazardous constituents;
- (10)
- (A)
Regulations which shall establish conditions or criteria for the siting of commercial hazardous waste storage, treatment, and disposal facilities in this state. No permit may be issued for a proposed facility that does not conform to the conditions and criteria of those regulations. These conditions or criteria shall consider the differences between storage, treatment, and disposal facilities, and shall address, but not be limited to, the following:
- (i)
Siting in floodplains, wetlands, seismic risk zones, and in areas underlaid by mature karst formations;
- (ii)
Depth to groundwater and seasonal high water tables;
- (iii)
Distances from public and private drinking water supplies;
- (iv)
Distances from occupied dwellings including, but not limited to, private residences, public schools and other buildings, and commercial buildings, and buildings not associated with the facility;
- (v)
Distances from scenic, cultural and recreational areas;
- (vi)
The adequacy of the transportation routes to accommodate any increased traffic;
- (vii)
The adequacy of the emergency response capabilities; and
- (viii)
The economic impacts on the local community and the surrounding communities.
- (B)
Regulations adopted pursuant to this subsection (d) shall not apply to any facility or site currently operating under authorization of the commissioner or to any facility permitted by the commissioner prior to adoption of such regulations; and
- (11)
Regulations implementing the distance restrictions established by § 68-212-105(6).
- (e)
The board is empowered and authorized to act as the board of appeals to review actions of the commissioner arising from the implementation of this part in accordance with § 68-212-113. For the purposes of this part, eight (8) members constitute a quorum, and a quorum may act for the board in all matters.
- (f)
The provisions of title 13, chapter 18, regarding major energy projects, as defined in § 13-18-102 do not apply to this part.
§ 68-212-108. Permits — Bond — Terminated facilities — Perpetual care trust fund — Hazardous waste trust fund.
- (a)
- (1)
No person shall construct, substantially alter, or own or operate a hazardous waste treatment, storage, or disposal facility, nor shall any person treat, store, or dispose of a hazardous waste, nor shall any hazardous waste transporter receive a hazardous waste from, or deliver a hazardous waste to, any location in the state, without first obtaining a permit from the commissioner for such facility or activity. No such permit shall be issued or otherwise authorized unless and until the person has complied with the requirements established by the board in regulations promulgated under this part. All permits for hazardous waste management facilities and transporters shall be issued by the commissioner. All such permits shall be issued according to procedures established by the board in regulations promulgated under this part.
- (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; and provided further, that the commissioner shall not waive the requirement that a community impact statement be filed.
- (b)
Each permit shall contain such terms and conditions as the commissioner deems necessary under the regulations promulgated under this part and shall be issued for a fixed period of time. A permit may be modified at any time for cause.
- (c)
- (1)
The commissioner may require the posting of a bond by any applicant for permitting of a hazardous waste storage facility, treatment facility or disposal facility. Such bond shall be to assure the availability of funds to the state in the event of abandonment, insolvency, or other inability of the applicant to meet the requirements regarding a public health hazard created by the presence of hazardous waste at a site occupied by the applicant or formerly under its possession, ownership, or control. The amount of the bond will be established by the commissioner as a permit condition and based on the estimated costs of providing proper closure, or post-closure care to the facility. 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 hazardous waste used by the applicant, the costs of reclamation of the property in the event of abandonment, insolvency or other inability of the applicant to perform such services to the satisfaction of the commissioner.
- (2)
In the event it is determined that there is a reasonable probability that a permitted facility or site will eventually cease to operate while containing, storing, or otherwise treating hazardous wastes on the premises which will require continuing and perpetual care or surveillance over the facility or site to protect the public health, safety or welfare, the commissioner, for the commissioner's respective area of permitting authority, may require for storage, treatment or disposal facilities, a sum to be deposited by the applicant, in addition to the posted 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 hazardous waste material, the size and type of facility or site to be decommissioned, and the anticipated expenses of perpetual care and surveillance.
- (3)
No private entity shall be precluded by reason of criteria established under subdivisions (c)(1) and (2) from the ownership or operation of facilities providing hazardous waste treatment, storage, or disposal services where such entity can provide assurance of financial responsibility and continuity of operation consistent with the degree and duration of risks associated with the treatment, storage or disposal of a specified hazardous waste.
- (4)
An acceptable bond shall be 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. Acceptable forms of collateral shall be established by the board by regulation and shall include, but are not limited to, insurance policies, letters of credit or securities.
- (5)
The bonds obtained by any applicant shall be payable to the state of Tennessee and shall remain effective until such time as the commissioner determines that the facility or site involved no longer presents a danger to the public health and welfare.
- (6)
At any time during the life of a bond, the commissioner, for the commissioner's respective area of permitting authority, may order forfeiture of the bond of a storage, treatment, or disposal facility based upon the commissioner's determination of abandonment, insolvency or other inability of the applicant to perform to the satisfaction of the commissioner. The board shall promulgate regulations to ensure the applicant adequate notice and an opportunity to be heard on the matter of forfeiture. All forfeited bonds shall be deposited in a special account in the name of the state, entitled “the hazardous waste trust fund.” All moneys deposited in the fund may be expended by the commissioner as the commissioner considers necessary to assure the protection of the public health, safety, or welfare. Following the detoxification, the removal and disposal of any hazardous waste, 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 applicant. Any unencumbered moneys and any unexpended balance of the fund, together with any interest accruing on investments and deposits 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 the fund until expended in accordance with this part. The moneys which are deposited in the hazardous waste 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 detoxification, removal and disposal of any hazardous waste, reclamation of sites or facilities, and perpetual care and surveillance of sites or facilities where the applicant has abandoned, defaulted, or otherwise refused to perform the above services to the satisfaction of the commissioner. Moneys accumulated in the hazardous waste 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.
- (d)
The commissioner may require any applicant for permitting of a hazardous waste storage facility, treatment facility, or disposal facility, and any such permittee, to have and maintain financial responsibility as may be necessary for bodily injury and property damage to third parties caused by sudden or nonsudden accidental occurrences arising from operations of the facility. The board shall promulgate and adopt rules and regulations as necessary or desirable to implement this provision.
- (e)
The commissioner may deny or revoke any permit of a storage, treatment or disposal facility if the commissioner finds that the applicant or permittee has failed to comply with any term or condition of the permit, this part, any order of the commissioner, or any rules, regulations or standards adopted pursuant hereto.
- (f)
- (1)
The department shall give public notice of an application for a permit for a commercial facility for the storage, treatment, or disposal of hazardous waste within thirty (30) days of its receipt. The commissioner shall hold a community meeting concerning such a permit application within forty-five (45) days of the publication of the public notice. This shall be in addition to the public notice and hearing given after a draft permit or denial is issued. The county legislative body of the county in which the facility is proposed, the governing body of the municipality, if any, in which the facility is proposed and the governing body of any municipality within one (1) mile of the proposed facility shall be represented at the community meeting. Failure to participate shall be deemed a waiver and shall not invalidate the meeting. The board shall prescribe in rules the procedures for such notices and meetings. The local governing bodies participating in the community meeting shall have the opportunity to prepare reports representing their interpretation of the concerns of the community, and shall submit such reports to the department within ninety (90) days after the community meeting. The report may include any summaries of issues that the local governing bodies feel appropriate.
- (2)
If a local governing body chooses to make such report, it shall include a decision to accept, reject, or modify the application. Such decision shall be based upon the application of the following criteria which shall consider the differences between storage, treatment and disposal facilities:
- (A)
The facility is located so as to minimize incompatibility with the character of the surrounding area and to minimize the effect on the value of the surrounding area;
- (B)
The plan of operations for the facility is designed to minimize the danger to the surrounding area from fire, spills, or other operational accidents;
- (C)
The traffic patterns and the capacity of roads and bridges to or from the facility are so designed as to minimize the impact on existing traffic flows;
- (D)
An emergency response plan has been formulated by or for the facility which includes notification, containment and evacuation procedures to be used in case of an accidental release;
- (E)
If the facility is to be located in a county where the county or municipality has adopted a hazardous or solid waste management plan and/or zoning plan, the facility is consistent with that plan;
- (F)
Distances from occupied dwellings, including, but not limited to, private residences, schools, churches, commercial buildings, and other buildings not associated with the facility, and scenic, cultural and recreational areas so as to minimize the adverse economic impacts on the local community and the surrounding communities;
- (G)
The facility is so designed, located and proposed to be operated that the public health, safety and welfare will be protected;
- (H)
The previous operating experience and past record of convictions relevant to the operation of a proposed facility, or admissions of violations, other than minimal nonwillful permit violations, of the applicant and any subsidiary or parent corporation operating in the field of solid or hazardous waste management; and
- (I)
The conditions or criteria provided for in § 68-212-107(d)(10).
- (3)
Failure by any of the local governing bodies to submit such report within the ninety-day period shall be deemed a waiver of the right of such local governing body to submit such report. The department shall consider these reports in granting the permit. The commissioner may affirm the decision of the local governing body, if any, or may reverse or modify the decision if the decision is:
- (A)
In violation of statutory provisions;
- (B)
In excess of the statutory authority of the agency or the local governing body;
- (C)
Made upon unlawful procedure;
- (D)
Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion;
- (E)
Unsupported by evidence which is both substantial and material in the application and report; or
- (F)
Contrary to the conditions or criteria set forth in § 68-212-107(d)(10).
- (4)
The commissioner shall issue or deny the permit within ninety (90) days of the close of the public comment period on the draft permit. The applicant shall reimburse the department for the expense of all public notification. Failure to make such payment shall be grounds for denial of the permit.
- (g)
If the ownership or operational control of a hazardous waste storage facility, treatment facility, disposal facility or commercial landfill facility for disposal of hazardous waste is sold, voluntarily or involuntarily transferred or in any other manner changed, then the permit shall be revoked; provided, that such permit may be reinstated within ninety (90) days if the commissioner determines that all original permit requirements and conditions will be met by the new owner or operator, and the commissioner may allow such facility to continue to operate during such ninety-day period. Any major modification of prior permitted operation shall require a new permit issuance process to be followed.
- (h)
The board shall establish criteria in regulations promulgated under this part for the consideration of the applicant's prior related business record and any civil or criminal liability for past ownership or operation of any facility which would be required to receive a permit to be operated in this state. Such record shall be considered by the commissioner prior to the issuance of any permit pursuant to this section.
- (i)
No permit for a hazardous waste storage facility, treatment facility or disposal facility shall be issued if any person who is the legal or beneficial owner of ten percent (10%) or more of the stock of the company or corporation applying for such permit has been convicted of any felony or has been convicted of a misdemeanor for the unlawful storage, treatment or disposal of hazardous wastes.
- (j)
Subsections (f)-(j) shall not apply to any facility currently operating under authorization of the commissioner.
- (k)
Permits issued after July 1, 1986, may require corrective action for all releases of hazardous waste and hazardous constituents from any waste management unit at a treatment, storage, or disposal facility seeking a permit under this part, regardless of the time at which such waste was placed in the facility. Permits shall also include schedules for compliance for such corrective action and assurances of financial responsibility for completing such corrective action.
- (l)
The commissioner may refuse to issue a permit to a commercial facility for the storage, treatment, or disposal of hazardous waste if, at the time of permit issuance, the applicant or permittee is subject to an order for corrective action pursuant to this part; provided, that upon a determination by the commissioner that the public health, safety and environment will be adequately protected by the posting of a sufficient bond as security to ensure compliance with such order for correction, or by such other means approved by the commissioner, the commissioner may waive this subsection (l).
- (m)
No new commercial hazardous waste permit applications received by the department after June 8, 1989, shall be considered, approved or denied by the commissioner until the board has complied with § 68-212-107(d)(10). This subsection (m) and the regulations adopted pursuant to § 68-212-107(d)(10) shall not apply to any application for a permit for a facility if the application was filed with the department, or if the planned facility was under review by the department in anticipation of the filing of the application, on or before July 1, 1989.
- (n)
- (1)
No permit shall be issued or otherwise authorized for a portable commercial unit to store, treat or dispose of hazardous waste generated in a state other than Tennessee. The commissioner may deny or revoke any permit of a portable commercial unit which fails to comply with this subsection (n).
- (2)
A permit issued to a unit which is subject to this subsection (n) may be modified at any time to comply with this subsection (n).
- (o)
- (1)
Before submitting to the department the Part B permit application for a new hazardous waste treatment storage or disposal facility permit or for a permit renewal, the applicant shall hold at least one (1) meeting with the public in order to inform the community of proposed hazardous waste management activities and to solicit questions from the community. The applicant shall submit a summary of the meeting and copies of any written comments or materials submitted at the meeting to the department as a part of the permit application. The applicant must provide public notice of the preapplication community meeting at least thirty (30) days prior to the meeting. Public notice shall include, but shall not be limited to, a visible and accessible sign at or near the facility announcing the date, time and location of the meeting, and other information as required by the department.
- (2)
At the preapplication community meeting the applicant must provide a community impact statement which shall also be maintained in the facility file. The community impact statement shall include the following:
- (A)
A description of the facility (including a scale drawing or photograph of the facility) and the proposed hazardous waste management activities;
- (B)
A description of security procedures at the facility;
- (C)
Information on hazard prevention and preparedness, including a summary of the contingency plan and arrangements with local emergency authorities;
- (D)
A description of procedures, structures or equipment used to prevent employee exposure, hazards during unloading, runoff from handling areas and contamination of water supplies;
- (E)
A description of traffic patterns, traffic volume and control, condition of access roads, and the adequacy of traffic control signals; and
- (F)
A description of the facility location information relative to compliance with flood plain requirements and with respect to any commercial applicant, seismic requirements.
§ 68-212-109. Confidentiality.
-
The board shall establish procedures to ensure that information supplied to the department, as provided by this part, and defined as proprietary by regulation, is not revealed to any person without the consent of the person supplying such information. Proprietary information does not include the name and address of permit applicants. Proprietary information may be utilized by the commissioner, the board, the department, the United States environmental protection agency (EPA), or any authorized representative of the commissioner or the board in connection with the responsibilities of the department or board pursuant to this part or as necessary to comply with federal law. The court may assess against the department reasonable attorney fees and other litigation costs reasonably incurred in any case under this section in which the complainant has substantially prevailed.
§ 68-212-110. Fees — Consequences of failure to pay.
- (a)
The board shall establish a schedule of fees for hazardous waste generators, hazardous waste transporters, operators of hazardous waste transfer facilities; applicants and holders of permits for the storage, reclamation, treatment or disposal of hazardous waste; and for the generation, storage, transportation, reclamation or treatment of those hazardous secondary materials that, if discarded, would be identified as spent materials, listed by-products or listed sludges. The board shall not establish fees for those hazardous secondary materials that are reclaimed and returned to the original process or processes in which they were generated where they are reused in the production process; provided, that only tank storage is involved and the entire process through completion of reclamation is closed by being entirely connected with pipes or other comparable enclosed means of conveyance. To establish an incentive to minimize risk to public health and the environment, the board shall consider the following factors in establishing the fees:
- (1)
Off-site versus on-site facility;
- (2)
Facility design capacity; and
- (3)
Storage or treatment operation versus disposal operation.
- (b)
Expenditures of such fees collected shall be restricted to operations of the hazardous waste management program established pursuant to this part.
- (c)
Upon failure or refusal of an operator of a facility, transporter, or generator to pay a fee lawfully levied within a reasonable time allowed by the commissioner, the commissioner then may apply to a court of competent jurisdiction for a judgment and seek execution of such judgment.
- (d)
Failure of a permit applicant to pay the required fee shall constitute grounds for denial of a permit. Failure of a permittee to pay the required annual fee shall constitute grounds for revocation of the permittee's permit.
- (e)
If any part of any fee imposed under this part is not paid on or before its due date, a penalty of five percent (5%) of the amount due shall at once accrue and be added thereto. Thereafter, on the last 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; 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. At the commissioner's sole discretion, the commissioner may reduce the penalties that otherwise accrue pursuant to this section or chapter 203 of this title if, in the commissioner's opinion, the failure to pay fees was due to inadvertent error or excusable neglect; however, in no event shall the penalties be reduced to an amount less than ten percent (10%) per annum, plus statutory interest. Nothing in this section shall be construed as requiring the issuance of a commissioner's order for the payment of a fee or a late payment penalty.
§ 68-212-111. Order for correction of deficiencies.
- (a)
When the commissioner finds upon investigation that any provisions of this part are not being carried out, 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 served by personal service or shall be sent by certified mail, return receipt requested. Investigations made in accordance with this section may be made on the initiative of the commissioner or board. Prior to the issuance of any order or the execution of any other enforcement action, the commissioner may request the presence of the alleged violator of this part at a meeting to show cause why enforcement action ought not to be taken by the department.
- (b)
Whenever the commissioner finds that any person is engaging in an unauthorized activity which is endangering or causing damage to the public health or environment, the commissioner may, without prior notice, issue an order reciting the existence of such unauthorized activity and requiring that such action be taken as the commissioner deems necessary.
§ 68-212-113. Review of orders — Judicial review.
- (a)
- (1)
Any person against whom an order is issued may secure a review of the necessity for or reasonableness of such order 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. Any such order shall become final and not subject to review unless the person or persons named therein shall file such petition for a hearing before the board no later than thirty (30) days after the date such order is served.
- (2)
- (A)
Any person whose permit application for a hazardous waste transportation, storage, treatment or disposal facility is denied by the commissioner may secure a review of the commissioner's denial by filing with the commissioner a written petition setting forth the grounds and reasons for such person's objections to the commissioner's denial and requesting a hearing before the board. Any denial of a permit application 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 notice of denial is served.
- (B)
A petition for permit appeal may be filed, pursuant to this subdivision (a)(2)(B), 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 subdivision (a)(2)(B) 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 subdivision (a)(2)(B) 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)
In the event the commissioner fails to take any action on a permit application or proposed amendment to a permit for a hazardous waste transportation, storage, treatment, or disposal facility within forty-five (45) days of submission to the proper authority, the person having submitted such application may appeal to the board as though the application was denied. The petition shall recite the failure of the commissioner to act on the application. No permit shall be issued by the commissioner except in a manner pursuant to this part or regulations promulgated pursuant to this part.
- (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; provided that in a petition filed under subdivision (a)(2)(B) the judge shall hold the hearing in the county where the facility or site is proposed to be located. 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 under § 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.
- (c)
An appeal may be taken from any final order or other final determination of the board by any party, including the department, who is or may be adversely affected thereby to the chancery court of Davidson County. The chancery court of Davidson County shall have exclusive original jurisdiction of all review proceedings instituted under the authority and provisions of this part; provided, that the judicial review of any final decision of the board shall be made pursuant to the procedures established and set forth in the Uniform Administrative Procedures Act.
§ 68-212-114. Violations — Civil and criminal penalties.
- (a)
- (1)
Any person violating any provision of this part, or failing, neglecting or refusing to comply with any order, or any term or condition of any permit, issued by the commissioner or board, commits a Class A misdemeanor. Each day upon which a violation occurs constitutes a separate punishable offense.
- (2)
Any person who knowingly disposes of hazardous waste in violation of this part, rules, regulations, the terms or conditions of a permit, or orders of the commissioner or board commits a Class C felony. Each day upon which such violation occurs constitutes a separate punishable offense.
- (3)
In addition to the penalties imposed under subdivisions (a)(1) and (2), the court, department or board may suspend the permit to store, transport, treat or dispose of hazardous waste for a period of up to ten (10) years of any person who has been convicted of two (2) such felonies within a two-year period. The court, department or board shall suspend the permit to store, transport, treat or dispose of hazardous waste for a period of ten (10) years of any person who has been convicted of three (3) such felonies within a two-year period. No person who has had such person's permit suspended pursuant to this subsection (a) shall be eligible to apply for any other permit issued pursuant to this part until the period of time for which the permit was suspended has expired. No succeeding person who has substantial factual or legal connections, continuity or identity with any person who has had such person's permit suspended pursuant to this subsection (a) shall be eligible to apply for any permit issued pursuant to this part until the period of time for which the permit was suspended has expired, but a succeeding person who is a good faith purchaser and who does not have substantial factual or legal connections, continuity or identity, may apply for a permit. Determination of factual or legal connection, continuity or identity under this subsection (a) shall be made by the chancellor of Davidson County upon request of the succeeding person. Nothing in this subsection (a) precludes the suspension, revocation or denial of a permit by the department or board when such action is otherwise authorized by law.
- (b)
- (1)
Any person who violates or fails to comply with any provision of this part, any order of the board or commissioner, the terms or conditions of any permit issued, or any rule, regulation or standard adopted pursuant to this part shall be subject to a civil penalty of up to fifty thousand dollars ($50,000) per day for each day of violation. Each day upon which such violation occurs constitutes a separate punishable offense, and such person shall also be liable for any damages to the state resulting therefrom.
- (2)
Any civil penalty or damages shall be assessed in the following manner:
- (A)
The commissioner may issue an assessment against any person responsible for the violation or damages. Such person shall receive notice of such assessment by certified mail, return receipt requested;
- (B)
Any person against whom an assessment has been issued may petition the board for a review of the assessment;
- (C)
The manner of review of an assessment shall be the same as that for an order as set out in § 68-212-113;
- (D)
If a petition for review of the assessment is not filed within thirty (30) days after the date the assessment is served, the violator shall be deemed to have consented to the assessment and it shall become final; and
- (E)
The commissioner may institute proceedings for assessment in the chancery court of Davidson County or in the chancery court of the county in which all or part of the violation or failure to comply occurred.
- (3)
In assessing a civil penalty, the following factors may be considered:
- (A)
The harm done to public health or the environment;
- (B)
The economic benefit gained by the violators;
- (C)
The amount of effort put forth by the violator to attain compliance; and
- (D)
Any unusual or extraordinary enforcement costs incurred by the commissioner.
- (4)
Damages to the state may include any reasonable expenses incurred in investigating and enforcing violations of this part, and in restoring the air, water, land and other property, including animal, plant and aquatic life, of the state to their former condition.
- (c)
- (1)
Any person who violates or fails to comply with any provision of this part or any rule, regulation, or standard adopted pursuant to this part shall be subject to an administrative penalty not to exceed one thousand dollars ($1,000) per violation, with each day such violation continues constituting a separate punishable offense.
- (2)
The board shall promulgate and adopt rules and regulations establishing a schedule of administrative penalty amounts for certain specific non-discretion violations or categories of violations established by this part.
- (3)
The commissioner may issue an assessment of administrative penalties against any person responsible for a nondiscretionary violation. Such person shall receive notice of such assessment by certified mail, return receipt requested.
- (4)
Any person against whom an assessment of administrative penalties has been issued may petition the board for a review of the assessment. The manner of such review shall be the same as that for an order as set out in § 68-212-113. If a petition for review of an assessment is not filed within thirty (30) days after the date the assessment is served, the violator shall be deemed to have consented to the assessment and it shall become final.
- (5)
The commissioner may issue an assessment of civil penalties pursuant to subsection (b) against any person who fails to comply with an assessment of administrative penalties lawfully issued in accordance with this subsection (c).
- (d)
Any person qualified by law may intervene as a matter of right in any court action brought by the commissioner or board pursuant to this part.
- (e)
- (1)
Whenever any order or assessment under § 68-212-113 or this section has become final, a notarized copy of the order or assessment may be filed in the office of the clerk of the chancery court of Davidson County.
- (2)
When filed in accordance with subdivision (e)(1), a final order or assessment shall be considered as a judgment by consent of the parties on the same terms and conditions as those recited therein. Such judgment shall be promptly entered by the court. Except as otherwise provided in this section, the procedure for entry of the judgment and the effect thereof shall be the same as provided in title 26, chapter 6.
- (3)
- (A)
If the final order or assessment resulting in a judgment under subdivision (e)(2) is from the board, the judgment shall become final thirty (30) days after the date a summons has been served upon the defendant.
- (B)
If the final order or assessment resulting in a judgment under subdivision (e)(2) is from the commissioner, any citizen shall, within forty-five (45) days after entry of the judgment, have the right to intervene on the ground that the penalties or remedies provided are inadequate or are based on erroneous findings of facts. Upon receipt of a timely motion for intervention, the court shall determine whether it is duplicitous or frivolous, and shall notify the movant and the parties of its determination. If the motion is determined not to be duplicitous or frivolous, all parties shall be considered to have sought review of the final order or assessment, and the court shall proceed in accordance with § 4-5-322. If no timely motion for intervention is filed, or if any such motion is determined to be duplicitous or frivolous, the judgment shall become final forty-five (45) days after the date of entry.
- (4)
A final judgment under this subsection (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.
§ 68-212-115. Injunctions.
-
In addition to the penalties provided elsewhere in this part, the commissioner may cause the enforcement of any orders, permits, rules or regulations issued by the commissioner or the board to carry out this part by instituting legal proceedings to enjoin the actual or threatened violations of this part, and the orders, permits, rules or regulations of the commissioner or orders of the board in the chancery court of Davidson County or in the chancery court of the county wherein all or a part of the actual or threatened violations has or is about to occur, in the name of the department, by a staff attorney and under the supervision of 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.
§ 68-212-117. Complaints — Procedure.
- (a)
Any person may file with the commissioner or board a signed complaint against any person allegedly violating any provisions of this part. Unless the commissioner or board determines that such complaint is duplicitous or frivolous, the commissioner or board shall immediately serve a copy of it upon the person or persons named therein, promptly investigate the allegations contained therein, and shall notify the alleged violator of what action, if any, the commissioner or board will take. In all cases, the commissioner or board shall notify the complainant of the commissioner's or board's action or determination within ninety (90) days from the date of the commissioner's or board's receipt of the written complaint. If either the complainant or the alleged violator believes that the commissioner's or board's action or determination is or will be inadequate or too severe, such person 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 or board. If the commissioner fails to take the action stated in such 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. When such an appeal is timely filed, the procedure for conducting the contested case shall be in accordance with § 68-212-113(b). The department shall not be obligated to assist a complainant in gathering information or making investigations or to provide counsel for the purpose of drawing the complaint.
- (b)
Where the complaint is upheld, the board may order the party named in the complaint to pay the attorney fees of the complainant, if there was an aggravated violation.
- (c)
The board, department, its officials and employees acting in their official capacity shall not be considered “persons” pursuant to this section.
§ 68-212-118. Reports evaluating regulatory program.
-
Annually, no later than December 1, the board and the commissioner shall submit a written report to the speakers of both houses of the general assembly evaluating all aspects of the performance of the hazardous waste regulatory program during the prior calendar year. The annual report must include, but not necessarily be limited to, the following data:
- (1)
The number and type of hazardous waste handlers permitted and/or registered by the commissioner;
- (2)
A list of hazardous waste generators, transporters, and disposal facilities in Tennessee;
- (3)
Fees due, paid, and past due;
- (4)
The amount of hazardous wastewater and other hazardous waste generated or handled in Tennessee, including the amount shipped into Tennessee from other states and the amounts shipped from Tennessee to other states;
- (5)
The number of permit applications received, granted, requested, and pending, by type;
- (6)
The number and type of enforcement actions in process and initiated during the reporting period; and
- (7)
Any recommendations for legislative action to improve the hazardous waste regulatory program.
§ 68-212-119. Interstate agreements — Governor's authority.
-
Subject to any necessary appropriation by the general assembly, the governor is authorized to enter into one (1) or more interstate agreements governing the import and export of hazardous waste between this state and other states as may be required by the Comprehensive Environmental Response, Compensation and Liability Act, § 104(c)(9) (42 U.S.C. § 9604(c)(9)).
§ 68-212-121. Employer's liability for employee's motor vehicle accidents involving hazardous wastes or substances.
-
If any person who is driving on a Tennessee road, highway, interstate or other thoroughfare or rightfully in physical control of any motor vehicle containing a hazardous waste or hazardous substance as defined in § 68-131-102 is adjudicated to have been at fault in a court of competent jurisdiction for an accident resulting in a spill of such hazardous waste or hazardous substance, the employer of such person shall be jointly and severally responsible for damages incurred as a result of the spill, and any reasonable clean-up costs incurred by the governmental agency or the state or any political subdivision thereunder, which may result from the spill. In the event of a dispute concerning the reasonableness of assessed clean-up costs or damages, a court of competent jurisdiction shall determine the reasonableness of such costs and damages.
Part 2 Hazardous Waste Management Act of 1983
§ 68-212-201. Legislative intent.
- (a)
In order to protect the public health, safety and welfare, and to provide a coordinated statewide hazardous substance management program, it is declared to be the policy of the state of Tennessee to:
- (1)
Provide a procedure for establishing appropriate sites for the treatment, storage and disposal of hazardous wastes; provided, that such procedures shall not be construed as a state override of local government jurisdiction;
- (2)
Provide funding for the operation of certain hazardous substance management programs by the state;
- (3)
Emphasize alternatives to land disposal of hazardous wastes, as is practicable;
- (4)
Provide for remedial action at certain inactive hazardous substance sites within the state; and
- (5)
Develop a comprehensive plan for hazardous substance site containment and clean up and to develop criteria for establishment of commercial facilities which qualify local governments to receive funds from the responsible waste disposal incentive fund.
- (b)
The general assembly declares that it is the policy of this state that, wherever feasible, the generation of hazardous waste is to be reduced or eliminated as expeditiously as possible. Waste that is nevertheless generated should, in order of priority, be reduced at its source, recovered and reused, recycled, treated, or disposed of so as to minimize the present and future threat to human health and the environment.
§ 68-212-203. Remedial action fees.
- (a)
In addition to any other fees assessed by law, there is levied a remedial action fee on the generation and management of hazardous waste. The amounts of the fees are to be set for different categories of activities in a rule promulgated by the underground storage tanks and solid waste disposal control board; however, none of the fees may exceed the following maximum amounts:
- (1)
Annual fees on the generation of hazardous waste: thirty-three thousand dollars ($33,000); and
- (2)
Additional fees on the off-site shipment of hazardous waste, including the shipment of the waste to Tennessee facilities from out of state: seventy-five thousand dollars ($75,000).
- (b)
For the purposes of determining the amount of hazardous waste subject to the fees levied under subsection (a), the following shall be excluded:
- (1)
Waste which is exempted from regulation or otherwise exempted from assessment of fees in rules adopted by the board including, but not limited to, Tenn. Comp. R. & Regs. R. 0400-12-01-.02(1)(d)(3), Tenn. Comp. R. & Regs. R. 0400-12-01-.01(3)(c), Tenn. Comp. R. & Regs. R. 0400-12-01-.02(1)(a) and Tenn. Comp. R. & Regs. R. 0400-12-01-.04(1)(a)(4)(ii);
- (2)
Waste which is discharged directly to any publicly owned treatment works or any wastewater treatment facility permitted pursuant to § 402 of the federal Clean Water Act (33 U.S.C. § 1342), as amended (P.L. No. 92-500), or the Tennessee Water Quality Control Act, compiled in title 69, chapter 3. However, hazardous wastewater shipped off-site to a commercial facility which discharges to a publicly owned treatment works or a permitted wastewater treatment facility is not excluded from the original generator's waste volume;
- (3)
Sludge from publicly owned treatment works located in the state;
- (4)
Bottom boiler ash and flyash from incinerators which process solely municipal waste;
- (5)
Hazardous wastes generated from remediation or corrective actions required by the Tennessee Hazardous Waste Management Acts of 1977 and 1983, compiled in part 1 of this chapter; the Resource Conservation and Recovery Act (RCRA) (42 U.S.C. § 6901 et seq.); and the Comprehensive Environmental Response, Compensation and Liability Act (42 U.S.C. § 9601 et seq.);
- (6)
Hazardous waste or hazardous waste sludges produced as a result of on-site treatment of hazardous waste. However, if the waste itself is excluded, the sludge resulting from treatment of such waste cannot be excluded;
- (7)
Wastes which have been recycled on-site or transported off-site to be recycled, as “recycled” is defined at 40 CFR 261.2, including, but not limited to, fuel blending, solvent recovery and metals recovery;
- (8)
Hazardous waste resulting from a spill of hazardous waste or other material which, when spilled, becomes a hazardous waste; and
- (9)
Hazardous wastes resulting from the removal and associated cleanup of an underground storage tank that previously contained a hazardous waste or other material which when discarded, leaked or spilled becomes a hazardous waste.
- (c)
The board shall adopt rules and regulations governing the collection of fees levied under this section, and the records to be maintained in accordance with this part. The rules and regulations shall be promulgated in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.
- (d)
The payment of fees levied under this section shall be made to the department and deposited solely to the credit of the hazardous waste remedial action fund created in § 68-212-204.
- (e)
For each fiscal year, there is appropriated from the state's general fund to the hazardous waste remedial action fund the sum of at least one million dollars ($1,000,000). This contribution must be paid to this fund in total in a new recurring appropriation each year, and shall not include any funds contributed in previous years which have not been expended. Despite any other law to the contrary, if the general assembly fails to authorize this appropriation in any given fiscal year, the maximum generator fee in that fiscal year shall be seven thousand five hundred dollars ($7,500) calculated at the rate of fourteen cents (14¢) per kilogram, the maximum off-site shipment fee shall be seven dollars ($7.00) per ton for hazardous waste, there shall be no fee for hazardous wastewaters, and the maximum transporter fee shall be two hundred seventy-five dollars ($275).
- (f)
At no time shall the maximum unobligated balance in the hazardous waste remedial action fund exceed ten million dollars ($10,000,000). Fees shall be adjusted downward so that this level is not exceeded.
§ 68-212-204. Hazardous waste remedial action fund.
- (a)
There is established within the general fund a special agency account to be known as the “hazardous waste remedial action fund,” hereinafter referred to as the “fund.”
- (b)
Any unencumbered funds and any unexpended balance of this fund remaining at the end of any fiscal year shall not revert to the general fund, but shall be carried forward until expended in accordance with this part.
- (c)
Interest accruing on investments and deposits of the fund shall be returned to the fund and remain a part of the fund.
- (d)
All fees, civil penalties and fines collected pursuant to this part shall be deposited in the fund; provided, that no fees collected pursuant to § 68-212-110 shall be deposited in the fund.
- (e)
All funds received by the state pursuant to § 3012 of the Resource Conservation and Recovery Act (RCRA) (42 U.S.C. § 6933) shall be deposited in the fund.
§ 68-212-205. Uses of fund.
- (a)
The fund shall be available to the board and the commissioner for the purposes of identifying and investigating inactive hazardous substance sites for consideration for placement on the list described in § 68-212-206(e), and for investigating and reasonably and safely containing, cleaning up, monitoring and maintaining such sites as provided in this part and as set forth in § 68-212-224.
- (b)
The commissioner may enter into such contracts and use the fund for those purposes directly associated with identification, investigation, containment and cleanup, including monitoring and maintenance prescribed above, including:
- (1)
Hiring of consultants and personnel;
- (2)
Purchase, lease or rental of necessary equipment; and/or
- (3)
Other necessary expenses.
- (c)
Such fund may also be used for matching the funds of any federal agency, pursuant to § 104(c) of Public Law 96-510 (42 U.S.C. § 9604), to enable the state to receive federal funds to clean up hazardous substance sites, or providing for state financed clean up.
- (d)
- (1)
Such fund may also be used for any of the following activities:
- (A)
Provide free, voluntary, confidential, on-site technical assistance to hazardous waste generators to assist them in evaluating their hazardous waste generation and to identify opportunities to reduce generation of hazardous waste and to recycle and reuse that which is generated;
- (B)
Promote all aspects of the state's waste reduction and pollution prevention program;
- (C)
Operate the waste reduction information clearinghouse, utilizing existing clearinghouses as much as possible, to provide free information to Tennessee hazardous waste generators about proven measures to reduce hazardous waste generation;
- (D)
Coordinate an annual governor's award program for companies utilizing innovative and exemplary approaches to reducing hazardous waste generation;
- (E)
Conduct training sessions and workshops and publish reports targeted toward specific segments of industry and business in Tennessee to transfer information concerning hazardous waste reduction measures;
- (F)
Prepare an annual report to the general assembly;
- (G)
Accept, receive and administer grants, gifts or other funds made available from any source for the purposes of this part;
- (H)
Provide grants, not to exceed one hundred thousand dollars ($100,000) in the aggregate for any single fiscal year, to generators of hazardous waste to provide seed money to encourage firms to adopt and adapt to more appropriate technologies that provide for a reduction or better treatment of hazardous waste;
- (I)
Notwithstanding subsection (b), provide research grants in the aggregate amount not to exceed one hundred thousand dollars ($100,000) annually to encourage the development of new technology for the reduction or better treatment of hazardous waste; and
- (J)
Review waste reduction plans prepared pursuant to this chapter.
- (2)
Grants made pursuant to this subsection (d) shall be made on a competitive basis with appropriate criteria for such competition to be established by the commissioner. Such grants shall only be made from interest accruing on investments and deposits of the fund.
§ 68-212-206. Powers and duties of commissioner.
- (a)
In order to effectuate the purposes of this part, the commissioner is authorized to:
- (1)
Request any liable or potentially liable party to investigate and identify possible inactive hazardous substance sites, and furnish information relating to possible hazardous substances;
- (2)
Issue an order to any liable or potentially liable party requiring such party to investigate and identify inactive hazardous substance sites;
- (3)
Issue an order to any liable or potentially liable party requiring such party to contain, clean up, monitor and maintain inactive hazardous substance sites;
- (4)
Inspect and copy at reasonable times any records, reports, test results, or other information relating to inactive hazardous substance sites;
- (5)
Enter, pursuant to § 68-212-216, any place where hazardous substance or substances which the commissioner has reason to believe may be hazardous, are, may be, or may have been generated, stored, transported, treated, disposed of, or otherwise handled;
- (6)
Inspect and obtain samples of any substance which the commissioner has reason to believe may be hazardous, samples of any containers or labeling for such hazardous substance, and samples of ambient air, waters, or soil at the hazardous substance site or at any other property which must be entered in order to reach the hazardous substance site;
- (7)
Perform or cause to be performed all other actions necessary to carry out this part; and
- (8)
Delegate to the director of the division of superfund any of the powers, duties, and responsibilities of the commissioner under this part.
- (b)
In the event that any identified liable party or parties are unable or unwilling to provide for the investigation, identification, or for the reasonable and safe containment and clean up, including monitoring and maintenance, pursuant to an order issued under this section, or no such liable party can reasonably be identified by the commissioner, the commissioner may provide for such actions whether or not the site has been listed pursuant to subsection (e).
- (c)
If, at any time, the commissioner, after investigation, finds that an inactive hazardous waste substance site constitutes an imminent, substantial danger to the public health, safety or environment, the commissioner may undertake such actions as are necessary to abate the imminent and substantial danger. Such actions may be taken whether or not the site has been listed pursuant to subsection (e).
- (d)
- (1)
In selecting containment and clean up actions, including monitoring and maintenance, under this section, the commissioner shall evaluate reasonable alternatives and select those actions which the commissioner determines are necessary to protect public health, safety, and the environment. The goal of any such action shall be clean up and containment of the site through the elimination of the threat to the public health, safety, and the environment posed by the hazardous substance. In choosing the necessary actions at each site, the commissioner shall consider the following factors:
- (A)
The technological feasibility of each alternative;
- (B)
The cost-effectiveness of each alternative;
- (C)
The nature of the danger to the public health, safety, and the environment posed by the hazardous substance at the site; and
- (D)
The extent to which each alternative would achieve the goal of this subsection (d).
- (2)
To the extent practicable, any such containment and clean up, including monitoring and maintenance, shall be consistent with the national contingency plan promulgated pursuant to § 105 of Public Law 96-510 (42 U.S.C. § 9605).
- (e)
Whenever necessary to protect the public health, safety, or the environment, but at least annually, the commissioner shall propose and the board shall promulgate, in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, any necessary revisions to the list of those inactive hazardous substance sites within the state that are eligible for investigation, identification, containment, and clean up, including monitoring and maintenance, and that pose or may reasonably be anticipated to pose a danger to public health, safety or the environment. An inactive hazardous substance site which has been identified as a solid waste management unit and is subjected to a requirement for investigation and/or for corrective action pursuant to § 3004(u) of the Resource Conservation and Recovery Act (RCRA) (42 U.S.C. § 6924(u)) and which requirements are included in a facility permit issued pursuant to RCRA shall not be proposed by the commissioner for addition to the list of sites eligible for investigation, identification, containment and clean up under this part. An inactive hazardous substance site listed under this part which subsequently becomes subject to a requirement, as previously described under § 3004(u) (42 U.S.C. § 6924(u)), shall be removed from the list by the board pursuant to a proposal which shall be made by the commissioner.
- (f)
A program of waste reduction and pollution prevention is established in the office of the commissioner to encourage hazardous waste generators to reduce the volume and toxicity of hazardous waste generated in Tennessee. The commissioner is authorized to carry out the functions of § 68-212-205(d).
§ 68-212-207. Liability for costs, expenditures, and damages.
- (a)
Whenever a hazardous substance site is placed on the list of hazardous substance sites pursuant to § 68-212-206(e), or whenever the commissioner otherwise begins to expend money for the investigation, identification, containment or clean-up of a particular site under this part, the commissioner may issue an order to any liable party assessing that party's apportioned share of all costs expended or to be expended.
- (b)
- (1)
In assessing a party's apportioned share, the commissioner may consider equitable factors, including, but not limited to, the following:
- (A)
Any monetary or other benefit accruing to each liable party from the disposal of hazardous substances upon the site;
- (B)
The culpability of each liable party in placing hazardous substances upon the site;
- (C)
Efforts of each liable party to restore the land, water, air and all other aspects of the site to its natural condition;
- (D)
Any expenditures required by this part made by a liable party shall be credited toward that party's share of the cost;
- (E)
The party's portion of the total volume of hazardous substances at the hazardous substance site;
- (F)
The monetary benefit accruing to an owner as a result of the clean up of the site if, at the time of acquisition of the site, such owner knew or should have known that hazardous substances were previously disposed of at the site; and
- (G)
The monetary benefit accruing to an owner as a result of the clean-up of the site if such owner was the owner at the time hazardous substances were disposed of on the property and knew or should have known of such disposal.
- (2)
Any person against whom an assessment is issued may secure a review of the propriety or amount of such assessment by filing with the commissioner a written petition setting forth the grounds and reasons for the objection and asking for a hearing before the underground storage tanks and solid waste disposal control board. Any such assessment shall become final and not subject to review unless the person named therein files such a petition within thirty (30) days after it is received.
- (3)
In no event shall the total moneys recovered from the liable party or parties exceed the total expenditure from the fund for such site, except that the commissioner may recover punitive damages as provided in subsection (c).
- (4)
Any party found liable for any costs or expenditures recoverable under this part who establishes by a preponderance of the evidence that only a portion of such costs or expenditures are attributable to such party's actions shall be required to pay only for such portion.
- (5)
The fund shall pay any portion of the total expenditure in excess of the aggregate amount of costs or expenditures apportioned pursuant to this section. All moneys recovered from liable parties pursuant to this section shall be deposited in the fund.
- (c)
Any liable party who fails without sufficient cause to properly provide for removal of hazardous substances or remedial action upon order of the commissioner pursuant to this part may be liable to the state for punitive damages in an amount equal to one hundred fifty percent (150%) of the amount of any costs incurred by the fund as a result of such failure to take proper action. The commissioner shall recover the punitive damages in an action commenced under subsection (b) or in a separate civil action, and such punitive damages shall be in addition to any costs recovered from such liable party pursuant to this part. Any punitive damages awarded pursuant to this subsection (c) shall be deposited in the fund.
- (d)
No person shall be liable under this part for damages as a result of actions taken or omitted in the course of rendering care, assistance, or advice at the direction of an on-scene coordinator appointed by the commissioner, with respect to an incident creating a danger to public health or welfare or the environment as a result of any release of a hazardous substance or the threat thereof. This subsection (d) shall not preclude liability for damages as the result of gross negligence or intentional misconduct on the part of such person. For the purposes of the preceding sentence, reckless, willful, or wanton misconduct constitutes gross negligence.
- (e)
Each department, agency, or instrumentality of the executive, legislative, and judicial branches of the federal government and the state government shall be subject to, and comply with, this part in the same manner and to the same extent, both procedurally and substantively, as any nongovernmental entity, including liability under this section.
- (f)
No person, including the state, may recover under the authority of this section for any response costs or damages resulting from the application of a pesticide product registered under the Federal Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. § 135 et seq.).
§ 68-212-208. Authority of counties.
- (a)
The county mayor and four (4) members of the county legislative body appointed by the county mayor of the county in which any commercial facility is located may accompany the department upon any site investigation or monitoring inspection.
- (b)
The county legislative body of the county in which any commercial facility is located may, by a majority vote of the members to which it is entitled, require that independent monitoring tests be conducted. Such tests shall be conducted by a laboratory which is certified to conduct tests for safe drinking water by the department or the federal environmental protection agency (EPA) under the authority of the Safe Drinking Water Act. All such tests shall be paid for by such county.
§ 68-212-209. Liens on property.
- (a)
Whenever a hazardous substance site is placed on the list of hazardous substance sites pursuant to § 68-212-206(e), or whenever the commissioner otherwise begins to expend money for investigation, identification, containment or cleanup of a particular site under this part, the commissioner may file a notice with the office of the register of deeds of the county in which the property lies.
- (b)
- (1)
Whenever the commissioner expends money to investigate, identify, contain, monitor, maintain or clean up a hazardous substance site pursuant to this part, the commissioner may file a statement of the funds expended in the office of the register of deeds for the county(ies) in which the property lies, which statement shall perfect the lien on the property arising from the notice filed under subsection (a).
- (2)
The lien shall not exceed the lesser of:
- (A)
The actual amount expended at the site from the hazardous waste remedial action fund; or
- (B)
The apportioned share of all costs expended (as determined pursuant to § 68-212-207) of the owner of the property, after giving full credit for all expenditures by property owner(s).
- (3)
The lien shall be satisfied and discharged upon payment of the amount of such apportioned share.
- (c)
If the property owner is aggrieved by the amount of the lien filed under subsection (a), the property owner may cause another appraisal to be performed by an independent appraiser and may submit the matter to the chancery court of the county in which the property is located to determine the appropriate amount of the lien. A decision of that court may be appealed according to the Tennessee Rules of Appellate Procedure.
- (d)
The lien provided in this section shall be entered in the records of the register of deeds of the county in which the property lies. Such statements shall constitute a lien upon such property as of the date notice is filed pursuant to subsection (a) and shall have priority from the date of such filing of such notice, but shall not affect, or have priority over, any valid lien, right, or interest in the property duly recorded, or duly perfected by filing, prior to the filing of such notice and shall not have priority over any real estate tax liens, whether attaching on the property before or after the filing of the notice. Such a lien shall be satisfied to the extent of the value of the consideration received at the time of transfer of ownership, and if the lien is not fully satisfied at the time of transfer, it shall remain a lien on the property until it is fully satisfied.
- (e)
A form of notice substantially as follows is sufficient to comply with subsection (a):
-
-
Name of titleholder(s)
-
Property address
-
Description of property subject to possible lien sufficient to identify such property
-
Date, signature, and address of the commissioner or the commissioner's authorized designee
-
-
The register of deeds shall note the date and time of filing, and an appropriate registration number, and shall record the notice in the lien book in the office of the register.
- (f)
The effective date of all prior liens claimed under this chapter shall be unaffected by the 1986 amendment to this section if a notice is filed in accordance with subsection (a) on or before December 31, 1986, which notice shall set forth, in addition to the information required by subsection (e), the claimed effective date of the lien if earlier than the date of the filing of the notice. After December 31, 1986, all claimed liens shall be effective as of the date the notice is filed pursuant to subsection (a).
§ 68-212-210. Funds for responsible waste disposal.
- (a)
The board shall promulgate rules and regulations in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, to establish eligibility requirements for a local government to receive funds, if any, appropriated by the general assembly in the general appropriations act to encourage responsible waste disposal.
- (b)
At a minimum, for a local government to be eligible to receive such funds, the commercial facility must be located within the jurisdiction of such local government, such facility must have a permit to operate pursuant to § 68-212-108, such facility must be constructed and operational and the following standards must be met:
- (1)
The facility is multi-purpose with both land disposal capability and facilities for advanced technology, high-temperature thermal treatment;
- (2)
The facility has a minimum design capacity to operate for twenty (20) years;
- (3)
The facility is operated pursuant to part 1 of this chapter; and
- (4)
The local government with jurisdiction over the facility does not have any zoning requirement, subdivision regulation, ordinance, regulation or other provision of law which is more stringent than state law regarding the location and operation of the facility.
- (c)
If the facility is located in the jurisdiction of more than one (1) local government, the money shall be apportioned between the eligible governments.
- (d)
Twenty-five percent (25%) of the funds distributed to the local government shall be earmarked for conducting tests pursuant to § 68-212-208 and for monitoring, assessing, and abating health risks and hazards associated with the commercial facility.
§ 68-212-211. Local government fees — State hazardous waste management fee.
- (a)
Any local government which has received the funds deposited in the responsible waste disposal incentive fund pursuant to § 68-212-210 may levy an additional fee on the disposal of hazardous wastes disposed of at the facility within its jurisdiction not to exceed the following:
- (1)
Five dollars ($5.00) per ton on the land disposal of hazardous wastes; and
- (2)
Two dollars and fifty cents ($2.50) per ton on the treatment of such wastes.
- (b)
In addition to such local government fees, the board shall levy a state hazardous waste management fee on such commercial facility in a sum sufficient to replace the fees levied and appropriations made pursuant to § 68-212-203. Such fees shall be structured to encourage the treatment, reduction and reclamation of hazardous wastes. At such time as such state fees are levied, all fees levied pursuant to § 68-212-203 shall be rescinded and the obligation to pay such fees shall cease to exist.
- (c)
All fees levied pursuant to this section shall be paid quarterly by the owner or operator of the commercial facility to the department of revenue. Such department shall remit the local government fee to the county in which such facility is located and shall deposit the state fee in the fund. The board shall adopt rules and regulations in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, governing the collection of such fees and the records required to be maintained by such facility.
§ 68-212-212. Annual reports — Public hearings — Toll-free number — Notice to register of deeds regarding sites, containment and cleanup.
- (a)
No later than January 1 of every year, the commissioner shall submit to the speakers of both houses of the general assembly and to the state library and archives a report documenting the expenditure of all funds expended from the hazardous waste remedial action fund during the previous fiscal year.
- (b)
The department shall conduct a public hearing in each grand division annually to receive comments from the public regarding expenditures from the hazardous waste remedial action fund.
- (c)
The department shall maintain a toll-free number which may be utilized by citizens living anywhere in the state to report to the commissioner any problems caused by hazardous substances.
- (d)
The commissioner shall notify the register of deeds in each county in which property has been placed on the list of inactive hazardous substance sites. The register shall record a notice that the property has been so listed. If the commissioner later determines that no further investigation, containment or cleanup is indicated at a listed site, the commissioner shall file a statement of this determination in the office of the register of deeds of the county in which the property lies. Upon receipt of any such statement, the register shall record the same. If containment or cleanup of hazardous substances occurs on a listed site, the commissioner shall notify the register of deeds of such containment and cleanup and the register shall record the same.
§ 68-212-213. Violations — Criminal and civil penalties.
- (a)
Any person who:
- (1)
Fails, neglects, or refuses to comply with a land use restriction filed pursuant to § 68-212-225;
- (2)
Fails to pay the fees authorized by this part;
- (3)
Fails to file any reports, records or documents required pursuant to this part;
- (4)
Fails, neglects, or refuses to comply with any provision of this part, a regulation promulgated under this part or an order issued pursuant to this part;
- (5)
Fails to provide information requested by the commissioner in the administration of this part; or
- (6)
Knowingly gives or causes to be given any false information in any reports, records, or documents required pursuant to this part;
-
commits a Class B misdemeanor. In addition, such person shall be subject to a civil penalty of up to ten thousand dollars ($10,000) and, if appropriate, the original fee plus interest. Each day such violation continues constitutes a separate offense.
- (b)
In assessing a civil penalty, the following factors may be considered:
- (1)
The harm done to the public health or the environment;
- (2)
The economic benefit gained by the violators;
- (3)
The amount of effort put forth by the violator to obtain compliance; and
- (4)
Any unusual or extraordinary enforcement costs incurred by the commissioner.
§ 68-212-215. Enforcement.
- (a)
The commissioner shall exercise general supervision over the administration and enforcement of this part.
- (b)
The commissioner is authorized in administering this part, to utilize enumerated powers in chapter 211 of this title and part 1 of this chapter, to investigate, identify, and provide for reasonable and safe containment and clean up, including monitoring and maintenance, of inactive hazardous substance sites.
- (c)
If any provision of this part is not being carried out, or if effective measures are not being taken to comply with this part, the commissioner may issue an order for correction to the appropriate 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. Additionally, an order requiring the filing of land use restrictions, issued pursuant to § 68-212-225, may be constructively served on unidentified or unknown owners by publication of a notice of the order in a newspaper in general circulation in the county in which the property subject to the order is located.
- (d)
Any person against whom an order is issued may secure a review in accordance with § 68-212-113 and the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, part 3. Any person failing, neglecting, or refusing to comply with any order of the commissioner or the board shall be subject to the civil and criminal penalties provided in § 68-212-213.
- (e)
In addition to any other enumerated powers in chapter 211 of this title and part 1 of this chapter, the board is empowered to adopt and enforce rules and regulations in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, to implement this part, to hear appeals as provided in § 68-212-113 from orders or assessments issued by the commissioner pursuant to this part, and to issue orders for enforcement of this part.
- (f)
- (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 the chancery court of Davidson County.
- (2)
When filed in accordance with subdivision (f)(1), a final order or assessment shall be considered as a judgment by consent of the parties on the same terms and conditions as those recited therein. Such judgment shall be promptly entered by the court. Except as otherwise provided in this section, the procedure for entry of the judgment and the effect thereof shall be the same as provided in title 26, chapter 6.
- (3)
- (A)
A judgment under subdivision (f)(2) shall become final on the date of entry, if the final order or assessment resulting in the judgment is from the board.
- (B)
If the final order or assessment resulting in the judgment under subdivision (f)(2) is from the commissioner, within forty-five (45) days after entry of the judgment, 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 for intervention, the court shall determine whether it is duplicitous or frivolous, and shall notify the movant and the parties of its determination. If the motion is determined not to be duplicitous or frivolous, all parties shall be considered to have sought review of the final order or assessment, and the court shall proceed in accordance with § 4-5-322. If no timely motion for intervention is filed, or if any such motion is determined to be duplicitous or frivolous, the judgment shall become final forty-five (45) days after the date of entry.
- (4)
A final judgment under this subsection (f) 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.
§ 68-212-216. Right of entry by commissioner — Penalties.
- (a)
The commissioner or the commissioner's designee has the right to enter any place where hazardous substances or substances which may be hazardous are, or may have been generated, stored, transported, treated, disposed of, or otherwise handled. The commissioner has the right to enter any other property which must be entered in order to reach the hazardous substance site.
- (b)
Any entry by the commissioner for activities authorized in this section shall be construed as an exercise of police power and shall not be construed as an act of condemnation of property or of trespass.
- (c)
Any person who refuses entry to the commissioner for activities authorized in this section shall be subject to a fine of up to one thousand dollars ($1,000). In addition, such person shall be subject to a civil penalty of up to ten thousand dollars ($10,000), as described in § 68-212-213.
- (d)
Each refusal of entry or act preventing sample collection shall constitute a separate offense.
§ 68-212-217. Landfill permits — Public hearings.
-
The board, by rules and regulations promulgated pursuant to the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, shall develop a procedure for public hearings and comment to be conducted in conjunction with the granting of permits pursuant to § 68-212-108 for a commercial landfill facility for the disposal of hazardous wastes. Information concerning facilities to be permitted shall be available to the public upon request if not designated as proprietary pursuant to § 68-212-109. The information and testimony presented by the public shall be considered by the commissioner and the board prior to granting a permit.
§ 68-212-218. Landfill permits — Denial for past convictions.
-
No permit for a commercial landfill facility for disposal of hazardous wastes shall be issued pursuant to § 68-212-108 if:
- (1)
Any person who is the legal or beneficial owner of ten percent (10%) or more of the stock of the company or corporation applying for such permit has been convicted of any felony or has been convicted of a misdemeanor for the unlawful storage, treatment or disposal of hazardous wastes; or
- (2)
Any employee of the company or corporation applying for such permit has been convicted of any felony or has been convicted of a misdemeanor for the unlawful storage, treatment or disposal of hazardous wastes.
§ 68-212-220. Brownfield redevelopment area fund — Intent — Use of funds — Annual reporting
- (a)
As used in this section:
- (1)
“Brownfield site” has the same meaning as defined in § 7-53-316;
- (2)
“Department” means the department of environment and conservation;
- (3)
“Eligible entity” means a political subdivision of the state, including, but not limited to, a county, municipality, development district, or development board; and
- (4)
“Remediation costs” has the same meaning as defined in § 67-4-2009.
- (b)
It is the intent of the general assembly to strengthen communities throughout this state and to promote conservation of this state's agricultural, recreational, and open space lands by encouraging environmentally sound redevelopment of properties blighted by real or perceived contamination.
- (c)
- (1)
There is established a special account in the state treasury to be known as the “brownfield redevelopment area fund,” hereinafter referred to as the “fund” to assist this state's communities with the redevelopment of brownfield sites. The fund must be administered by the department.
- (2)
- (A)
It is the legislative intent that moneys for the fund be appropriated each year in the general appropriations act. Gifts, other donations, and grants received by the department for brownfield redevelopment purposes may be deposited in and remain part of the fund in addition to funds appropriated by the general assembly.
- (B)
Any unencumbered moneys and any unexpended balance of the fund remaining at the end of a fiscal year must not revert to the general fund, but must be carried forward until expended in accordance with this section.
- (C)
Moneys in the fund must be invested by the state treasurer pursuant to title 9, chapter 4, part 6, for the benefit of the fund. Interest accruing on investments and deposits of the fund must be credited to the fund, must be returned to the fund, and must remain part of the fund.
- (d)
- (1)
Moneys in the fund must be used by the department to administer a brownfield redevelopment area grant program as provided in this section.
- (2)
The department may award grants to eligible entities for the remediation costs and reasonable administrative expenses relative to the redevelopment of brownfield sites. Administrative expenses must not exceed five percent (5%) of a grant awarded. An eligible entity shall not be awarded a grant exceeding five hundred thousand dollars ($500,000) from the fund in a fiscal year.
- (3)
The department shall establish criteria and guidelines for the brownfield redevelopment area grant program and shall publish the criteria and guidelines on its website.
- (4)
Sites approved for grants under this section must be designated as brownfield redevelopment areas.
- (5)
The departments of environment and conservation, revenue, and economic and community development shall post a list of brownfield redevelopment areas on their websites.
- (e)
The department shall report to the governor, no later than December 31, 2023, and each December 31 thereafter, regarding the department's administration of the fund. The report must include the obligated and unobligated balances of the fund as of June 30 of the reporting calendar year and the grants awarded in the immediately preceding fiscal year. Grant information must include the amount of the grant awarded and the recipient of the grant. The report must also be transmitted to the speakers of the house of representatives and the senate, the commissioner of finance and administration, and the commissioner of economic and community development.
§ 68-212-222. Permit exemption — On site clean-up activities.
-
No state or local permits shall be required for clean-up activities which are conducted entirely on site and in accordance with this part; provided, that such clean-up activities meet the standards that would apply if such permits were required.
§ 68-212-224. Brownfield projects voluntary cleanup oversight and assistance program.
- (a)
- (1)
There is established a voluntary cleanup oversight and assistance program for the voluntary cleanup of brownfield projects. The commissioner may enter into voluntary agreements or consent orders for the investigation and/or remediation of such sites or projects with any willing and able person; provided, however, that a voluntary agreement may not be employed with a person who generated, transported or released contamination that is to be addressed at the site.
- (2)
A person entering into a voluntary agreement or consent order shall submit to the commissioner a summary description of all known existing environmental investigations, studies, reports or documents concerning the site's environmental condition. Such summary description shall include, but shall not be limited to:
- (A)
Date of the material;
- (B)
Title of the material;
- (C)
Person or entity that produced the material;
- (D)
Results or conclusions contained in the material;
- (E)
Any remedial action recommended including any monitoring and/or maintenance; and
- (F)
Other information which could reasonably be construed to be material to the commissioner's decision to enter into a voluntary agreement or consent order.
- (3)
The voluntary agreements or consent orders shall outline the agreed upon investigation, remediation, monitoring, and/or maintenance, and shall be consistent with § 68-212-201. Such voluntary agreements or consent orders shall address public notice and public input. All activities shall be subject to any otherwise applicable and appropriate zoning, land use regulations and cleanup standards, including without limitation all provisions regarding public notice and opportunity for public input. All such voluntary agreements or consent orders may provide for the reimbursement of the department's oversight costs. These agreements shall not limit liability for contamination of a site occurring after the date of the voluntary agreement or consent order or for contamination not identified and addressed in the voluntary agreement or consent order.
- (4)
No voluntary agreement or consent order shall be entered into concerning a site listed on the federal National Priorities List, or after a site has been proposed for such listing, without the concurrence of the United States environmental protection agency (EPA). Sites that the EPA has identified and advised the commissioner as eligible to be proposed for listing on the federal National Priorities List will be managed in a cooperative process with the EPA.
- (5)
For inactive hazardous substance sites, the commissioner has the discretion and is authorized to establish an apportionment of liability consistent with § 68-212-207(b) in a voluntary agreement or consent order. Further, the commissioner may limit the liability of the participant in any voluntary agreement or consent order entered into pursuant to this section. Such a voluntary agreement or consent order may limit the participant's liability to the obligations set forth therein and exempt the participant from any further liability under any statute administered by the department, for investigation, remediation, monitoring and/or maintenance of contamination identified and addressed in the voluntary agreement or consent order. The commissioner may extend this liability protection to successors in interest or in title to the participant, contractors conducting response actions at the site, developers, future owners, tenants, and lenders, fiduciaries or insurers, conditioned upon performance of the voluntary agreement or consent order and compliance with any land use restrictions required thereby; provided, that such liability protection to other persons does not apply to liability that arose prior to the voluntary agreement or consent order. Nothing in this section shall impair the rights of third parties with respect to tort liability claims for damage to person or property arising from the contamination addressed by the voluntary agreements or consent orders.
- (6)
A person who enters into a voluntary agreement or consent order with the commissioner that contains an apportionment or limitation of liability, pursuant to this section, shall not be liable to third parties for contribution regarding matters addressed in the voluntary agreement or consent order; provided, that the third party was given actual or constructive notice of the voluntary agreement or consent order, and the third party had an actual or constructive opportunity to comment upon the voluntary agreement or consent order. Constructive notice may be accomplished by, among other means, publishing a summary of the voluntary agreement or consent order in a newspaper of general circulation within the geographical area of the site or project at least thirty (30) days prior to the effective date of the agreement or order. For inactive hazardous substance sites, such voluntary agreements or consent orders shall, to the extent provided therein, constitute an approved administrative settlement pursuant to 42 U.S.C. § 9613(f).
- (7)
Except in an action to enforce a voluntary agreement or consent order, such agreement or order shall not be admissible as evidence in any suit, hearing or other proceeding against a person who received liability protection pursuant to this section. Voluntary agreements and consent orders are not admissible as evidence of comparative fault in any third party tort suit, hearing or other proceeding.
- (b)
There is levied a fee of five thousand dollars ($5,000) for participation in this program. This fee shall be in addition to and not in lieu of any moneys expended from the remedial action fund and shall be in addition to any other fee assessed pursuant to this part. The commissioner may waive any part, or all, of this fee if the commissioner determines that such waiver serves the public welfare.
- (c)
- (1)
The participation fees shall be used to establish a voluntary cleanup oversight and assistance fund. The purpose of this fund is to pay for state oversight of any cleanup efforts.
- (2)
Any unencumbered funds and any unexpended balance of this fund remaining at the end of any fiscal year shall not revert to the general fund, but shall be carried forward until expended in accordance with this part.
- (3)
Interest accruing on investments and deposits of the voluntary cleanup oversight and assistance fund shall be returned to this fund and remain a part of this fund.
- (d)
- (1)
Moneys expended from the remedial action fund for investigation prior to a party's participation in this program shall be recovered and deposited to that fund.
- (2)
Once a consent order has been entered, the commissioner has the discretion and is authorized to expend moneys from the remedial action fund to pay that portion of the investigation, cleanup, monitoring, maintenance and oversight of an inactive hazardous substance site to the extent such expenditures are not allocated under the consent order to the potentially liable party conducting the investigation and cleanup of the inactive hazardous substance site pursuant to this program. The commissioner is authorized to seek recovery of such expenditures from the remedial action fund from other liable parties in the full amount of their respective allocated share of liability by any legal remedy through the exercise of the commissioner's powers and duties as established by this part; provided, that if the consent order establishes an allocation of liability for the potentially liable party participating in the voluntary program, the commissioner may not assess the participant for a share of liability greater than the allocation established in the consent order.
- (e)
The criteria for selecting containment and cleanup actions, including monitoring and maintenance options to be followed under the voluntary cleanup and oversight assistance program, shall be those specified in § 68-212-206(d).
- (f)
In the event a person does not fulfill all the requirements established in a voluntary agreement or consent order, the commissioner may seek to enforce the voluntary agreement or consent order through any legal remedy.
- (g)
Upon completion of all terms and conditions of a voluntary agreement or consent order under this program, the commissioner shall issue a letter to the participant stating that the obligations under the voluntary agreement or consent order have been completed and, if appropriate, that no further action will be required of the participant. Upon reasonable request of the participant, the commissioner shall issue from time to time interim letters stating what specific obligations remain to achieve completion.
- (h)
Any consent order, voluntary agreement, the creation or removal of deed restrictions, and any other final agency action is subject to review pursuant to the Uniform Administrative Procedures Act, compiled in title 4, chapter 5. When public notice is required to be given pursuant to this section, at a minimum, notice shall be sent by certified mail to all local governments having jurisdiction over any part of the subject property and to all owners of adjoining properties.
§ 68-212-225. Notice of land use restrictions — Voluntary land use restrictions for protection of streams and wetlands.
- (a)
Upon a determination by the commissioner that land use restrictions are the appropriate remedial action at any remediation, contamination, cleanup, closure or brownfield project, the commissioner shall either:
- (1)
Order the owner or owners of the site to file or permit the filing of, or
- (2)
With the consent of the owner or owners of the site, or upon an order issued pursuant to subdivision (a)(1) becoming final, file or cause to be filed, a notice of land use restrictions in the register of deeds office in the appropriate county. A copy of this notice shall be mailed to all local governments having jurisdiction over any part of the subject property.
- (b)
Such notice shall be entitled “Notice of Land Use Restrictions,” and shall:
- (1)
Include a legal description of the site that would be sufficient as a description of the property in an instrument of conveyance;
- (2)
Identify the location and dimensions of the areas of potential environmental concern with respect to surveyed, permanent benchmarks. Where a site encompasses more than one (1) parcel or tract of land, a composite map or plat showing all parcels or tracts may be recorded;
- (3)
Identify generally the type, location, and quantity of regulated hazardous substances and regulated substances known to exist on the site; and
- (4)
Identify specific restrictions on the current or future use of the site.
- (c)
Land use restrictions may apply to activities on, over, or under the land, including, but not limited to, use of property, use of groundwater, building, filling, grading, excavating, and mining.
- (d)
The register of deeds shall record the notice and index it in the grantor index under the names of the owners of the land.
- (e)
After public notice and an opportunity for public input, a notice of land use restrictions filed pursuant to this section may be made less stringent or canceled by the commissioner if the risk has been eliminated or reduced so that less restrictive land use controls are protective of human health and the environment. The department shall notify all owners of adjoining properties of any proposed changes to present land use restrictions. Such notice shall be sent by certified mail, return receipt requested. Notice of such changes shall be mailed to all local governments having jurisdiction over any part of the subject property. If the commissioner determines that the restrictive land use controls can be made less stringent or cancelled, then the commissioner shall send to the register of deeds of each county where the notice is recorded a statement that the hazards have changed or been eliminated. The commissioner's statement shall contain the names of the owners of the land as shown in the notice and reference the plat book and page where the notice is recorded. The register of deeds shall record the commissioner's statement in the deed books and index it on the grantor index in the names of the owners of the land as shown in the notice of land use restrictions and on the grantee index in the name “Commissioner of the Department of Environment and Conservation.”
- (f)
Any land use restriction filed pursuant to this section may be enforced by any owner of the land. The commissioner, through issuance of an order or by means of a civil action, including one to obtain an injunction against present or threatened violations of the restriction, may also enforce any such land use restriction. A land use restriction may also be enforced by any unit of local government having jurisdiction over any part of the subject property, by means of a civil action without the unit of local government having first exhausted any available administrative remedy. Any person eligible for liability protection under an agreement entered into pursuant to this part may also enforce a land use restriction. A land use restriction shall not be declared unenforceable due to lack of privity of estate or contract, due to lack of benefit to particular land, or due to lack of any property interest in particular land. Any person who owns or leases a property subject to a land use restriction under this section shall abide by the land use restriction.
- (g)
In addition to any other law concerning the establishment of conservation easements, upon approval by the commissioner, a property owner may voluntarily establish land use restrictions for the protection of streams and wetlands, or for other environmental conservation purposes by filing a notice of land use restriction pursuant to this section. The notice shall include the applicable portions of subsection (b), shall be filed as provided in subsection (d) and shall be enforceable as provided in subsection (f).
§ 68-212-226. Grants or loans from federal or matching funds — Tax increment financing.
- (a)
From any federal funds available to the department and any state funds used as a match to obtain those federal funds, the commissioner may, in the commissioner's discretion, provide grants and/or loans to municipalities, counties and/or other governmental instrumentalities to conduct screening, investigation, remediation, containment, cleanup and/or closure of inactive hazardous substance sites, solid waste disposal sites or brownfield projects under the authority of any statute administered by the department.
- (b)
A brownfield project shall be deemed to be within the term “project” as that term is defined in § 7-53-101. Any local government having jurisdiction over any part of a brownfield project is authorized to use tax increment financing for such project pursuant to § 13-20-205.
§ 68-212-227. Injunctions or restraining orders to enforce orders, rules or regulations.
-
In addition to the penalties provided elsewhere in this part, the commissioner may cause the enforcement of any orders, rules or regulations issued by the commissioner or the board to carry out this part by instituting legal proceedings to enjoin the actual or threatened violations of this part, and the orders, rules or regulations of the commissioner or orders of the board in the chancery court of Davidson County or in the chancery court of the county in which all or a part of the actual or threatened violations has or is about to occur, in the name of the department. In those suits, the court may grant temporary or permanent injunctions or restraining orders. The proceedings shall not be tried by jury.
§ 68-212-202. Part definitions.
- (a)
As used in this part, unless the context otherwise requires:
- (1)
“Brownfield project” means the screening, investigation, monitoring, control and/or remediation of any abandoned, idled, under-utilized, or other property whose re-use, growth, enhancement or redevelopment is complicated by real or perceived adverse environmental conditions. Brownfield projects may address sites contaminated by hazardous substances, solid waste, or any other pollutant;
- (2)
“Hazardous substance” is as defined in § 101 of Public Law 96-510 (42 U.S.C. § 9601);
- (3)
“Hazardous substance site” means any site or area where hazardous substance disposal has occurred; and
- (4)
“Liable party” means:
- (A)
The owner or operator of an inactive hazardous substance site;
- (B)
Any person who at the time of disposal was the owner or operator of an inactive hazardous substance site;
- (C)
Any generator of hazardous substance who at the time of disposal caused such substance to be disposed of at an inactive hazardous substance site; or
- (D)
Any transporter of hazardous substance which is disposed of at an inactive hazardous substance site who, at the time of disposal, selected the site of disposal of such substance;
- (E)
- (i)
“Liable party” does not include a unit of state or local government which becomes an owner or operator of an inactive hazardous substance site by acquiring ownership or control involuntarily through bankruptcy, tax delinquency, abandonment, or other circumstances in which the government involuntarily acquires title by virtue of its function as sovereign, unless such governmental entity has caused or contributed to the release or threatened release of a hazardous substance from the facility;
- (ii)
“Liable party,” as provided for in part 4 of this chapter, does not include a person who, without participating in the management of the hazardous substance site, holds indicia of ownership primarily to protect a security interest in the site;
- (iii)
“Liable party” does not include a person who is excluded from liability under the Superfund Recycling Equity Act (42 U.S.C. § 9627);
- (iv)
This subdivision (a)(4)(E) shall apply to any site currently listed or listed at any time in the future as a superfund site through rules promulgated by the board, unless liability has otherwise been established through administrative or judicial action; and
- (F)
- (i)
As used in this subdivision (a)(4), “owner or operator” does not include a person who establishes, by a preponderance of the evidence, that:
- (a)
Such person acquired the title to the hazardous substance site after the disposal or placement of the hazardous substance on, in, or at the site;
- (b)
At the time the person acquired title to the hazardous substance site, such person did not know and had no reason to know that any hazardous substance which is the subject of the release or threatened release was disposed of on, in or at the site; and
- (c)
The person exercised due care with respect to the hazardous substance concerned, taking into consideration the characteristics of such hazardous substance, in light of all relevant facts and circumstances;
- (ii)
To establish that such person had no reason to know, as provided in subdivision (a)(4)(F)(i), the person must have undertaken, at the time of acquisition, all appropriate inquiry into the previous ownership and uses of the property consistent with good commercial or customary practice in an effort to minimize liability. For the purpose of the preceding sentence, the court, presiding authority, or the department of environment and conservation shall take into account any specialized knowledge or experience on the part of such person, the relationship of the purchase price to the value of the property if uncontaminated, commonly known or reasonably ascertainable information about the property, the obviousness of the presence or a likely presence of contamination at the property, and the ability to detect such contamination by appropriate inspection. The good faith performance of a Transaction Screen Process in material compliance with the version of the ASTM Practice E 1528 in effect at the time of the acquisition, or any successive replacement standard, or a Phase I Environmental Site Assessment in substantial and material compliance with the version of the ASTM E-1527 Guideline for Environmental Site Assessments in effect at the time of acquisition, or any successive replacement standard (collectively the “Assessment Standard”), that appropriately concludes that no further investigation is required, shall create a presumption that the person ordering or authorized to use the Transaction Screen Process or the Phase I Environmental Site Assessment has conducted “all appropriate inquiry” under this subdivision (a)(4).
- (b)
All other terms used in this part are defined as such terms are defined in § 68-212-104.
Part 3 Tennessee Hazardous Waste Reduction Act of 1990
§ 68-212-302. Policy.
- (a)
The general assembly declares it to be the policy of the state that, wherever economically and technically feasible, the generation of hazardous waste is to be prevented or reduced as expeditiously as possible. Hazardous waste that is nevertheless generated should be stored, treated and disposed of so as to protect human health and the environment.
- (b)
It is the intent of the general assembly that the Capacity Assurance Plan (CAP) required by the Superfund Amendments and Reauthorization Act of 1986 (SARA) (P.L. 99-499, 100 Stat. 1613, as amended) should reflect the state's primary commitment to waste prevention and reduction through education, planning and technical assistance.
- (c)
The general assembly further finds that the timely development of a comprehensive waste reduction plan by each large and small hazardous waste generator operating in the state is essential in order to identify opportunities for reducing waste generation which may be implemented by that generator.
- (d)
The general assembly finds that the state should aid generators of hazardous waste to meet the requirements of this part by providing a program of planning and technical assistance.
- (e)
It is the purpose of this part to prevent and reduce the generation of hazardous waste in the state. Such waste shall not include wastewater streams containing hazardous wastes that are collected and treated in on-site wastewater treatment systems, the discharge of which is the subject of a NPDES permit.
§ 68-212-303. Part definitions.
- (a)
As used in this part, unless the context otherwise requires:
- (1)
“Board” means the underground storage tanks and solid waste disposal control board as established by § 68-211-111;
- (2)
“Commissioner” means the commissioner of environment and conservation or the commissioner's authorized representative;
- (3)
“Department” means the department of environment and conservation;
- (4)
“Large quantity generator” means a generator which generates two and two-tenths pounds (2.2 lbs.) of acute hazardous waste, or two thousand two hundred pounds (2,200 lbs.) or more of hazardous waste in any one (1) month;
- (5)
“Small quantity generator” means any generator which generates between two hundred twenty (220) and two thousand two hundred pounds (2,200 lbs.) of hazardous waste in any one (1) month;
- (6)
“Source reduction” or “waste reduction” means the reduction or elimination of waste at the source, usually within a process, including process modifications, feedstock substitutions, improvements in feedstock purity, housekeeping and management practices, increases in the efficiency of machinery and on-site, closed-loop recycling, or any action that reduces the amount and toxicity of the waste exiting the production process; and
- (7)
“Waste,” “hazardous waste” or “acute hazardous waste” means any hazardous waste as defined in part 1 of this chapter, and the regulations promulgated pursuant thereto, and for which the generator is required to notify the department pursuant to such regulations. However, for the purpose of this part only, these terms do not include such wastes which result from the clean up of contaminated sites or spills of hazardous material.
- (b)
All other terms used in this part shall be defined as such terms are defined in part 1 of this chapter or in regulations promulgated pursuant to that part.
§ 68-212-304. Development of hazardous waste reduction plan — Inspection of plan by commissioner or department.
- (a)
All large and small quantity generators shall complete a hazardous waste reduction plan in accordance with the requirements of § 68-212-305. After completion of a plan, the generator shall maintain a current copy of the plan at the generating facility. The plan and the annual progress reports under § 68-212-306 shall be made available, upon request, to a representative of the department at any reasonable time. The department may make use of the information as it deems necessary to carry out its duties under this chapter.
- (b)
For the purposes of this section and § 68-212-305, a generator shall permit the commissioner to inspect the hazardous waste reduction plan. The generator shall permit any officer, employee or representative of the department at all reasonable times to have access to the plan. The generator shall furnish a copy of the plan upon request to the commissioner.
§ 68-212-305. Contents of plan.
- (a)
A hazardous waste reduction plan shall include at least the following:
- (1)
A dated and signed written policy articulating management support for the generator's hazardous waste reduction plan;
- (2)
The scope and objectives of the plan, including the evaluation of technologies, procedures and personnel training programs to ensure that unnecessary waste is not generated and to encourage hazardous waste reduction. Specific goals shall be set for hazardous waste reduction, as described in subsections (b)-(d);
- (3)
A description of technically and economically practical hazardous waste reduction options to be implemented and a planned schedule for implementation. These options shall be based on an internal analysis of hazardous waste streams conducted to review individual processes or facilities and other activities where waste may be generated and identify opportunities to reduce or eliminate waste generation. Such analyses shall evaluate data on the types, amount and hazardous constituents of waste generated, where and why that waste was generated within the production process or other operations, and potential hazardous waste reduction and recycling techniques applicable to those wastes;
- (4)
A description of the hazardous waste accounting systems that identify waste management costs and factor in liability, compliance and oversight costs to the extent feasible;
- (5)
A description of the employee awareness and training programs designed to involve employees to the maximum extent feasible in hazardous waste reduction planning and implementation;
- (6)
A description of how the plan has been or will be incorporated into management practices and procedures so as to ensure an ongoing effort; and
- (7)
Other information about generation of hazardous waste not requiring disclosure of proprietary information as the board may require by regulation.
- (b)
As part of each plan developed under this part, a generator shall establish specific performance goals for the source reduction of each hazardous waste stream.
- (c)
The specific performance goals established under subsection (b) shall be quantitative goals, expressed in numeric terms. Whenever possible, the units of measurement should be in pounds (or tons) of waste generated per standard unit of production, as defined by the generator. If the establishment of numeric performance goals is not practical, the performance goals shall include a clearly stated list of actions designed to lead to the establishment of numeric goals as soon as practical.
- (d)
As part of each plan developed under this part, each generator shall explain the rationale for each performance goal. Acts of God or other unforeseeable events beyond the control of the generator do not have to be considered in setting goals. The rationale for a particular performance goal shall address any impediments to hazardous waste reduction, including, but not limited to, the following:
- (1)
The availability of technically practical hazardous waste reduction methods, including any anticipated changes in the future;
- (2)
Previously implemented reductions of hazardous waste;
- (3)
The economic practicability of available hazardous waste reduction methods, including any anticipated changes in the future. Examples of situations where hazardous waste reduction may not be economically practical include, but are not limited to:
- (A)
For valid reasons of prioritization, a particular company has chosen first to address other more serious hazardous waste reduction concerns;
- (B)
Necessary steps to reduce hazardous waste are likely to have significant adverse impacts on product quality; or
- (C)
Legal or contractual obligations interfere with the necessary steps that would lead to hazardous waste reduction.
- (e)
- (1)
The board, by rule, may provide for modifications and exclusions for small quantity generators related to the kind of information to be included in the plan.
- (2)
The board may provide for exception by rule for generators whose hazardous waste streams fluctuate widely due to contract work or manufacturing orders.
- (f)
A generator required to complete a hazardous waste reduction plan under subsection (a) may include as a preface to its initial plan:
- (1)
An explanation and documentation regarding hazardous waste reduction efforts completed or in progress before the first reporting date; and
- (2)
An explanation and documentation regarding impediments to hazardous waste reduction specific to the individual facility.
§ 68-212-306. Annual progress report.
- (a)
All generators shall annually review their waste reduction plan and complete a hazardous waste reduction progress report which shall:
- (1)
Analyze and quantify progress made, if any, in hazardous waste reduction, relative to each performance goal established under § 68-212-305(b); and
- (2)
Set forth amendments, if needed, to the hazardous waste reduction plan and explain the need for the amendments.
- (b)
Except for the information reported to the department under § 68-212-308, the annual progress report shall be retained at the facility and shall not be considered a public record under title 10, chapter 7, part 5. However, the generator shall permit any officer, employee or representative of the department at all reasonable times to have access to the annual progress report.
§ 68-212-307. Review of plan or progress report by department — Correction of deficiencies — Review of order.
- (a)
The department may review a plan or an annual progress report to determine whether the plan or progress report reasonably contains the elements specified under §§ 68-212-305 and 68-212-306. If a generator fails to complete a plan containing the elements of § 68-212-305 or an annual progress report reasonably containing the elements required by § 68-212-306, the department may notify the generator of the specific deficiencies. The department also may specify a reasonable time frame, of not less than ninety (90) days, within which the generator shall modify the plan or progress report correcting the specified deficiencies.
- (b)
If the commissioner determines that a plan or progress report has not been modified to address the deficiencies identified, 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 served by personal service or shall be sent by certified mail, return receipt requested. Investigations made in accordance with this section may be made on the initiative of the commissioner or board. Prior to the issuance of any order or the execution of any other enforcement action, the commissioner may request the presence of the alleged violator of this part at a meeting to show cause why enforcement action ought not to be taken by the department.
- (c)
Any order issued pursuant to subsection (b) shall be subject to review in the same manner as orders under § 68-212-113.
§ 68-212-308. Submission of summary information on waste reduction.
- (a)
Based on the annual progress report prepared pursuant to § 68-212-306, the commissioner may require certain generators to submit summary information on waste reduction activities to the department, as an element of the annual generator report submitted to the department.
- (b)
The summary shall include:
- (1)
For each hazardous waste stream, one (1) of the following, as appropriate:
- (A)
A statement of specific performance goals, and a report on the progress made in achieving these goals. The results should be reported in numeric terms, as set forth in § 68-212-305(c); or
- (B)
A report on the actions taken toward establishing numeric goals;
- (2)
A narrative explaining the reported data; and
- (3)
A description of any impediments to reducing the generation of hazardous waste.
- (c)
The board, by rule, shall develop uniform reporting requirements for the data required under this section.
§ 68-212-309. Violations — Civil penalties.
-
Any generator or person who:
- (1)
Fails to file or make available to the department any reports, records or documents required pursuant to this part;
- (2)
Fails, neglects or refuses to comply with any provision of this part or any order issued pursuant to this part; or
- (3)
Knowingly gives or causes to be given any false information in any reports, records or documents required pursuant to this part;
-
is subject to a civil penalty of up to ten thousand dollars ($10,000). Any such penalty shall be assessed in the same manner as in § 68-212-114. Each day such violation continues constitutes a separate offense.
§ 68-212-310. Technical assistance.
-
Subject to available funding, the department may contract to make technical assistance available to assist generators and the department in carrying out this part. The assistance shall emphasize strategies to encourage hazardous waste reduction.
§ 68-212-311. Confidentiality of plans and reports.
-
A plan or annual progress report developed pursuant to this part and maintained at the generating facility shall not be considered a public record under title 10, chapter 7, part 5. The board shall establish procedures to ensure that information supplied to the department, as provided by this part, and defined as proprietary by regulation, is not revealed to any person without the consent of the person supplying such information. However, the summary information on waste reduction activities submitted to the department may be utilized by the commissioner, the board, the department, the United States environmental protection agency (EPA) or any authorized representative of the commissioner or the board in connection with the responsibilities of the department or board pursuant to this part or as necessary to comply with federal law. Copies of any Form Rs, provided to the state and the EPA shall be available to the public from the Tennessee emergency management agency.
§ 68-212-312. Rules and regulations — Appeals.
-
In addition to all other enumerated powers in this chapter and chapter 211 of this title, the board is authorized to promulgate rules and regulations to effectuate the purpose of this part, and to hear appeals from orders or assessments issued by the commissioner pursuant to this part. All such rules and regulations shall be promulgated in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.
Part 4 Indicia of Ownership
§ 68-212-401. Chapter definitions.
-
As used in this chapter, unless the context otherwise requires:
- (1)
“Active participation in the management” or “participation in the management” or “participate in the management” means actual participation in the management or operational affairs by the holder of the security interest and does not include the mere capacity, or ability to influence, or the unexercised right to control a site, vessel or facility operations.
- (A)
A holder of a security interest is considered to be an active participant in the management, while the borrower is still in possession, only if the holder either:
- (i)
Exercises decision-making control over the borrower's environmental compliance, such that the holder has undertaken responsibility for the borrower's disposal or hazardous substance handling practices; or
- (ii)
Exercises control at a level comparable to that of a manager of the borrower's enterprise, such that the holder has assumed or manifested responsibility for the overall management of the enterprise encompassing day-to-day decision making of the enterprise with respect to:
- (a)
Environmental compliance; or
- (b)
All, or substantially all, of the operational (as opposed to financial or administrative) aspects of the enterprise other than environmental compliance. Operational aspects of the enterprise include functions such as that of facility or plant manager, operations manager, chief operating officer, or chief executive officer. Financial or administrative aspects include functions such as that of credit manager, accounts payable or receivable manager, or both, personnel manager, controller, chief financial officer, or similar functions.
- (B)
No act or admission by a prospective lender prior to the time that indicia of ownership are held primarily to protect a security interest constitutes evidence of participation in management. A prospective holder who undertakes or requires an environmental inspection of the site, vessel or facility in which indicia of ownership are to be held, or requires a prospective borrower to clean up a site, vessel or facility or to comply or come into compliance (whether prior or subsequent to the time that indicia of ownership are held primarily to protect a security interest) with any applicable law or regulation, is not by such action considered to be participating in the site's, vessel's or facility's management; provided, that a holder shall not be required to conduct or require an inspection to qualify for the protection for holders granted pursuant to this chapter, and the liability of a holder shall not be based on or affected by the holder not conducting or not requiring an inspection.
- (C)
Actions that are consistent with holding indicia of ownership primarily to protect a security interest do not constitute participation in management for the purposes of this chapter. The authority for the holder to take such actions may, but need not, be contained in contractual or other documents specifying requirements for financial, environmental, and other warranties, covenants, conditions, representations or promises from the borrower. Loan policing and work out activities cover and include all activities up to foreclosure and its equivalents. A holder who engages in:
- (i)
Policing activities prior to foreclosure shall remain within the exemption; provided, that the holder does not by such actions participate in the management of the site, vessel or facility. Such actions include, but are not limited to, requiring the borrower to clean up the site, vessel or facility during the term of the security interest; requiring the borrower to comply or come into compliance with applicable federal, state, and local environmental and other laws, rules and regulations during the term of the security interest; securing or exercising authority to monitor or inspect the site, vessel or facility (including on-site inspections) in which indicia of ownership are maintained, or the borrower's business or financial conditions during the term of the security interest; or taking other actions to adequately police the loan or security interest (such as requiring a borrower to comply with any warranties, covenants, conditions, representations or promises from the borrower); and
- (ii)
Work out activities prior to foreclosure and its equivalents shall remain within the exemption; provided, that the holder does not by such action participate in the management of the site, vessel or facility. For purposes of this part, “work out” refers to those actions by which a holder, at any time prior to foreclosure and its equivalents, seeks to prevent, cure, or mitigate a default by the borrower or obligor; or preserve or prevent the diminution of the value of the security. “Work out” activities, include, but are not limited to: restructuring or renegotiating the terms of the security interest; requiring payment of additional rent or interest; exercising forbearance; requiring or exercising rights pursuant to an assignment of accounts or other amounts owing to an obligor; requiring or exercising rights pursuant to an escrow agreement pertaining to amounts owing to an obligor; providing specific or general financial or other advice, suggestions, counseling, or guidance; and exercising any right or remedy the holder is entitled to by law or under any warranties, covenants, conditions, representations or promises from the borrower.
- (D)
A holder does not participate in the management of a site, vessel or facility by making any response to or performing any response action or undertaking any clean up or removal or similar actions under the federal Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (42 U.S.C. § 9601 et seq.) or any other local, state or federal environmental laws or regulations;
- (2)
“Borrower,” “debtor,” or “obligor” is a person whose site, vessel or facility is encumbered by a security interest. These terms are used interchangeably;
- (3)
“Date of foreclosure” means the date on which the holder obtains legal or equitable title or possession to the site, vessel or facility pursuant to or incident to foreclosure;
- (4)
“Department” means the department of environment and conservation;
- (5)
“Facility” means:
- (A)
Any building, structure, installation, equipment, pipe or pipeline (including any pipe into a sewer or publicly owned treatment works), well, pit, pond, lagoon, impoundment, ditch, landfill, storage container, motor vehicle, rolling stock, or aircraft; or
- (B)
Any site or area where a hazardous substance has been deposited, stored, disposed of, or placed, or otherwise come to be located;
- (6)
“Fair consideration” means the value of the security interest when calculated as an amount equal to or in excess of the sum of the outstanding principal (or comparable amount in the case of a lease that constitutes a security interest) owed to the holder immediately preceding the acquisition of full title (or possession in the case of property subject to a lease financing transaction) pursuant to foreclosure and its equivalents, plus any unpaid interest, rent or penalties (whether arising before or after foreclosure and its equivalents), plus all reasonable and necessary costs, fees, or other charges incurred by the holder incident to work out, foreclosure and its equivalents, retention, maintaining the business activities of the enterprise, preserving, protecting and preparing the site, vessel or facility prior to sale, re-lease of property held pursuant to a lease financing transaction (whether by a new lease financing transaction or substitution of the lessee) or other disposition, plus response costs incurred under applicable federal, state or local environmental cleanup laws or regulations, or at the direction of an on-scene coordinator, less any amounts received by the holder in connection with a partial disposition of the property, net revenues received as a result of maintaining the business activities of the enterprise, and any amounts paid by the borrower subsequent to the acquisition of full title (or possession in the case of properties subject to lease financing transactions) pursuant to foreclosure and its equivalents. In the case of a holder maintaining an indicia of ownership primarily to protect a junior security interest, fair consideration is the value of all outstanding higher priority security interests plus the value of the security interest held by the junior holder, each calculated as set forth in this definition;
- (7)
“Foreclosure” or “foreclosure and its equivalents” means purchase at foreclosure sale, acquisition or assignment of title in lieu of foreclosure, termination of a lease or other repossession, acquisition of a right to title or possession, an agreement in satisfaction of the obligation, or any other formal or informal manner (whether pursuant to law or under warranties, covenants, conditions, representations or promises from the borrower) by which the holder acquires title to or possession of the secured property;
- (8)
“Holder” is a person who maintains indicia of ownership primarily to protect a security interest. A holder includes the initial holder or purchaser (such as a loan originator), any subsequent holder (such as a successor-in-interest or subsequent purchaser of the security interest on the secondary market), any subsequent assignee, transferee or purchaser from a holder, a guarantor of an obligation, surety, or any other person who holds ownership indicia primarily to protect a security interest, or a receiver or other person who acts on behalf of or for the benefit of a holder;
- (9)
“Indicia of ownership” means evidence of a security interest, evidence of an interest in a security interest, or evidence of an interest in real or personal property securing a loan or other obligation, including any legal or equitable title to real or personal property acquired incident to foreclosure and its equivalents. Evidence of such interests include, but are not limited to, mortgages, deeds of trust, liens, surety bonds and guarantees of obligations, title held pursuant to a lease financing transaction in which the lessor does not select initially the leased property (herein “lease financing transaction”), legal or equitable title obtained pursuant to foreclosure, and their equivalents. Evidence of such interests also includes assignments, pledges, or other rights to or other forms of encumbrance against property that are held primarily to protect a security interest. A person is not required to hold title or a security interest in order to maintain indicia of ownership;
- (10)
“Primarily to protect a security interest” means that the holder's indicia of ownership are held primarily for the purpose of securing payment or performance of an obligation, but does not include indicia of ownership held primarily for investment purposes, nor ownership indicia held primarily for purposes other than as a protection of a security interest. A holder may have other, secondary reasons for maintaining indicia of ownership, but the primary reason why ownership indicia are held shall be for protection of a security interest;
- (11)
“Security interest” means an interest in a site, vessel or facility created or established for the purpose of securing a loan or other obligation. Security interests include, but are not limited to, mortgages, deeds of trust, liens, and title pursuant to lease financing transactions. Security interests may also arise from transactions such as sale and leasebacks, conditional sales, installment sales, trust receipt transactions, certain assignments, factoring agreements, accounts receivable financing arrangements, inventory and/or other personal property financing arrangements and consignments, if the transaction creates or establishes an interest in a site, vessel or facility for the purpose of securing a loan or other obligation; and
- (12)
“Vessel” means every description of watercraft or other artificial contrivance used, or capable of being used, as a means of transportation on water.
§ 68-212-402. Indicia of ownership generally.
-
A person who maintains indicia of ownership of a site, vessel or facility primarily to protect a security interest in a site, vessel or facility, and who does not participate in the management of the site, vessel or facility and is not an owner or operator of the site, vessel or facility shall not be deemed the discharger or responsible party for a discharge from the site, vessel or facility and shall not be liable for cleanup costs or damages resulting from discharge from the site, vessel or facility pursuant to this chapter, except to the extent that liability may still apply to holders after foreclosure as set forth in § 68-212-403. The plaintiff or petitioner bears the burden of establishing that the defendant or respondent is liable as an owner or operator.
§ 68-212-403. Indicia of ownership after foreclosure.
- (a)
The indicia of ownership, held after foreclosure continues to be maintained primarily as a protection for a security interest; provided, that the holder did not participate in the management prior to foreclosure and its equivalents and that the holder undertakes to sell, re-lease property pursuant to a lease financing transaction (whether by a new lease financing transaction or substitution of the lessee), or otherwise divest itself of site, vessel or facility in a reasonably expeditious manner in accordance with the means and procedures specified in this part. Such a holder may liquidate, maintain business activities and operations, wind up operations, undertake environmental response actions pursuant to state, local, and federal laws, and take measures to preserve, protect or prepare the secured asset prior to sale or other disposition, without losing status as a person who maintains indicia of ownership primarily to protect a security interest pursuant to this chapter.
- (b)
For the purposes of establishing that a holder is seeking to sell, re-lease property pursuant to a new lease financing transaction (whether by a new lease financing transaction or substitution of the lessee), or divest itself of a site, vessel or facility in a reasonably expeditious manner, the holder may use whatever commercially reasonable means are relevant or appropriate with respect to the site, vessel or facility, taking all facts and circumstances into consideration, or may employ the means specified in this part.
- (c)
- (1)
A holder that outbids, rejects or fails to act upon a written bona fide, firm offer of fair consideration within ninety (90) days of receipt of the offer, provided the offer is received at any time after six (6) months following the date of foreclosure and its equivalents, shall not be deemed to be using a commercially reasonable means for the purpose of this part. “Written bona fide, firm offer” means a legally enforceable, commercially reasonable, cash offer solely for the foreclosed site, vessel or facility, including all material terms of the transaction, from a ready, willing, and able purchaser who demonstrates to the holder's satisfaction the ability to perform. For the purpose of this subsection (c), the six-month period begins to run from the time that the holder acquires a marketable title; provided, that the holder, after the expiration of any redemption or other waiting period provided by law, was acting diligently to acquire marketable title.
- (2)
A holder that outbids, rejects, or fails to act upon an offer of fair consideration for the site, vessel or facility as provided in subdivision (c)(1) establishes that the ownership indicia in a secured property are not held primarily to protect the security interest, unless the holder is required, in order to avoid liability under federal, state or local law, to make a higher bid, to obtain a higher offer, or to seek or obtain an offer in a different manner.
- (d)
A holder establishes that it is proceeding in a commercially reasonable manner after foreclosure by within twelve (12) months following foreclosure and its equivalents, listing the site, vessel or facility with a broker, dealer, or agent who deals with the type of property in question; or by advertising the site, vessel or facility as being for sale or disposition on at least a monthly basis in either a real estate publication or a trade or other publication suitable for the site, vessel or facility in question, or a newspaper of general circulation (defined as one with a circulation over ten thousand (10,000), or one suitable under any applicable federal, state or local rules of court for publication required by court order or rules of civil procedure) covering the area where the property is located. For purposes of this subsection (d), the twelve-month period begins to run from the time that the holder acquires marketable title, provided that the holder, after the expiration of any redemption or other waiting period provided by law, was acting diligently to acquire marketable title.
- (e)
- (1)
A holder shall sell, re-lease the property held pursuant to a new lease financing transaction, or otherwise divest itself of such site, vessel or facility in a reasonably expeditious manner, but not later than five (5) years after the date of foreclosure or its equivalents, except that a holder may continue to hold the property for a time period longer than five (5) years without losing status as a person who maintains indicia of ownership primarily to protect a security interest if:
- (A)
The holder has made a good faith effort to sell, re-lease, or otherwise divest itself of the property using commercially reasonable means or other procedures prescribed by this part;
- (B)
The holder has obtained any approval required pursuant to applicable federal, state or local banking or other lending laws to continue its possession of the property; or
- (C)
The holder has exercised reasonable custodial care to prevent or mitigate any new discharges from the site, vessel or facility that could substantially diminish the market value of the property;
- (2)
- (A)
The exemption granted to holders pursuant to this section shall not apply to the liability for any new discharge from the site, vessel or facility, occurring after the date of foreclosure and its equivalents, that is attributable to acts or omissions of the holder which can be shown, based on a preponderance of the evidence, to have been negligent. In the event a property has both preexisting and new discharges, the liability, if any, allocable to the holder pursuant to this subsection (e) shall be limited to those cleanup costs or damages that relate directly to the new discharge. In the event there is a substantial commingling of new discharge with preexisting discharge, the liability, if any, allocable to the holder pursuant to this subsection (e) shall be limited to the cleanup costs or damages in excess of those cleanup costs or damages relating to a preexisting discharge. In order to establish that a discharge occurred or began prior to the date of foreclosure and its equivalents, a holder may perform, but shall not be required to perform, an environmental audit, site assessment or inspection, in accordance with the assessment standards, to identify such discharges at the site, vessel or facility;
- (B)
Nothing in this subsection (e) shall be deemed to impose liability for a new discharge from the site, vessel or facility that is authorized pursuant to a federal, state or local permit or cleanup procedure;
- (C)
The exemption granted to holders of indicia of ownership primarily to protect a security interest shall not apply to liability, if any, pursuant to applicable laws and regulations, for arranging for the off-site disposal or treatment of a hazardous substance, or by accepting for transportation and disposing of a hazardous substance at an off-site facility selected by the holder, unless pursuant to a remediation plan approved by the appropriate local, state and/or federal authorities.
§ 68-212-404. Rights of department.
- (a)
Nothing in this part is deemed to prohibit or limit the rights of the department to clean up sites or to obtain a lien on sites, pursuant to § 68-212-209.
- (b)
Nothing in this part is deemed to prohibit or limit the rights of the department to direct the holder to take any emergency response actions, including closure of the site, vessel or facility necessary to prevent, contain or mitigate a continuing or new discharge that poses an immediate threat to the environment or the public health, safety or welfare.
§ 68-212-405. Security interest holders — Effect.
-
Nothing in this part shall be construed to require a holder of a security interest to conduct or require an environmental inspection, audit or assessment, and the liability of the holder of the security interest shall not be based on or affected by a failure to conduct an environmental inspection, audit or assessment.
§ 68-212-406. Agency rules.
-
No state or local governmental agency or entity shall adopt any rule, regulation, ordinance, policy or permit condition circumventing or limiting exemptions or protections established by this part, or the exercise of such exemptions and protections.
Part 5 Property Where Methamphetamine Manufactured
§ 68-212-502. List of certified industrial hygienists — Testing of properties.
-
The commissioner shall compile and maintain a list of certified industrial hygienists and such other persons or entities the commissioner certifies as qualified to perform the services of industrial hygienists. Such persons will test properties in which a process intended to result in the manufacture of methamphetamine has occurred, as defined by § 39-17-435, to determine if a property is safe for human use. Such property may include, but is not limited to, leased or rented property such as a hotel or motel room, rented home or apartment, or any residential property. The commissioner shall also compile and maintain a list of persons authorized to perform clean-up of property where such a process has occurred. Such lists may be posted on the website maintained by the commissioner.
§ 68-212-503. Quarantine of property.
- (a)
The purpose of the quarantine provided for in this section is to prevent exposure of any person to the hazards associated with methamphetamine and the chemicals associated with the manufacture of methamphetamine.
- (b)
Any property, or any structure or room in any structure on any property wherein the manufacture of a controlled substance listed in § 39-17-408(d)(2) is occurring or has occurred, may be quarantined by the local law enforcement agency where such property is located. The law enforcement agency which quarantines the property shall be responsible for posting signs indicating that the property has been quarantined and, to the extent they can be reasonably identified, for notifying all parties having any right, title or interest in the quarantined property, including any lienholders.
- (c)
- (1)
Any person who has an interest in property quarantined pursuant to this section may file a petition in the general sessions, criminal, circuit or chancery court of the county in which the property is located. Such a petition shall be for the purpose of requesting that the court order the quarantine of such property be lifted for one (1) of the following reasons:
- (A)
That the property was wrongfully quarantined; or
- (B)
That the property has been properly cleaned, all hazardous materials removed and that it is now safe for human use but the law enforcement agency who imposed the quarantine refuses to lift it.
- (2)
The court shall take such proof as it deems necessary to rule upon a petition filed pursuant to this section and, after hearing such proof, may grant the petition and lift the quarantine or deny the petition and keep the quarantine in place.
- (d)
- (1)
It is an offense for any person, other than one carrying out the purposes of this part, knowingly to inhabit quarantined property; to enter onto quarantined property without federal, state, county or municipal government authorization; to offer such property to the public for temporary or indefinite habitation; or to remove any signs or notices of the quarantine.
- (2)
A violation of this subsection (d) is a Class B misdemeanor.
- (e)
- (1)
As used in this subsection (e):
- (A)
“Person” means a landlord, owner, manager, caretaker, agent of the owner or employee; and
- (B)
“Property”:
- (i)
Means real property and any building, structure, or room located on such property on or in which a person performs compensated labor or is employed to or has a duty or responsibility to care for or manage; and
- (ii)
Does not include property:
- (a)
- (1)
Which the person owns; or
- (2)
On which the person has a mortgage or other form of indebtedness to own;
- (b)
On which the person resides; and
- (c)
From which the person receives no compensation in the form of rent, lease payments, or otherwise in exchange for allowing another person to temporarily reside on the property.
- (2)
It is an offense for a person who knows, or reasonably should know, that a controlled substance listed in § 39-17-408(d)(2) has been manufactured or is being manufactured in or on any property to intentionally fail to notify the appropriate law enforcement agency within twenty-four (24) hours of acquiring such knowledge.
- (3)
A violation of this section is a Class B misdemeanor.
§ 68-212-504. Rules.
-
The commissioner is authorized to promulgate rules concerning the inspection, testing and quarantine of property affected by this part.
§ 68-212-505. Testing of property — Certification that property safe.
-
Once the property has been quarantined, any party having a right, title or interest in the quarantined property, including any lienholders, may contact either a certified industrial hygienist or other person or entity certified as qualified from the list maintained by the commissioner to perform appropriate testing on the property to determine whether hazardous waste is present on the property, or a contractor from the list maintained by the commissioner for clean-up and removal of all hazardous waste from the property. The property must remain quarantined until a certified industrial hygienist or other person or entity named on the commissioner's list compiled pursuant to § 68-212-502 certifies to the quarantining agency that the property is safe for human use.
§ 68-212-507. Recording of notice of methamphetamine lab quarantine in the office of county register — Form.
- (a)
Whenever any real property, or any structure or room in any structure on any real property, is quarantined by a local law enforcement agency, pursuant to § 68-212-503, due to the manufacture of methamphetamine, the local law enforcement agency quarantining the property shall file, for recording, a notice of methamphetamine lab quarantine in the office of county register in the county in which the real property or any portion of the real property lies. In lieu of acknowledgment, the signature of the local law enforcement agent shall be accepted. The register shall record such notice in the record series containing the title deeds and shall index the notice with the owner or owners of the real property as the grantor and with the agency giving the notice as the grantee. No fee shall be collected for this filing.
- (b)
A notice in a form substantially as follows is sufficient to comply with subsection (a):
§ 68-212-508. Certificate of fitness by certified industrial hygienist — Recording — Form.
- (a)
Whenever a certified industrial hygienist or other person or entity named on the commissioner's list, pursuant to § 68-212-502, determines that the property, quarantined pursuant to § 68-212-503, is safe for human use, based upon the standards prescribed pursuant to this part, such person or entity shall issue a certificate of fitness.
- (b)
The owner or any person having any right, title or interest in the real property, including any lien holders, may file the certificate of fitness for recording in the office of county register in the county in which the real property or any portion of the property lies. The certificate shall be acknowledged or proved as provided in title 66, chapter 22. The register shall record such certificate with the record series containing the title deeds, and shall index the certificate with the owner or owners of the real property as the grantee, and the local law enforcement agency that issued the quarantine as grantor. The fee for such filing shall be in accordance with § 8-21-1001.
- (c)
A form substantially as follows is sufficient to comply with subsection (a):
§ 68-212-509. Submission of information regarding quarantined site — Registry of quarantined sites.
- (a)
Within seven (7) days of issuing an order of quarantine, the law enforcement agency that issued the order shall transmit to the commissioner at least the following information regarding the site:
- (1)
The date of the quarantine order;
- (2)
The county;
- (3)
The address;
- (4)
The name of the owner of the site; and
- (5)
A brief description of the site, such as single family home, apartment, motel, wooded area, etc.
- (b)
The department of environment and conservation shall maintain a registry of all properties reported by a law enforcement agency that have been under order of quarantine for at least sixty (60) days. The registry shall be available for public inspection at the department and shall be posted on its website. Listed properties shall be removed from the registry when a law enforcement agency reports that the quarantine has been lifted in accordance with this part.
Chapter 213 Sanitary Landfill Areas Act
§ 68-213-102. Chapter definitions.
-
As used in this chapter, unless the context otherwise requires:
- (1)
“Commissioner” means the commissioner of environment and conservation or the commissioner's authorized representative;
- (2)
“Department” means the department of environment and conservation;
- (3)
“Governing body” means the governing body of every county in this state;
- (4)
“Landfill area” means any land area selected for the purpose of solid waste disposal or solid waste material;
- (5)
“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;
- (6)
“Solid waste” means garbage, refuse, and other discarded solid materials, including solid waste materials resulting from industrial, commercial and agricultural operations, and all garbage, refuse or other discarded solid materials from individual homes, apartments, multiple dwellings, trailers or other living quarters, and from community activities, but does not include solids or dissolved material in domestic sewage or other significant pollutants in water resources, such as silt, dissolved or suspended solids in industrial waste water effluents, dissolved materials in irrigation return flows or other common water pollutants;
- (7)
“Solid waste disposal” means the process of placing, confining, compacting, or covering solid waste except when such solid waste is for reuse, removal, reclamation or salvage; and
- (8)
“Solid waste disposal system” means the relationship of the coordinated activities of and resources for processing and disposal of solid wastes within a common geographical area and under the supervision of any person or persons engaging in such activities.
§ 68-213-103. Approval of landfill area location.
-
No landfill area for the disposal of solid waste materials in this state shall be constructed and no contract between any person or persons for the purpose of constructing or utilizing the same shall be completed or executed unless the location of the landfill area shall have been approved by the department and the governing body of the area in which the site is located. Should the department or the governing body disapprove of the site, no further action shall be taken in regard to the construction of a landfill area at that site.
§ 68-213-104. Violation — Penalty.
-
Any person violating any of this chapter, or failing, neglecting or refusing to comply with any order of the department or governing body lawfully issued, commits a Class C misdemeanor. Each day of continued violation constitutes a separate offense.
§ 68-213-105. Injunctions.
-
In addition to the penalties herein provided, the department or governing body may cause the enforcement of any orders or rules issued by it to carry out this chapter by instituting legal proceedings to enjoin the violation of this chapter and the orders or rules of the department or governing body 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 chapter 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.
§ 68-213-106. Application of chapter.
-
This chapter applies to those counties having a population of:
-
-
-
12,50012,508
-
60,25060,350
-
73,90074,000
-
250,000300,000
-
-
according to the federal census of 1960 or any subsequent federal census and to any county of the state having a metropolitan form of government.
Chapter 214 Environmental Engineering Project
§ 68-214-101. Commissioner's authority to contract.
-
The commissioner of environment and conservation is authorized to contract with the University of Tennessee for the initial establishment on the Knoxville campus of an environmental engineering project, and to contract with Tennessee Technological University and the University of Memphis for programs within the project for applied research and public service directly applicable to the mission of the department of environment and conservation.
§ 68-214-102. Objectives of project.
- (a)
The environmental engineering project will provide for the application of scientific, technical and engineering principles and practices to the opportunities and problems associated with maintaining and improving Tennessee's environmental quality and the health and well being of the state's citizens.
- (b)
The principal objectives of the environmental engineering project are to:
- (1)
Maintain and make available a comprehensive pool of technical resource personnel with competency in the many aspects of environmental problems to advise and assist, upon request, the department of environment and conservation with regard to the need, implementation, efficiency, and economic consequences of laws and regulations relative to the quality of the air, water and land environments and to land utilization;
- (2)
Provide consultation and engineering analysis, design and/or research services, upon request, to those agencies of the state having responsible cognizance of environmental quality, pollution monitoring and environmental quality regulation enforcement;
- (3)
Establish a technical advisory service for industries and municipalities to advise and assist, in coordination with state regulatory agencies, in the technical problems arising from the compliance with environmental quality control regulations and from self-initiated pollution abatement programs; and
- (4)
Develop and coordinate educational engineering programs for in-service training of technical, professional and managerial personnel needed for the control and improvement of the environment.
Chapter 215 Tennessee Petroleum Underground Storage Tank Act
Part 1 General Provisions
§ 68-215-101. Short title.
-
This chapter shall be known and may be cited as the “Tennessee Petroleum Underground Storage Tank Act.”
§ 68-215-102. Legislative intent.
- (a)
In order to protect the public health, safety and welfare, to prevent degradation of the environment, conserve natural resources and provide a coordinated statewide underground storage tank program, it is declared to be the public policy of the state of Tennessee to regulate underground storage tanks and to:
- (1)
Provide safe storage for petroleum products;
- (2)
Provide a coordinated statewide program for petroleum products stored in underground storage tanks in cooperation with federal, state, and local agencies responsible for the prevention, control, or abatement of air, water, and land pollution such that adequate control is achieved without unnecessary duplication of regulatory programs;
- (3)
Develop long range plans for adequate petroleum underground storage tank systems to meet future demands;
- (4)
Provide a mechanism for the remediation of environmental pollution due to releases from petroleum underground storage tank systems; and
- (5)
Provide a comprehensive investigation and clean-up fund to address the problems caused by releases from petroleum underground storage tanks, including remediation of imminent and substantial threats to public health and/or the environment, and to provide a mechanism to assist the financial responsibility requirements for owners/operators of petroleum underground storage tanks.
- (b)
It is the intent of this legislation to enable the state to obtain primacy for the petroleum underground storage tank program from the United States environmental protection agency (EPA).
- (c)
It is the intent of the general assembly that this chapter shall not apply retroactively to releases or other events that occurred prior to July 1, 1988.
§ 68-215-103. Chapter definitions in addition to the definitions in § 68-215-201.
-
As used in this chapter, unless the context otherwise requires:
- (1)
“Board” means the underground storage tanks and solid waste disposal control board created pursuant to § 68-211-111;
- (2)
“Commissioner” means the commissioner of environment and conservation, the commissioner's authorized representatives, or in the event of the commissioner's absence or a vacancy in the commissioner's office, the deputy commissioner;
- (3)
“Department” means the department of environment and conservation;
- (4)
“Flow through process tank” means a tank whose principal use is not for storage but is primarily used in the manufacture of a product or in a treatment process;
- (5)
“Inactive petroleum site” means a site that is no longer in operation, is abandoned, or the responsible party has filed a bankruptcy petition;
- (6)
“Local government agency” means a government agency as defined by § 67-3-103 other than agencies of state or federal governments;
- (7)
“Notification form” means the petroleum underground storage tank notification form completed by the owner for the petroleum underground storage tanks at each facility and required by this chapter;
- (8)
“Occurrence” means the discovery of environmental contamination at a specific time and date, due to the release of petroleum products from petroleum underground storage tanks;
- (9)
“Operator” means any person in control of, or having responsibility for, the daily operation of the petroleum underground storage tank;
- (10)
“Owner” means:
- (A)
For petroleum storage tanks in use or brought into use on or after November 8, 1984, any person who owns a petroleum underground storage tank used for the storage, use, or dispensing of petroleum products;
- (B)
For petroleum underground storage tanks used prior to November 8, 1984, but no longer in use after that date, the person who last owned the petroleum underground storage tank used for storage, use, or dispensing of petroleum immediately before discontinuation of its use;
- (11)
“Person” means any and all persons, including individuals, firms, partnerships, associations, public or private institutions, state and federal agencies, municipalities or political subdivisions, or officers thereof, departments, agencies or instrumentalities, or public or private corporations or officers thereof, organized or existing under the laws of this or any other state or country;
- (12)
“Petroleum” means crude oil or any fraction of crude oil which is a liquid at standard temperature and pressure (sixty degrees Fahrenheit (60° F) and fourteen and seven-tenths pounds per square inch (14.7 p.s.i.) absolute);
- (13)
“Petroleum site” means any site or area where a petroleum underground storage tank is located;
- (14)
“Petroleum underground storage tank” means any one (1) or combination of tanks (including the underground lines connected thereto) which are used or have been used to contain an accumulation of petroleum substances, and the volume of which (including the volume of the underground pipes connected thereto) is ten percent (10%) or more beneath the surface of the ground. “Petroleum underground storage tank” does not include any tank exempted from this chapter pursuant to § 68-215-124;
- (15)
“Petroleum underground storage tank fund” means the fund established by this chapter to provide for the cleanup of releases from petroleum underground storage tanks and assist with the financial responsibilities of owners/operators of petroleum underground storage tanks;
- (16)
“Release” means any spilling, overfilling, leaking, emitting, discharging, escaping, leaching or disposing of a petroleum substance from a petroleum underground storage tank or its associated piping into groundwater, surface water, or subsurface soils;
- (17)
- (A)
“Responsible party” means:
- (i)
The owner and/or operator of a petroleum site;
- (ii)
Any person who at the time of the release which caused the contamination was an owner and/or operator of a petroleum underground storage tank;
- (iii)
Any person whose intentional actions directly cause the release of petroleum at a petroleum site; or
- (iv)
Any person other than an employee, officer, director, principal, or shareholder of the owner or operator of the underground storage tank system or of the owner of the petroleum site, whose negligent actions directly cause the release of petroleum at a petroleum site; or
- (B)
A responsible party does not include a unit of state or local government which becomes an owner or operator of a petroleum site by acquiring ownership or control through bankruptcy, tax delinquency, abandonment, or other circumstances in which the government acquires title by virtue of its function as sovereign, unless such governmental entity has otherwise owned or operated a petroleum underground storage tank on the site or has caused or contributed to the release or threatened release from such a tank;
- (18)
“State” means the state of Tennessee; and
- (19)
“Tank” means a stationary device, designed to contain an accumulation of petroleum substances which is constructed primarily of non-earthen materials (e.g., wood, concrete, steel, fiberglass) which provide structural support.
§ 68-215-104. Unlawful actions.
-
It is unlawful to:
- (1)
Cause or permit the release of a petroleum substance from a petroleum underground storage tank into the environment;
- (2)
Construct, alter or operate a petroleum underground storage tank in violation of this chapter or the rules or regulations established pursuant thereto;
- (3)
Refuse or fail to pay to the department fees assessed pursuant to this chapter and in violation of the rules, regulations, or orders of the commissioner or board;
- (4)
Receive, or to attempt to receive reimbursement from the petroleum underground storage tank fund in a fraudulent manner;
- (5)
Refuse or fail to comply with any order of the commissioner or the board that has become final;
- (6)
Install petroleum underground storage tanks that do not meet the minimum standards pursuant to this chapter; or
- (7)
Submit to the department any document, in written or electronic format, known to be false or known to contain any materially false, fictitious or fraudulent statement or entry; knowingly make any materially false, fictitious, or fraudulent statement or representation; or knowingly falsify, conceal, or cover up a material fact.
§ 68-215-105. Minimum requirements for tanks.
-
All petroleum underground storage tanks shall at a minimum:
- (1)
Prevent releases due to structural failure for the operational life of the tank;
- (2)
Be cathodically protected against corrosion, constructed of noncorrosive material, steel clad with a noncorrosive material, or designed in a manner to prevent the release or the threatened release of any petroleum substance; and
- (3)
The material used in construction or lining of the tank shall have compatibility between the substance stored in the petroleum underground storage tank and the interior of the petroleum underground storage tank.
§ 68-215-106. Notification as to tanks in use and tanks taken out of operation — Authorized actions of commissioner upon failure to pay fees or penalties or for violation of rules — Penalty for removal of affixed notice or tag — Unlawful use of tanks identified or not identified by notice or tag.
- (a)
- (1)
Within one (1) year after the enactment of this chapter, each owner of a petroleum underground storage tank in use on July 1, 1988, shall notify the commissioner of the existence of such tank, specifying the age, size, type, location, and uses of such tank. The commissioner shall accept as formal notification the United States environmental protection agency (EPA) underground storage tank notification form filed with the department by the owner of the petroleum underground storage tank before July 1, 1988.
- (2)
For each petroleum underground storage tank taken out of operation after January 1, 1974, the owner of such tank shall within one (1) year after July 1, 1988, notify the commissioner of the existence of such tanks, unless the owner knows such tanks were removed from the ground. The owner of petroleum underground storage tanks taken out of operation on or before January 1, 1974, shall not be required to notify the commissioner. The commissioner shall accept as formal notification the EPA underground storage tank notification form filed with the department by the owner of the petroleum underground storage tank before July 1, 1988.
- (3)
Notice under subdivision (a)(2) shall specify to the extent known to the owner:
- (A)
The date the tank was taken out of operation;
- (B)
The age of the tank on the date taken out of operation;
- (C)
The size, type and location of the tank; and
- (D)
The type and quantity of petroleum substances left stored in such tank on the date taken out of operation.
- (4)
Any owner who brings into use petroleum underground storage tanks after the initial notification period specified under subdivision (a)(1) shall notify the commissioner at least fifteen (15) days in advance of the date the tank is installed for storage of petroleum substances, specifying the age, size, type, location, and uses of such tank.
- (5)
Subdivisions (a)(1)-(3) shall not apply to tanks for which notice was given pursuant to § 103(c) of the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (42 U.S.C. § 9603(c)).
- (6)
Beginning thirty (30) days after the commissioner prescribes the form of notice pursuant to subdivision (b)(2) and for twelve (12) months thereafter, any person who deposits petroleum substances into a petroleum underground storage tank shall reasonably notify the owner or operator of such tank of the owner's notification requirements pursuant to this subsection (a).
- (7)
Beginning thirty (30) days after the board promulgates new tank performance standards pursuant to this chapter, any person who sells a tank intended to be used as a petroleum underground storage tank in Tennessee shall notify the purchaser of such tank of the owner's notification requirements pursuant to this subsection (a).
- (b)
- (1)
Within ninety (90) days after July 1, 1988, the commissioner shall designate the appropriate division within the department to receive the notification required by subdivision (a)(1), (a)(2) or (a)(3).
- (2)
Within ninety (90) days after July 1, 1988, the commissioner, in consultation with state officials designated pursuant to subdivision (b)(1), and after notice and opportunity for public comment, shall prescribe the form of the notice and the information to be included in the notification under subdivision (a)(1), (a)(2) or (a)(3).
- (3)
Any change in the status of the tanks at a petroleum underground storage tank facility must be reported within thirty (30) days of such change. This includes, but is not limited to, changes of ownership, upgrading or replacement of tanks and changes in service. Such reports shall be made using an amended notification form. In the case of a sale of tanks, the seller must submit the amended notification form and must also inform the buyer of the notification requirement.
- (c)
For any petroleum underground storage tank for which any annual fees or penalties have not been paid when due or that is in violation of requirements of the rules as evidenced by an order issued pursuant to this part that has become final, the commissioner may take one (1) or more of the following actions:
- (1)
Affix a notice to a dispenser;
- (2)
Affix a tag to a fill port; or
- (3)
Give notice on the department website.
- (d)
Removal of the notice or tag affixed pursuant to subsection (c) shall be a Class C misdemeanor.
- (e)
It is unlawful for any person to place, or cause to be placed, petroleum substances in a petroleum underground storage tank or to dispense petroleum from a tank that has either had a physical notice or tag placed on the dispenser or fill port or has had a notice placed on the department website pursuant to subsection (c).
- (f)
It is unlawful for any person to place, or cause to be placed, petroleum substances in a petroleum underground storage tank or to dispense petroleum from a petroleum underground storage tank when the owner of the tank is required to notify the commissioner under subsection (a) or (b) and the owner has not notified the commissioner of the existence or ownership of the tank. This subsection (f) applies even if no physical notice or tag is placed on the dispenser or fill port or no notice is placed on the department website pursuant to subsection (c).
§ 68-215-107. Supervision, inspection, and enforcement responsibilities.
- (a)
The commissioner shall exercise general supervision over the placement and storage of petroleum substances in petroleum underground storage tanks, release prevention, release detection, release correction, closure, and, where applicable, post-closure care of petroleum underground storage tanks throughout the state. The supervision shall apply to all features of the installation of the petroleum underground storage tanks, the standards for permissible petroleum underground storage tanks, petroleum delivery requirements, release prevention requirements, release detection requirements, release correction requirements, facility financial responsibility requirements, facility closure requirements, and facility post-closure requirements which do or may affect the public health, safety or quality of the environment and which do or may affect the proper storage of petroleum substances.
- (b)
The commissioner is authorized to issue an order to any responsible party requiring such party to investigate, identify, contain and clean up, including monitoring and maintenance, any petroleum substance sites which pose or may pose a danger to public health, safety, or the environment because of release or threatened release of petroleum substances. Any person failing, neglecting or refusing to comply with any final order after a hearing shall be subject to the penalties provided in this chapter.
- (c)
In the event that any identified responsible party or parties are unable or unwilling to provide for the investigation, identification, or for the reasonable and safe containment and cleanup, including monitoring and maintenance, pursuant to an order issued under this section, or no such liable party can reasonably be identified by the commissioner, the commissioner may provide for such actions.
- (d)
If, at any time, the commissioner, after investigation, finds that a petroleum site constitutes an imminent, substantial danger to the public health, safety or environment, the commissioner may undertake such actions as are necessary to abate the imminent and substantial danger.
- (e)
For the purpose of developing or enforcing any rule or regulation authorized by this chapter, or enforcing any requirement of this chapter or order issued by the commissioner or board pursuant to this chapter, the commissioner or the commissioner's agent is authorized to:
- (1)
Enter at reasonable times any establishment or other place where a petroleum underground storage tank is located or where petroleum contamination is or may be present for the purpose of conducting investigations or remediating the contamination caused by a release from a petroleum underground storage tank;
- (2)
Inspect and obtain samples of any petroleum substance contained in such tank and allow for testing of samples by both the commissioner or the commissioner's agent and the owner/operator;
- (3)
Conduct monitoring or testing of the tanks, associated equipment, contents, or surrounding soils, air, surface water or groundwater;
- (4)
Require the owner/operator of a petroleum underground storage tank to prove the petroleum underground storage tank is not leaking, if there has been the release of petroleum substances in the area, including tightness testing of the petroleum underground storage tank, if deemed necessary;
- (5)
Issue subpoenas to compel attendance of witnesses or production of documents or data; and
- (6)
Bring suit in the name of the department for:
- (A)
Any violation of this chapter, rules established pursuant to this chapter, and orders of the commissioner or board seeking any remedy as provided in this chapter, such rule, or order; and
- (B)
Any other statutory or common law remedy available.
- (f)
The board may promulgate and adopt such rules and regulations in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, as are required elsewhere in this chapter or are otherwise necessary or desirable to implement this chapter. Such rules and regulations shall include, but not be limited to:
- (1)
Requirements for maintaining a leak detection system, an inventory control system, together with tank testing, including a tank tightness testing certification program if deemed necessary, or a comparable system or method designated to identify releases in a manner consistent with the protection of human health and environment;
- (2)
Requirements for maintaining records of petroleum delivery or of any monitoring or leak detection system or inventory control system or tank testing or comparable system;
- (3)
Requirements for reporting releases and corrective actions taken in response to a release from a petroleum underground storage tank;
- (4)
Requirements for taking corrective action in response to a release from a petroleum underground storage tank;
- (5)
Requirements for the closure of petroleum underground storage tanks to prevent future releases of petroleum substances into the environment;
- (6)
Requirements that new petroleum underground storage tanks meet design standards promulgated by the board before such tanks may be installed;
- (7)
Requirements that existing petroleum underground storage tanks either be retrofitted to meet new petroleum tank standards or replaced with new petroleum tanks over a scheduled time period;
- (8)
- (A)
Requirements for maintaining evidence of financial responsibility for taking corrective action and compensating third parties for bodily injury and property damage caused by sudden and nonsudden accidental releases arising from operation of a petroleum underground storage tank, the mechanism by which the fund may provide relief of third party damages incurred by the petroleum site owner or the owner and/or operator at a petroleum site, and the mechanism by which the fund may provide relief for the costs of corrective action at fund eligible sites exceeding the financial responsibility requirements of the petroleum site owner or the owner and/or operator at the petroleum site; and
- (B)
Requirements to authorize any class or category of petroleum underground storage tank owners and/or operators to petition for changes in the foregoing financial responsibility requirements pursuant to § 4-5-201. In ruling on any request, the board may not allow the financial responsibility requirements to be less stringent than the federal financial responsibility requirements for enforcement;
- (9)
Requirements providing for the assessment and collection of fees as provided in this chapter;
- (10)
Provisions exempting certain classes of petroleum underground storage tanks from certain parts of the regulations; provided, that such exemptions do not make the regulations less stringent than federal law and regulation; and
- (11)
Requirements for two (2) certification programs, one (1) for installers of and service providers for tank systems and one (1) for owners or operators of tanks, including, but not limited to, the qualifications, the testing procedure, any continuing education requirements, sanctions for failing to comply with the programs, and fees adequate to support the programs.
- (g)
- (1)
The commissioner or board shall approve the clean-up plan only if it assures that implementation of the plan will provide adequate protection of human health, safety, and the environment. In making this determination, the commissioner or board shall consider:
- (A)
The physical and chemical characteristics of petroleum, including its toxicity, persistence, and potential for migration;
- (B)
The hydrogeologic characteristics of the petroleum site and the surrounding land;
- (C)
The proximity, quality, and current and future uses of groundwater;
- (D)
An exposure assessment; and
- (E)
The proximity, quality, and current and future uses of surface waters.
- (2)
Upon approval of the clean-up plan, the owners and/or operators shall implement the plan and monitor, evaluate, and report the results of implementation, as required by the commissioner or board.
§ 68-215-108. Proprietary information.
-
The board shall establish procedures to ensure that information supplied to the department as required by this chapter, and as defined as proprietary by regulation, is not revealed to any person, except as provided in this section. Proprietary information shall not include the name and address of the owner and/or operator of petroleum underground storage tanks. Proprietary information may be utilized by the commissioner, the board, the department, the United States environmental protection agency (EPA), or any authorized representative of the commissioner or board in connection with the responsibilities of the department or board pursuant to this chapter or as necessary to comply with federal law.
§ 68-215-109. Annual fees — Failure to pay — Petition for reduction of penalties — Petition for refund of annual fee.
- (a)
The board shall levy and collect annual fees from the owners or operators of petroleum underground storage tanks containing petroleum substances. Subject to this section, the board is authorized to promulgate rules establishing the following:
- (1)
Which petroleum underground storage tanks are subject to annual fees;
- (2)
The amount or amounts of such fees, the fee due date, and the basis on which such fees are assessed; and
- (3)
A system of incentives to provide for reduced annual tank fees, in order to encourage tank owners to use technologies or management practices that go beyond the minimum requirements related to release detection and prevention for tanks and piping. Such technologies or practices must be found by the board to be proven methods of significantly enhancing prevention of releases or reducing the detection time frame for releases.
- (b)
- (1)
The annual fee shall be:
- (A)
Two hundred fifty dollars ($250) per tank per year for noncompartmentalized petroleum underground storage tanks;
- (B)
Two hundred fifty dollars ($250) per tank compartment per year for compartmentalized petroleum underground storage tanks.
- (2)
Pursuant to subsection (a), the board may promulgate rules raising these tank fees up to a maximum level of three hundred dollars ($300) per tank per year for noncompartmentalized tanks and three hundred dollars ($300) per tank compartment per year for compartmentalized tanks. In addition, the board is authorized to promulgate rules lowering or suspending these tank fees if the board determines that the condition of the fund warrants it.
- (c)
The tank fees authorized in this section shall be paid by or on behalf of the petroleum underground storage tank owner or operator.
- (d)
Upon failure or refusal of any person to pay a fee assessed under this part within a reasonable time allowed by the commissioner, the commissioner may proceed in the chancery court of Davidson County to obtain judgment and seek execution of such judgment.
- (e)
If a lawfully levied fee or any part of that fee is not paid by its due date, there shall be assessed against the tank owner or operator a penalty of five percent (5%) of the amount due, which shall accrue on the first day of the delinquency and be added thereto. Thereafter, on the last day of each month during which any part of any fee or any prior accrued penalty remains unpaid, an additional five percent (5%) of the then unpaid balance shall accrue and be added thereto; 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. Nothing in this section shall be construed as requiring the issuance of a commissioner's order for the payment of a fee or a late payment penalty.
- (f)
The tank owner or operator may file with the commissioner a written petition requesting a reduction in the penalties assessed under this section, setting forth in the petition the grounds and reasons for such a request. At the commissioner's sole discretion, the commissioner may reduce the penalties that otherwise accrue pursuant to this section if, in the commissioner's opinion, the failure to pay fees was due to inadvertent error or excusable neglect; however, in no event shall the penalties be reduced to an amount less than ten percent (10%) per annum, plus statutory interest.
- (g)
- (1)
The tank owner or operator may file with the commissioner a written petition requesting a refund of the annual fee paid for the current annual billing cycle or a waiver or reduction of the penalties associated with such annual fee that would otherwise accrue pursuant to this section, or both. At the commissioner's sole discretion, the commissioner may refund the annual fee or waive or reduce penalties associated with such fee, or both, if:
- (A)
The annual fee notice was issued to the tank owner or operator subsequent to approval of an application for permanent closure of underground storage tanks by the commissioner;
- (B)
In the commissioner's opinion the refund is in the best interest of the state; and
- (C)
The tank was:
- (i)
Empty for temporary closure as defined by the board from the beginning of the applicable annual billing cycle until permanent closure; and
- (ii)
Permanently closed during the applicable annual billing cycle.
- (2)
This subsection (g) does not authorize the commissioner to refund annual fees other than the annual fee paid for the current annual billing cycle as provided in this subsection (g) or to waive or reduce penalties associated with any unpaid annual fee except as provided in subsection (f) and this subsection (g).
§ 68-215-110. Petroleum underground storage tank fund — Environmental assurance fee.
- (a)
There is established within the general fund a special agency account to be known as the “petroleum underground storage tank fund” referred to in this chapter as the “fund.”
- (b)
All fees, civil penalties, and damages collected pursuant to this chapter shall be deposited in the fund. Damages, costs, restitution awards, and other recoveries collected or received by this state related to or arising from claims under this chapter, shall also be deposited into the fund to the extent that such recoveries represent the restoration of amounts disbursed from the fund, including any costs charged to the fund in pursuing such claims. Any deposits to the fund that would result in the unobligated balance of the fund exceeding fifty million dollars ($50,000,000) shall be transferred to the highway fund.
- (c)
No part of the fund shall revert to the general fund, but shall be carried forward until expended in accordance with this chapter.
- (d)
Interest accruing on investments and deposits of the fund shall be returned to the fund and remain a part of the fund.
- (e)
The board shall, when adjusting underground storage tank fees by rule as provided in § 68-215-109, consider all reasonably anticipated current and future liabilities and income of the petroleum underground storage tank fund, and, adjust underground storage tank fees, using an equitable and fiscally sound approach to sustain the long-term viability of the fund, to levels that are intended to result in sufficient funding of the current obligations, and actuarially determined obligations, after taking into account projected revenues that are reasonably expected to be available to fund these obligations as they become due, up to an unobligated maximum balance of fifty million dollars ($50,000,000) in the fund. The board shall not consider lowering or suspending the fees to a level that will result in a failure to maintain a balance above an amount sufficient to cover the then projected annual amount of claims against the fund, as well as, anticipated administrative expenses for the year. After consideration of all relevant information, including information requested by the board from the department and any additional information provided by the department, the board shall choose the process, timing and assumptions to be used in the board's determinations of the obligations, anticipated income, and appropriate fund balance.
- (f)
For each fiscal year there is appropriated a sum sufficient from the fund to provide for the administrative costs of the underground storage tank program.
- (g)
Moneys in the account 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.
- (h)
- (1)
To provide for the stability of the petroleum underground storage tank fund, there is levied, in addition to all other fees or taxes, an environmental assurance fee of four-tenths of one cent (0.4¢) per gallon on each gallon of petroleum products imported into this state and petroleum products manufactured in this state. For the purpose of this levy, petroleum products are those defined in § 67-3-103.
- (2)
The environmental assurance fee is for the purpose of assuring sufficient funding of emergency, preventive, or corrective actions necessary when public health or safety is, or potentially may be, threatened from any release of regulated substances from an underground storage tank or the use and service thereof.
- (3)
- (A)
Such environmental assurance fee shall be paid and remitted to the department of revenue on a monthly basis at the same time and in the same manner that the special tax on petroleum products is paid and remitted pursuant to § 67-3-203. Such tax collections are appropriated, and are to be allocated and expended on an annual basis only in the following order of priority:
- (i)
First to the Tennessee local development authority, referred to in this section as the “authority,” a sum sufficient to make debt service payments on the authority's bonds or notes, both currently outstanding and those reasonably anticipated to be issued during the fiscal year, issued pursuant to the Tennessee Local Development Authority Leaking Underground Storage Funding Act of 1997, compiled in title 4, chapter 31, part 9, the proceeds of which have been or will be distributed to the board pursuant to a funding agreement, plus any amounts necessary to maintain a fully funded debt reserve or other reserve intended to secure the principal and interest on the bonds or notes as may be required by resolution, or other agreement of the authority, and to pay reasonable administrative costs directly related thereto; and
- (ii)
Second, for a period of three (3) years starting July 1, 2009, the state shall credit an amount not to exceed three million dollars ($3,000,000) to the general fund annually, if the annual general appropriations act so provides, and the remainder shall be credited to the petroleum underground storage tank fund. On July 1, 2012, and thereafter, all of the funds received from this fee shall be credited to the petroleum underground storage tank fund.
- (B)
Prior to the start of each fiscal year, and to the extent necessary during the fiscal year, the following certifications shall be made and delivered to the authority:
- (i)
The commissioner of finance and administration, the actual expenditures of the fund;
- (ii)
The commissioner of revenue, the actual collections made pursuant to subdivision (h)(1);
- (iii)
The commissioner of environment and conservation, the amount of anticipated expenditures and claims against the fund, excluding payments in subdivision (h)(3)(A)(i), and the amount of anticipated tank fees collected pursuant to § 68-215-109; and
- (iv)
The authority, the amount reasonably anticipated to be necessary to make such payments as provided in subdivision (h)(3)(A)(i).
§ 68-215-111. Use of fund.
- (a)
The fund shall be available to the board and the commissioner for expenditures for the purposes of providing for the investigation, identification, and for the reasonable and safe cleanup, including monitoring and maintenance, of petroleum sites and locations from which underground storage tank systems have been removed within the state as provided in this chapter.
- (b)
The fund may also be used by the commissioner as a source of federal matching funds for the state in the petroleum underground storage tank program.
- (c)
The commissioner may enter into contracts and use the fund for those purposes directly associated with identification, investigation, containment and cleanup, including monitoring and maintenance prescribed above, including:
- (1)
Hiring consultants and personnel;
- (2)
Purchase, lease or rental of necessary equipment; and
- (3)
Other necessary expenses.
- (d)
The fund may be used for the administrative costs of the underground storage tank program and be included in the department's annual budget request to the general assembly.
- (e)
The fund may be used to provide a mechanism to meet the financial responsibility requirements for owners or operators, or both, of petroleum underground storage tanks for cleanup of contamination and third-party claims due to bodily injury or property damage, or both, caused by releases from petroleum underground storage tanks.
- (f)
- (1)
The fund may be used to provide for cleanup of contamination in accordance with conditions for eligibility and coverage of releases established in this part and in rules of the board.
- (2)
Petroleum underground storage tanks for which notification has been received by the commissioner are eligible for reimbursement from the fund for the costs of cleanup of contamination caused by releases from the tanks; however, before costs related to a particular release may be reimbursed, all of the applicable requirements of this part and the rules must be met.
- (3)
The board is authorized to promulgate rules that establish the following:
- (A)
The amount of the deductible that must be incurred by either the tank owner or operator or the owner of the petroleum site at the time of corrective action before the tank owner or operator or the owner of the petroleum site is eligible to receive reimbursement from the fund. Notwithstanding this authority, in no event shall the board set the amount of this required deductible at a level greater than thirty thousand dollars ($30,000) per occurrence; and
- (B)
A system of incentives to provide for reduced required deductible amounts in order to encourage tank owners to use technologies or management practices that go beyond the minimum requirements related to release detection and prevention for tanks and piping. In order to qualify for the incentives, the technologies or management practices must be found by the board to be proven methods of significantly enhancing prevention of releases or reducing the detection timeframe for releases.
- (4)
The amount of the deductible that must be incurred by either the tank owner or operator or the owner of the petroleum site, before the tank owner or operator or the owner of the petroleum site is eligible to receive reimbursement from the fund for an occurrence reported to the department on or after July 1, 2005, shall be twenty thousand dollars ($20,000) per occurrence; provided, however, that, pursuant to subdivision (f)(3)(A), the board may promulgate rules raising the amount of the deductible to a maximum of thirty thousand dollars ($30,000) per occurrence. In addition, the board is authorized to set the required deductible at lower amounts, if the board determines that the condition of the fund warrants setting it at lower amounts.
- (5)
- (A)
The fund shall be responsible for up to a maximum of one million dollars ($1,000,000) of cleanup costs. The sum of the deductible and the maximum reimbursement shall not exceed one million dollars ($1,000,000). The fund shall be responsible for cleanup of contamination due to releases from petroleum underground storage tanks on a per site per occurrence basis.
- (B)
Notwithstanding subdivision (f)(5)(A), the fund shall be responsible for up to a maximum of two million dollars ($2,000,000) of cleanup costs for sites still undergoing corrective action on July 1, 2015, and releases that occur on or after July 1, 2015. The sum of the deductible and the maximum reimbursement shall not exceed two million dollars ($2,000,000). The fund shall be responsible for cleanup of contamination due to releases from petroleum underground storage tanks on a per-site, per-occurrence basis.
- (6)
Unless it has been determined by the commissioner that the expenditure of fund dollars for removal, replacement, or repair of property improvements, including, but not limited to, petroleum dispensing equipment, canopies, signage, buildings and out buildings would result in a reduction of the total cost of cleanup activities at a petroleum site from what would be required otherwise, neither the fund nor the deductible for cleanup shall be used for the repair, replacement, or maintenance of petroleum underground storage tanks or property improvement on which the petroleum underground storage tanks are located, including, but not limited to:
- (A)
Underground storage tank repair;
- (B)
Underground storage tank replacement;
- (C)
Repair or maintenance of associated lines; and
- (D)
Replacement of asphalt or concrete.
- (7)
- (A)
If there is evidence of a suspected or a confirmed release on or after July 1, 2004, in order for the tank owner, tank operator or petroleum site owner to receive reimbursement from the fund, an application for fund eligibility shall be filed:
- (i)
Within ninety (90) days of the discovery of evidence of a suspected release which is subsequently confirmed in accordance with the rules promulgated pursuant to this part; or
- (ii)
Within sixty (60) days of a release which was identified in any manner other than the process for confirmation of a suspected release stated in the rules promulgated pursuant to this part.
- (B)
The tank owner or tank operator shall send notification to the petroleum site owner by certified mail, return receipt requested, within seven (7) days of confirmation of a release. Failure to comply with the applicable deadline of subdivision (f)(7)(A)(i) or (f)(7)(A)(ii) shall make the release ineligible for reimbursement from the fund.
- (8)
On or after July 1, 2004, all applications for payment of costs of cleanup shall be received by the division within one (1) year of the performance of the task or tasks covered by that application in order to be eligible for payment from the fund.
- (g)
- (1)
Petroleum underground storage tanks for which notification has been received by the commissioner are eligible for reimbursement from the fund for third-party claims involving bodily injury or property damage caused by releases from petroleum underground storage tanks; however, before payment for the claims related to a particular release may be paid, all of the applicable requirements of this part and the rules promulgated by the board must be met.
- (2)
The board is authorized to promulgate rules that establish the amount of the deductible for third-party claims for bodily injury or property damage that must be incurred by either the tank owner or operator or the owner of the petroleum site subject to the claim, before the amount of the claim in excess of the deductible may be paid by the fund. Notwithstanding this authority, in no event shall the board set the amount of this required deductible at a level greater than thirty thousand dollars ($30,000) per occurrence.
- (3)
The amount of the deductible for the third-party claims for the tank owner or operator or the owner of any petroleum site for an occurrence reported to the department on or after July 1, 2005, shall be twenty thousand dollars ($20,000); provided, however, that, pursuant to subdivision (g)(1), the board may promulgate rules setting the amounts of financial responsibility at greater amounts, up to a maximum of thirty thousand dollars ($30,000) per occurrence. In addition, the board is authorized to set the required deductible at lower amounts, if the board determines that the condition of the fund warrants setting it at lower amounts.
- (4)
The fund shall be responsible for court awards involving third-party claims up to a maximum of one million dollars ($1,000,000). The sum of the deductible and the maximum reimbursement shall not exceed one million dollars ($1,000,000). The fund shall be responsible for third-party claims involving bodily injury or property damage, or both, caused by releases from petroleum underground storage tanks on a per site per occurrence basis. All claims against the fund for third-party damages must have been awarded in a court of suitable jurisdiction.
- (h)
All claims against the fund are clearly obligations only of the fund and not of the state, and any amounts required to be paid under this part are subject to the availability of sufficient moneys in the fund. The full faith and credit of the state shall not in any way be pledged or considered to be available to guarantee payment from such fund.
- (i)
Notwithstanding any provision of this part, tanks that are owned by the state of Tennessee are not eligible for reimbursement for either cleanup costs or third party claims.
§ 68-215-114. Order for correction — Liability.
- (a)
When the commissioner finds upon investigation that any provisions of this chapter are not being carried out, and that effective measures are not being taken to comply with this chapter, the commissioner may issue an order for correction to the responsible party, and this order shall be complied with within the time limit specified in the order. The commissioner may issue an order to a responsible party to close the UST system under its ownership or control or use the petroleum underground storage tank fund to permanently close the UST system and seek cost recovery if the commissioner determines:
- (1)
That the tank system has not been brought into compliance within six (6) months of being prohibited from receiving petroleum pursuant to § 68-215-106(c); or
- (2)
That all fees, penalties, and interest have not been paid on a tank at the time tank fees for the following year are payable.
- (b)
Such order shall be made by personal service or shall be sent by certified mail. Investigations made in accordance with this section may be made on the initiative of the commissioner, including any violation of this chapter or regulations promulgated pursuant to this chapter. 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 chapter to a meeting to show cause why enforcement action ought not be taken by the department. Any person may request a meeting with the department to discuss matters pertaining to petroleum underground storage tanks.
- (c)
Responsible parties shall be liable to the state for costs of investigation, identification, containment and cleanup, including monitoring and maintenance, as provided in this chapter. Owners and/or operators of petroleum underground storage tanks with respect to releases eligible for fund reimbursement shall be liable for all costs not covered by the fund. Petroleum site owners with respect to releases eligible for fund reimbursement shall be secondarily liable for all costs not covered by the fund. All other owners and/or operators of petroleum underground storage tanks and petroleum site owners shall be liable for all costs, as provided in this chapter. Notwithstanding the foregoing, nothing in this section shall prevent the reimbursement of expenditures for investigation, identification, containment and cleanup, including monitoring and maintenance incurred by tank owners and operators or petroleum site owners pursuant to § 68-215-111.
§ 68-215-115. Recovery of costs by state — Apportionment of liability.
- (a)
Whenever the commissioner expends money for the investigation, identification, containment or cleanup of a particular site under this part, the commissioner may issue an order to any responsible party, other than an owner or operator of an underground storage tank system or a petroleum site owner if the release at such system or site is covered by the fund, to recover the amount expended or to assess that party's apportioned share of all costs expended or to be expended. Notwithstanding the commissioner's rights under this section, nothing herein shall prevent the reimbursement of expenditures for investigation, identification, containment and cleanup, including monitoring and maintenance incurred by tank owners and operators or petroleum site owners pursuant to § 68-215-111. Service of such an order shall be made by either personally serving the responsible party or by certified mail.
- (b)
- (1)
In assessing a responsible party's apportioned share, the commissioner may consider equitable factors, including, but not limited to, the following:
- (A)
Any monetary or other benefit accruing to each responsible party from the release of petroleum at the site;
- (B)
The culpability of each responsible party in regard to the release of petroleum at the site;
- (C)
Efforts of each responsible party to remediate the land, water, or other aspects of the site and any other affected property and to cooperate with the department in its work to investigate, contain or clean up the release of petroleum at the site; and
- (D)
Any expenditures required by this part made by a responsible party shall be credited toward that party's share of the cost.
- (2)
Any person against whom an assessment is issued may secure a review of the propriety or amount of the assessment by filing with the commissioner a written petition setting forth the grounds and reasons for the objection and asking for a hearing before the board. Any such assessment shall become final and not subject to review unless the person named therein files the petition within thirty (30) days after the assessment is received. When the petition is timely filed, the procedure for conducting the contested case shall be in accordance with § 68-215-119(b).
- (3)
In no event shall the total monies recovered from the responsible party or parties exceed the total expenditure from the fund for such site, except that the commissioner may assess civil penalties as provided in § 68-215-121. No tank owners and operators or petroleum site owners that are eligible to be reimbursed expenses pursuant to § 68-215-111 shall be liable to any other responsible party for contribution or cost recovery actions, related to any amounts recovered by the commissioner pursuant to this section under any law, including any common law claim, or for other similar third-party claims.
- (4)
The fund shall pay any portion of the total expenditure in excess of the aggregate amount of costs or expenditures apportioned pursuant to this section. All monies recovered from the responsible parties pursuant to this section shall be deposited in the fund.
§ 68-215-116. Failure to take proper action.
-
Any responsible party who fails without sufficient cause to properly provide for removal of petroleum or remedial action upon order of the commissioner pursuant to this chapter may be liable to the state for a penalty in an amount equal to one hundred fifty percent (150%) of the amount of any costs incurred by the fund as a result of such failure to take proper action. The commissioner may recover this penalty in an action commenced under § 68-215-115 or in a separate civil action, and such penalty shall be in addition to any costs recovered from such responsible party pursuant to this chapter. Any penalty awarded pursuant to this section shall be deposited into the fund.
§ 68-215-117. Immunity from liability — Exceptions.
-
No person shall be liable under this chapter for damages as a result of actions taken or omitted in the course of rendering care, assistance or advice at the direction of an on-scene coordinator appointed by the commissioner, with respect to an incident creating a danger to the public health or welfare or the environment as a result of any release of petroleum substances or the threat thereof. This section shall not preclude liability for damages as the result of gross negligence or intentional misconduct on the part of such person or for reckless, willful, or wanton misconduct.
§ 68-215-118. Compliance by governmental entities.
-
Each department, agency or instrumentality of the executive, legislative, and judicial branches of the federal government and the state government shall be subject to, and comply with, this chapter in the same manner and to the same extent, both procedurally and substantively, as any non-governmental entity, including liability under §§ 68-215-114 — 68-215-117.
§ 68-215-119. Review of orders.
- (a)
Any person against whom an order is issued may secure a review of such order 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. Any such order shall become final and not subject to review unless the person or persons therein file such petition for hearing before the board no later than thirty (30) days after the date such order is served.
- (b)
Hearings before the board shall be conducted as contested cases 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; provided, however, that in other matters before the board, it may be considered but shall not be binding on the board.
- (c)
An appeal may be taken from any final order or other final determination of the board by any party, including the department, who is or may be adversely affected thereby to the chancery court of Davidson County. The chancery court of Davidson County shall have exclusive original jurisdiction of all review proceedings instituted under the authority and provisions of this chapter; provided, that the judicial review of any final decision of the board shall be made pursuant to the procedures established and set forth in the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.
§ 68-215-120. Criminal penalties.
- (a)
Any person violating, failing to, neglecting to, or refusing to comply with any of § 68-215-104, commits a Class C misdemeanor. Each day upon which such violation occurs constitutes a separate offense.
- (b)
Any person who knowingly tampers with or disables a release detection or prevention device associated with an underground storage tank, or who knowingly causes or allows a release of petroleum into the environment in violation of this chapter, rules, regulations or orders of the commissioner or board commits a Class E felony; provided, however, that, if such release results in an expenditure for cleanup by any other person or from the fund, the offense shall be graded for such expenditure in the same manner as theft under § 39-14-105(a)(2)-(5).
§ 68-215-121. Civil penalty — Assessment.
- (a)
Any person who violates or fails to comply with any provision of this chapter, any order of the commissioner or board, any rule, regulation, or standard pursuant to this chapter shall be subject to a civil penalty not to exceed ten thousand dollars ($10,000) per day for each day of violation. This civil penalty may be assessed by the commissioner, the board or the court. Each day such violation continues constitutes a separate punishable offense, and such person is also liable for any damages to the state resulting therefrom. In deciding whether to assess a civil penalty and determining the amount of such assessment, the commissioner, board, or court may consider all of the circumstances surrounding the violation, including the past compliance history of the violator, the degree of risk posed to the environment by the violation, as well as the factors enumerated in subsection (c).
- (b)
Any civil penalty or damages shall be assessed in the following manner:
- (1)
The commissioner may issue an assessment against any person responsible for the violation or damages. Such person shall receive notice of such assessment by certified mail, return receipt requested;
- (2)
Any person against whom an assessment has been issued may petition the board for a review of the assessment;
- (3)
The manner of review for an assessment shall be the same as that for an order as set out in § 68-215-119;
- (4)
If a petition for review of the assessment is not filed within thirty (30) days after the date the assessment is served, the violator shall be deemed to have consented to the assessment and it shall become final;
- (5)
Whenever any assessment has become final because of a person's failure to appeal either the commissioner's assessment or the board's order, the commissioner may apply to the appropriate court for a judgment and seek execution on such judgment in a summary proceeding. The court, in such proceedings, shall treat the failure to appeal such assessment as confession of judgment in the amount of the assessment; and
- (6)
The commissioner may institute proceedings for assessment in the chancery court of Davidson County or in the chancery court of the county in which all or part of the violation or failure to comply occurred.
- (c)
In assessing a civil penalty, the following factors may be considered:
- (1)
The harm done to the public health and/or the environment;
- (2)
The economic benefit gained by the violator through noncompliance;
- (3)
The amount of effort put forth by the violator to obtain compliance; and
- (4)
Any unusual or extraordinary enforcement costs incurred by the commissioner, including compensation for loss or destruction of wildlife, fish, and any aquatic life resulting from the violation.
- (d)
Damages to the state may include any reasonable expenses incurred in investigating and enforcing violations of this chapter and in restoring the air, water, land, and other property, including the replacement of animal, plant, and aquatic life destroyed due to the violation.
- (e)
Any person qualified under the Tennessee Rules of Civil Procedure may intervene in any court action brought by the commissioner or board pursuant to this chapter.
§ 68-215-122. Injunctions.
-
In addition to the penalties provided elsewhere in this chapter, the commissioner may cause the enforcement of any orders, rules, or regulations issued by the commissioner or the board to carry out this chapter by instituting legal proceedings to enjoin the actual or threatened violation of this chapter, and the order, and regulations of the commissioner or orders of the board in the chancery court of Davidson County or in the county where all or part of the violation has or is about to occur, in the name of the department, by a staff attorney and under the supervision of the attorney general and reporter. In such suits, the court may grant temporary or permanent injunctions or restraining orders. Such proceedings will not be tried by jury.
§ 68-215-123. Complaints — Hearings — Appeals.
- (a)
- (1)
Any person may file with the commissioner or board a signed sworn complaint against any person allegedly violating any provisions of this chapter. Unless the commissioner or board determines that such complaint is duplicitous or frivolous, the commissioner or board shall immediately serve a copy of it upon the person or persons named therein, promptly investigate the allegations contained therein and shall notify the alleged violator what action, if any, the commissioner or board will take. In all cases, the commissioner or board shall notify the complainant of the commissioner's or board's action or determination within ninety (90) days from the date of the commissioner's or board's receipt of the written complaint.
- (2)
If either the complainant or the alleged violator believes the commissioner's or board'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 by filing a petition for review. Such appeal must be made within thirty (30) days after receipt of the notification sent by the commissioner or board. When such a petition is timely filed, the procedure for conducting the contested case shall be in accordance with § 68-215-119(b).
- (3)
If the commissioner fails to take the action stated in the 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.
- (4)
The department shall not be obligated to assist a complainant in gathering information or making investigations or to provide counsel for the purpose of drawing the complainant's complaint.
- (b)
The board, department, its officials and employees acting in their official capacity shall not be considered “persons” pursuant to this section.
§ 68-215-124. Exemptions.
-
Exempted from this chapter are:
- (1)
Septic tanks;
- (2)
Farm or residential tanks of one thousand one hundred gallons (1,100 gal.) or less used for storing motor fuel for noncommercial purposes;
- (3)
Tanks used for storing heating oil for consumption on the premises where stored;
- (4)
Pipeline facilities (including gathering lines) regulated under:
- (A)
The Natural Gas Pipeline Safety Act of 1968 (49 U.S.C. Appx. § 60101 et seq.);
- (B)
The Hazardous Liquid Pipeline Safety Act of 1979 (49 U.S.C. Appx. § 60101 et seq.); or
- (C)
State laws comparable to the law referred to in subdivision (4)(A) or (4)(B), if it is an intrastate pipeline;
- (5)
Surface impoundments, pits, ponds, or lagoons;
- (6)
Storm water or waste water collection systems;
- (7)
Flow-through process tanks;
- (8)
Liquid traps or associated gathering lines directly related to oil or gas production and gathering operations;
- (9)
Petroleum storage tanks situated in an underground area (such as a basement, cellar, mine working, drift, shaft, or tunnel) if the storage tank is situated upon or above the surface of the floor; and
- (10)
Pipes or connections connected to exempted tanks.
§ 68-215-125. Fund not deemed to be insurance.
-
Notwithstanding any other law to the contrary, the petroleum underground storage tank fund shall not be considered an insurance company or insurer under the laws of this state and shall not be a member of or be entitled to claim against the Tennessee insurance guaranty association created under title 56, chapter 12.
§ 68-215-126. Preemption of local regulation — Exception.
-
The Tennessee Petroleum Underground Storage Tank Act and the regulations promulgated pursuant to this chapter shall take precedence over all existing county, city, and/or municipal laws and/or regulations concerning petroleum underground storage tanks, except in situations where local laws/regulations are both more stringent and in effect on July 1, 1988.
§ 68-215-127. Exclusivity of provisions.
- (a)
Notwithstanding any provision of law to the contrary, all releases of petroleum or petroleum products from petroleum underground storage tanks shall be solely and exclusively regulated pursuant to this chapter and rules and regulations promulgated to implement this chapter.
- (b)
Notwithstanding any provision of law to the contrary, all releases of petroleum or petroleum products that by request or directive of the department require a clean-up response under state law shall be solely and exclusively subject to the soil and groundwater classification and clean-up criteria promulgated hereunder. For purposes of the preceding sentence, “soil and groundwater classification and clean-up criteria” refers to the procedures, methods and levels developed to determine appropriate clean-up levels for soil and groundwater, including, without limitation, the classification of soil and groundwater by use, quality or other category, the manner of establishing a site-specific cleanup standard and promulgated clean-up levels. “Soil and groundwater classification and clean-up criteria,” however, does not include the procedures and methods of conducting an investigation, such as determining the extent of contamination, or a cleanup, such as the selection, design or implementation of a remedy. The soil and groundwater classification and clean-up criteria shall be applied by all the divisions of the department pursuant to any applicable law.
§ 68-215-129. Cleanup contracts — Requirements.
- (a)
Any person who contracts to provide investigation, identification, containment, cleanup, monitoring or maintenance of a petroleum site pursuant to this chapter shall be subject to the following requirements:
- (1)
All contracts for such services shall be in writing and shall be signed by the owner, operator or other party obligated to pay for such services;
- (2)
All such contracts shall clearly indicate which charges are required by the department to remediate the petroleum site to acceptable state standards and which charges are associated with work performed for tasks other than the remediation of the petroleum site to acceptable state standards; and
- (3)
All such contracts shall include an express agreement that is clearly denoted by bold style type or other clearly distinguishable print and that requires the obligated party to initial or execute by a second signature, which agreement shall denote the obligated party's authorization or agreement to pay for all costs for work other than remediation of the petroleum site to acceptable state standards.
- (b)
Any person who fails to comply with this section shall not be entitled to receive any reimbursement from the fund until compliance with this section is demonstrated to the satisfaction of the department.
- (c)
This section shall only apply to contracts or agreements entered into, renewed or extended after June 30, 1997.
Part 2 Indicia of Ownership
§ 68-215-201. Chapter definitions in addition to the definitions in § 68-215-103.
-
As used in this chapter, unless the context otherwise requires:
- (1)
“Borrower”, “debtor”, or “obligor” means a person whose petroleum underground storage tank or UST system is encumbered by a security interest. These terms are used interchangeably;
- (2)
“Foreclosure” or “foreclosure and its equivalent” means purchase at a foreclosure sale, acquisition or assignment of title in lieu of foreclosure, termination of a lease or other repossession, acquisition of right to title or possession, an agreement in satisfaction of the obligation, or any other formal or informal manner (whether pursuant to law under warranties, covenants, conditions, representations or promise from the borrower) by which the holder acquires title to or possession of secured property;
- (3)
“Holder” means a person who maintains indicia of ownership primarily to protect a security interest in a petroleum underground storage tank (UST) system. “Holder” includes the initial holder or purchaser (such as a loan originator), any subsequent holder (such as a successor-in-interest or subsequent purchaser of the security interest on the secondary market), any subsequent assignee, transferee or purchaser from a holder, guarantor of an obligation, surety or any other person who holds ownership who acts on behalf of or for the benefit of a holder;
- (4)
“Indicia of ownership” means evidence of a security interest, evidence of an interest in a security interest, or evidence of an interest in real or personal property securing a loan or other obligations, including any legal or equitable title to real or personal property acquired incident to foreclosure and its equivalents. Evidence of such interests includes, but is not limited to, mortgages, deeds of trust, liens, surety bonds and guarantees of obligations, title held pursuant to a lease financing transaction in which the lessor does not select initially the leased property (herein “lease financing transaction”), and legal or equitable title obtained pursuant to foreclosure, and its equivalents. Evidence of such interests also includes assignments, pledges or other rights to or other forms of encumbrances against property that are held primarily to protect a security interest. A person is not required to hold title or a security interest in order to maintain indicia of ownership;
- (5)
“Operation” means the use, storage, filling or dispensing of petroleum contained in a petroleum underground storage tank or a UST system;
- (6)
“Primarily to protect a security interest” means that the holder's indicia of ownership are held primarily for the purpose of securing payment or performance of an obligation, but does not include indicia of ownership held primarily for investment purposes, nor ownership indicia held primarily for purposes other than as a protection of a security interest. A holder may have other, secondary reasons for maintaining indicia of ownership, but the primary reason why ownership indicia are held shall be for protection of a security interest;
- (7)
“Security interest” means an interest in a petroleum underground storage tank or UST system or petroleum site which is created or established for the purpose of securing a loan or other obligation. “Security interest” includes, but is not limited to, mortgages, deeds of trust, liens and title pursuant to lease financing transaction. A “security interest” may also arise from transactions such as sale and leasebacks, conditional sales, installment sales, trust receipt transactions, certain assignments, factoring agreements, accounts receivable financing arrangements, inventory and/or other personal property financing arrangements and consignments, if the transaction creates or establishes an interest in a petroleum underground storage tank or UST system or petroleum site for the purpose of securing a loan or other obligation; and
- (8)
“UST system” means an underground storage tank, connected underground piping, underground ancillary equipment and containment system, if any.
§ 68-215-203. Operating a petroleum underground storage tank or UST prior to or after foreclosure.
- (a) Operating a Petroleum Underground Storage Tank or UST System Prior to Foreclosure.
A holder, prior to foreclosure, as defined in this part, for purpose of compliance with underground storage tank technical standards, corrective action requirements and financial responsibility, is not an “operator” of a petroleum underground storage tank or UST system; provided, that, after April 12, 1996, the holder is not in control of or does not have responsibility for the daily operation of the petroleum underground storage tank or UST system.
- (b) Operating a Petroleum Underground Storage Tank or UST System After Foreclosure.
The following provisions apply to a holder who, through foreclosure, acquires a petroleum site or petroleum underground storage tank or UST system:
- (1)
A holder is not an “operator” of a petroleum underground storage tank or UST system if there is an operator, other than the holder, who is in control of or has responsibility for the daily operation of the petroleum underground storage tank or UST system, and who can be held responsible for compliance with applicable petroleum underground storage tank requirements;
- (2)
If another operator does not exist, as provided for under subdivision (b)(1), a holder is not an “operator” of the petroleum underground storage tank or UST system, for purposes of compliance with applicable petroleum underground storage tank requirements; provided, that the holder:
- (A)
Empties all of its known petroleum underground storage tanks or UST systems within sixty (60) calendar days after foreclosure or within sixty (60) calendar days after April 12, 1996, whichever is later, or another reasonable time period specified by the department, so that no more than two and one-half centimeters (2.5 cm.) (one inch (1″) of residue, or three-tenths of one percent (0.3%) by weight of the total capacity of the petroleum underground storage tank system, remains in the tank; leaves vent lines open and functioning; and caps and secures all other lines, pumps, manways and ancillary equipment; and
- (B)
Empties those petroleum underground storage tanks or UST systems that are discovered after foreclosure within sixty (60) calendar days after discovery or within sixty (60) calendar days of April 12, 1996, whichever is later, or another reasonable time period specified by the department, so that no more than two and one-half centimeters (2.5 cm.) (one inch (1″) of residue, or three-tenths of one percent (0.3%) by weight of the total capacity of the petroleum underground storage tank system, remains in the tank; leaves vent lines open and functioning; and caps and secures all other lines, pumps, manways and ancillary equipment;
- (3)
If another operator does not exist, as provided for under subdivision (b)(1), in addition to satisfying the conditions under subdivision (b)(2), the holder must either:
- (A)
Permanently close the petroleum underground storage tank or UST system in accordance with applicable petroleum underground storage tank requirements; or
- (B)
Temporarily close the petroleum underground storage tank or UST system in accordance with applicable petroleum underground storage tank requirements:
- (i)
Continue operation and maintenance of petroleum underground storage tank corrosion protection requirements;
- (ii)
Report suspected releases to the department; and
- (iii)
Conduct a site assessment if the petroleum underground storage tank system is temporarily closed for more than twelve (12) months and the petroleum underground storage tank system does not meet either the applicable performance standards for new petroleum underground storage tank systems or the petroleum underground storage tank upgrading requirements, except that the spill and overfill equipment requirements do not have to be met. The holder must report any suspected releases to the department. For purposes of this provision, the twelve-month period begins to run from April 12, 1996, or from the date on which the petroleum underground storage tank system is emptied and secured under subdivision (b)(2), whichever is later;
- (4)
The petroleum underground storage tank system can remain in temporary closure until a subsequent purchaser has acquired marketable title to the petroleum underground storage tank or UST system or petroleum site. Once a subsequent purchaser acquires marketable title to the petroleum underground storage tank or UST system or petroleum site, the purchaser must decide whether to operate or close the petroleum underground storage tank or UST system in accordance with applicable petroleum underground storage tank requirements.
§ 68-215-204. “Participation in the management” defined.
- (a)
“Participating in the management” means that the holder is engaging in decision-making control of, or activities related to, the operation of petroleum underground storage tank or UST system as defined in § 68-215-201.
- (b)
Actions that are “participation in management”:
- (1)
Participation in the management of a petroleum site or petroleum underground storage tank or UST system means, for purposes of this part, actual participation by the holder in the management or control of decision making related to the operation of a petroleum underground storage tank or UST system. “Participation in management” does not include the mere capacity or ability to influence or the unexercised right to control a petroleum site or petroleum underground storage tank or UST system operation. A holder is participating in the management of petroleum underground storage tank or UST system only if the holder either:
- (A)
Exercises decision-making control over the operational (as opposed to financial or administrative) aspects of petroleum underground storage tank or UST system, such that the holder has undertaken responsibility for all or substantially all of the management of petroleum underground storage tank or UST system; or
- (B)
Exercises control at a level comparable to that of a manager of the borrower's enterprise, such that the holder has assumed or manifested responsibility for the overall management of the enterprise encompassing the day-to-day decision making of the enterprise with respect to all, or substantially all, of the operational (as opposed to financial or administrative) aspects of the enterprise; and
- (2)
Operational aspects of the enterprise relate to the use, storage, filling or dispensing of petroleum contained in a petroleum underground storage tank or UST system, and include functions such as that of a facility or plant manager, operations manager, chief operating officer or chief executive officer. Financial or administrative aspects include functions such as that of a credit manager, accounts payable/receivable manager, personnel manager, controller, chief financial officer or similar functions. Operational aspects of the enterprise do not include the financial or administrative aspects of the enterprise, or actions associated with environmental compliance, or actions undertaken voluntarily to protect the environment in accordance with applicable petroleum underground storage tank requirements.
- (c)
Actions that are not participation in management pre-foreclosure:
- (1)
Actions at the inception of the loan or other transaction. No act or omission prior to the time that indicia of ownership are held primarily to protect a security interest constitutes evidence of participation in management within the meaning of this part. A prospective holder who undertakes or requires an environmental investigation (which could include a site assessment, inspection and/or audit) of petroleum underground storage tank or UST system or petroleum site (in which indicia of ownership are to be held), or requires a prospective borrower to clean up contamination from a petroleum underground storage tank or UST system or to comply or come into compliance (whether prior or subsequent to the time that indicia of ownership are held primarily to protect a security interest) with any applicable law or regulation, is not by such action considered to be participating in the management of petroleum underground storage tank or UST system or petroleum site;
- (2)
Loan policing and work out. Actions that are consistent with holding ownership indicia primarily to protect a security interest do not constitute participation in management for purposes of this part. The authority for the holder to take such actions may, but need not, be contained in contractual or other documents specifying requirements for financial, environmental and other warranties, covenants, conditions, representations or promises from the borrower. Loan policing and work out activities cover and include all such activities up to foreclosure, exclusive of any activities that constitute participation in management;
- (A)
Policing the security interest or loan.
- (i)
A holder who engages in policing activities prior to foreclosure will remain within the exemption; provided, that the holder does not, together with other actions, participate in the management of petroleum underground storage tank or UST system. Such policing actions include, but are not limited to, requiring the borrower to clean up contamination from petroleum underground storage tank or UST system during the term of the security interest; requiring the borrower to comply or come into compliance with applicable federal, state and local environmental, and other laws, rules and regulations during the term of the security interest; securing or exercising authority to monitor or inspect the petroleum underground storage tank or UST system or petroleum site (including on-site inspections) in which indicia of ownership are maintained, or the borrower's business or financial condition during the term of the security interest; or taking other actions to adequately police the loan or security interest (such as requiring a borrower to comply with any warranties, covenants, conditions, representations or promises from the borrower);
- (ii)
Policing activities also include undertaking by the holder of UST environmental compliance actions and voluntary environmental actions taken in compliance with applicable petroleum underground storage tank requirements; provided, that the holder does not otherwise participate in the management or daily operation of the petroleum underground storage tank or UST system as provided in this section and § 68-215-203. Such allowable actions include, but are not limited to, release detection and release reporting, release response and corrective action, temporary or permanent closure of a petroleum site or petroleum underground storage tank or UST system, petroleum underground storage tank upgrading or replacement, and maintenance of corrosion protection. A holder who undertakes these actions must do so in compliance with the applicable petroleum underground storage tank requirements. A holder may directly oversee these environmental compliance actions and voluntary environmental actions, and directly hire contractors to perform the work, and is not by such actions considered to be participating in the management of the petroleum underground storage tank or UST system;
- (B)
Loan work out. A holder who engages in work out activities prior to foreclosure will remain within the exemption; provided, that the holder does not, together with other actions, participate in the management of the petroleum underground storage tank or UST system. For purposes of this part, “work out” refers to those actions by which a holder, at any time prior to foreclosure, seeks to prevent, cure or mitigate a default by the borrower or obligor; or to preserve or prevent the diminution of the value of the security. “Work out” activities include, but are not limited to, restructuring or renegotiating the terms of the security interest; requiring payment of additional rent or interest; exercising forbearance; requiring or exercising rights pursuant to an assignment of accounts or other amounts owing to an obligor; requiring or exercising rights pursuant to an escrow agreement pertaining to amounts owing to an obligor; providing specific or general financial or other advice, suggestions, counseling or guidance; and exercising any right or remedy the holder is entitled to by law or under any warranties, covenants, conditions, representations or promises from the borrower.
- (d)
Foreclosure on a petroleum underground storage tank or UST system or a petroleum site, and participation in management activities post-foreclosure.
- (1)
Foreclosure.
- (A)
Indicia of ownership that are held primarily to protect a security interest include legal or equitable title or deed to real or personal property acquired through or incident to foreclosure. The indicia of ownership held after foreclosure continue to be maintained primarily as protection for a security interest; provided, that the holder undertakes to sell, re-lease a petroleum site or petroleum underground storage tank or UST system or petroleum site, held pursuant to a lease financing transaction (whether by a new lease financing transaction or substitution of the lessee), or otherwise divest itself of the petroleum underground storage tank or UST system or petroleum site, in a reasonably expeditious manner, using whatever commercially reasonable means are relevant or appropriate with respect to the petroleum underground storage tank or UST system or petroleum site, taking all facts and circumstances into consideration; provided, that the holder does not participate in management prior to or after foreclosure.
- (B)
For purposes of establishing that a holder is seeking to sell, re-lease pursuant to a lease financing transaction (whether by a new lease financing transaction or substitution of the lessee), or divest in a reasonably expeditious manner a petroleum underground storage tank or UST system or petroleum site, the holder may use whatever commercially reasonable means as are relevant or appropriate with respect to the petroleum underground storage tank or UST system or petroleum site, or may employ the means specified in this section. A holder that outbids, rejects or fails to act upon a written bona fide, firm offer of fair consideration for the petroleum underground storage tank or UST system or petroleum site, as provided in this section, is not considered to hold indicia of ownership primarily to protect a security interest;
- (2)
Holding foreclosed property for disposition and liquidation. A holder, who does not participate in management prior to or after foreclosure, may sell, re-lease, pursuant to a lease financing transaction (whether by a new lease financing transaction or substitution of the lessee), a petroleum underground storage tank or UST system or petroleum site, liquidate, wind up operations, and take measures, prior to sale or other disposition including, but not limited to, apply to, and take full advantage of the petroleum underground storage tank fund to preserve, protect or prepare the secured petroleum underground storage tank or UST system or petroleum site. A holder will only be eligible for reimbursement from the petroleum underground storage tank fund if the release would have been fund-eligible under applicable requirements had there been no foreclosure. A holder may also arrange for an existing or new operator to continue or initiate operation of the petroleum underground storage tank or UST system. The holder may conduct these activities without voiding the security interest exemption, subject to the requirements of this part:
- (A)
A holder establishes that the ownership indicia maintained after foreclosure continue to be held primarily to protect a security interest by, within twelve (12) months following foreclosure or its equivalent, listing the petroleum underground storage tank or UST system or petroleum site, with a broker, dealer or agent who deals with the type of property in question, or by advertising the petroleum underground storage tank or UST system or petroleum site, as being for sale or disposition on at least a monthly basis in either a real estate publication or a trade or other publication suitable for the petroleum underground storage tank or UST system or petroleum site, or a newspaper of general circulation (defined as one suitable under any applicable federal, state or local rules of court for publication required by court order or rules of civil procedure) covering the location of the petroleum underground storage tank or UST system or petroleum site. For purposes of this provision, the twelve-month period begins to run from April 12, 1996, or from the date that the foreclosure or its equivalent occurs, and the holder has obtained access to the petroleum underground storage tank or UST system or petroleum site, whichever is later; provided, that the holder acts diligently in foreclosing and in obtaining access to the petroleum underground storage tank or UST system or petroleum site. If the holder fails to act diligently in foreclosing or obtaining access to the petroleum underground storage tank or UST system or petroleum site, the twelve-month period begins to run from the later of either April 12, 1996, or from the date on which the holder forecloses;
- (B)
- (i)
A holder that outbids, rejects or fails to act upon an offer of fair consideration for the petroleum underground storage tank or UST system or petroleum site, establishes by such outbidding, rejection or failure to act, that the ownership indicia in the secured petroleum underground storage tank or UST system or petroleum site are not held primarily to protect the security interest, unless the holder is required, in order to avoid liability under federal or state law, to make a higher bid, to obtain a higher offer or to seek or obtain an offer in a different manner;
- (ii)
“Fair consideration,” in the case of a holder maintaining indicia of ownership primarily to protect a senior security interest in the petroleum underground storage tank or UST system or petroleum site, is the value of the security interest as defined in this section. The value of the security interest includes all debt and costs incurred by the security interest holder, and is calculated as an amount equal to or in excess of the sum of the outstanding principal (or comparable amount in the case of a lease that constitutes a security interest) owed to the holder immediately preceding the acquisition of full title (or possession in the case of a lease financing transaction) pursuant to foreclosure, plus any unpaid interest, rent or penalties (whether arising before or after foreclosure). The value of the security interest also includes all reasonable and necessary costs, fees or other charges incurred by the holder incident to work out, foreclosure, retention, preserving, protecting and preparing, prior to sale, the petroleum underground storage tank or UST system or petroleum site, re-lease, pursuant to a lease financing transaction (whether by a new lease financing transaction or substitution of the lessee), of a petroleum underground storage tank or UST system or petroleum site, or other disposition. The value of the security interest also includes environmental investigation costs (which could include a site assessment, inspection and/or audit of the petroleum underground storage tank or UST system or petroleum site), and corrective action costs incurred under applicable petroleum underground storage tank requirements or any other costs incurred as a result of reasonable efforts to comply with any other applicable federal, state or local law or regulation; less any amounts received by the holder in connection with any partial disposition of the property and any amounts paid by the borrower (if not already applied to the borrower's obligations) subsequent to the acquisition of full title (or possession in the case of a lease financing transaction) pursuant to foreclosure. In the case of a holder maintaining indicia of ownership primarily to protect a junior security interest, fair consideration is the value of all outstanding higher priority security interests, plus the value of the security interest held by the junior holder, each calculated as set forth in this section;
- (iii)
“Outbids, rejects, or fails to act upon an offer of fair consideration” means that the holder outbids, rejects or fails to act upon, within ninety (90) days of receipt, a written, bona fide, firm offer of fair consideration for the petroleum underground storage tank or UST system or petroleum site received at any time after six (6) months following foreclosure, as defined in this part. “Written, bona fide, firm offer” means a legally enforceable, commercially reasonable, cash offer solely for the foreclosed petroleum underground storage tank or UST system or petroleum site, including all material terms of the transaction, from a ready, willing and able purchaser who demonstrates to the holder's satisfaction the ability to perform. For purposes of this provision, the six-month period begins to run from April 12, 1996, or from the date that the foreclosure or its equivalent occur and the holder has obtained access to the petroleum underground storage tank or UST system or petroleum site, whichever is later; provided, that the holder acts diligently in foreclosing and in obtaining access to the petroleum underground storage tank or UST system or petroleum site. If the holder fails to act diligently in foreclosing or obtaining access to the petroleum underground storage tank or UST system or petroleum site, the six-month period begins to run from the later of either April 12, 1996, or from the date on which the holder forecloses; and
- (3)
Actions that are not participation in management post-foreclosure. A holder is not considered to be participating in the management of a petroleum underground storage tank or UST system or petroleum site when undertaking action to comply with petroleum underground storage tank requirements; provided, that the holder does not otherwise participate in the management or daily operation of the petroleum underground storage tank or UST system as provided in this part. Such allowable actions include, but are not limited to, release detection and release reporting, release response and corrective action (through use of petroleum underground storage tank fund for an eligible release or other means), temporary or permanent closure of a petroleum underground storage tank or UST system, UST upgrading or replacement, and maintenance of corrosion protection. A holder who undertakes these actions must do so in compliance with the applicable petroleum underground storage tank requirements. A holder may directly oversee these environmental compliance actions and voluntary environmental actions, and directly hire contractors to perform the work, and is not by such action considered to be participating in the management of the petroleum underground storage tank or UST system.
Chapter 216 Tennessee Oil Spill Cleanup and Environmental Preservation Act of 1995
§ 68-216-101. Short title.
-
This chapter shall be known and may be cited as the “Tennessee Oil Spill Cleanup and Environmental Preservation Act of 1995.”
§ 68-216-102. Chapter definitions.
-
As used in this chapter, unless the context otherwise requires:
- (1)
“Damages” means damages of any kind for which liability may exist under the laws of this state resulting from, arising out of, or related to the discharge or threatened discharge of oil;
- (2)
“Discharge” means any emission (other than natural seepage), intentional or unintentional, and includes, but is not limited to, spilling, leaking, pumping, pouring, emitting, emptying, or dumping;
- (3)
“Federal on-scene coordinator” means the federal official designated by the lead agency or predesignated by the environmental protection agency (EPA) or the coast guard to coordinate and direct responses under the National Contingency Plan;
- (4)
“National Contingency Plan” means the National Contingency Plan prepared and published under § 311(d) of the federal Water Pollution Control Act (33 U.S.C. § 1321(d)), as amended by the Oil Pollution Act of 1990, (101 P.L. 380, 104 Stat. 484) (33 U.S.C. § 2701 et seq.);
- (5)
“Oil” means oil of any kind or in any form, including, but not limited to, petroleum, fuel oil, sludge, oil refuse, and oil mixed with wastes other than dredged spoil;
- (6)
“Person” means an individual, corporation, partnership, association, state, municipality, commission, or political subdivision of a state, or any interstate body;
- (7)
“Removal costs” means the costs of removal that are incurred after a discharge of oil has occurred or, in any case in which there is a substantial threat of a discharge of oil, the costs to prevent, minimize, or mitigate oil pollution from such an incident;
- (8)
“Remove” or “removal” means containment and removal of oil or a hazardous substance from water and shorelines or the taking of other actions as may be necessary to minimize or mitigate damage to the public health or welfare, including, but not limited to, fish, shellfish, wildlife, and public and private property, shorelines, and beaches; and
- (9)
“Responsible party” means a responsible party as defined under § 1001 of the Oil Pollution Act of 1990 (33 U.S.C. § 2701).
§ 68-216-103. Exemption from liability for cleanups related to National Contingency Plan.
- (a)
Notwithstanding any other provision of law, a person is not liable for removal costs or damages which result from actions taken or omitted to be taken in the course of rendering care, assistance, or advice consistent with the National Contingency Plan or as otherwise directed by the federal on-scene coordinator or by the state official with responsibility for oil spill response.
- (b)
Subsection (a) does not apply:
- (1)
To a responsible party;
- (2)
With respect to personal injury or wrongful death; or
- (3)
If the person is grossly negligent or engages in willful misconduct.
- (c)
A responsible party is liable for any removal costs and damages that another person is relieved of under subsection (a).
Chapter 217 Tennessee Drycleaner's Environmental Response Act
§ 68-217-101. Short title.
-
This chapter shall be known and may be cited as the “Tennessee Drycleaner's Environmental Response Act.”
§ 68-217-102. Chapter definitions.
-
As used in this chapter, unless the context otherwise requires:
- (1)
“Abandoned drycleaning facility” means any real property premises or individual leasehold space on which a drycleaning facility formerly operated;
- (2)
“Commissioner” means the commissioner of environment and conservation, or the commissioner's designee;
- (3)
“Dense non-aqueous solvent or product” means any chemical or mixture of chemicals other than water-based solvents that is used in the drycleaning of clothes and that does not float on water;
- (4)
“Department” means the department of environment and conservation;
- (5)
“Drycleaner environmental response fund” refers to the fund established under § 68-217-103;
- (6)
“Drycleaning facility” means any commercial facility located in this state which is engaged in on-site drycleaning operations, other than:
- (A)
A coin-operated drycleaning operation;
- (B)
A facility located on a United States military base or owned by the United States, or any department or agency thereof;
- (C)
A commercial uniform service and/or linen supply facility; or
- (D)
A facility owned by the state or any agency or department thereof;
- (7)
“Drycleaning operations” means cleaning of apparel and household fabrics, using one (1) or more drycleaning solvents, including, but not limited to, those businesses described in Standard Industrial Classification (SIC) Code No. 7216;
- (8)
“Drycleaning solvent” or “solvent” means any and all non-aqueous solvents or products used, or intended for use, in the cleaning of garments and other fabrics at a drycleaning facility and includes, but is not limited to, dense non-aqueous solvents such as chlorinated solvents like perchloroethylene (perc), also known as tetrachloroethylene, and light non-aqueous solvents such as petroleum-based solvents like Stoddard Solvent, and the products into which all such solvents or products degrade;
- (9)
“Full-time employee” means the total number of hours worked at a drycleaning facility by all full-time and part-time employees, excluding the owner/manager and dividing that number by forty (40). This hereafter shall be known as “full-time equivalence (FTE)”;
- (10)
“Impacted third party” means a lessor of real property on which a drycleaning facility or an in-state wholesale distribution facility is located, a property owner whose real property is adversely environmentally impacted by a release from a drycleaning facility or in-state wholesale distribution facility, or their predecessors, successors or assigns, mortgagees, predecessors-in-title and successors-in-title;
- (11)
“In-state wholesale distribution facility” means a place of business located in this state of a wholesale distributor or any real property premises or individual leasehold space located in this state, occupied by an in-state wholesale distribution facility after June 13, 1995;
- (12)
“Light non-aqueous solvent or product” means any chemical or mixture of chemicals other than water-based solvents that is used in the drycleaning of clothes and that floats on water;
- (13)
“Release” means any spilling, pouring, overfilling, leaking, leaching, emitting, discharging, or escaping of drycleaning solvents from a drycleaning facility or an in-state wholesale distribution facility or its associated piping which impacts groundwater, surface water, surface or subsurface soils; and
- (14)
“Wholesale distributor” means a person or company whose primary business is selling drycleaning solvents and supplies to in-state or out-of-state drycleaning facilities. “Primary business,” as used in this subdivision (14), means where the percentage of the person's or company's gross receipts from the sale of drycleaning solvents and supplies to such drycleaning facilities equals or exceeds twenty percent (20%) of total gross receipts.
§ 68-217-103. Response fund.
- (a)
There is established the “drycleaner environmental response fund” to provide a source of funds for the implementation of this chapter.
- (b)
The expenses of administering the fund, including staff to implement this chapter, shall be paid from the money in the fund.
- (c)
The state treasurer shall invest the money in the fund not currently needed to meet the obligations of the fund in the same manner as other public funds are invested. Interest that accrues from these investments shall be deposited in the fund.
- (d)
The sources of money for the fund are as follows:
- (1)
Registration fees and drycleaning solvent surcharges paid under § 68-217-106;
- (2)
Any appropriations made by the general assembly;
- (3)
Penalties collected pursuant to this chapter;
- (4)
Gifts, grants, and donations intended for deposit in the fund; and
- (5)
Any federal funds made available under similar federal legislation, or any other federal program.
- (e)
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 until expended in accordance with this chapter.
- (f)
All claims against the fund shall be expressly and exclusively obligations of the fund only and not of the state, and any amounts required to be paid under this section are subject to the availability of sufficient moneys in the fund. The full faith and credit of the state shall not in any way be pledged or considered to be available to guarantee payment from such fund.
- (g)
Notwithstanding any other law to the contrary, the drycleaner environmental response fund shall not be considered an insurance company or insurer under the laws of this state, and shall not be a member of nor be entitled to claim against the Tennessee insurance guaranty association created under title 56, chapter 12.
§ 68-217-104. Creation of program — Advisory committee.
- (a)
The drycleaner environmental response program is created within the department, in the division of remediation.
- (b)
From time to time the commissioner may appoint a drycleaners advisory committee that shall advise the commissioner on matters related to the drycleaner environmental response program, including, but not limited to, proposed rules and changes to fees. The commissioner may determine the identity and number of committee members and the term during which the committee will operate. When appointing members the commissioner shall consider the nature of the issues that are relevant to the charge given to the committee. The commissioner shall appoint persons from affected interests, which may include large and small drycleaners, facilities that use or have used dense non-aqueous solvent, facilities that use or have only used light non-aqueous solvent, property owners where drycleaners are located, and environmental interests. No member of the committee is entitled to a salary for duties performed as a member of the committee and no member of the committee is entitled to reimbursement for travel or other expenses incurred in the performance of the member's official duties.
§ 68-217-105. Duties and responsibilities of commissioner.
- (a)
The commissioner has the following duties and responsibilities:
- (1)
Develop and approve investigation and remediation strategies, including, but not limited to, presumptive remedial responses, establish a mechanism for approving contractors to perform investigation and remediation actions under this chapter, and establish a schedule of acceptable registration fees and costs for services rendered by approved contractors under this chapter;
- (2)
Oversee expenditures required to provide administrative support and maximize the funds available for cleanup and minimize the administrative expenditures of the department;
- (3)
Review and accept or deny the petition for entry into the program based on the standards set out in subdivision (a)(4)(B), and prioritize petitions described in this chapter according to promulgated rules and established guidelines. In establishing guidelines for site prioritization, the commissioner shall consider the degree of risk to human health and the environment and other factors as the commissioner may deem appropriate;
- (4)
- (A)
Develop rules which establish a process for the owner or operator of a drycleaning facility or in-state wholesale distribution facility, the current or prior owner or operator of an abandoned drycleaning facility, or impacted third party to petition the commissioner for:
- (i)
Entry into the program;
- (ii)
The expenditure of monies from the fund for reimbursement of approved investigative or remedial response costs;
- (iii)
Scheduling investigatory and remedial measures; and
- (iv)
Administrative review of the final actions of the commissioner.
- (B)
Once a drycleaning facility, in-state wholesale distribution facility, abandoned drycleaning facility, or impacted third party has petitioned the commissioner and has complied with all the requirements for entry into the program as established by this chapter, including the payment of necessary registration fees and, if applicable, surcharges on drycleaning solvents, then the commissioner shall accept the petition, inform the party of the decision to allow the site into the program established by this chapter, and inform the party of the priority ranking of the site. The commissioner may reject any petition and deny coverage under the chapter if the commissioner determines that the drycleaning facility, abandoned drycleaning facility, or in-state wholesale distribution facility has been in willful noncompliance with this chapter or the rules enacted under this chapter;
- (5)
Develop rules which establish a process for the commissioner to withdraw the grant of a petition after notice to the petitioning party and all impacted third parties and a reasonable opportunity to cure. The commissioner may withdraw any favorable determination concerning any petition previously granted if the commissioner determines that the petitioner is in willful noncompliance with this chapter or the rules enacted under this chapter. A determination of ineligibility against the petitioning party, due to conduct that occurred after the granting of the initial petition by the commissioner, shall not otherwise affect another eligible party's ability to obtain reimbursement from the fund;
- (6)
Authorize payments from the fund established by this chapter to a petitioner or its designee to reimburse the cost of an investigative or remedial response undertaken and approved pursuant to its rules. Sites which are high priority sites, as determined during the program entry process, will be reviewed by the commissioner, who will authorize the reimbursement of funds necessary for the cleanup of such sites with money available from the fund. Such authorization for payment from the fund to a petitioner or its designee shall be given prior to the expenditure of any fund monies;
- (7)
Develop rules that institute a process for certification of the completion of all necessary investigation and remedial work or further that no investigation and remediation is necessary with respect to a site; and
- (8)
Develop and promulgate regulations or guidelines establishing ongoing best management practices for the drycleaner industry in this state with respect to the handling of drycleaning solvent.
- (b)
The commissioner shall promulgate all rules and regulations necessary to implement this chapter, including, but not limited to, rules on the subjects specified above, and shall conduct all contested case proceedings in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5. Judicial review of final orders of the commissioner in contested case proceedings shall be in the chancery court of Davidson County pursuant to the Uniform Administrative Procedures Act.
- (c)
The commissioner shall promulgate rules that establish a schedule of amounts of annual registration fees to be paid by drycleaning facilities that is based on the amount of drycleaning solvent purchased. The maximum annual registration fee shall be one thousand five hundred dollars ($1,500) and this is the amount that shall be paid by abandoned drycleaning facilities.
- (d)
The commissioner shall promulgate rules that establish three (3) categories of drycleaning facilities based on the amount of solvent used requiring payment of the different levels of deductible amounts stated in § 68-217-106.
§ 68-217-106. Registration — Payments to the fund.
- (a)
Each year, the owner or operator of a drycleaning facility that is currently conducting, or intends to conduct for all or part of the year, drycleaning operations and each in-state wholesale distribution facility shall register with the department on forms provided by the department.
- (b)
Current or prior owners or operators of abandoned drycleaning facilities may register the site as set out in subsection (a). A current or prior owner or operator of an abandoned drycleaning facility who fails to register a site with the department as described in subsection (a) shall be permitted to register the site; provided, however, that the current or prior owner or operator pays the annual registration fees that would have been imposed under this chapter on the site if the abandoned drycleaning facility had been registered at the first possible date established by this chapter. In addition, such registrant shall pay interest on the back registration fees, plus a fifty dollar ($50.00) per month late fee for each month since the first month that the site could have registered under this chapter.
- (c)
The owner or operator of a drycleaning facility or current or prior owner or operator of an abandoned drycleaning facility registered under this section shall pay to the department an annual registration fee in accordance with the schedule established in the rules of the commissioner.
- (d)
It is unlawful to sell or transfer drycleaning solvent to any person owning or operating a drycleaning facility unless the owner or operator of the drycleaning facility has conspicuously posted a copy of a valid certificate evidencing registration of the drycleaning facility pursuant to this chapter at the facility. Any person who violates or fails to comply with any provision of this subsection (d) shall be subject to a civil penalty of up to ten thousand dollars ($10,000) per violation. The commissioner has the authority to assess civil penalties under this subsection (d). The recipient of any civil penalty under this subsection (d) has the right to appeal such assessment to the commissioner. The appeal of any assessment under this subsection (d) shall be filed with the commissioner within thirty (30) days of the party's receipt of the assessment.
- (e)
A wholesale distributor shall pay to the department an annual registration fee of five thousand five hundred dollars ($5,500) per in-state wholesale distribution facility.
- (f)
At least thirty (30) days before payment of a registration fee is due, the department shall attempt to notify and submit a registration fee payment form to each drycleaning facility, each in-state wholesale distribution facility and each current or prior owner or operator of an abandoned drycleaning facility registered under this section. The registration fee payment form provided by the department must accompany the registration fee payment.
- (g)
In addition to the registration fee required by subsection (c), there is established a drycleaning solvent surcharge of:
- (1)
Ten dollars ($10.00) for each gallon of dense non-aqueous solvent or product purchased by a drycleaning facility; and
- (2)
One dollar ($1.00) for each gallon of light non-aqueous solvent or product purchased by a drycleaning facility.
- (h)
The solvent surcharge required by subsection (g) shall be collected and forwarded to the department by the seller of the drycleaning solvent, regardless of the location of such seller.
- (i)
The solvent surcharges in subsection (g) shall be paid on a quarterly basis and shall be paid to the department for the previous quarter.
- (j)
The department shall provide each person who pays a registration fee or solvent surcharge under this chapter with a receipt. The receipt or the copy of the receipt shall be produced for inspection at the request of any authorized representative of the department.
- (k)
- (1)
Prior to the approval of an expenditure of any funds under this chapter with respect to reimbursement for investigation or remediation at a particular site that has been accepted into the program established by this chapter, each drycleaning facility, abandoned drycleaning facility, in-state wholesale distribution facility, or impacted third party, that files a petition accepted by the commissioner requesting such expenditure, is required to accept responsibility for incurring response costs associated with each request for reimbursement (deductibles). The deductible for each drycleaning facility shall be based on the quantity of solvent purchased. The commissioner shall promulgate rules that establish appropriate categories of facilities to pay the following deductible amounts:
- (A)
Category 1 drycleaning facilities shall be responsible for five percent (5%) of each request for reimbursement up to a total amount of five thousand dollars ($5,000) per site per clean-up;
- (B)
Category 2 drycleaning facilities shall be responsible for ten percent (10%) of each request for reimbursement up to a total amount of ten thousand dollars ($10,000) per site per clean-up;
- (C)
Category 3 drycleaning facilities shall be responsible for fifteen percent (15%) of each request for reimbursement up to a total amount of fifteen thousand dollars ($15,000) per site per clean-up;
- (2)
In-state wholesale distribution facilities shall be responsible for twenty-five percent (25%) of each request for reimbursement up to a total amount of twenty-five thousand dollars ($25,000) per site per clean-up. Abandoned drycleaning facilities shall be responsible for twenty-five percent (25%) of each request for reimbursement up to a total amount of twenty-five thousand dollars ($25,000) per site per clean-up. An impacted third party's deductible shall be equal to the deductible that would be applicable if the impacted third party owned the drycleaning facility, abandoned drycleaning facility, or in-state wholesale distribution facility that is the source of the release.
- (l)
Registration fees and surcharges paid under this section shall be collected by the department and deposited in the drycleaner environmental response fund created under this chapter.
- (m)
If the money in the fund exceeds ten million dollars ($10,000,000) during any one (1) year, the department shall waive the payment of the solvent surcharges and collect only the registration fees for a period of one (1) year.
- (n)
The registration fees and surcharges and deductibles prescribed by this section may be adjusted by the commissioner, after notice and opportunity for public comment, in a manner necessary and appropriate to ensure viability of the fund and in furtherance of the purposes of this chapter; provided, that any fees or deductibles applicable to abandoned drycleaning facilities shall never be in excess of the fees and deductibles applicable to the largest drycleaning facility, and there shall be no surcharges on abandoned drycleaning facilities.
§ 68-217-107. Reimbursement from fund.
- (a)
An owner or operator of a drycleaning facility, or in-state wholesale distribution facility, the current or prior owner or operator of an abandoned drycleaning facility, or an impacted third party may seek reimbursement from the fund for response costs above the applicable deductible set forth in § 68-217-106(k) incurred in connection with a release from a drycleaning facility, in-state wholesale distribution facility or abandoned drycleaning facility in accordance with regulations established by the commissioner.
- (b)
The commissioner may not authorize the expenditure of funds from the fund in excess of two hundred thousand dollars ($200,000) per year for releases from any individual drycleaning facility, abandoned drycleaning facility, or in-state wholesale distribution facility, nor authorize a distribution of monies from the fund that would result in a diminution of the fund below a balance of one hundred thousand dollars ($100,000) unless an emergency exists at a drycleaning facility, abandoned drycleaning facility, or in-state wholesale distribution facility that constitutes an imminent and substantial threat to human health or the environment. In the event of an emergency as described in this subsection (b), the commissioner shall approve the reimbursement of reasonable response costs to remove the imminent and substantial threat to human health or the environment.
- (c)
The commissioner shall not authorize distribution of fund monies to:
- (1)
Sites that are contaminated by solvents normally used in drycleaning operations where the contamination at such sites did not result from the operation of a drycleaning facility, abandoned drycleaning facility, or an in-state wholesale distribution facility;
- (2)
Sites that are not drycleaning facilities, in-state wholesale distribution facilities, or abandoned drycleaning facilities, that are contaminated by a release that results from drycleaning solvents being transported to or from a drycleaning facility or in-state distribution facility; or
- (3)
Any property contaminated by a release from a drycleaning facility, abandoned drycleaning facility, or in-state wholesale distribution facility, that has been identified by the United States environmental protection agency (EPA) as a federal superfund site pursuant to 40 CFR Part 300 et seq., except that the commissioner may authorize distribution of the required state match up to two hundred thousand dollars ($200,000) per year per site; or
- (4)
Any drycleaning facility which has obtained a permit pursuant to the Resource Conservation and Recovery Act (RCRA) (42 U.S.C. § 6901 et seq.).
§ 68-217-108. Refusal to pay registration fees or surcharges.
- (a)
Upon failure or refusal of a seller of drycleaning solvent, an owner or operator of a drycleaning facility, an in-state wholesale distribution facility, or the current or prior owner or operator of an abandoned drycleaning facility, subject to payment by regulation, to pay a registration fee or solvent surcharge, lawfully levied within a reasonable time allowed by the commissioner, the commissioner may proceed in the court of competent jurisdiction to obtain judgment and seek execution of such judgment.
- (b)
Any person who fails or refuses to pay a lawfully levied registration fee or solvent surcharge or any part of that registration fee or solvent surcharge by its due date shall be assessed a penalty of up to fifty dollars ($50.00) for each day that passes after the fee or surcharge is due and before such fee or surcharge is paid. Nothing in this section shall be construed as requiring the issuance of a commissioner's order for the payment of a registration fee or a late payment penalty.
- (c)
No owner or operator shall receive a registration certificate as required under § 68-217-106(a) until all fees, surcharges and penalties required by this chapter are paid in full.
§ 68-217-110. Rulemaking.
-
The commissioner shall promulgate, after public notice and an opportunity for comment, regulations to implement the duties and responsibilities as set forth in § 68-217-105, including, but not limited to, standards for evaluating releases of drycleaning solvent at or from affected drycleaning facilities, in-state wholesale distribution facilities, or abandoned drycleaning facilities and for determining what, if any, response action is necessary for any such release and standardized methods and techniques for responding to such releases and appropriate presumptive remedial responses. Such standards, methods and techniques shall, to the maximum extent practicable, be applicable to all drycleaning facilities, in-state wholesale distribution facilities and abandoned drycleaning facilities in this state, and, in any event shall be cost-effective, reasonable, and technically feasible.
§ 68-217-111. Preemption.
- (a)
Notwithstanding any other provision of law, no owner/operator of a drycleaning facility or in-state wholesale distribution facility or current or prior owner or operator of an abandoned drycleaning facility shall be liable for any release under any other law, including any common law claim, except to the extent of the deductible set forth in § 68-217-106(k), or for third-party claims if such facility or distributor has paid all the registration fees and solvent surcharges required under this chapter, materially complies with all rules and regulations required in this chapter, and has had its petition accepted by the commissioner for participation in the fund, and the party is in material compliance with the commissioner's requirements for investigatory or remedial measures. This section does not preclude claims based solely upon personal injuries associated with a claimant's exposure to drycleaning solvent.
- (b)
Notwithstanding any other provision of law, no impacted third party shall be liable for any release under any other law, including any common law claim, or other third party claims, if the drycleaning facility, abandoned drycleaning facility or the in-state wholesale distribution facility which is the source of the release to the impacted third party's real property is eligible for participation in the fund, for this site, and the impacted third party or the current or prior owner or operator of the drycleaning facility, abandoned drycleaning facility or in-state wholesale distribution facility which is the source of the release has petitioned the commissioner and had its petition accepted by the commissioner for participation in the fund, and the impacted third party is in material compliance with any applicable commissioner requirements for investigatory or remedial measures. This section does not preclude claims based solely upon personal injuries associated with a claimant's exposure to drycleaning solvent.
- (c)
This section does not apply to any claim filed in any court of competent jurisdiction before June 13, 1995.
- (d)
Subsections (a) and (b) shall not apply to or limit any claim of a lender which arises under a financing arrangement entered into by the owner/operator or impacted third party prior to, on or after June 13, 1995.
§ 68-217-112. Construction with Hazardous Waste Management Act.
-
To the extent that the provisions of this chapter are in conflict with, or differ from, the provisions of § 68-212-202 and chapter 212, part 4 of this title, with regard to the obligations or rights of a holder of a security interest under such provisions, the latter provisions shall take priority and control.
§ 68-217-113. State and local permits — Exceptions.
-
No state or local permits shall be required for activities that are conducted:
- (1)
As part of a response or remedial action overseen by the department pursuant to this chapter;
- (2)
Entirely on-site; and
- (3)
In accordance with this part;
-
provided, that such activities meet all standards that would apply if such permits were required.
Chapter 221 Water and Sewerage
Part 1 General Provisions
§ 68-221-101. Part definitions.
-
As used in this part, unless the context otherwise requires:
- (1)
“Auxiliary intake” means any piping connection or other device whereby water may be secured from a source other than that normally used;
- (2)
“By-pass” means any system of piping or other arrangement whereby the water may be diverted around any part or portion of a water purification plant;
- (3)
“Commissioner” means the commissioner of environment and conservation or the commissioner's authorized agent;
- (4)
“Cross connection” means any physical connection whereby a potable water supply system is connected with any other water supply system, whether public or private, either inside or outside of any building or buildings, in such manner that a flow of water into the potable water supply is possible, either through the manipulation of valves or because of ineffective check or back pressure valves;
- (5)
“Department” means the department of environment and conservation through its executive officer, the commissioner of environment and conservation, or the commissioner's legally designated representative;
- (6)
“Interconnection” means any system of piping or other arrangement whereby a potable water supply is connected directly with a sewer, drain, conduit or other device which does or may carry sewage or other liquid or waste which would be capable of imparting contamination to the potable water supply;
- (7)
“Person” means any and all persons, natural or artificial, including any individual, firm or association and any municipal or private corporation organized or existing under the laws of this or any other state or country;
- (8)
“Potable water supply” means any public or other water supply, the quality of which is approved by the department for human consumption;
- (9)
“Public sewerage system” means the conduits, sewers, and all devices and appurtenances by means of which sewage is collected, pumped, treated or disposed of finally. “Public sewerage system” does not include systems for private residences or dwellings;
- (10)
“Public water supply” means any waterworks system as defined in subdivision (12), whether privately or publicly owned, where water is furnished to any community, collection or number of individuals for a fee or charge or any other waterworks system which, on account of the people who are or may be affected by the quality of the water, is classified as a public water supply by the department;
- (11)
“Sewage” means all water-carried human and household wastes from residences, buildings, institutions or industrial establishments, together with such ground, surface, or storm water as may be present; and
- (12)
“Waterworks system” means the source of supply and all structures and appurtenances used for the collection, treatment, storage and distribution of water delivered to the consumers. This does not include waterworks systems for private residences or dwellings or waterworks systems for industrial purposes not intended for human consumption.
§ 68-221-102. Supervision over construction of water supply and sewerage systems — Certification of local standards.
- (a)
- (1)
The department shall exercise general supervision over the construction of public water supplies and public sewerage systems throughout the state.
- (2)
Such general supervision shall include all of the features of construction of waterworks systems which do or may affect the sanitary quality of the water supply and all features of construction of sewerage systems which do or may affect the proper collection, treatment or disposal of sewage.
- (3)
No new construction shall be done, nor shall any change be made in any public water supply or public sewerage system, until the plans for such new construction or change have been submitted to and approved by the department.
- (4)
No public sewerage system using land application or treatment shall be approved or certified by the commissioner which proposes to use land having a water table at an elevation which would preclude adequate treatment of the wastewater and which may result in surface or ground water pollution as provided in title 69, chapter 3, part 1.
- (5)
In granting approval of such plans, the department may specify such modifications, conditions and regulations as may be required for the protection of the public health.
- (6)
The department is authorized to investigate the public water supplies and public sewerage systems throughout the state as often as is deemed necessary by the commissioner.
- (7)
The department is empowered to adopt and enforce rules and regulations governing the construction of public water supply and public sewerage systems, and may require the submission of samples of water or sewage for examination.
- (8)
- (A)
Records of construction including plans and descriptions of existing works shall be made available to the department upon request.
- (B)
The person in charge of the public water supply or public sewerage system shall promptly comply with such request.
- (9)
The department is authorized to operate a program for the certification of laboratories to perform analyses of water and wastewater.
- (b)
- (1)
Any unit of local government which imposes standards and requirements for the construction of public water supply and sewerage systems may apply to the commissioner for the commissioner's certification that the locally imposed standards and requirements are at least as sufficient to protect the public health as those of the department.
- (2)
After certification, submission of plans to and approval by the local government for construction and changes in public water supplies and sewerage systems shall be sufficient in lieu of approval by the department as otherwise required by this section.
- (3)
The commissioner may periodically review the local standards and requirements and prescribe changes upon which continued certification may be conditioned.
§ 68-221-103. Supervision of operation and maintenance of water and sewerage systems — Notice to persons served of noncompliance with regulations.
- (a)
The department shall exercise general supervision over the operation and maintenance of public water supplies and public sewerage systems throughout the state. Such general supervision shall include all of the features of operation and maintenance which do or may affect the sanitary quality of the water supply and all of the features of operation and maintenance which do or may affect the proper treatment or disposal of sewage. For exercising such general supervision over the operation and maintenance of public water supplies and public sewerage systems, the department is authorized to investigate the public water supplies and public sewerage systems as often as is deemed necessary by the commissioner, and may adopt and enforce regulations governing the operation and maintenance of public water supply and public sewerage systems. Records of operation of public water supplies and of public sewerage systems shall be kept on blanks furnished by the department, and this data shall be submitted to the department at such times and intervals as the department may direct. Samples of water or sewage shall be submitted to the department when and in such manner as the department may direct. When the department shall have required the submission of such records or reports of operation and samples of water or sewage, the person in charge of the public water supply or public sewerage system shall promptly comply with such request.
- (b)
Whenever a public water supply system:
- (1)
Is not in compliance with departmental public water supply system regulations;
- (2)
Fails to perform monitoring required by regulations adopted by the department;
- (3)
Is subject to a variance or an exemption granted by the department; or
- (4)
Fails to comply with the requirements prescribed by a variance or exemption;
-
the system shall as soon as practicable notify the persons served by it of the fact and the extent and nature and possible health effects of such fact. Notice shall be given in such form and manner as required by departmental regulations.
§ 68-221-104. Cross connections, auxiliary intakes, by-pass or interconnections to be approved — Drain lines or conduits carrying wastes not to enter water supply.
- (a)
No person shall install, permit to be installed, or maintain any cross connection, auxiliary intake, by-pass, or interconnection, unless the source and quality of water from the auxiliary supply, the method of connection, and the use and operation of such cross connection, auxiliary intake, by-pass or interconnection has been approved by the department.
- (b)
The arrangement of sewer, soil or other drain lines or conduits carrying sewage or other wastes in such manner that the sewage or waste may find its way into any part of the public water supply system is prohibited.
§ 68-221-105. Defects in water supply or sewerage system ordered corrected when health menace.
- (a)
When the commissioner finds, upon investigation, that a public water supply or public sewerage system is an actual or potential menace to health because of improper location, quality of the source in case of public water supplies, inadequacy, faulty design, improper supervision, or inefficient operation, and that effective measures are not being carried out to correct these defects, the department may issue an order for their correction, and this order shall be complied with within the time limit specified in the order.
- (b)
Such notice shall be made by personal service or shall be sent by registered mail to the person responsible for the operation of the public water supply or public sewerage system.
- (c)
Investigations made in accordance with this section may be made at the initiative of the commissioner.
§ 68-221-106. Review of order to correct — Procedure — Injunctive relief.
- (a)
Any person against whom an order is issued may secure a review of the necessity for or reasonableness of any order of the department by filing with the department a sworn petition, setting forth the grounds and reasons for such person's objections and asking for a hearing of the matter involved.
- (b)
The department shall thereupon fix the time and place for such hearing and shall notify the petitioner thereof. At such hearing, the petitioner, and any other interested party, may appear, present witnesses, and submit evidence. Following such hearing, the final order of determination of the department shall be conclusive; provided, that such final order of determination may be reviewed in any court of competent jurisdiction upon petition therefor, filed within fifteen (15) days after such final order of determination has been issued. All such hearings shall be held in the county where the waterworks and/or sewerage system affected is located and, if such system is located within any incorporated town, then such hearing shall be held at a public place in such town, and the hearing shall be a public hearing.
- (c)
The chancery court of the county wherein such system is located shall have exclusive original jurisdiction of all review proceedings instituted under the authority and provisions of this part, whether such proceedings shall be instituted by the department, the waterworks system, the sewerage system or any company, corporation, municipality or individual authorized to institute such review proceedings.
- (d)
The commissioner may cause to be instituted a civil action in any court of competent jurisdiction for injunctive relief to prevent violation of any order issued pursuant to § 68-221-105, or to prevent violation of any provision of this part, or any rule or regulation promulgated pursuant to this part.
§ 68-221-107. Violation of this part a misdemeanor — Penalty.
-
Any person violating any of this part, or failing, neglecting or refusing to comply with any order of the department lawfully issued, commits a Class C misdemeanor. Each day of continued violation after conviction constitutes a separate offense.
§ 68-221-108. Enforcement.
- (a)
The department may cause the enforcement of any standards, policies, general or special orders, rules or regulations issued by it to control public water supplies and public sewerage systems.
- (b)
Such suit or suits as may be necessary to effectually carry out this part may be instituted, brought and prosecuted, in any court of competent jurisdiction.
- (c)
The district attorney general in whose jurisdiction a violation of this part occurs or the attorney general and reporter, either or both as indicated, shall institute and prosecute such suits when necessity therefor has been shown by those herein clothed with power of investigation.
Part 2 Construction of Sewage Treatment Works
§ 68-221-201. Part definitions.
-
As used in this part, unless the context otherwise requires:
- (1)
“Authority” means the Tennessee local development authority, a public agency, created by title 4, chapter 31, or its successor;
- (2)
“Construction” means the erection, building, acquisition, alteration, reconstruction, improvement or extension of sewage treatment works, preliminary planning to determine the economic and engineering feasibility of sewage treatment works, the engineering, architectural, legal, fiscal and economic investigations and studies, surveys, designs, plans, working drawings, specifications, procedures, and other action necessary in the construction of sewage treatment works, and the inspection and supervision of the construction of sewage treatment works;
- (3)
“Department” means the department of environment and conservation;
- (4)
“Eligible project” means a project for construction of sewage treatment works:
- (A)
For which approval is required under this chapter;
- (B)
Which is, in the judgment of the department, either eligible for federal pollution abatement assistance, or required to be undertaken by a federal or state agency, whether or not federal funds are then available therefor;
- (C)
Which conforms with applicable rules and regulations of the department; and
- (D)
Which is, in the judgment of the department, necessary for the accomplishment of the state's policy of water purity as established by the Tennessee board of water quality, oil and gas under § 69-3-105;
- (5)
“Federal pollution abatement assistance” means funds available to a municipality, either directly or through allocation by the state, from the federal government as grants for construction of sewage treatment works;
- (6)
“Grant,” “grants,” “state grant,” “state grants,” “repayable grant,” or “repayable grants” means the loan or loans of state funds to a municipality to be repaid by the municipality excluding any federal pollution abatement assistance;
- (7)
“Municipality” means any county, town or city, or special district empowered to provide municipal sewage collection and treatment services, or any combination of two (2) or more of the foregoing acting jointly, in connection with an eligible project;
- (8)
“Sewage treatment works” means any facility for the purpose of treating, neutralizing or stabilizing municipal sewage, including treatment or disposal plants, the necessary intercepting, outfall and outlet sewers, pumping stations integral to such plants or sewers, equipment and furnishings thereof and their appurtenances; and
- (9)
“User” means the owner, tenant or occupant of any lot or parcel of land connected to a sanitary sewer, or for which a sanitary sewer line is available if a municipality levies a sewer charge on the basis of such availability.
§ 68-221-202. State grants to municipalities.
- (a)
The state of Tennessee is authorized to make repayable grants to any municipality to assist the municipality in the construction of sewage treatment works. Such loans shall be made from the proceeds of bonds or notes issued by the authority for the purpose of making such loans. The authority shall establish the repayment schedule for the repayment of the repayable grant, and the repayable grant agreement shall be between the state, acting through the authority and the department, and the municipality. At the time of approval of the repayable grant agreement, the annual repayment schedule applicable to all approved repayable grants to a municipality under this part, when combined with annual repayment schedules applicable to approved loans to the municipality under part 5 of this chapter, shall not exceed two hundred percent (200%) of the unobligated amount of annual state-shared taxes paid to the municipality as shown by the latest completed audit for the state's fiscal year; provided, that the authority may impose more strict requirements if, in its judgment, deemed necessary or advisable. Nothing contained herein shall require a uniform test for all repayable grants, it being the intent of the general assembly that the authority exercise discretion based on the facts and circumstances of each repayable grant. In exercising its discretion, the authority shall take into consideration the general financial condition of the municipality receiving the repayable grant and the ability of the system, for which such repayable grant is to be made, to generate user fees sufficient to pay the costs of operation, maintenance and debt service of the system, including depreciation in accordance with generally accepted accounting principles. For purposes of determining compliance with this subsection (a), the annual repayment schedule for each repayable grant or loan shall be, in cases prior to the funding of such repayable grants or loans or where such repayable grants or loans have been financed on an interim basis other than by bonds, an estimated annual repayment schedule showing debt service requirements under the repayable grant or loan agreements as if the bonds to be issued to fund such repayable grants or loans will bear interest at a rate per annum and mature in such manner as the authority shall establish at the time of approval of each such repayable grant or loan and, in cases where bonds have been issued to fund such repayable grant or loan, the actual debt service requirements on such bonds.
- (b)
Only municipalities receiving state-shared taxes shall be eligible to participate in the program under this part; provided, that one (1) or more municipalities receiving state-shared taxes may enter into a contract pursuant to this part and loan the proceeds of such sewage treatment works loan to a municipality not receiving state-shared taxes.
§ 68-221-203. Allocation of state grants.
- (a)
In allocating state grants under this part, the department shall give consideration to, and apply, the similar standards, criteria and measures of eligibility as prescribed by this part and the rules of the department.
- (b)
Eligibility to receive federal funds shall not be a condition precedent to receiving an allocation of state grants if such project otherwise qualifies for such grant.
§ 68-221-204. Contracts between state and municipalities for eligible projects — Provisions and requirements.
- (a)
The state of Tennessee may enter into contracts with municipalities, and any such municipality may enter into a contract with the state, concerning eligible projects. Any such contract may include such provisions as may be agreed upon by the parties thereto, and shall include, in substance, the following provisions:
- (1)
An estimate of the reasonable cost of the project as determined by the department;
- (2)
- (A)
With respect to an eligible project receiving federal funds, an agreement by the state to pay to the municipality an amount equal to the actual cost of the project, or the reasonable cost of the project, whichever is lower, that is not paid by the federal government; and
- (B)
With respect to an eligible project receiving no federal funds, an agreement by the state to pay the municipality an amount sufficient to permit completion of such project. Part of the grant may be paid by the department to the municipality prior to the construction, or during the progress of the construction, or the grant may be paid following completion of the construction, as may be agreed upon by the parties;
- (3)
An agreement by the municipality to:
- (A)
Proceed expeditiously with, and complete, the project in accordance with plans approved pursuant to this part and § 68-221-102;
- (B)
Commence operation of the sewage treatment works on completion of the project, and not discontinue operations or dispose of the sewage treatment works without the approval of the department and of the authority;
- (C)
Operate and maintain the sewage treatment works in accordance with applicable provisions of this chapter, and rules and regulations of the department;
- (D)
Secure approval of the department before applying for federal assistance for pollution abatement, in order to maximize the amounts of such assistance received or to be received for all projects in Tennessee; and
- (E)
Provide for the payment of the municipality's share of the cost of the project; and
- (4)
A provision that, in the event federal assistance which was not included in the calculation of the state payment pursuant to subdivision (a)(2)(A) becomes available to the municipality, the amount of the state payment shall be recalculated with the inclusion of such additional federal assistance, and the municipality shall pay to the state the amount by which the state payment actually made exceeds the state payment determined by the recalculation.
- (b)
The department may adopt rules and regulations necessary for the effective administration of this part, including, but not limited to, the submission of plans, the procedures to be followed in applying for repayable grants, and for enforcing agreements entered into by municipalities with the department with respect to such grants.
- (c)
All contracts entered into pursuant to this section shall be subject to approval by the attorney general and reporter as to form and the commissioner of finance and administration. All payments by the state pursuant to such contracts shall be made upon warrant of the commissioner of finance and administration on vouchers approved by the department and such payments shall be subject to audit at any time.
- (d)
All action required or authorized to be taken under this part by the governing body of any municipality may be by resolution, which resolution may be adopted at the meeting of the governing body at which such resolution is introduced, and shall take effect immediately upon its adoption.
§ 68-221-205. Sewage treatment works construction account.
-
There is authorized to be established in the general fund of the state treasury an account to be known as the sewage treatment works construction account; provided, that the commissioner of finance and administration, with the approval of the comptroller of the treasury, may establish the account in such other manner and in such other fund as may be deemed appropriate.
§ 68-221-208. Municipalities to establish and collect sewer user's fees.
- (a)
All municipalities receiving grants from the state under this part shall establish a graduated sewer user's fee on each user of the sanitary sewers provided by the municipality. The municipality providing such a service shall bill and collect the fee from users of the service and is authorized to enter into contracts for the collection of such sewer user fees with any public or private corporation or municipal utilities board or commission operating a water system in the area of the sewage system or to make contracts with any other city, town or utility district to meter, bill and collect sewer user charges as a designated item on its water bills and to discontinue water service to sewer users who fail or refuse to pay sewer user charges, including the right not to accept payment of water service charges from any customer, without receiving at the same time payment of any sewer user charges owed by such customer, and not to reestablish water service until such time as all past due sewer service charges owed by such customer have been paid, and to perform all acts and discharge all obligations required by the provision of any such contract or contracts.
- (b)
The authority shall establish the monthly payment, due from the municipality to the state, necessary for the municipality to fund the project. The municipality shall establish a sewer user's fee and/or such ad valorem taxes as necessary to provide funds sufficient to pay the monthly payments established, plus the costs of operation and maintenance of the sewage treatment work, including depreciation according to generally accepted accounting principles and any other debt service requirements of the system. It is the intent that the sewer user's fee be the primary source of payment of such costs and payments. The sewer user's fee shall be adjusted periodically by the municipality so that the sewer user's fees will be sufficient to pay such monthly payments and costs, but will create a minimum excess. It is the intent that such sewer user's fees shall only be for the purpose of providing for such monthly payments and costs. The sewer user's fee shall be expressed as a single charge on the utility bill. The sewer user's fee in any county having a metropolitan form of government shall be the established fee on April 19, 1973, and shall not be adjusted by the authority unless the governing body of such county shall by ordinance request the authority to make an adjustment in such amount as the authority shall determine.
- (c)
Any upward adjustment of the sewer user's fee shall not be granted solely on the basis of increases of rates and charges for water services, but shall be made only after a finding by the municipality that such an adjustment is reasonable and justified. This subsection (c) shall not apply to counties with a metropolitan form of government.
§ 68-221-209. Power to require use of sanitary sewers — Requiring maintenance of sewer connections — Requiring payment of charges — Deposit — Action to collect delinquent charges — Maintenance of sanitary sewer and building service.
- (a)
In order to protect the public health and in order to assure the payment of bonds issued for sewage treatment works, the municipality is authorized by appropriate resolution to:
- (1)
- (A)
Require the owner, tenant or occupant of each lot or parcel of land which abuts upon a street or other public way containing a sanitary sewer and upon which lot or parcel a building exists for residential, commercial or industrial use, to connect such building with such sanitary sewer and to cease to use any other means for the disposal of sewage, sewage waste or other polluting matter;
- (B)
In addition to any other method of enforcing such requirement, a municipality also providing water services to such property may, within or without its borders, refuse water service to such owner, tenant or occupant until there has been compliance and may discontinue water service to an owner, tenant or occupant failing to comply within thirty (30) days after notice to comply;
- (2)
Require the owner, tenant or occupant of each lot or parcel of land who is responsible for any connection to the sanitary sewer required under this section to properly maintain that portion of the connection that is located on the property of the owner, tenant or occupant; and in addition to any other method of enforcing such requirement, a city, town or utility district also providing water service to such property may, within or without its border, refuse water service to such owner, tenant or occupant until there has been compliance and may discontinue water service to an owner, tenant or occupant failing to comply within thirty (30) days after notice to comply;
- (3)
Require the owner, tenant or occupant of each lot or parcel of land who is obligated to pay the charges made for the services furnished by any sewage system or sewage disposal system, to make a reasonable deposit in advance to secure the payment of such charges; and
- (4)
Proceed to recover the amount of any delinquent charges owed by any such owner, tenant or occupant, with interest thereon at the maximum legal rate, in an action ex contractu.
- (b)
- (1)
If a water and wastewater treatment authority, created pursuant to part 6 of this chapter:
- (A)
Owns a sanitary sewer funded in whole or in part through a grant obtained under this part; and
- (B)
Installed the sanitary sewer, contracted with an entity to install the sanitary sewer, or such sanitary sewer was conveyed to the authority after installation;
-
then such authority is responsible for maintaining the sanitary sewer and building service, including couplings and fittings thereto, to which the building lateral sewer of the residential or commercial customer is connected. In no event shall a residential or commercial customer be responsible for maintaining that portion of any lateral or connection that is located beyond the property line of such customer.
- (2)
As used in this subsection (b), unless the context otherwise requires:
- (A)
“Building lateral sewer” means a gravity-flow pipeline connecting a building wastewater collection system to a building service. “Building lateral sewer” is also called a “house connection” or a “service connection”; and
- (B)
“Building service” means a saddle or “Y” connection to a lateral or branch sewer for connection of a building sewer also called a “building lateral sewer.”
- (3)
Such water and wastewater treatment authority is liable upon a showing of negligence for any damage incurred by such residential or commercial customers that is caused by damage to or failure of such sanitary sewer or building service, including couplings and fittings thereto.
- (4)
This subsection (b) does not apply in any county having a population of not less than eighty thousand (80,000) nor more than eighty-three thousand (83,000) nor in any county having a population of not less than sixty-seven thousand six hundred (67,600) nor more than sixty-seven thousand nine hundred (67,900), according to the 1990 federal census or any subsequent federal census.
§ 68-221-210. Authority to levy and collect other charges.
- (a)
The municipality collecting the user's fee shall have the authority to fix, levy and collect fees, rents, tolls or other charges in an amount necessary to provide for the maintenance and operation of sewage treatment works and payment of any indebtedness.
- (b)
This authority shall be in addition to any other authority to set like fees or to levy taxes pursuant to any other statute or authority granted by the state.
§ 68-221-211. Remittance of fees to authority — Application of funds — Contracts — Failure to remit fees.
- (a)
Each municipality having entered into a contract with the state pursuant to this part shall remit to the authority such amounts and at such times as shown in the repayment schedule to be placed in a special trust fund created to provide for the payment of the principal of and interest on bonds and notes of the authority for the purpose of providing grants for sewage treatment works.
- (b)
The authority shall have the right to enter into such contracts and require such guarantees or security as it may see fit prior to, or simultaneously with, the issuance of bonds or notes as authorized hereunder or to refuse to issue such bonds or notes until such contracts or security, in any form which the authority may elect, are agreed to or are obtained.
- (c)
In the event any municipality having entered into a contract pursuant to this part shall fail to remit funds in accordance with the monthly payments established by the authority, the commissioner of finance and administration shall deliver by certified mail a written notice of such failure to the municipality within five (5) days of the failure. In the event the municipality fails to remit the amount set forth in such notice within sixty (60) days of the receipt of the notice, the commissioner shall, without further authorization, withhold such sum or part of such sum from any state-shared taxes which are otherwise apportioned to the municipality for the benefit of the authority. Furthermore, in the event any municipality having entered into a contract pursuant to this part fails to remit funds in accordance with the monthly payments established by the authority as aforementioned, the municipality shall increase its sewer user's fee and/or pledge additional available sources of revenue as are necessary to meet the obligation of the municipality according to its contract with the state.
§ 68-221-212. Use of retroactive grant.
-
To the extent that a state grant is made retroactively under this part for an eligible project that has been financed by other funds, such state grant may be used by a municipality for any municipal sewer purpose.
§ 68-221-214. Part supplemental — Loan agreements governed by this part.
- (a)
This part shall be in addition and supplemental to any other law providing for the financing of sewage treatment works of local governments, and shall not be deemed to amend or repeal any other law.
- (b)
No proceedings by a local government shall be required for loan agreements hereunder except such as are provided by this part, notwithstanding any law to the contrary.
- (c)
No requirements or restraints applicable to borrowing by local governments contained in any other law shall be applicable to loans under this part.
Part 3 Grant Programs
§ 68-221-301. Grant program — Eligible recipients and projects.
-
The department of environment and conservation is authorized to establish a grant program to further the purposes of parts 10 and 12 of this chapter utilizing federal funds allocated and state funds appropriated for such purposes. Eligible recipients of grants awarded pursuant to this part must be limited to the types of entities eligible for low-cost loans under parts 10 and 12 of this chapter or otherwise eligible as provided by federal law for the capitalization grants authorized for the loan programs established by parts 10 and 12 of this chapter. Eligible projects must be limited to those authorized by parts 10 and 12 of this chapter or otherwise eligible as provided by federal law for the capitalization grants authorized for the loan programs established by parts 10 and 12 of this chapter. The commissioner may administer the grant program in accordance with criteria set by the federal government.
§ 68-221-302. Promulgation of emergency rules.
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The commissioner of environment and conservation is authorized to promulgate emergency rules in the manner provided under the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, for the program authorized by this part if deemed to be necessary by the commissioner to make full use of available federal funding.
Part 4 Subsurface Sewage Disposal Systems
§ 68-221-401. General requirements.
-
In order to minimize the possibility of endangering the health and welfare of the public and/or the development of esthetically offensive conditions, subsurface sewage disposal systems shall be so located, constructed and maintained that wastes discharged to or from such systems:
- (1)
Do not contaminate any drinking water supply;
- (2)
Are not accessible to rodents, insects or other potential carriers of disease;
- (3)
Do not pollute or contaminate surface or ground water;
- (4)
Are not a health hazard by being accessible to the general public;
- (5)
Do not cause a nuisance due to odor or unsightly appearance; and
- (6)
Will not violate any other laws or regulations governing water pollution or sewage disposal.
§ 68-221-402. Part definitions.
-
For the purposes of this part and subsequent regulations and standards, the following words and phrases have the following meanings, unless the context otherwise requires:
- (1)
“Alternative method of disposal” means a subsurface sewage disposal system, the construction, installation and operation of which varies from that of conventional subsurface sewage disposal systems;
- (2)
“Commissioner” means the commissioner of environment and conservation, the commissioner's duly authorized representative, and in the event of the commissioner's absence or a vacancy in the office of commissioner, the deputy commissioner;
- (3)
“Department” means the department of environment and conservation;
- (4)
“Lot” means a part of a subdivision or a parcel of land intended for the building of a single house, building or other development;
- (5)
“Permit” means a written authorization issued by the commissioner licensing one (1) of the following: the construction, alteration, extension or repair of a subsurface sewage disposal system, or the removal and disposal of accumulated wastes from subsurface sewage disposal systems, and including those engaged in such businesses;
- (6)
“Person” means any and all persons, including individuals, firms, partnerships, associations, public or private institutions, municipalities, or political subdivisions or officers thereof, departments, agencies, or instrumentalities, or public or private corporations or officers thereof, organized or existing under the laws of this or any other state or country;
- (7)
“Public sewerage system” means the conduits, sewers and all devices and appurtenances by means of which sewage is collected, pumped, treated and disposed of; all of which are owned and operated by a municipality, utility district or other legally constituted agencies of government;
- (8)
“Sewage” means human excreta, all water carried wastes, and household wastes from residences, buildings, or commercial and industrial establishments;
- (9)
“Subdivision” means any tract or parcel of land divided into two (2) or more lots, sites or other division for the purpose of immediate or future building of houses, buildings or other development where subsurface sewage disposal systems are to be used. “Subdivision” does not include a division of any tract or parcel of land into two (2) or more tracts or parcels when such parts are five (5) acres or larger in size; and
- (10)
“Subsurface sewage disposal system” means a system, other than a public or community system, which receives sewage. Included within the scope of this definition are septic tank absorption systems, privies, chemical toilets, and other similar systems. However, “subsurface sewage disposal system” does not include a sewerage system regulated under part 1 of this chapter, and title 69, chapter 3.
§ 68-221-403. Duties of commissioner and department — Permit approval — Subsurface sewage disposal requirements.
- (a)
It is the duty of the commissioner to:
- (1)
Exercise general supervision over the planning, location, construction, operation and maintenance of subsurface sewage disposal systems;
- (2)
Adopt and promulgate rules and regulations as the commissioner deems necessary to accomplish the purposes of this part, including the adoption of a system of fees for services and permits;
- (3)
Establish standards for subsurface sewage disposal systems and proposed subdivisions where subsurface sewage disposal systems are to be used;
- (4)
Enforce this part and rules and regulations promulgated pursuant to this part and make such inspections and investigations as are necessary to determine compliance with the same;
- (5)
Review and approve the plans and plats of proposed subdivisions;
- (6)
Issue permits for the installation of subsurface sewage disposal systems. Such permits must be granted or denied within forty-five (45) calendar days of receiving all information necessary to make a determination or the department shall refund the permit processing fee to the permit applicant. The information necessary to make a determination must be communicated to the permit applicant in writing. If the commissioner denies an application, the denial must include a clear, written explanation for the denial with citations to any rules or statutes that were relied on in making the determination;
- (7)
Issue permits to persons engaging in the business of the construction, alteration, extension or repair of subsurface sewage disposal systems and to persons engaging in the business of removing accumulated waste from such systems;
- (8)
Suspend or revoke permits issued to persons engaging in the business of construction, alteration, extension or repair of subsurface sewage disposal systems and to persons engaging in the business of removing accumulated waste from such systems, when it is determined that the person has violated this part or applicable rules and regulations;
- (9)
Require the submission of information in addition to that otherwise required by rules or regulations deemed necessary by the commissioner to determine the suitability of individual lots for subsurface sewage disposal systems; and
- (10)
Enter into an agreement or contract with county health departments whereby the departments would implement this part or its equivalent in their respective area(s) or jurisdiction. The duty to enter into an agreement or contract shall be mandatory on the commissioner in counties of the first class and the second class which are administering a subsurface sewage disposal program on April 15, 1986, and in other counties the duty to enter into an agreement or contract shall be mandatory for the commissioner when a request is made to the commissioner by the county mayor of such county; provided, that the following conditions shall apply:
- (A)
State reporting requirements must be met by the county health departments;
- (B)
The county health department program standards must be at least as stringent as those of the state law and regulations;
- (C)
The commissioner shall retain the right to exercise oversight and evaluation of performance of the county health departments and to terminate the agreement or contract for cause immediately or otherwise, upon reasonable notice;
- (D)
The commissioner may set such other fiscal, administrative or program requirements as the commissioner deems necessary to maintain consistency and integrity of the statewide program; and
- (E)
Staffing and resources must be adequate to implement and enforce the program in the local jurisdictions.
- (b)
The commissioner may stipulate those parts of the rules, regulations and standards which may be waived for subdivisions containing fewer than five (5) lots.
- (c)
An applicant for a subsurface sewage disposal permit for a parcel of property may submit to the department the results of a high intensity soils evaluation by a soil scientist certified by the department or the results of percolation tests performed on the property. A permit must be issued to such an applicant for all lots within the parcel which comply with the regulations authorized under subdivision (a)(2) and meet the following requirements:
- (1)
The results of the percolation test or high intensity soils evaluation must clearly establish that the lot has a percolation rate of:
- (A)
Not more than one hundred five (105) minutes per inch. The percolation holes used to determine this rate must be located at the intersection of lines in a grid pattern with maximum perpendicular distances of fifty feet (50′) between the lines of the grid. Each hole shall be considered reasonably representative of a square area of two thousand five hundred square feet (2,500 sq. ft.) which includes that hole in the approximate center of the square; or
- (B)
Not less than one hundred six (106) minutes per inch and not more than one hundred twenty (120) minutes per inch; provided, that an alternative method of subsurface sewage disposal is used. The percolation holes used to determine this rate must be located at the intersection of lines in a grid pattern with maximum perpendicular distances of twenty-five feet (25′) between the lines of the grid. Each hole shall be considered reasonably representative of a square area of six hundred twenty-five square feet (625 sq. ft.) which includes that hole in the appropriate center of the square;
- (2)
All percolation tests shall be performed by a soil scientist, engineer, registered professional environmentalist, professional geologist, registered environmental health specialist/registered sanitarian with more than five (5) years experience in a subsurface sewage regulatory program and who has received credentials from the National Environmental Health Association, or surveyor licensed in this state and must be carried out in accordance with the regulations of the department;
- (3)
The grid pattern referred to in subdivision (c)(1) shall be located within the area to be utilized for the disposal field and reserve area in such a manner as to provide reliable information regarding the percolation rate of the entire area to be utilized for the disposal field and reserve area;
- (4)
If a percolation test hole within the test grid is unacceptable because the depth to rock is too little, that fact shall not necessarily mean that the remainder of the area within the test grid is unacceptable, only that the area represented by that particular hole is unacceptable;
- (5)
The department shall report the actual average percolation rate, as determined by the percolation test, on the subsurface sewage disposal system permit. The actual average percolation rate shall be determined by averaging only the test results from the area actually to be covered by the permit;
- (6)
The disposal field shall contain a minimum of three hundred seventy square feet (370 sq. ft.) of trench bottom area per bedroom; and
- (7)
When a permit applicant intends to rely upon the results of percolation tests, the applicant shall not be required to perform a high intensity soils evaluation of the area proposed for the subsurface sewage disposal system. However, for proposed subdivisions, the applicant shall submit a plat showing the results of a soils evaluation performed by a soil scientist certified by the department, the sole purpose of which is to determine which portions, if any, of the area proposed for the disposal field and reserve area are unsuitable for percolation tests because of depth to rock, slope or water problems. For individual lots which are not part of a subdivision, the general soils evaluation described in the preceding sentence is not required, but an evaluation of the lot may be performed by an employee of the department without preparing a plat. The percolation tests used to determine the actual average percolation rate of the area to be used for the disposal field and reserve area shall be run after the submission of the general soils evaluation, and the department shall be notified at least three (3) days prior to the day that these tests will be run. If the general soils evaluation concludes that a particular area is unsuitable for percolation tests, the applicant may then perform a high-intensity soils evaluation of that area to gather additional information which may show that the area is suitable for percolation tests. When a proposed area is determined to be unsuitable for percolation tests, that area may be further evaluated to determine its suitability for an alternative subsurface sewage disposal system, and where found appropriate, shall be approved by the department for an alternative system.
- (d)
Permits for the construction of subsurface sewage disposal systems shall be issued for single family residence lots in subdivisions which were approved by the local health authority prior to April 15, 1986, in accordance with the following requirements:
- (1)
Permits for lots within subdivisions approved prior to July 10, 1974, shall be based upon soils or percolation data, where such data are available for the recorded plat of the subdivision, and systems shall be constructed in accordance with the requirements authorized by subdivisions (a)(2) and (3), except for those provisions dealing with duplicate area and slope;
- (2)
Permits for lots with subdivisions approved July 10, 1974, or after, shall be based upon soils or percolation data, where such data are available for the recorded plat of the subdivision, and systems shall be constructed in accordance with the requirements authorized by subdivisions (a)(2) and (3);
- (3)
In the absence of any data on file or on the recorded plat, permits shall be issued and systems constructed in accordance with the requirements authorized by subdivisions (a)(2) and (3), except those provisions dealing with duplicate area and slope. The disposal field for these systems shall contain at least three hundred seventy square feet (370 sq. ft.) of trench bottom area per bedroom; or, if the lot does not have sufficient area to install this amount, the maximum square footage that can be installed; provided, that an absolute minimum of two hundred square feet (200 sq. ft.) per bedroom must be installed. The permit shall note that the system is for an approved subdivision without adequate available soils or percolation data; and
- (4)
The eighteen inch (18″) requirement of subsection (f) does not apply to systems approved under this subsection (d), or to subdivisions approved by the commissioner prior to July 1, 1990.
- (e)
- (1)
In the adoption and promulgation of rules and regulations under this section, the standards for subsurface sewerage disposal systems shall, in counties with a population of not less than twelve thousand three hundred fifty (12,350) nor more than twelve thousand four hundred (12,400), according to the 1970 federal census or any subsequent federal census, provide that the media for the disposal fields shall consist of crushed rock or gravel varying in size from three-fourths inch (¾″) to two and one-half inches (2½″); or of creek gravel; or of other material authorized for substitution by the county sanitation officer.
- (2)
In the adoption and promulgation of rules and regulations under this section, the standards for subsurface sewage disposal systems shall, in counties with a population of not less than six thousand (6,000) nor more than six thousand one hundred twenty-five (6,125), and in counties with a population of not less than nine thousand six hundred fifty (9,650) nor more than nine thousand seven hundred fifty (9,750), if approved by a two-thirds (⅔) vote of the legislative body of such county before September 6, 1983, all according to the 1980 federal census or any subsequent federal census, provide that the media for the disposal fields shall consist of crushed rock or gravel varying in size from three-fourths inch (¾″) to two and one-half inches (2½″); or of creek gravel; or of other material authorized for substitution by the county sanitation officer.
- (f)
It is permissible to use blasting to remove unwanted rock in order to install a septic tank or a solid line leading to the tank or from the tank to the disposal field. Where blasting is used in the construction of the disposal field, no section of pipe designed to let, or capable of letting, water escape through perforations, joints, or any other opening shall be located within ten feet (10′) horizontally of rock which has been blasted, and an anti-seep collar shall be installed at the junction of the perforated pipe and a solid pipe passing through the zone of blasted rock in such a manner as to prevent sewage discharged from perforations in the perforated pipe from moving laterally from the perforated pipe toward the blasted rock. In addition to the other requirements contained in the regulations, in no case shall any section of pipe designed to let, or capable of letting, water escape through perforations, joints, or any other opening be located within eighteen inches (18″) (at least twelve inches (12″) shall be undisturbed soil) vertically of rock in the area of karst geology (however the department may specify a lesser distance in a non-karst area) or within three feet (3′) horizontally of rock which has not been blasted. This subsection (f) is applicable to all subsurface sewage disposal system permits issued by the commissioner.
- (g)
- (1)
Where the undisturbed soil layer above rock is between eighteen inches (18″) and twenty-four inches (24″) deep, a low pressure pipe system may be installed; provided, that no portion of any seepage trench (i.e., aggregate-encased-perforated pipe) is within three feet (3′) horizontally of rock which has not been blasted and ten feet (10′) horizontally of rock which has been blasted. The elevation of each perforated distribution pipe in the low pressure pipe system shall be the same as the elevation of the natural soil in the vicinity of each pipe. Each perforated pipe shall be installed on a bed of aggregate located in a trench excavated six inches (6″) wide and six inches (6″) deep into undisturbed natural soil. Each perforated pipe shall be covered by two inches (2″) of aggregate. Each seepage trench shall be separated five feet (5′) horizontally and covered with at least twelve inches (12″) of compatible soil; provided, that all vegetation is removed from the original soil surface and it is plowed to a depth of three inches (3″) with a chisel plow prior to the placement of the added soil. The covering soil shall extend, at a minimum depth of twelve inches (12″), for a distance of five feet (5′) beyond the perimeter of the area containing the seepage trenches and then taper to natural soil level with a maximum side slope for the covering soil of three (3) to one (1) (i.e., three feet (3′) horizontal to one foot (1′) vertical). At least five (5) observation tubes shall be provided by installing fourteen inch (14″) long sections of one and one-half inch (1.5″) diameter pipe that will extend from the natural soil surface to above the surface of the covering soil. The location of the observation tubes will be specified for each system by a soil scientist certified by the department.
- (2)
Before any system may be approved under this subsection (g), a soils evaluation must be made by a soil scientist certified by the department, and the department must find that the soil is sufficiently permeable to allow proper absorption of the sewage into the soil. To the extent they are not inconsistent with this subsection (g), the general regulations governing low pressure pipe systems are applicable to systems installed pursuant to this subsection (g).
- (3)
Any system approved under this subsection (g) shall be identified on a restrictive covenant filed with the local register of deeds for the property served by the system.
- (h)
Recognizing the acute need for environmentally safe and economically feasible on-site wastewater disposal systems for sites with marginal soil resources, and further recognizing the potential for development of numerous satisfactory designs, the department is charged to continually strive to identify and/or develop design and operating criteria for systems that have potential for functioning properly on sites with limited soil depth above a limiting horizon (e.g., fragipan, perched water table, rock).
- (i)
When the undisturbed soil layer above rock is between twenty-four inches (24″) and thirty-six inches (36″) deep, a conventional disposal system may be installed, if the following requirements are met:
- (1)
The depth of gravel in the trench shall be either eight inches (8″), ten inches (10″) or twelve inches (12″) with a minimum depth underneath the pipe of three inches (3″) and with a minimum depth above the pipe of one inch (1″). As the depth of gravel is reduced to ten inches (10″) or eight inches (8″), the length of the trenches will increase proportionately such that the total cubic footage and the infiltrative surface on the side wall of the trenches will remain constant;
- (2)
The original soil surface shall be at least seven inches (7″) above the top of the gravel in the trench;
- (3)
There shall be at least nine inches (9″) of undisturbed soil between the trench bottom and rock;
- (4)
The disposal field area shall have at least ten inches (10″) of backfill above the elevation of the gravel in the trench. A maximum of three inches (3″) of the backfill may be compatible soil fill; provided, that all vegetation is removed from the original soil surface and it is plowed to a depth of three inches (3″) with a plow prior to the placement of the added soil. The covering soil shall extend, at the required depth, for a distance of five feet (5′) beyond the perimeter of the area containing the seepage trenches and then taper to natural soil level with a slope for the covering soil of three feet (3′) horizontal to one foot (1′) vertical or flatter; and
- (5)
The eighteen inch (18″) requirement of subsection (f) does not apply to systems approved under this subsection (i). To the extent they are not inconsistent with this subsection (i), the general regulations governing conventional disposal systems are applicable to systems installed pursuant to this subsection (i).
- (j)
In addition to the department's authorization for systems which have gained the approval of the National Sanitation Foundation, the department shall also authorize the use of not more than fifty (50) units of any system which meets the National Sanitation Foundation Standard 40 conducted by a research I institution that has an accredited civil and environmental engineering program; provided, that the applicant for any such unit shall, in addition to all other fees prescribed, pay to the department a special inspection fee of one hundred dollars ($100).
- (k)
Permits shall be issued for the repair of any system in existence prior to July 1, 1990, pursuant to statutes, rules and regulations in effect on June 30, 1990.
- (l)
The commissioner shall use a portion of the fees imposed and collected pursuant to state law to fund a position in the division of ground water protection. The person filling this position shall perform the following tasks:
- (1)
Determine the number of lots approved by the local health authority and/or the commissioner prior to July 1, 1990, in at least ten (10) counties in this state, which counties shall be selected by the department as representative of counties which have the greatest need for alternative subsurface sewage disposal systems;
- (2)
Gather and compile all readily available information, from other states and from throughout this state, concerning all alternative subsurface sewage disposal systems which might feasibly be used in this state, and make this information available to members of the public; and
- (3)
Communicate on a regular basis with members of the public concerning the availability, cost, environmental advantages, and other factors relevant to alternative subsurface sewage disposal systems.
§ 68-221-404. Program for evaluation of new technologies.
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The commissioner may develop a program for the evaluation of new technologies for use in subsurface sewage disposal systems. In the program, the commissioner shall first evaluate written documentation and the available studies and literature for such products. If the commissioner is satisfied with the results of this initial review, then the commissioner may authorize certain numbers of systems using the technology to be installed on an experimental basis for a period of time. During this time, the commissioner may require that mechanisms be used to protect the public and the environment. In the commissioner's discretion, this may include restrictive covenants on the property, or manufacturer's warranties with certain terms, or financial assurance mechanisms, including, but not limited to, surety or performance bonds, letters of credit, or escrow deposits. The commissioner may set the fee for permits for such experimental systems in a manner that reflects the department's costs for oversight and evaluation, fees paid by other systems, and the number of experimental systems installed, notwithstanding any rules that set a specific fee for experimental systems, to the contrary.
§ 68-221-405. Access to property.
-
It is the duty of the owner or occupant of the property to give the commissioner free access to the property at reasonable times for the purpose of making such inspections or investigations as are necessary to determine compliance with the requirements of this part and rules and regulations promulgated pursuant to this part.
§ 68-221-406. Unlawful acts.
- (a)
It is unlawful for any person to:
- (1)
Begin construction or construct any house or establishment, mobile or permanent, to be served by a subsurface sewage disposal system prior to approval of plans for the proposed location of the house or establishment and location of disposal system on the lot and approval of the specific lot as to its suitability for construction of the subsurface sewage disposal system by the commissioner;
- (2)
Begin construction or construct any house or establishment, mobile or permanent, in a subdivision until the subdivision plans have been approved by the commissioner;
- (3)
Construct, alter, extend or repair subsurface sewage disposal systems prior to securing a permit from the commissioner;
- (4)
Construct, alter, extend or repair subsurface sewage disposal systems in violation of the permit;
- (5)
Engage in the business of removing accumulated wastes from subsurface sewage disposal systems unless a permit has been secured from the commissioner;
- (6)
Engage in the business of removing wastes from subsurface sewage disposal systems and dispose of such wastes in any place and manner that do not meet the approval of the commissioner;
- (7)
Dispose of sewage or effluent from a subsurface sewage disposal system into any existing or abandoned well or well dug or drilled for that purpose, caves, sinkholes, ditches, streams or surface of the ground; or
- (8)
Engage in the business of constructing, altering, extending or repairing subsurface sewage disposal systems prior to securing a permit for such business from the commissioner.
- (b)
Notwithstanding any provision of this part to the contrary, if the department is unable to inspect a subsurface sewage disposal system which requires repair within four (4) business days of notification to the department that a repair is necessary, then the person notifying the department may proceed with such repair as though the department had made its inspection and approved the repair. The department shall give priority in inspection of subsurface sewage disposal systems to repair of such systems over issuance of permits for new construction for installation of such systems.
§ 68-221-407. Approval of subdivision plan.
-
No proposed subdivision shall be approved by a local planning commission or other agency authorized to approve subdivisions until the plans for such subdivisions have been approved by the commissioner.
§ 68-221-409. Permits required — Performance bond requirement — Sewer moratoriums — Disclosure upon transfer.
- (a)
Any person proposing to construct, alter, extend or repair subsurface sewage disposal systems, or engage in the business of removing accumulated wastes from such systems, shall secure a permit from the commissioner, in accordance with this part and rules and regulations promulgated pursuant to this part.
- (b)
If the permit of an installer of subsurface sewage disposal systems has been suspended or revoked after January 1, 2006, or if the department denies an application for renewal of a permit after January 1, 2006, and the permit is later reinstated or the installer later applies for a new permit, then to be eligible to receive such reinstated or new permit, the installer shall file with the commissioner a performance bond, or an irrevocable letter of credit, in the amount of thirty thousand dollars ($30,000), for the benefit of any person who hires the installer and is damaged because of any negligence or fraud by the installer. Any person so damaged may sue directly on the bond without assignment of the bond. Liability under any such bond may not exceed, in the aggregate, the amount of the bond. If the bond of such installer later ceases to be in effect, the permit of the installer shall become null and void, subject to reinstatement, if a new bond is provided.
- (c)
- (1)
The commissioner shall not deny a permit for a subsurface sewage disposal system solely because a public sewer system is accessible if:
- (A)
The department or a local government has placed a moratorium on additional connections to the public sewer system; and
- (B)
The applicant submits documentation with the application for a permit that the applicant cannot connect, or has been delayed from connecting, to the public sewer system because of the moratorium.
- (2)
For purposes of subdivision (c)(1)(B), a person has been delayed from connecting to a public sewer system because of a moratorium if the person has been placed on a waiting list by the public sewer system due to a moratorium.
- (d)
In any transfer by sale, exchange, installment land sales contract, or lease with option to buy residential real property consisting of not less than one (1) nor more than four (4) dwelling units, including site-built and nonsite-built homes, for which a permit was issued under this part and a subsurface sewage disposal system installed, whether or not the transaction is consummated with the assistance of a licensed real estate broker or affiliate broker, the potential future obligation to connect to the public sewer system must be disclosed by the seller to the purchaser. The remedies for a failure to disclose are the same as those provided under title 66, chapter 5, part 2.
§ 68-221-410. Variances — Hearings — Finality of decision.
- (a)
- (1)
Any person whose subdivision plan has been disapproved or whose application for a subsurface sewage disposal system permit has been denied under this part and the rules and regulations promulgated pursuant to this part, may request in writing that a variance be granted by the commissioner.
- (2)
The request should set forth in numbered paragraphs the variance requested, the reasons therefor, and be signed by the applicant.
- (3)
The commissioner shall investigate the request for variance and inform the applicant of the commissioner's decision within ninety (90) days from the date the request is received.
- (4)
A variance may be granted when in the opinion of the commissioner such a variance will not violate § 68-221-401 or otherwise constitute a definite health hazard.
- (b)
- (1)
Where an applicant, having had a plan disapproved or a permit denied, does not wish to request a variance, or where such applicant's request for a variance is denied, or where such applicant's permit has been suspended or revoked, such applicant may request a hearing before the commissioner; provided, that nothing in this section shall require the commissioner to hold more than one (1) hearing on a particular matter.
- (2)
Any hearing which is held pursuant to this section shall be conducted in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.
- (c)
Any decision of the commissioner to disapprove plans to deny, suspend or revoke a permit, or to deny a request for a variance, shall become a final decision and not subject to review unless the applicant requests by written petition a hearing or variance no later than thirty (30) days after such decision is received.
§ 68-221-411. Laws or ordinances in conflict with part.
-
In any case where a provision of this part is found to be in conflict with a provision of any private or public act or local ordinances or code existing May 4, 1973, the provision which establishes the higher standard for the promotion and protection of the health and safety of the people shall prevail.
§ 68-221-412. Injunctions.
- (a)
The commissioner may cause to be instituted a civil action in any court of competent jurisdiction for injunctive relief to prevent violation of any provision of this part or any rule or regulation promulgated pursuant to this part.
- (b)
It is the duty of the district attorney general in whose district a violation occurs to assist the commissioner in bringing such civil action.
§ 68-221-413. Violations — Penalty.
- (a)
Any person violating any of this part and rules and regulations promulgated pursuant to this part commits a Class C misdemeanor.
- (b)
It is the duty of the district attorney general in whose district a violation occurs to assist the commissioner in prosecuting such violations.
§ 68-221-414. Proof of access to sewage system prior to construction — Rules and regulations.
- (a)
Any person who intends to construct or locate a house or establishment, mobile or permanent, shall furnish evidence to the deputy electrical inspector under contract with the department of commerce and insurance, that:
- (1)
The house or establishment is served by a public sewerage system; or
- (2)
The person has applied for a permit for a subsurface sewage disposal system;
-
provided, that this subsection (a) shall not apply to farm buildings or other buildings which are not connected to a public sewerage system or a subsurface sewage disposal system.
- (b)
No public electric system shall supply electrical service for the construction or location of a house or establishment, mobile or permanent, until notified by the official electrical inspector that there has been compliance with subsection (a). Such notification shall be furnished to the public electric system by the inspector along with the electrical inspection approval for the house or establishment.
- (c)
Under no circumstances shall any of the following persons be held liable for a violation of subsection (b) unless the violation is knowing and intentional:
- (1)
A public electric system or any of its employees; and
- (2)
The department of commerce and insurance or any of the electrical inspectors employed by or under contract with that department.
- (d)
The sole responsibility for enforcement of the subsurface sewage law shall lie with the department of environment and conservation.
- (e)
This section does not apply to those counties having, on July 1, 1994, countywide building permit programs; provided, that those counties shall by letter certify to the commissioner of environment and conservation that such programs do exist which require that a subsurface sewage disposal system permit be obtained prior to receiving a building permit.
- (f)
- (1)
On or before September 14, 1993, the commissioner of environment and conservation shall promulgate proposed regulations establishing the necessary coordination between the department of environment and conservation and the department of commerce and insurance. These regulations shall not become final until they are approved by the commissioner of commerce and insurance.
- (2)
The commissioner of commerce and insurance may promulgate regulations clarifying that department's responsibility under this section, if such regulations are deemed necessary.
- (g)
Any county that adopts and establishes a countywide building permit program subsequent to July 1, 1994, shall become exempt from this section; provided, that it meets the requirements of subsection (e).
§ 68-221-415. Advanced treatment systems pilot project study.
- (a)
The department of environment and conservation is directed to coordinate a pilot project study of advanced treatment systems (ATS) over a two-year period. For purposes of §§ 68-221-415 — 68-221-417, ATS are defined as those waste water treatment systems that have been certified and listed by the National Sanitation Foundation as meeting American National Standard Institute/National Sanitation Foundation, “ANSI/NSF” Standard 40 or those systems that have been certified by another third party testing entity acceptable to the commissioner as meeting ANSI/NSF Standard 40 by a methodology acceptable to the commissioner. The department shall determine which of the existing water and waste water treatment authorities (“authorities”) created pursuant to title 68, chapter 221, part 6 wish to participate in this study. The department and any participating authorities shall develop a detailed plan for the pilot project study. Any authorities created after the initiation of the study shall be eligible to participate on the same terms as the existing authorities. The study shall be conducted as follows:
- (1)
It shall only be conducted in counties, municipalities, or metropolitan governments that have established an authority;
- (2)
The costs of the study shall be borne by the participating authorities, the owners of ATS, and the manufacturers;
- (3)
During the term of the study, the manufacturer shall conduct quarterly sampling and analysis of the effluent to determine if the level of CBOD5 is no higher than twenty-five milligrams per liter (25 mg/l) and the level of TSS is no higher than thirty milligrams per liter (30 mg/l) and perform any necessary repairs if any sample result exceeds either of those limits;
- (4)
The ATS shall only be installed on lots that meet the requirements of the rules promulgated pursuant to this part; provided, that lots may be eligible for the study if the primary disposal area meets the requirements of Appendix II of the rules after considering the reductions specified in (b)(6) and the duplicate area meets the requirements of the rules for either a conventional system or an alternative system;
- (5)
The participating authorities and the department shall approve and oversee the installation of all ATS;
- (6)
The participating authorities shall receive and maintain the reports of operation and maintenance on all ATS; and
- (7)
The participating authorities shall perform operation and maintenance on any ATS during the term of the study in the event the owner and the manufacturer fail to perform operation and maintenance and shall have the right to enter upon private property during reasonable business hours for this purpose.
- (b)
The purposes of the study are:
- (1)
To determine whether any reduction in field lines for final dispersal of effluent from ATS is appropriate as compared to the requirements for conventional systems, and if so, how much;
- (2)
To test the performance of ATS and the effluent dispersal from ATS in the different conditions that occur in the state by conducting studies in at least each of the three (3) grand divisions and including evaluation of sandy soils, clay soils, pan soils, and sloped installations;
- (3)
To determine the necessary interval for maintenance on ATS;
- (4)
To evaluate the impact on the quality of effluent from ATS of various factors that may occur in daily use such as disposal of household cleaners and other chemicals, vacations during which there is no flow through the system, etc.;
- (5)
To evaluate through surveys of other states, a review of literature or other means, what mechanism would be best to ensure that operation and maintenance of ATS would occur throughout the life of the systems; and
- (6)
Without limiting any of the foregoing including studying other sizes of area for field lines, the study shall specifically evaluate whether the following reductions in area of field lines for disposal of effluent from ATS are appropriate:
- (A)
Forty percent (40%) in soils determined by a certified soil scientist to have an absorption rate of sixty (60) minutes per inch or less;
- (B)
Thirty percent (30%) in soils determined by a certified soil scientist to have an absorption rate of sixty-one (61) through seventy-five (75) minutes per inch; and
- (C)
Twenty percent (20%) in soils determined by a certified soil scientist to have an absorption rate greater than seventy-five (75) minutes per inch but which qualify for a permit under the requirements of § 68-221-403(c)(1)-(5).
- (c)
The department is further directed to incorporate the results of this study into its regulations for subsurface sewage disposal systems so that ATS will be allowed as an alternative method of sewage disposal under appropriate conditions.
§ 68-221-416. Advanced treatment systems requirements.
-
All ATS installed are subject to the following requirements:
- (1)
A technician certified by the manufacturer shall install or personally supervise the installation of each ATS and associated field lines. Once an ATS is installed pursuant to § 68-221-415 and this section, the owner of the property shall perpetually operate and maintain it properly. This requirement shall run with the land and be binding upon all future owners of the property. A technician certified by the manufacturer shall perform this operation and maintenance on the ATS;
- (2)
Routine operation and maintenance shall be performed at three-month intervals;
- (3)
The manufacturer shall execute a four-year operation and maintenance contract with the owner of each ATS sold and installed. The costs of such contract shall be included in the original price of the installed ATS. The contract shall require that the manufacturer provide the following services, unless the damage or failure is caused by abuse by the homeowner or a third party outside the control of the manufacturer or technician:
- (A)
All manufacturer required or recommended mechanical and physical inspections and adjustments;
- (B)
The inspecting, repair, and cleaning or replacement of any filters or mechanical components, as required or as may be necessary;
- (C)
Service calls at request of owner to inspect, adjust, repair, or replace components;
- (D)
Any necessary repairs to the effluent disposal system associated with the ATS; and
- (E)
Measure the sludge and pump it out and properly dispose of it, when necessary; and
- (4)
All zoning requirements established for the parcel by the municipality or county government shall apply.
§ 68-221-418. Excavation of a preexisting subsurface sewage disposal system.
- (a)
Notwithstanding any provision of the law to the contrary, no county government official may require a homeowner or the department to conduct any excavation of a pre-existing subsurface sewage disposal system prior to issuing any county permit or license for rebuilding, remodeling, or otherwise altering any house or establishment, mobile or permanent, utilizing such system; provided, however, that:
- (1)
If the county permit is issued, the altered house or establishment utilizing the pre-existing subsurface sewage disposal system will be owned by the same owner or:
- (A)
An ancestor of such owner;
- (B)
The spouse or former spouse of such owner;
- (C)
A lineal descendent of such owner, of such owner's spouse or former spouse, or of a parent of such owner; or
- (D)
The spouse of any lineal descendent of such owner described in subdivision (a)(1)(C) of this section; who utilized the subsurface sewage disposal system prior to rebuilding, remodeling or otherwise altering such house or establishment;
- (2)
The owner, or person described in subdivisions (a)(1)(A)-(D) of this section, has no actual knowledge of any defect with the subsurface sewage disposal system or any failure of such system;
- (3)
The pre-existing subsurface sewage disposal system is not constructed, altered, extended or repaired in any manner other than being connected to the rebuilt, remodeled or otherwise altered house or establishment;
- (4)
The rebuilding, remodeling, or other alteration of the house or establishment is not in connection with a sale of the property; and
- (5)
The property owner who applied and obtained the permit or license signs a sworn statement certifying compliance with this section.
- (b)
Prior to sale of such altered or improved house or establishment, the owner shall disclose such improvements utilizing the pre-existing subsurface sewage disposal system on the residential property disclosure statement required pursuant to § 66-5-210.
- (c)
Any county that enters into an agreement with the commissioner of environment and conservation pursuant to § 68-221-403, upon the majority vote of such county's governing body and written notification of such vote to the department, shall be exempt from this section.
§ 68-221-419. Requirements for the installation and operation of advanced treatment systems (ATS).
- (a)
Any water and wastewater treatment authority that is created by a county legislative body pursuant to part 6 of this chapter, subject to approval by the county legislative body, may enact a regulation that creates requirements for the installation and operation of advanced treatment systems (ATS) and the structures served by ATSs within the county; provided, that:
- (1)
The requirements are equal to or more stringent than the requirements imposed on the systems or structures by the department of environment and conservation pursuant to this part or title 69, chapter 3, part 1;
- (2)
A copy of the regulation is filed with the department prior to its effective date;
- (3)
Any modifications to the regulation requested by the department at any time are promptly adopted; and
- (4)
Enforcement of the regulation shall be the responsibility of the county legislative body and shall not be the responsibility of the department.
- (b)
Subsection (a) shall only apply in counties having a population, according to the 2000 federal census or any subsequent federal census, of:
-
-
-
62,90063,000
-
71,10071,200
-
105,800105,900
-
Part 5 Waterworks Construction Loan Act of 1974
§ 68-221-502. Part definitions.
-
As used in this part, unless the context otherwise requires:
- (1)
“Authority” means the Tennessee local development authority, a public agency, created by title 4, chapter 31, or its successor;
- (2)
“Construction” means the erection, building, acquisition, alteration, reconstruction, improvement or extension of waterworks, preliminary planning to determine the economic and engineering feasibility of waterworks, the engineering, architectural, legal, fiscal and economic investigations and studies, surveys, designs, plans, working drawings, specifications, procedures and other action necessary in the construction of waterworks, and the inspection and supervision of the construction of waterworks;
- (3)
“Department” means the department of environment and conservation;
- (4)
“Eligible project” means a project for the construction of waterworks for which approval is required under this part, which conforms with the applicable rules and regulations of the department, and which in the judgment of the department is economically feasible;
- (5)
“Law” includes any act or statute, general, special or local, and the charter of any incorporated town or city or metropolitan government of this state;
- (6)
“Municipality” means any county, metropolitan government, incorporated town or city, or special district of this state empowered to provide water services, or any combination of two (2) or more of the foregoing acting jointly, in connection with an eligible project; and
- (7)
“Waterworks” includes all or any part of the following: source of supply, pumping facilities, purification works, collection and storage facilities and distribution system for water, together with all necessary parts and appurtenances for proper operation.
§ 68-221-503. Authorization for loans to municipalities for waterworks — Funding — Conditions of approval and repayment — Loan eligibility of municipalities not receiving state-shared taxes.
- (a)
- (1)
The state is authorized to make loans to any municipality for the construction of waterworks.
- (2)
Such loans shall be made from the proceeds of bonds or notes issued by the authority for the purpose of making such loans.
- (3)
The authority shall establish the repayment schedule for the repayment of the loan, and the loan agreement, shall be between the state, acting through the department and the authority, and the municipality; provided, that at the time of approval of the loan agreement, the annual repayment schedule applicable to all approved loans to a municipality under this part, when combined with annual repayment schedules applicable to approved loans and grants to the municipality under part 2 of this chapter and [former] chapter 211, part 4 of this title [repealed], shall not exceed two hundred percent (200%) of the unobligated amount of annual state-shared taxes paid to the municipality as shown by the latest completed audit for the state's fiscal year; provided further, that the authority may impose more strict requirements if, in its judgment, it is deemed necessary or advisable.
- (4)
- (A)
Nothing contained herein shall require a uniform test for all loans, it being the intent of the general assembly that the authority exercise discretion based on the facts and circumstances of each loan.
- (B)
In exercising its discretion, the authority shall take into consideration the general financial condition of the municipality receiving the loan and the ability of the system, for which such loan is to be made, to generate user fees sufficient to pay the costs of operation, maintenance and debt service of the system, including depreciation in accordance with generally accepted accounting principles.
- (5)
For purposes of determining compliance with this subsection (a), the annual repayment schedule for each loan or grant shall be, in cases prior to the funding of such grants or loans or where such grants or loans have been financed on an interim basis other than by bonds, an estimated annual repayment schedule showing debt service requirements under the grant or loan agreements as if the bonds to be issued to fund such grants or loans will bear interest at a rate per annum and mature in such manner as the authority shall establish at the time of approval of each such grant or loan and, in cases where bonds have been issued to fund such grant or loan, the actual debt service requirements on such bonds.
- (b)
Only municipalities receiving state-shared taxes shall be eligible to participate in the loan program; provided, that one (1) or more municipalities receiving state-shared taxes may enter into a loan agreement with the state and loan the proceeds of such waterworks loan to a municipality not receiving state-shared taxes.
§ 68-221-504. Rules and regulations.
-
The department may adopt rules and regulations necessary for the effective administration of this part, including, but not limited to, the submission of plans, the procedures to be followed in applying for loans, and for enforcing agreements entered into by municipalities with the department with respect to such loans. Such rules and regulations shall require that an eligible project be so constructed, both as to materials and design, as to:
- (1)
Provide an adequate and safe supply of water for the area to be served;
- (2)
Provide for expansion and extension of the system, taking into consideration growth that can be reasonably anticipated; and
- (3)
Minimize costs of integration with another system or systems where proximity of such systems indicates that integration may become desirable.
§ 68-221-505. Appropriation of funds.
-
There are authorized to be appropriated to the department such funds as the general assembly may appropriate to enable the department to carry out its functions under this part.
§ 68-221-506. Loan agreements with municipalities — Provisions of agreement.
- (a)
The state may enter into agreements with municipalities, and any municipality may enter into an agreement with the state for loans herein provided, subject, however, to any existing contractual obligations of the municipality.
- (b)
Any loan agreement may include such provisions as may be agreed upon by the parties thereto, and shall include, in substance, the following:
- (1)
An estimate of the reasonable cost of the project to be constructed, as determined by the department;
- (2)
An agreement by the state to pay part of the amount of the loan to the municipality prior to the construction, or during the progress of the construction, or to pay the amount of the loan following completion of the construction, as may be agreed upon by the parties; and
- (3)
An agreement by the municipality to:
- (A)
Proceed expeditiously with and complete the project in accordance with plans approved pursuant to this part and to § 68-221-102;
- (B)
Commence operation of the waterworks on its completion, and not discontinue operations or dispose of the project without the approval of the department and the authority;
- (C)
Operate and maintain the project in accordance with applicable provisions of this chapter, and rules and regulations of the department;
- (D)
Establish and collect such fees, rates or charges for water service and/or pledge other available sources of revenues necessary to make payments according to the schedule established by the authority and to make payments as provided in this part; and
- (E)
Establish and maintain adequate financial records for the waterworks, and make an annual audit of the financial records and transactions covering each fiscal year and furnish a copy of such audits to the comptroller of the treasury.
§ 68-221-507. Additional agreements or securities required for issuance of bonds.
-
The authority has the right to enter into such further agreements with a municipality and require such further guarantees or securities as it may see fit prior to, or simultaneously with, the issuance of bonds, or to refuse to issue such bonds until such agreements or securities, in any form which the authority may elect, are agreed to or are obtained.
§ 68-221-508. Approval of loan agreements — Payments.
- (a)
All loan agreements entered into pursuant to this part shall be subject to approval by the commissioner of finance and administration and, as to form, by the attorney general and reporter.
- (b)
All payments by the state pursuant to such agreements shall be made upon warrant by the commissioner of finance and administration on vouchers approved by the department, and such payments shall be subject to audit at any time.
§ 68-221-509. Allocation of loan funds — Criteria.
-
In allocating loan funds to municipalities, the department shall give consideration to, and apply, the following standards and criteria:
- (1)
The need and desirability for water to be supplied by the proposed waterworks construction;
- (2)
The need for upgrading the quality of water of an existing waterworks;
- (3)
The ability of the municipality to secure borrowed money from other sources and costs thereof;
- (4)
If the purpose of the loan is to extend water service into an area outside the boundaries of incorporated towns and cities or special districts, the greater capability of another municipality to provide water in the area, if such other municipality is permitted by law to serve the area and will make a commitment satisfactory to the department to extend such service into the area;
- (5)
The enhancement of the economic development of the state, the region or the locality;
- (6)
The upgrading of the quality of life of the state, the region or the locality;
- (7)
The achievement of a political equity or balance across the state and between such diversities or interests as cities and counties, urban areas and rural areas, and grand divisions; and
- (8)
In the case of a special district, the financial stability of the district, and no funds shall be made available to a district when there is reason to believe that the funds may not be repaid.
§ 68-221-510. Payments to state — Water service fee — Taxation.
- (a)
The authority shall establish the monthly payment due from the municipality to the state necessary for the municipality to fund the project.
- (b)
The municipality shall establish a water service fee and/or such ad valorem taxes as necessary to provide funds sufficient to pay the monthly payments established, plus the costs of operation and maintenance of the water works, including depreciation according to generally accepted accounting principles, and any other debt service expense of the system.
- (c)
It is the intent that the water service fee be the primary source of payment of such costs and payments.
- (d)
The water service fee shall be adjusted periodically by the municipality so that such fees will be sufficient to pay such monthly payments and costs, but will create a minimum excess.
- (e)
It is the intent that such water service fees shall only be for the purpose of providing for such monthly payments and costs.
- (f)
The water service fee shall be expressed as a single charge on the utility bill.
§ 68-221-511. Payments made to authority — Special trust funds.
- (a)
Each municipality having entered into a loan agreement shall remit to the authority such amounts and at such times as shown in the amortization schedule established by the authority.
- (b)
Such funds shall be placed in a special trust fund of the authority created to provide for the payment of principal of, and interest on, bonds and notes issued by the authority for the purpose of providing waterworks loans to municipalities.
§ 68-221-512. Tax levy to meet payments.
-
In the event the revenues of a waterworks project are insufficient to meet the payments as established by the authority, any county, metropolitan government, incorporated town or city may levy a tax on property sufficient to make such payments, which shall be in addition to all other taxes authorized or limited by law.
§ 68-221-513. Failure of municipality to comply with payment schedule — Withholding of state funds — Rate increases.
- (a)
In the event any municipality, having entered into a loan agreement, shall fail to remit funds in accordance with the amortization schedule established by the authority, the commissioner of finance and administration shall deliver by certified mail a written notice of such failure to the municipality within five (5) days of the failure.
- (b)
In the event the municipality shall fail to remit the amount set forth in the notice within sixty (60) days of the receipt of such notice, the commissioner shall, without further authorization, withhold such sum or part of such sum from any state-shared taxes which are otherwise apportioned to the municipality for the benefit of the authority.
- (c)
Furthermore, in the event any municipality having entered into a loan agreement shall fail to remit funds in accordance with the amortization schedule established by the authority, the municipality shall increase its fees, rates or charges for water service and/or pledge additional other available sources of revenue as are necessary to meet the obligation of the municipality according to the loan agreement.
§ 68-221-514. Enforcement of agreement by the state.
-
The state, either through the authority or the department, shall have the right, in addition to all other rights, by mandamus or other suit, action or proceeding in any court of competent jurisdiction, to require the municipality and the governing body and any proper officer, agent or employee of the municipality to carry out any agreements and to perform its and their duties under this part or any rule or regulation of the department adopted pursuant thereto.
§ 68-221-516. Action of municipality by resolution.
-
All action required or authorized to be taken under this part by the governing body of any municipality may be by resolution, which resolution may be adopted at the meeting of the governing body at which such resolution is introduced, and shall take effect immediately upon its adoption.
§ 68-221-517. Provisions supplemental.
- (a)
This part is in addition and supplemental to any other law providing for the financing of waterworks of municipalities, and shall not be deemed to amend or repeal any other law.
- (b)
No proceedings by a municipality shall be required for loan agreements hereunder except such as are provided by this part, notwithstanding any provision of law to the contrary.
- (c)
No requirements or restrictions applicable to borrowing by municipalities contained in any other law shall be applicable to loans under this part.
§ 68-221-519. Loans made retroactively.
-
To the extent that a loan is made retroactively under this part for an eligible project that has been financed by other funds, such loan may be used by a municipality for any municipal water purpose.
Part 6 Water and Wastewater Treatment Authority Act
§ 68-221-602. Authorities created as public and governmental bodies — Property and revenue exempt from taxes.
- (a)
It is declared that water and wastewater treatment authorities created pursuant to this part shall be public and governmental bodies acting as agencies and instrumentalities of the creating and participating governmental entities; and that the acquisition, operation and finance of water and wastewater treatment works by such authorities is declared to be for a public and governmental purpose and a matter of public necessity.
- (b)
The property and revenues of the authority, or any interest therein, are exempt from all state, county and municipal taxation.
§ 68-221-603. Part definitions.
-
As used in this part, unless the context otherwise requires:
- (1)
“Authority” means a water and wastewater treatment authority created pursuant to this part;
- (2)
“Board” means the board of commissioners of an authority;
- (3)
“Bonds” includes notes, interim certificates or other obligations of an authority;
- (4)
“Creating governmental entity” means any city, metropolitan government or county which creates an authority pursuant to this part;
- (5)
“Executive officer” means the mayor, county mayor or other chief executive officer of any creating or participating governmental entity;
- (6)
“Governing body” means the chief legislative body of any creating or participating governmental entity;
- (7)
“Participating governmental entity” means any utility district, metropolitan government, city, town or county; which utility district, city, town or county, pursuant to a resolution of its governing body, shall have sold, leased, dedicated, donated or otherwise conveyed its water or wastewater treatment works, or both, or a portion thereof, to the authority for operation by the authority in order to make such treatment works an operational part of its treatment works;
- (8)
“State” means the state of Tennessee; and
- (9)
“Treatment works” means any devices and systems used in the storage, treatment, recycling and reclamation of sewage or industrial wastes of a liquid nature to restore and maintain the chemical, physical and biological integrity of the state's waters, or any devices and systems used in the treatment and distribution of water, including intercepting sewers, outfall sewers, sewage collection systems, water storage facilities, water transmission lines, pumping, power and other equipment, and their appurtenances, extensions, improvements, remodeling, additions and alterations thereof; elements essential to provide a reliable recycled supply, such as standby treatment units and clear well facilities, and any works.
§ 68-221-604. Creation of authority — Resolution — Petition — Order of approval or disapproval — Hearing — Resolution or ordinance — Agreement for transfer.
- (a)
A city, metropolitan, or county government may create a water or wastewater treatment authority in the manner provided in this part.
- (b)
- (1)
The governing body of the creating governmental entity shall adopt, and its executive officer shall approve, a resolution to submit a petition to the Tennessee board of utility regulation for review and approval. The petition must include:
- (A)
A statement of the service the proposed authority will provide and the necessity of that service;
- (B)
The proposed corporate name and boundaries of the authority's service area;
- (C)
A statement explaining why an existing utility district, treatment authority, or municipal or county service cannot adequately provide the needed service because of cost, time, or other service delivery factors; and
- (D)
An estimate of:
- (i)
The cost of the acquisition or construction of the facility;
- (ii)
The cost of operating the proposed facility;
- (iii)
Anticipated personnel needs; and
- (iv)
The rates and charges for the proposed utility service.
- (2)
An estimate under subdivision (b)(1)(D)(i) is not a limitation on the financing of improvements or extensions of a facility.
- (3)
A majority of the governing body of the creating governmental entity and its executive officer must sign the petition.
- (4)
The petition must include the notarized signatures and residential addresses of both a majority of the governing body and its executive officer.
- (c)
- (1)
The Tennessee board of utility regulation shall issue an order approving or disapproving the petition for the incorporation of the authority within ninety (90) calendar days of receipt of the petition by the board, its agent, or its representative.
- (2)
If the Tennessee board of utility regulation approves the petition, then the Tennessee board of utility regulation shall forward its order of approval and the original petition to the governing body of the creating governmental entity and its executive officer.
- (3)
If the Tennessee board of utility regulation fails to act on the petition within ninety (90) calendar days of receipt of the petition, then the Tennessee board of utility regulation, its agent, or its representative shall return the original petition to the governing body of the creating governmental entity and its executive officer.
- (4)
If the Tennessee board of utility regulation disapproves the petition, then the Tennessee board of utility regulation shall forward its order of disapproval to the governing body of the creating governmental entity and its executive officer. Petitioners may appeal the order disapproving the petition to the circuit court of the county in the manner provided by law for appeals from the court of general sessions.
- (d)
- (1)
If the Tennessee board of utility regulation approves a petition under subdivision (c)(1), or fails to act on a petition under subdivision (c)(3), then the governing body of the creating governmental entity shall adopt, and its executive officer shall approve, a resolution calling a public hearing on the question of creating an authority.
- (2)
The creating governmental entity shall publish notice of the date, time, place, and purpose of the hearing at least once each week for two (2) consecutive weeks in a newspaper of general circulation, the last publication occurring at least one (1) week prior to the date of the hearing.
- (e)
The hearing will be before the governing body and all interested persons shall have an opportunity to be heard.
- (f)
- (1)
If the governing body determines, after a hearing, that the public convenience and necessity require the creation of an authority, then the governing body shall adopt, and its executive officer shall approve, a resolution or an ordinance so declaring and creating an authority.
- (2)
A resolution or ordinance under subdivision (f)(1) must designate the name and principal office address of the authority.
- (3)
A governing body shall file a certified copy of the resolution or ordinance with the secretary of state, along with the resolution approving the appointment of the board of commissioners as provided for in § 68-221-605. The authority constitutes a body politic and corporate upon adoption and filing.
- (g)
A creating governmental entity and a participating governmental entity shall enter into an agreement with the authority for the orderly transfer to the authority of the treatment works' properties, functions, service area, and outstanding obligations. The agreement may include provisions for the reimbursement of any such governmental entity for its obligations issued for treatment works.
§ 68-221-605. Appointment of commissioners — Members — Election of officers — Jurisdiction.
- (a)
- (1)
The governing body of the authority shall be a board of commissioners of five (5) persons appointed by the executive officer of the creating governmental entity and approved by its governing body.
- (2)
The board of commissioners shall include a person of good standing and reputation in each of the following fields: engineering, law, industry or commerce, and finance.
- (3)
Notwithstanding subdivision (a)(2), the board of commissioners for a water and wastewater treatment authority that does not provide water service shall include a person of good standing and reputation in each of the following fields: engineering, industry, commerce, and finance.
- (b)
- (1)
If there are one (1) or more participating governmental entities, one (1) additional member of the board shall be appointed by the executive officer of each participating governmental entity and approved by its governing body.
- (2)
The vote of each member of the board shall reflect the population of the area of the governmental entity which the member represents, with the five (5) members representing the creating governmental entity, each having a vote reflecting one-fifth (⅕) of the population of the area of the entity.
- (c)
Commissioners first appointed to the board shall be appointed for terms of one (1), two (2), three (3), four (4) and five (5) years, respectively, but thereafter each commissioner shall be appointed for a term of five (5) years.
- (d)
- (1)
Any vacancy by reason of nonresidence, incapacity, resignation or death shall be filled in like manner for the unexpired term.
- (2)
A commissioner's term shall continue until the appointment and qualification of such commissioner's successor.
- (3)
A commissioner may be removed from office by a two-thirds (⅔) vote of the governing body of the governmental entity which approved the commissioner's appointment, but only after notice of the cause of the removal shall have been served upon the commissioner, and only after the commissioner shall have been granted an opportunity for a public hearing on such cause.
- (e)
- (1)
The board shall elect from among its members a chair and vice chair, each of whom shall continue to be voting members, and shall adopt its own bylaws and rules of procedure.
- (2)
The presence of commissioners having a majority of the voting strength of the commissioners shall constitute a quorum for the transaction of business.
- (3)
Except as herein expressly otherwise specified, all powers herein granted to an authority shall be exercised by the board.
- (4)
Commissioners shall receive no salary but shall be reimbursed for necessary expenses incurred in the performance of their official duties.
- (5)
Neither the Tennessee public utility commission nor any other board or commission of like character hereafter created shall have jurisdiction over the authority in the management and control of any treatment works, including the regulation of its rates, fees or charges.
- (f)
- (1)
All members of the board shall, within one (1) year of initial appointment or election to the board of commissioners or within one (1) year of reappointment or reelection to the board of commissioners, attend a minimum of twelve (12) hours of training and continuing education in one (1) or more of the subjects listed in subdivision (f)(3).
- (2)
In each continuing education period after the initial training and continuing education required by subdivision (f)(1), a board member shall attend a minimum of twelve (12) hours of training and continuing education in one (1) or more of the subjects listed in subdivision (f)(3). For the purposes of this subsection (f), “continuing education period” means a period of three (3) years beginning January 1 after the calendar year in which a board member completes the training and continuing education requirements set forth in subdivision (f)(1) and each succeeding three-year period thereafter.
- (3)
The subjects for the training and continuing education required by this subsection (f) shall include, but not be limited to, board governance, financial oversight, policy-making responsibilities, and other topics reasonably related to the duties of the members of the board of commissioners of an authority.
- (4)
Any association or organization with appropriate knowledge and experience may prepare a training and continuing education curriculum for board members covering the subjects set forth in subdivision (f)(3) to be submitted to the comptroller of the treasury for review and approval prior to use. The comptroller shall file a copy of approved training and continuing education curriculum with the Tennessee board of utility regulation. Changes and updates to the curriculum shall be submitted to the comptroller for approval prior to use. Any training and continuing education curriculum approved by the comptroller shall be updated every three (3) years and resubmitted to the comptroller for review and approval.
- (5)
For purposes of this subsection (f), a board member may request a training and continuing education extension of up to six (6) months from the comptroller of the treasury or the comptroller's designee. The request shall only be granted upon a reasonable showing of substantial compliance with this subsection (f). If the extension is granted, the board member must complete any additional required training hours necessary to achieve full compliance for only the relevant continuing education period within the extension period. The board member shall file copies of any extension request letters and corresponding comptroller of the treasury determination letters with the Tennessee board of utility regulation.
- (g)
If any member of the board fails to meet the training and continuing education requirements set forth in subsection (f) before the end of the continuing education period or before the end of any extension approved by the comptroller of the treasury or the comptroller's designee, then such member shall not be eligible for reappointment or reelection to another term of office.
§ 68-221-606. Executive director — Other officers — Budget.
- (a)
The board shall appoint an executive director, who shall be the chief executive and administrative officer of the authority, and who shall enter into a contract with the executive director establishing such director's salary and term of office.
- (b)
- (1)
The executive director shall appoint, and the board shall confirm, the following additional officers:
- (A)
A secretary;
- (B)
An auditor;
- (C)
Legal counsel;
- (D)
A treasurer; and
- (E)
A chief engineer.
- (2)
All other officers and employees of the authority shall be appointed by the executive director, subject to any civil service plan adopted by the board.
- (c)
- (1)
The executive director shall prepare annually the operating budget of the authority and submit the same to the board for approval at least sixty (60) days prior to the beginning of the fiscal year.
- (2)
If such budget shall not have been acted upon by the board on the first day of the fiscal year, it shall then automatically go into effect.
- (d)
The executive director shall also submit such periodic reports to the board as it may direct.
- (e)
The executive director shall attend all meetings of the board.
§ 68-221-607. Powers of authority.
- (a)
An authority has all powers necessary to accomplish the purposes of this part (excluding the power to levy and collect taxes) including, but not limited to, the following:
- (1)
Have perpetual succession, sue and be sued, and adopt a corporate seal;
- (2)
Plan, establish, acquire, construct, improve and operate one (1) or more treatment works within or without the creating and participating governmental entities and within this state and within any adjoining state;
- (3)
Acquire real or personal property or any interest therein by gift, lease or purchase, for any of the purposes herein provided; and to sell, lease or otherwise dispose of any such property;
- (4)
Enter into agreements with the creating governmental entity or with participating governmental entities, to acquire by lease, gift, purchase or otherwise, any treatment works, or property related thereto, of such governmental entity and operate such treatment works as a part of its treatment works; or enter into agreements with participating governmental entities providing for the operation by the authority of the treatment works, or any portion thereof, owned by any participating governmental entity;
- (5)
Enter into agreements with the creating governmental entity and participating governmental entities with respect to the manner of transfer of treatment works employees of such governmental entities to the authority, and with respect to the retention by such employees of existing civil service status and accrued pension, disability, hospitalization and death benefits;
- (6)
Enter into, by contract with the creating governmental entity or otherwise, a plan of civil service for employees of the authority;
- (7)
Enter into, by contract with the creating governmental entity or otherwise, a plan for pension, disability, hospitalization and death benefits for the officers and employees of the authority;
- (8)
Make application directly to the proper federal, state, county and municipal officials and agencies, or to any other source, public or private, for loans, grants, guarantees or other financial assistance in aid of treatment works operated by it, and accept the same;
- (9)
Make studies and recommend to the appropriate commissions and legislative bodies of the creating and participating governmental entities, zoning changes in the area of any treatment works operated by the authority;
- (10)
Have control of its treatment works with the right and duty to establish and charge fees, rates and other charges, as set out herein, and collect revenues therefrom, not inconsistent with the rights of the holders of its bonds;
- (11)
Appoint an executive director, and confirm or reject the executive director's appointments of a secretary, a treasurer, an auditor, legal counsel and a chief engineer; prescribe their duties and qualifications; and fix their compensation;
- (12)
Use in the performance of its functions the officers, agents, employees, services, property, facilities, records, equipment, rights and powers of the creating governmental entity or any participating governmental entity, with the consent of any such governmental entity, and subject to such terms and conditions as may be agreed upon;
- (13)
Enter such lands, waters or premises as in the judgment of the authority may be necessary for the purpose of making surveys, soundings, borings and examinations to accomplish any purpose authorized by this part, the authority to be liable for actual damage done;
- (14)
Designate an independent certified public accountant firm to do an annual post audit of all books, accounts and records of the authority and issue a public report thereon;
- (15)
Adopt by majority vote of the board the purchasing procedures for utility districts as defined in title 7, chapter 82, part 8;
- (16)
Adopt by majority vote of the board, regulations, including, but not limited to, requirements for the posting of performance bonds and maintenance bonds, governing the operation and maintenance of nontraditional sewage disposal systems. The phrase “nontraditional sewage disposal systems” does not include subsurface sewage disposal systems that are subject to the permitting requirements of part 4 of this chapter, nor to wastewater collection and disposal systems that are owned or operated by a governmental entity. The Water Quality Control Act, compiled in title 69, chapter 3, and regulations adopted thereunder, shall prevail over any such regulations of an authority in the event of a conflict; provided, that the authority may adopt regulations that are more stringent than the Water Quality Control Act and regulations promulgated thereunder, if a copy of such regulations is filed with the department;
- (17)
Promulgate rules for the installation and maintenance of grease interceptors, the regulation of sewer discharges from industrial facilities, and the inspection and maintenance of private or public service laterals;
- (18)
Promulgate rules that impose on a customer base, region, neighborhood, basin, or area an obligation on customers, occupants, or property owners to inspect their own respective service laterals and make necessary repairs. The authority may apply specific requirements on one (1) customer base, region, neighborhood, or basin at a time due to environmental concerns, the need for repairs, internal budgeting, scheduling, and limited resources of the authority necessitating the authority to focus on one (1) area at a time;
- (19)
- (A)
Promulgate rules that impose penalties for failure to comply with the authority's rules, not to exceed:
- (i)
Five (5) times the fees avoided; or
- (ii)
Three (3) times the cost of cleanup, repair, enforcement, and damages, including costs incurred by the authority to make repairs or perform other work necessitated by the failure of a property owner to fulfill its obligations under applicable laws or the authority's rules. For purposes of this subdivision (a)(19)(A)(ii), a property owner's obligations under applicable laws or the authority's rules includes, but is not limited to, the obligations to maintain service laterals and comply with regulations for controlling fats, oils, and grease;
- (B)
Promulgate rules that authorize shutting off water and sewage usage until a property owner or occupant complies with the authority's rules or pays any penalties imposed by the authority. The authority may impose a penalty against the owner or occupant of a property but shall not impose a penalty against an owner or occupant of property for a violation caused by a previous owner or occupant of the property; and
- (20)
Promulgate any other rules necessary to effectuate the purposes of this part, or to comply with the requirements of rules of the department of environment and conservation, regulations of the United States environmental protection agency, or consent decrees.
- (b)
All personnel employed by the board of commissioners of any water and wastewater authority under this chapter, including, but not limited to, the commissioners themselves, are prohibited from receiving any money or other goods or services of value of any sort as a result of any agreement, contractual or otherwise, for the installation of water and wastewater service within the bounds of the district; and further, those persons are also prohibited from receiving any moneys or other goods or services of value of any sort as a result of any agreement, contractual or otherwise, for the sale of any materials to be installed within the bounds of the district as water and wastewater service.
- (c)
Any authority created pursuant to this part may notify the appropriate permitting department when water and wastewater services provided to a business currently permitted pursuant to the Tennessee Retail Food Safety Act, compiled in title 53, chapter 8, or the Tennessee Food Safety Act, compiled in chapter 14, part 7 of this title, are discontinued for a violation of the authority's rules, regulations, or policies. This subsection (c) shall apply to all counties in which an authority has been created as of July 1, 2016.
- (d)
No municipality or county government entity within the service area of a sewer authority created under this title may issue:
- (1)
A building permit or a demolition permit prior to a sewer permit being issued by the sewer authority; or
- (2)
A certificate of occupancy prior to a sewer permit being finalized by the sewer authority.
§ 68-221-608. Charges for services — Classification of customers — Contracts for collection of sewer charges — Appeals.
- (a)
The authority may fix the price or charges for its water and waste treatment services rendered to users within and without the service area of the authority; provided, that the rates charged must be uniform for the same class of customers or service and may represent the equitable or proportionate share of treatment costs of such class of customers or service.
- (b)
In classifying customers served or service furnished by such system of sewerage or water, the authority may, in its discretion, consider any or all of the following factors:
- (1)
The difference in cost of service to the various customers;
- (2)
The location of the various customers within and without the service area of the authority;
- (3)
The difference in cost of maintenance, operation, repair and replacement of the various parts of the system;
- (4)
The different character of the service furnished various customers;
- (5)
The quantity and quality of the sewage delivered and the time of its delivery;
- (6)
Capital contributions made to the system, including, but not limited to, assessments; and
- (7)
Any other matters which present a reasonable difference as a ground for distinction.
- (c)
- (1)
As used in this subsection (c):
- (A)
“Sewer” means waste water collection and/or treatment; and
- (B)
“Sewer service charges” includes all moneys properly charged to sewer service customers and owners of properties receiving sewer service.
- (2)
- (A)
The board may enter into contracts with any public or private corporation providing sewer services within the jurisdiction, or with any utility district or municipal utilities board or commission operating a water system within the jurisdiction of the authority, for the collection of sewer charges; and the authority, or any public corporation, utility district or municipal utilities board or commission so contracting with the authority or contracting directly with any public or private corporation providing sewer services within the jurisdiction, is authorized and empowered:
- (i)
To meter, bill and collect sewer service charges as an added designated item on its water service bills, or otherwise;
- (ii)
To discontinue water service to sewer users who fail or refuse to pay sewer service charges;
- (iii)
Not to accept payment of water service charges from any customer without receiving at the same time payment of any sewer service charges owed by such customer; and
- (iv)
Not to reestablish water service for any customer until such time as all past due sewer service charges owed by such customer have been paid.
- (B)
Such public corporation, utility district or municipal utilities board or commission is authorized to perform all acts and discharge all obligations required by any such contract or contracts.
- (d)
The rates, prices, or charges for water, wastewater, and reuse or recycled wastewater may be flat rate, proportional to usage, or a combination thereof.
- (e)
- (1)
- (A)
Any person aggrieved by an appealable action of the board, or the board's officers or employees, may appeal the action by filing a written notice of the challenged action stating:
- (i)
The action being appealed;
- (ii)
The date of the appealed action;
- (iii)
The manner in which the person is aggrieved;
- (iv)
Each factual or legal basis for the appeal; and
- (v)
The relief sought.
- (B)
A notice of appeal shall be dated and signed by the appellant and shall include the appellant's mailing address and telephone number, and, if available, the appellant's electronic mail address.
- (C)
A notice of appeal shall be filed with the authority's executive director, or the executive director's designee, within fifteen (15) days immediately following the date of the action being challenged in the notice.
- (D)
The authority shall establish rules and procedures governing the method for consideration of appeals filed pursuant to this subsection (e). The authority shall make copies of the rules and procedures available to their customers and post a copy of their rules and procedures at the authority's principal office and on the authority's website.
- (E)
The authority shall determine all factual and legal issues raised in an appeal and shall state in writing to the aggrieved person the reasons for its decision.
- (2)
Any judicial review of the disposition of an appeal shall be by common law certiorari filed in a court of competent jurisdiction in the county where the authority's principal office is located. No change in the authority's fees, rates, charges, penalties, or deposits shall be stayed unless the plaintiff posts an adequate bond sufficient to compensate the authority for any losses incurred as a result of the stay.
- (3)
As used in this subsection (e), “appealable action”:
- (A)
Means:
- (i)
An action relating to the authority's duty to establish, charge, administer, and collect fees, rates, charges, penalties, and deposits; and
- (ii)
Other decisions based on the authority's rules and procedures that the authority designates as appealable actions; and
- (B)
Does not include any action relating to the issuance of bonds or debt, any civil service plan, or any other action not identified in subdivision (e)(3)(A).
- (4)
This part shall not authorize or permit any class action lawsuits against any authority, except as to holders of the authority's bonds under § 68-221-611.
- (5)
This part shall not grant a private right of action, except as to holders of the authority's bonds under § 68-221-611.
- (6)
The procedures established pursuant to this subsection (e) shall constitute the exclusive method of review of actions of the board and the board's officers and employees, except as to holders of the authority's bonds under § 68-221-611 and employees in a civil service plan under § 68-221-613.
§ 68-221-609. Collection from industrial users for construction costs — Allocation of right to discharge industrial wastes into system.
- (a)
- (1)
In providing a treatment works to treat industrial wastes, either independently or in conjunction with other wastes, the authority has the authority to collect from such industrial users all or any part of the construction costs of such treatment works reasonably attributed to treatment of such industrial wastes.
- (2)
The apportionment of such costs shall be equitable as among industrial users, and such costs may be collected by assessment, connection fee, periodic charges, or in other manners or combinations thereof as in the judgment of the authority is equitable and will assure such industrial cost recovery.
- (b)
- (1)
The commitment of an industrial user of waste treatment service to repay its share of industrial recovery costs may be assumed by another industry replacing the former as a user of waste treatment services; provided, that such assumption shall not release such original or former user without the written consent of the agency, which consent shall not be unreasonably withheld.
- (2)
The authority shall have the right to allocate and reallocate among industrial users the right to discharge industrial wastes into the treatment system.
- (3)
In the event of such reallocation, the share of industrial cost recovery of each participating industry shall be reallocated proportionately among all industrial users; provided, that the share of an industrial user may not be increased except in proportion to its increased use of the system.
§ 68-221-610. Power to condemn property.
- (a)
An authority has the power to condemn either the fee or such right, title, interest or easement in the property as the board may deem necessary for any of the purposes mentioned in this part, and such property or interest in such property may be so acquired whether or not the same is owned or held for public use by corporations, associations or persons having the power of eminent domain, or otherwise held or used for public purposes; provided, that such prior public use will not be interfered with by this use.
- (b)
Such power of condemnation may be exercised in the mode or method of procedure prescribed by title 29, chapter 17, or in the mode or method of procedure prescribed by any other applicable statutory provisions now in force or hereafter enacted for the exercise of the power of eminent domain.
§ 68-221-611. Power to issue bonds — Conditions of bonds — Rights of bondholders — Execution — Tax exemption — Legal investment.
- (a)
- (1)
The authority has the power to issue negotiable bonds from time to time in order to accomplish any of the purposes authorized by this part, and it also has the power to issue bonds in the same manner and under the same provisions as municipalities or metropolitan governments or counties are empowered to issue bonds under the laws of this state, for the purposes authorized by this part.
- (2)
All such bonds shall be payable from all or any part of the revenues, income and charges of the authority and such bonds may also constitute an obligation of one (1) or more of the creating and participating governmental entities.
- (b)
- (1)
Such bonds shall be authorized by resolution of the board and shall bear such date, mature at such time or times, bear interest at such rate or rates payable annually or semiannually, be in such form and denominations, be subject to such terms of redemption with or without premium, carry such registration privileges, be payable in such medium and at such place or places, be executed in such manner, all as may be provided in the resolution authorizing the bonds.
- (2)
Such bonds may be sold at public or private sale in such manner and for such amount as the board may determine.
- (c)
Such resolution may include any covenants which are deemed necessary by the board to make such bonds secure and marketable, including, but not limited to, covenants regarding:
- (1)
The application of the bond proceeds;
- (2)
The pledging, application and securing of the revenues of the authority;
- (3)
The creation and maintenance of reserves;
- (4)
The investment of funds;
- (5)
The issuance of additional bonds;
- (6)
The maintenance of minimum fees, charges and rentals;
- (7)
The operation and maintenance of its treatment works;
- (8)
Insurance and insurance proceeds;
- (9)
Accounts and audits;
- (10)
The sale of treatment works properties;
- (11)
Remedies of bondholders;
- (12)
The vesting in a trustee or trustees such powers and rights as may be necessary to secure the bonds and the revenues and funds from which they are payable;
- (13)
The terms and conditions upon which bondholders may exercise their rights and remedies;
- (14)
The replacement of lost, destroyed or mutilated bonds;
- (15)
The definition, consequences and remedies of an event of default;
- (16)
The amendment of such resolution; and
- (17)
The appointment of a receiver in the event of a default.
- (d)
Any holder of any such bonds, including any trustee for any bondholders, may enforce their rights against the authority, its board or any officer, agent or employee thereof by mandamus, injunction or other action in any court of competent jurisdiction, subject to the covenants included in the bond resolution.
- (e)
- (1)
Sums received as accrued interest from the sale of any bonds may be applied to the payment of interest on such bonds.
- (2)
All sums received as principal or premium from such sale shall be applied to the purpose for which such bonds were issued, and may include, but without limitation, expenses for fiscal, legal, engineering and architectural services, expenses for the authorization, sale and issuance of the bonds, expenses for obtaining an economic feasibility survey in connection with such bonds, and to create a reserve for the payment of not exceeding one (1) year's interest on such bonds.
- (f)
Bonds issued pursuant to this part executed by officers in office on the date of such execution shall be valid obligations of the authority, notwithstanding that before the delivery thereof, any or all of the persons executing the bonds shall have ceased to be such officers.
- (g)
Bonds issued pursuant to this part, and the income therefrom, shall be exempt from all state, county and municipal taxation except inheritance, transfer and estate taxes.
- (h)
All public officers and bodies of the state, municipal corporations, political subdivisions, all insurance companies and associations, all savings banks and savings institutions, including savings and loan associations, all executors, administrators, guardians, trustees, and all other fiduciaries in the state may legally invest funds within their control in bonds of an authority.
- (i)
Any bonds issued for the purpose of financing the cost of the establishment, construction, installation, acquisition, extension or improvement of any treatment works, as defined by § 68-221-603, which are to be the joint obligations of the authority and any creating governmental entity, or participating governmental entity, shall be authorized and issued by such governmental entity in the form and manner prescribed by the applicable provisions of [former] title 5, chapter 11 [repealed] and [former] title 7, chapter 36 [repealed], and the construction, installation, acquisition, extension or improvement of any treatment works shall be deemed to be a public works project, as defined in [former] title 5, chapter 11 [repealed] and [former] title 7, chapter 36 [repealed]. To the extent any of [former] title 5, chapter 11 [repealed] and [former] title 7, chapter 36 [repealed], relating to the terms and conditions of any bonds so issued, conflict with this section, the former shall prevail.
- (j)
Any bonds upon which any creating governmental entity, or participating governmental entity, is jointly obligated with the authority may be secured by the full faith and credit and taxing powers of such governmental entity as provided in the chapters cited herein.
- (k)
All authorities, whether created pursuant to this chapter or any public or private act by the general assembly, shall not issue a bond or note authorized by this chapter until the resolution authorizing the issuance of bonds or notes, together with a statement as of the beginning of the then current fiscal year, which statement must show in detail the total outstanding bonds, notes, warrants, refunding bonds, and other evidences of indebtedness of the authority, together with the maturity dates of the bonds, notes, warrants, refunding bonds, and other evidences of indebtedness, interest rates, special provisions for payment, the project to be funded by the bonds or notes, the current operating financial statement of the authority and any other pertinent financial information, is submitted to the comptroller of the treasury or the comptroller's designee for review, and the comptroller of the treasury or the comptroller's designee shall report thereon to the authority within fifteen (15) days from the date the plan is received by the comptroller of the treasury or the comptroller's designee. The comptroller of the treasury or the comptroller's designee shall immediately acknowledge receipt in writing of the proposed bond or note issue statement and information. The report thus received by the authority must be published once in a newspaper of general circulation in the county of the principal office of the authority or the county the authority primarily serves if its principal office is not also located in that county, and once on the authority's website, during the week following the report's receipt. After receiving the report of the comptroller of the treasury or the comptroller's designee, and after publication of such report, or after the expiration of fifteen (15) days from the date the statement and information are received by the comptroller of the treasury or the comptroller's designee, whichever date is earlier, the authority may take such action with reference to the proposed bond or note issue as it deems advisable. Such report of the comptroller of the treasury or the comptroller's designee must also be made a part of the bond transcript.
- (l)
Any provision of this section related to the review or approval of any bond or note issued by the comptroller of the treasury or the comptroller's designee, or other state agency, does not apply when the bond or bonds or other evidence of indebtedness of the authority are to be purchased or the loan is to be made by the farmers home administration or any other direct lending department of the government of the United States.
- (m)
- (1)
Prior to the beginning of the fiscal year, an authority, whether created pursuant to this chapter or a public or private act, shall adopt a balanced annual operating budget that identifies the authority's anticipated revenues by source and anticipated expenses by type of expense. The budget must be:
- (A)
Based upon historical operating results and reasonably anticipated future operations; and
- (B)
Created in conformity with generally accepted accounting principles and prepared in a form consistent with accepted governmental standards and as approved by the comptroller of the treasury or the comptroller's designee.
- (2)
A budget as adopted must be submitted to the comptroller of the treasury, or the comptroller's designee, for approval.
- (3)
The comptroller of the treasury, or the comptroller's designee, shall provide guidance to the form of a budget, including supplemental schedules, as necessary, to demonstrate that an authority has adequate cash to meet current obligations, including principal and interest, as applicable.
- (4)
If a proper budget is not approved by or submitted to the comptroller of the treasury, or the comptroller's designee, within two (2) months of the beginning of the fiscal year, then the authority shall not issue a debt or financing obligation until the comptroller of the treasury, or the comptroller's designee, has approved the budget, or as otherwise provided for in a manner approved by the comptroller of the treasury, or the comptroller's designee.
- (5)
In the case of an emergency, the comptroller of the treasury, or the comptroller's designee, may waive the requirement of budget approval in order to allow the authority to enter into emergency financial transactions.
- (n)
If an authority proposes to sell bonds in excess of fifty million dollars ($50,000,000) at a negotiated sale, a written request for proposal must be sent to a minimum of five (5) qualified firms no later than thirty (30) days prior to the first meeting of the board of commissioners to discuss the specific bond transaction. A minimum of three (3) proposals must be received no later than fourteen (14) days prior to such first meeting. This requirement applies to both financial advisory and underwriting services.
§ 68-221-612. Powers to incur debt in anticipation of federal or state aid — Sale of bonds to federal agency — Issuance of temporary obligations.
- (a)
- (1)
Notwithstanding any other laws of this state or any of its political subdivisions, any authority which has contracted for and accepted an offer or a grant of federal or state aid, or both, for a particular project for which the authority may raise or expend money, may, upon resolution of its board, incur indebtedness in anticipation of the receipt of such aid for the particular project by issuing its general obligation notes payable in not more than one (1) year, which notes may be renewed from time to time by the issue of other notes; provided, that no notes shall be issued or renewed in an amount which at the time of such issuance or renewal exceeds the unpaid amount of the federal or state aid or both in anticipation of which such notes are issued or renewed.
- (2)
To any extent that the federal or state aid in anticipation of which the notes were issued when received exceeds the amount of such aid remaining to be paid under contract or accepted offer, plus the amount of any outstanding notes issued in anticipation thereof, it shall be kept in a separate account and used solely for the payment of such outstanding notes.
- (b)
Every authority has the power and is authorized to:
- (1)
Sell bonds at private sale to any federal agency without any public advertisement;
- (2)
Issue interim receipts, certificates or other temporary obligations, in such form and containing such terms, conditions and provisions as the authority issuing the same may determine, pending the preparation or execution of definite bonds for the purpose of financing the construction of a public works project; and
- (3)
- (A)
Issue bond anticipation notes in anticipation of the sale of bonds which have been duly authorized, but all such bond anticipation notes, including any renewals thereof, shall finally mature not later than three (3) years from the date of the original notes.
- (B)
All such bond anticipation notes shall have the same security as the bonds in anticipation of which such notes are issued.
§ 68-221-613. Administration by civil service — Adoption of civil service plan by authority — Requirements.
-
The authority by action of its board may elect to come under the civil service plan of the creating governmental entity, to be administered by the civil service commission or board of such governmental entity; or may adopt its own civil service plan to be administered by the board, which plan shall include, but need not be limited to, the following provisions:
- (1)
Entry into the service on the basis of open competition; and service, promotions and remuneration on the basis of merit, efficiency and fitness;
- (2)
Classifications of the positions in the service;
- (3)
The rating of candidates on the basis of publicly announced competitive examinations and the maintenance of lists of eligible candidates;
- (4)
Employment of candidates from the eligible lists in the highest qualified rating;
- (5)
Probationary periods not to exceed six (6) months;
- (6)
Disciplinary action, suspension or discharge of employees for cause only with the right of notice and review;
- (7)
Schedules of compensation and pay increases prepared by the executive director and approved by the board;
- (8)
Promotion on the basis of ascertained merit, seniority in service, and competitive examinations;
- (9)
Provision for keeping service records on all employees;
- (10)
Regulations for hours of work, attendance, holidays, leaves of absence and transfers; and procedures for layoffs, discharge, suspension, discipline and reinstatement;
- (11)
The exemption for civil service of persons employed to render professional, scientific, technical or expert service of a temporary or exceptional character; persons employed on projects paid from the proceeds of bonds issued by the authority; and persons employed for a period of less than three (3) months in any twelve-month period; and
- (12)
Review by the board, at the request of the employee in question and after notice and public hearing of any disciplinary action, suspension or discharge of any employee, which action, suspension or discharge may be affirmed, modified or reversed by the board. Findings of facts by the board shall not be subject to review by any court except for illegality or want of jurisdiction.
§ 68-221-614. Powers of participating governmental entities.
-
Any creating governmental entity and any participating governmental entity has all necessary powers in order to further the purposes of this part, including, without limitation, the following, any or all of which powers may be exercised by resolution of its governing body, to:
- (1)
Advance, donate or lend money on real or personal property to the authority;
- (2)
Provide that any funds on hand or to become available to it for treatment works purposes shall be paid directly to the authority;
- (3)
Sell, lease, dedicate, donate or otherwise convey to the authority any of its interest in any existing treatment works or other related property, or grant easements, licenses or other rights or privileges therein to the authority;
- (4)
Enter into agreements with the authority with regard to the transfer of its treatment works' employees to the authority with the retention by such employees of any civil service status and accrued rights in pension, disability, hospitalization and death benefits; and
- (5)
Permit its rights, duties and powers under its charter or the laws of the state to be performed or exercised by the authority.
§ 68-221-615. Dissolution of authority.
- (a)
Whenever the governing bodies of the creating governmental entity and the participating governmental entities shall each, by resolution, determine that the purposes for which the authority was created have been substantially accomplished, that all of the bonds and other obligations of the authority have been fully paid, and that such governmental entities have agreed on the distribution of the funds and other properties of the authority, then the executive officers of such governmental entities shall execute and file for record with the secretary of state of Tennessee a joint certificate of dissolution reciting such facts and declaring the authority to be dissolved.
- (b)
Upon such filing, the authority shall be dissolved, and title to all funds and other properties of the authority at the time of such dissolution shall vest in and be delivered to such governmental entities in accordance with the terms of their agreement relating thereto.
§ 68-221-616. Provisions supplemental.
- (a)
The powers conferred by this part shall be in addition and supplemental to the powers conferred by any other law, and are not in substitution for such powers, and the limitations imposed by this part shall not affect such powers.
- (b)
The powers herein granted may be exercised without regard to requirements, restrictions or procedural provisions contained in any other law or charter, except as herein expressly provided.
- (c)
Any metropolitan government or any home rule municipality authorized hereunder to create a water and wastewater treatment authority may do so without the necessity of a charter amendment, notwithstanding anything in its charter to the contrary.
§ 68-221-617. Liberal construction.
-
This part shall be liberally construed to effect the purposes hereof, and insofar as this part may be inconsistent with any other law, this part shall be controlling.
§ 68-221-618. Compensation of board members.
-
The members of the board of commissioners shall serve without compensation for their services, except that by resolution duly adopted by the board, each commissioner may receive a per diem payment for not more than six (6) meetings of the board in any calendar year at a rate not greater than three hundred dollars ($300) per meeting.
§ 68-221-620. Payment restriction — Written acknowledgment for provision of services — Deposit and attorney fees — Applicability of section.
- (a)
- (1)
An authority shall not require a property owner who leases residential property, the property owner's agent, or a subsequent tenant of the property to pay or to guarantee the payment of charges, penalties, or other fees owed to the authority that were incurred by a former tenant of such property owner or agent.
- (2)
The payment restriction in subdivision (a)(1) shall only apply from September 1, 2016, to December 31, 2016.
- (b)
- (1)
An authority shall create a written acknowledgement for the provision of services, to be made available to a property owner who leases residential property or the property owner's agent and to be completed by a tenant at the time the tenant enters into or renews a residential rental agreement. The written acknowledgement shall be used by the authority in the collection of all charges, penalties, or other fees owed to the authority by the tenant, and shall require the tenant to supply the following information:
- (A)
The name, social security number, telephone number, driver license number, electronic mail address, and employer, as applicable, of the tenant entering into or renewing a residential rental agreement with the property owner or property owner's agent; and
- (B)
Any other information the authority deems reasonably necessary for the collection of such charges, penalties, or other fees owed to the authority by the tenant.
- (2)
- (A)
The property owner or the property owner's agent shall submit a copy of the written acknowledgement to the authority within one (1) business day of the completion of the written acknowledgement by the tenant.
- (B)
Upon the submission of the written acknowledgement by a property owner or a property owner's agent to the authority, the authority shall not recover from the property owner, property owner's agent, or subsequent tenant of the property any delinquent charges, penalties, or other fees incurred by the tenant.
- (3)
The authority shall confirm in writing the receipt of the tenant's written acknowledgement to the property owner or the property owner's agent within two (2) business days of receiving the acknowledgement from the property owner or the property owner's agent, at which time the acknowledgment shall be deemed a properly executed contract.
- (4)
- (A)
A property owner or property owner's agent may refuse to enter into or renew a residential rental agreement with a prospective tenant who fails to provide the information required under subdivision (b)(1).
- (B)
If a property owner or property owner's agent enters into or renews a residential rental agreement with a tenant who fails to provide the information required under subdivision (b)(1), then the property owner or property owner's agent shall be liable to the authority for any delinquent charges, penalties, and other fees incurred by the tenant.
- (c)
A property owner or property owner's agent acting pursuant to this section shall not be liable for the release of information contained in a contract executed pursuant to subdivision (b)(3), or the unintentional release of such information to a third party; nor shall an authority be liable for the release of the information for collection purposes.
- (d)
In addition to the process prescribed pursuant to subsection (b), and notwithstanding any provision of this part to the contrary, an authority may require:
- (1)
A deposit of up to three (3) months of the average monthly water and wastewater fee, as determined by an authority, to be included as part of the tenant's first monthly billing statement; and
- (2)
The recovery of reasonable attorney fees against the tenant to the contract for the collection of charges, penalties, or other fees owed to the authority.
- (e)
This section shall only apply to residential rental agreements that do not utilize submetering or prorated billing by an allocation formula for the leased residential property in counties having a population of not less than three hundred thirty-six thousand four hundred (336,400) nor more than three hundred thirty-six thousand five hundred (336,500), according to the 2010 federal census or any subsequent federal census.
Part 7 Tennessee Safe Drinking Water Act of 1983
§ 68-221-702. Declaration of policy and purpose.
-
Recognizing that the waters of the state are the property of the state and are held in public trust for the benefit of its citizens, it is declared that the people of the state are beneficiaries of this trust and have a right to both an adequate quantity and quality of drinking water.
§ 68-221-703. Part definitions.
-
As used in this part, unless the context otherwise requires:
- (1)
“Administrator” means the administrator of the United States environmental protection agency (EPA), or the administrator's designated representative;
- (2)
“Board” means the Tennessee board of water quality, oil and gas as established by § 69-3-104;
- (3)
“Certified laboratory” means any facility for performing bacteriological, chemical or other analysis on drinking water which has received interim or final certification by the department;
- (4)
“Commissioner” means the commissioner of environment and conservation, the commissioner's duly authorized representative, and, in the event of the commissioner's absence or a vacancy in the office of commissioner, the deputy commissioner;
- (5)
“Construction” means any placement, assembly or installation of facilities or equipment (including contractual obligations to purchase such facilities or equipment) at the premises where such equipment will be used, including preparation work at such premises;
- (6)
“Contaminant” means any physical, chemical, biological or radiological substance or matter in water;
- (7)
“Cross connection” means any physical arrangement whereby a public water supply is connected, directly or indirectly, with any other water supply system, sewer, drain, conduit, pool, storage reservoir, plumbing fixture or other device which contains, or may contain, contaminated water, sewage or other waste or liquid of unknown or unsafe quality which may be capable of imparting contamination to the public water supply as a result of backflow. Bypass arrangements, jumper connections, removable sections, swivel or change-over devices through which, or because of which, backflow could occur are considered to be cross-connections;
- (8)
“Department” means the department of environment and conservation;
- (9)
“Director” means the director of the division of water supply;
- (10)
“Division” means the division of water supply of the department;
- (11)
“Drinking water regulations” means regulations promulgated pursuant to this part;
- (12)
“Federal act” means the Safe Drinking Water Act, P.L. 93-523, as amended;
- (13)
“Ground water” means water beneath the surface of the ground, whether or not flowing through known or definite channels;
- (14)
“Lead free” means:
- (A)
Not containing more than two-tenths of one percent (0.2%) lead when used with respect to solder and flux; and
- (B)
- (i)
Not more than a weighted average of twenty-five-hundredths of one percent (0.25%) lead when used with respect to the wetted surfaces of pipes, pipe fittings, plumbing fittings, and fixtures;
- (ii)
The weighted average lead content of a pipe, pipe fitting, plumbing fitting, or fixture shall be calculated by using the following formula: For each wetted component, the percentage of lead in the component shall be multiplied by the ratio of the wetted surface area of that component to the total wetted surface area of the entire product to arrive at the weighted percentage of lead of the component. The weighted percentage of lead of each wetted component shall be added together, and the sum of these weighted percentages shall constitute the weighted average lead content of the product;
- (iii)
The lead content of the material used to produce wetted components shall be used to determine compliance with this subdivision (14)(B);
- (iv)
For lead content of materials that is provided as a range, the maximum content of the range shall be used;
- (15)
“Maximum contaminant level” means the maximum permissible level of a contaminant in water which is delivered to any user of a public water system;
- (16)
“National primary drinking water regulations” means primary drinking water regulations, as amended, promulgated by the administrator pursuant to the federal act;
- (17)
“Person” means any and all persons, including individuals, firms, partnerships, associations, public or private institutions, state and federal agencies, municipalities or political subdivisions, or officers thereof, departments, agencies, or instrumentalities, or public or private corporations or officers thereof, organized or existing under the laws of this or any other state or country;
- (18)
“Primary drinking water regulations” are regulations promulgated by the board in accordance with this part which specify contaminants which may have any adverse effect on the health of persons, and which specify a maximum contaminant level for each such contaminant and monitoring, reporting and record-keeping requirements as determined by the board;
- (19) Public Water System.
- (A)
In general. “Public water system” means a system for the provision of water for human consumption through pipes or other constructed conveyances, if such serves fifteen (15) or more connections or which regularly serves twenty-five (25) or more individuals daily at least sixty (60) days out of the year. A public water system includes:
- (i)
Any collection, treatment, storage or distribution facility under control of the operator of such system and used primarily in connection with such system; and
- (ii)
Any collection or pretreatment storage facility not under such control which is used primarily in connection with such system.
- (B) Connection.
- (i) In general.
For purposes of subdivision (19)(A), a connection to a system that delivers water by a conveyance other than a pipe shall not be considered a connection, if:
- (a)
The water is used exclusively for purposes other than residential uses (consisting of drinking, bathing, and cooking, or other similar uses);
- (b)
The commissioner determines that alternative water to achieve the equivalent level of public health protection provided by the applicable national primary drinking water regulation is provided for residential or similar uses for drinking and cooking; or
- (c)
The commissioner determines that the water provided for residential or similar uses for drinking, cooking and bathing is centrally treated or treated at the point of entry by the provider, a pass through entity, or the user to achieve the equivalent level of protection provided by the applicable national primary drinking water regulations.
- (ii) Irrigation Districts.
An irrigation district in existence prior to May 18, 1994, that provides primarily agricultural service through a piped water system with only incidental residential or similar use shall not be considered to be a public water system if the system or the residential or similar users of the system comply with subdivision (19)(B)(i)(b) or (c);
- (20)
“Secondary drinking water regulations” means regulations which apply to public water systems and which specify the maximum contaminant levels which, in the judgment of the board, are requisite to protect the public welfare. Such regulations may apply to any contaminant in drinking water which may:
- (A)
Adversely affect the odor or appearance of such water and consequently may cause a substantial number of persons served by the public water system providing such water to discontinue its use; or
- (B)
Otherwise adversely affect the public welfare;
- (21)
“Streams” includes any river, creek, slough or natural water course in which water usually flows in a defined bed or channel. It is not essential that the flowing be uniform or uninterrupted. The fact that some parts of the bed or channel have been dredged or improved does not prevent the water course from being a stream;
- (22)
“Supplier of water” means any person who owns, operates or controls a public water system;
- (23)
“Surface water” includes waters upon the surface of the earth in bounds created naturally or artificially including, but not limited to, streams, other water courses, lakes and reservoirs; and
- (24)
“Waters” means any and all water, public or private, on or beneath the surface of the ground, which are contained within, flow through, or border upon Tennessee, or any portion thereof, except those bodies of water confined to and retained within the limits of private property in single ownership which do not combine or effect a junction with natural surface or underground waters.
§ 68-221-704. Duties and authority of board.
-
In the performance of its duties concerning safe drinking water, the board has the following duties and responsibilities, to:
- (1)
Establish by rule or regulation such policies, requirements or standards governing the source, collection, distribution, purification, treatment and storage of water for public water systems as it deems necessary for the reasonable and proper use thereof in conformity with the intent of this part, and such rules and regulations may include a schedule of fees for reviewing plans, making inspections, and performing tests and analyses of water samples as permitted by this part;
- (2)
Adopt, modify, repeal and promulgate, in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, rules and regulations which the board deems necessary for the proper administration of this part. Such rules and regulations shall at a minimum:
- (A)
Establish maximum contaminant levels for each contaminant which, in the board's judgment, may have an adverse effect on the public health;
- (B)
Establish standards and procedures to assure an adequate supply of safe drinking water which dependably complies with maximum contaminant levels as determined in subdivision (2)(A). Such regulations may provide for:
- (i)
The minimum quality of raw water which may be taken into a public water system;
- (ii)
A program of laboratory certification;
- (iii)
Monitoring and analysis;
- (iv)
Record keeping and reporting;
- (v)
Public notification by the water supplier of violations of the primary drinking water regulations and such other drinking water regulations as determined necessary by the board;
- (vi)
Procedures for inspection of public water systems, inspection of records required to be kept and the taking of samples;
- (vii)
Procedures for design and construction review and approval of new or modified public water systems;
- (viii)
Siting of new public water system facilities as regards public health;
- (ix)
Elimination of cross-connections in distribution systems;
- (x)
A schedule of the amount of civil penalty which can be assessed by the commissioner for certain specific violations or categories of violations; and
- (xi)
Such additional criteria and procedures as may be required to carry out the purposes of this part;
- (C)
Establish criteria and procedures for setting performance bonds for water systems;
- (D)
Establish standards and procedures for granting variances or exemptions from certain provisions of these rules and regulations; provided, that the standards or procedures established shall not permit any variance or exemption under conditions and in a manner which is less stringent than the conditions under and the manner in which variances or exemptions may be granted under §§ 1415 and 1416 of the national Safe Drinking Water Act, as amended (42 U.S.C. §§ 300g-4 and 300g-5); and
- (E)
Establish a requirement that all new community water systems and new nontransient, noncommunity water systems commencing operation after October 1, 1999, demonstrate technical, managerial, and financial capacity to comply with national primary drinking water regulations and this part and the rules promulgated hereunder;
- (3)
Hear appeals from orders issued by the commissioner, or civil penalties imposed by the commissioner; affirm, modify or revoke such actions or orders of the commissioner; issue notices of such appeals; issue subpoenas requiring attendance of witnesses and production of evidence; administer oaths; and take such testimony as the board deems necessary. Any of these powers may be exercised on behalf of the board by any member or members thereof appointed by the chair, or by a hearing officer designated by the chair, subject to review by the board; and
- (4)
Require the technical secretary to carry out surveys, research and investigations into all aspects of the supply of safe drinking water.
§ 68-221-705. Duties and authority of commissioner.
-
In addition to any power, duty or responsibility given to the commissioner by other sections of the code, the commissioner has the following powers, duties and responsibilities to:
- (1)
Exercise general supervision over the administration and enforcement of this part and all rules and regulations promulgated thereunder;
- (2)
Make inspections and investigations, collect samples, carry on research, or take such other action as may be necessary to carry out this part, rules and regulations issued pursuant thereto, and any orders which the commissioner may issue;
- (3)
Enter or authorize the commissioner's agents to enter at all reasonable times upon any property other than dwelling places for the purpose of conducting investigations or studies or enforcing any of this part;
- (4)
Advise, consult, cooperate, contract and make other binding agreements with the various agencies of the federal government and with state and local administrative and governmental agencies, colleges and universities, or with any other persons. In addition, the department has the authority, subject to approval by the governor, to enter into agreements with other states and the United States relative to planning and use of water from interstate water. This authority shall not be deemed to extend to the modification of any agreement with the state concluded by direct legislative act, but unless otherwise expressly provided, the department shall be the agency for the administration and enforcement of any such legislative agreement;
- (5)
When funds may become available to the state as such, apply for, accept, administer and utilize loans and grants from the federal government, state government, and from any other sources, public or private, for provision and control of public water systems in the state;
- (6)
Collect and disseminate information relating to the water being furnished by the public water systems of the state;
- (7)
Administer oaths, issue subpoenas and compel attendance of witnesses and production of data for all purposes of this part;
- (8)
Bring suit in the name of the department for any violation of this part, rules and regulations of the board, and orders of the board or commissioner seeking any remedy therein provided, and any other statutory or common law remedy therein provided;
- (9)
Assess civil penalties for violation of any provision of this part or any rule, regulation, standard adopted or order issued by the board or commissioner pursuant to this part;
- (10)
Issue orders as may be necessary to secure compliance with this part, as well as the rules and regulations adopted pursuant to these sections. Such orders may include placing a moratorium on any further connections to a water system until remedial action is completed;
- (11)
Investigate any alleged or apparent violation of this part and take any action authorized hereunder as the commissioner deems necessary to enforce these sections;
- (12)
Delegate to the director any of the powers, duties and responsibilities of the commissioner under this part;
- (13)
In accordance with the standards and procedures established by the board, grant variances or exemptions from certain provisions of this part and the rules and regulations promulgated hereunder; and
- (14)
Develop and implement a strategy to assist public water systems in acquiring and maintaining technical, managerial, and financial capacity to comply with national primary drinking water regulations and this part and the rules promulgated hereunder.
§ 68-221-706. Supervision over construction of public water systems.
- (a)
- (1)
The department shall exercise general supervision over the construction of public water systems throughout the state.
- (2)
Such general supervision shall include all of the features of construction of public water systems which do or may affect the sanitary quality or the quantity of the water supply.
- (3)
No new construction shall be done nor shall any change be made in any public water system until the plans for such new construction or change have been submitted and approved by the department.
- (4)
In granting approval of such plans, the department may specify such modification, conditions and regulations as may be required for the protection of the public health and welfare.
- (5)
The source of raw water and the quantity of raw water to be drawn from the waters of the state are subject to review and approval by the department.
- (6)
- (A)
Records of construction, including plans and descriptions of existing works, shall be made available to the department upon request.
- (B)
The person in charge of the public water supply shall promptly comply with such request.
- (b)
- (1)
Any unit of local government which imposes standards and requirements for the construction of public water systems may apply to the commissioner for the commissioner's certification that the locally imposed standards and requirements are at least as sufficient to protect the public health as those of the department.
- (2)
After certification, submission of plans to and approval by the local government for construction and changes in public water systems shall be sufficient in lieu of approval by the department as otherwise required by this section.
- (3)
The commissioner may periodically review the local standards and requirements and prescribe changes upon which continued certification may be conditioned.
§ 68-221-707. Supervision of operation and maintenance of public water systems.
- (a)
The department shall exercise general supervision over the operation and maintenance of public water systems throughout the state.
- (b)
Such general supervision shall include all the features of operation and maintenance which do or may affect the quality or quantity of the water supplied.
- (c)
In addition, all new community public water systems shall submit an operation and maintenance plan for review and approval by the department.
- (d)
Approval of this plan must be obtained before construction begins.
§ 68-221-708. Notification to public and regulatory agencies.
- (a)
Whenever a public water system is not in compliance with the current primary drinking water regulations, the supplier shall inform the division of such noncompliance as soon as practicable, but not later than twenty-four (24) hours after learning of the noncompliance.
- (b)
The supplier shall also give such public notification as may be prescribed by regulations.
- (c)
Any public water system or waterworks system, as defined in this title, which determines to initiate or permanently cease fluoridation of its water supply, shall notify the department of environment and conservation and the department of health of its intention thirty (30) days prior to any vote. The water system shall additionally give public notice to its customers in a general mailing at least thirty (30) days prior to the meeting at which said vote shall take place.
§ 68-221-709. Fluoride levels.
- (a)
If the quarterly analysis of a water sample from a public water system by a certified laboratory confirms that the level of fluoride in the sample exceeds one and one-half milligrams per liter (1.5 mg/L), the public water system from which the sample was taken must:
- (1)
Obtain laboratory analysis of water samples monthly for fluoride levels; and
- (2)
Notify all of its customers that a water sample tested exceeded one and one-half milligrams per liter (1.5 mg/L) of fluoride in a manner established by the department.
- (b)
Once the monthly analysis of water samples for fluoride conducted pursuant to subdivision (a)(1) confirms that the fluoride level in samples is less than one and one-half milligrams per liter (1.5 mg/L) for three (3) consecutive months, the public water system may resume quarterly laboratory analysis for fluoride.
§ 68-221-710. Emergency plan for provision of water.
- (a)
The commissioner shall develop a plan for the provision of safe drinking water under emergency circumstances.
- (b)
When, in the judgment of the commissioner, emergency circumstances exist in the state with respect to a need for safe drinking water, the commissioner may take such actions as the commissioner may deem necessary in order to provide such water where it otherwise would not be available.
§ 68-221-711. Prohibited acts.
-
The following acts are prohibited:
- (1)
Failure by a supplier of water to comply with this part, any order issued hereunder, or the drinking water regulations;
- (2)
Failure by a supplier of water to comply with the requirements of §§ 68-221-706 and 68-221-707 or the dissemination by such supplier of any false or misleading information with respect to remedial actions being undertaken to achieve compliance with the drinking water regulations;
- (3)
Refusal by a supplier of water to allow an authorized representative of the department or any local health department to inspect any public water system as provided for in § 68-221-705;
- (4)
The defiling by any person of any water supply of a public water system or the damaging of any pipe or other part of a public water system, unless due to an act of God;
- (5)
The discharge by any person of sewage or any other waste or contaminant at such proximity to the intake, well or spring serving a public water system in such a manner or quantity that it will, or will likely, endanger the health or safety of customers of the system or cause damage to the system;
- (6)
The installation, allowing the installation, or maintenance of any cross connection, auxiliary intake, or bypass, unless the source and quality of water from the auxiliary supply, the method of connection, and the use and operation of such cross connection, auxiliary intake, or bypass has been approved by the department;
- (7)
The return of drinking water to a public water distribution system after it has been used for cooling or any other purpose;
- (8)
The heavy pumping or other heavy withdrawal of water from a public water system or its water supply source in a manner that would either interfere with existing customers' normal and reasonable needs or threaten existing customers' health and safety; and
- (9)
The abandonment or other termination of water services by a supplier of water, without providing at least sixty (60) days' notice to all interested parties, including the department and all customers served by the public water system.
§ 68-221-712. Complaints issued to violator — Orders for corrective action.
- (a)
- (1)
Whenever the commissioner has reason to believe that a violation of this part or regulations pursuant thereto has occurred, is occurring, or is about to occur, the commissioner may cause a written complaint to be delivered to the alleged violator or violators.
- (2)
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 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 board.
- (3)
The order may be issued in conjunction with concurrent action against a violator under the Water Quality Control Act, pursuant to title 69, chapter 3, part 1.
- (4)
Any such order shall become final and not subject to review unless the person or persons named therein request by written petition a hearing before the board, no later than thirty (30) days after the date such order is delivered; provided, that the board may review such final order on the same grounds upon which a court of the state may review default judgments.
- (b)
- (1)
Whenever the commissioner finds that the public health, safety or welfare imperatively requires immediate action, the commissioner may, without prior notice, or without preceding the action with a hearing, issue an order requiring that such action be taken as the commissioner deems necessary under the circumstances.
- (2)
A person to whom such an order is directed shall comply immediately pending the opportunity for a prompt hearing before the board.
- (c)
Except as otherwise expressly provided, any notice, complaint, order or other instrument issued by or under authority of this part may be served on any person by the commissioner or any person designated by the commissioner, by certified mail, or in accordance with Tennessee statutes authorizing service of process in civil actions.
§ 68-221-713. Penalties.
- (a)
- (1)
Any person who violates or fails to comply with any provision of this part, any order of the commissioner or the board issued pursuant to this part or any rule, regulation or standard adopted pursuant to this part is subject to a civil penalty of not less than fifty dollars ($50.00) nor more than five thousand dollars ($5,000) per day for each day of violation.
- (2)
Each day such violation continues constitutes a separate violation.
- (3)
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.
- (b)
Any civil penalty or damages shall be assessed in the following manner:
- (1)
The commissioner may issue an assessment against any person responsible for the violation or damages;
- (2)
- (A)
Any person against whom an assessment has been issued may secure a review of such assessment by filing with the commissioner a written petition setting forth the grounds and reasons for such person's objections and asking for a hearing in the matter involved before the board.
- (B)
If a petition for review of the assessment is not filed within thirty (30) days after the date the assessment is served, the violator shall be deemed to have consented to the assessment and it shall become final; and
- (3)
- (A)
Whenever any assessment has become final because of a person's failure to appeal the commissioner's assessment, the commissioner may apply to the appropriate court for a judgment and seek execution of such judgment.
- (B)
The court, in such proceedings, shall treat the failure to appeal such assessment as a confession of judgment in the amount of the assessment.
- (c)
The commissioner, through the attorney general and reporter, may initiate 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 violations occurred, in the name of the department.
- (d)
In assessing a civil penalty, the following factors may be considered:
- (1)
The harm done to the public health or the environment;
- (2)
Whether the civil penalty imposed will be a substantial economic deterrent to the illegal activity;
- (3)
The economic benefit gained by the violator;
- (4)
The amount of effort put forth by the violator to remedy this violation;
- (5)
Any unusual or extraordinary enforcement costs incurred by the commissioner; and
- (6)
The amount of penalty set by the board for specific categories of violations.
- (e)
Damages to the state may include any reasonable expenses incurred in investigating and enforcing violations of this part, or any other actual damages caused by the violation.
- (f)
- (1)
Any person violating, or failing, neglecting or refusing to comply with any of this part or rules or regulations commits a Class C misdemeanor.
- (2)
Each day upon which such violation occurs constitutes a separate offense.
- (g)
Any person who willfully and knowingly pollutes or threatens to pollute any public drinking water system in this state or willfully fails, neglects or refuses to comply with any of this part commits a Class E felony.
- (h)
No warrant, presentment or indictment arising under this part shall be issued except upon application by the board or the commissioner or upon such application authorized in writing by either of these.
§ 68-221-714. Hearings — Initial order — Review of initial order — Final order — Judicial review of final order.
- (a)
The hearing on any petition for review of an order issued under § 68-221-712 or an assessment under § 68-221-713 shall be conducted as a contested case hearing 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.
- (b)
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 hearing 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.
- (c)
Within sixty (60) days of the completion of the record of the hearing, the administrative judge shall issue an initial order. 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.
- (d)
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 shall allow each party an opportunity to present oral argument. If appealed to the board, the board's 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 the provisions of § 4-5-314, affirming, modifying, remanding, or vacating the administrative judge's order.
- (e)
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.
- (f)
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 determining 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.
§ 68-221-715. Injunctions.
- (a)
The commissioner may initiate proceedings in the chancery court of Davidson County or the county in which the activities occurred against any person who is alleged to have violated or is about to violate this part, the rules and regulations of the board or orders of the commissioner.
- (b)
In such action the commissioner may seek, and the court may grant, injunctive relief and any other relief available in law or equity.
§ 68-221-716. Nuisance.
-
A violation of this part and the regulations of the board are declared to be public nuisances and may be abated by any means provided by law.
§ 68-221-717. Disbursement of civil penalties and damages.
- (a)
All civil penalties collected pursuant to this part shall be earmarked for the use of the water quality control division in the discharge of its duties.
- (b)
Damages recovered from any person for violation of any provision of this part shall be earmarked for the division, or, in the event that another state agency has primary responsibility for the property for which the damages are recovered, such damages shall be earmarked for the use of that agency.
§ 68-221-718. Construction of part.
- (a)
- (1)
The penalties, damages and injunctions provided for in this part are intended to provide additional and cumulative remedies to prevent, abate and control violations of this part.
- (2)
Nothing herein contained shall be construed to abridge or alter rights of action or remedies in equity or under common law, criminal or civil, nor shall any provision of this part or any act done by virtue thereof, be construed as precluding the state or any municipality or person, as riparian owner or otherwise, in the exercise of their rights in equity or under the common law or statutory law to suppress nuisances, or to protect drinking water.
- (b)
This part shall be liberally construed for the accomplishment of its policy and purpose.
- (c)
All grants of power to the board or commissioner shall be liberally construed.
- (d)
Any list in this part preceded by “include” or “including” shall not be construed as exhaustive or otherwise limiting unless specifically stated.
- (e)
- (1)
All procedures in this chapter are intended to be in conformity with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.
- (2)
If any provision of this part conflicts with the Uniform Administrative Procedures Act, then the latter shall govern.
§ 68-221-719. Continuation of rules and regulations.
- (a)
The rules and regulations for public water systems previously promulgated under this chapter, pursuant to part 1 of this chapter, shall remain in effect as the rules and regulations under this part.
- (b)
Any of the rules or regulations which may conflict with a statutory provision of this part are rendered void, but shall not affect the validity of the remaining rules and regulations.
§ 68-221-720. Lead free requirements — Notice — Exceptions.
- (a)
All pipes, pipe or plumbing fittings or fixtures, solder, or flux that is used in the installation or repair of any public water system shall be lead free; provided, that this subsection (a) shall not apply to lead joints necessary for the repair of cast iron pipes.
- (b)
All pipes, pipe or plumbing fittings or fixtures, solder, or flux that is used in the installation or repair of any plumbing, in a residential or nonresidential facility, which provides water for human consumption and is connected to a public water system, shall be lead free.
- (c)
Subsections (a) and (b) shall not apply to:
- (1)
Pipes, pipe or plumbing fittings or fixtures, including backflow preventers, that are used exclusively for nonpotable services such as manufacturing, industrial processing, irrigation, outdoor watering, or any other uses where the water is not anticipated to be used for human consumption; or
- (2)
Toilets, bidets, urinals, fill valves, flushometer valves, tub fillers, shower valves, fire hydrants, service saddles, or water distribution main gate valves that are two inches (2″) in diameter or larger.
- (d)
- (1)
No later than twenty-four (24) hours after a public water system confirms that the lead and copper 90th percentile lead action level, according to the federal Safe Drinking Water Act (42 U.S.C. § 300f et seq.), has been exceeded, the public water system shall notify the commissioner. The commissioner shall direct the public water system to conduct appropriate follow-up actions in accordance with state and federal drinking water rule requirements.
- (2)
No later than seventy-two (72) hours after a public water system confirms that any individual lead monitoring result is above the lead action level, according to the federal Safe Drinking Water Act, the public water system shall provide notification to the customer or residence where the sample was collected. No later than seventy-two (72) hours after the public water system confirms that the lead and copper 90th percentile lead action level has been exceeded, the public water system shall provide public notification to all customers where such exceedance results from the following:
- (A)
The lead content in the construction materials of the public water distribution system; or
- (B)
Corrosivity of the water supply sufficient to cause leaching of lead.
- (3)
- (A)
The notice required by this subsection (d) shall be provided in such manner, form, and frequency as may be reasonably required by the commissioner.
- (B)
Notice under this subsection (d) shall be provided, even if there has been no violation of any drinking water regulation of the state.
- (4)
Notice under this subsection (d) shall provide a clear and readily understandable explanation of the following:
- (A)
The potential sources of lead in the drinking water;
- (B)
Any potential adverse health effects;
- (C)
Any reasonably available methods of mitigating known or potential lead content in drinking water;
- (D)
Any steps the public water system is taking to mitigate lead content in drinking water; and
- (E)
The necessity for seeking alternative water supplies, if any.
- (5)
- (A)
If a public water system fails to notify persons that may be affected by lead contamination as required by subdivision (d)(2), the commissioner shall take appropriate action to ensure the public water system provides such notice within at least ten (10) days of such failure.
- (B)
After the commissioner ensures proper notice has occurred by the public water system, the commissioner shall provide direct technical assistance to and oversight of the public water system to ensure the public water system conducts appropriate follow-up testing and exercises the necessary treatment optimization and distribution system modifications, where necessary, to achieve compliance.
- (e)
- (1)
Any area where a local governmental unit has enacted or will enact ordinances, codes, regulations or governing policies not less stringent than subsection (b) is exempt from subsection (b).
- (2)
There is reserved to the state the right to administer or enforce any applicable ordinances, codes, regulations or governing policies of the local governmental unit, should it fail to properly administer or enforce such ordinances, codes, regulations or governing policies.
- (f)
Nothing herein shall be construed to require any public water system or any residential or nonresidential facility to remove or replace any piping or plumbing, installed prior to March 18, 1988, except as may be necessary in making a repair.
Part 8 Wastewater Treatment Works Construction Grant Act of 1984
§ 68-221-801. Short title.
-
This part shall be known and may be cited as the “Wastewater Treatment Works Construction Grant Act of 1984.”
§ 68-221-802. Purposes.
- (a)
Recognizing that the state has a very strong interest in both the growth of the economy and the protection of the waters of the state, it is the purpose of this part to financially assist local government to construct wastewater treatment works.
- (b)
It is further intended that the grants provided for in this part shall be coordinated with other state and federal programs of loans or grants for construction of wastewater treatment works.
- (c)
It is also the purpose of this part to encourage the use of appropriate technologies, the experimentation with new technologies, and the development of adequate local user rate structures.
§ 68-221-803. Part definitions.
-
As used in this part, unless the context otherwise requires:
- (1)
“Alternative technology” means proven wastewater treatment processes and techniques which provide for the reclaiming and reuse of water, productively recycle wastewater constituents or otherwise eliminate the discharge of pollutants, or recover energy. Specifically, “alternative technology” includes land application of effluent and sludge, aquifer recharge, aquaculture, direct reuse (nonpotable), horticulture, revegetation of disturbed land, containment ponds, sludge composting and drying prior to land application, self-sustaining incineration, methane recovery, codisposal of sludge and solid waste and individual and on-site systems. “Alternative technology” also includes a wastewater collection system other than a conventional system for a community with population less than three thousand five hundred (3,500), according to the 1980 federal census or any subsequent federal census. This includes, but is not limited to, small diameter pressure, gravity and vacuum sewers carrying partially or fully treated wastewater and which demonstrate a significant savings in the life cycle cost of the project when compared to an appropriate conventional technology;
- (2)
“Construction” means the erection, acquisition, alteration, reconstruction, improvement or extension of wastewater treatment works, including preliminary planning to determine the economic and engineering feasibility of wastewater treatment works, the engineering, architectural, legal, fiscal and economic investigations and studies, surveys, designs, plans, procedures and other similar action necessary in the building of wastewater treatment works, and the inspection and supervision of the construction of wastewater treatment works;
- (3)
“Department” means the department of environment and conservation;
- (4)
“Grant” means the award of state funds to a municipality for the construction of wastewater treatment works or for preliminary engineering pursuant to this part;
- (5)
“Grant allowance” means that portion of a grant made pursuant to this part which is a percentage of the total grant which the department deems to represent reasonable preliminary engineering costs. It is not intended to cover or reimburse for actual preliminary engineering costs;
- (6)
“Innovative technology” means developed wastewater treatment processes and techniques which have not been fully proven under the circumstances of their contemplated use and which represent a significant advancement over the state of the art in terms of significant reduction in life cycle cost of the project when compared to an appropriate conventional technology;
- (7)
“Municipality” means any utility district existing on July 1, 1984, county, incorporated town or city, or metropolitan government which has authority to administer a wastewater treatment works, or any combination of two (2) or more of the foregoing acting jointly to construct a wastewater treatment works;
- (8)
“Preliminary engineering” means preparation of the Section 201 Facilities Plan, preparation of engineering plans, writing specifications, value engineering, and related, similar activities;
- (9)
“Priority ranking list” means a list generated through a system by which the department ranks in descending order of priority all applicants for state and federal grants for construction of wastewater treatment works by criteria which include at least the following:
- (A)
The nature and quantity of the receiving waters;
- (B)
The severity of the pollution to be abated by the proposed construction; and
- (C)
The use of innovative technology to save energy or reuse or reclaim wastes;
- (10)
“Reserve capacity” means capacity to treat, store, transport or dispose of more wastewater than the demand on the system at the time of construction;
- (11)
“Value engineering” is a specialized cost control technique which uses a systematic and creative approach to identify and focus on unnecessarily high cost in a project in order to arrive at a cost saving without sacrificing the reliability or efficiency of the project; and
- (12)
“Wastewater treatment works” means any facility whose purpose is to store, treat, neutralize, stabilize, recycle, reclaim or dispose of municipal wastewater, including treatment or disposal plants, interceptors, outfall, and outlet sewers, pumping stations, equipment and furnishings thereof and their appurtenances which are necessary to accomplish the foregoing purposes; also included in this definition are collection systems which are to be built, repaired or extended for the purpose of ameliorating or correcting a pollution problem existing at the time of the application for the grant; provided, that collection systems, or parts thereof, otherwise are excluded from this definition and are not eligible for grants under this part.
§ 68-221-804. State construction grants.
- (a)
- (1)
The state is authorized to make grants to municipalities to assist them in the construction of wastewater treatment works.
- (2)
The department shall administer this grant program.
- (b)
The department shall promulgate regulations setting forth procedures for the submission of applications by municipalities for these grants and for the approval or denial of these applications by the department, and setting forth the criteria upon which these approvals and denials will be made, the method by which the grant amount for an individual project is determined, and the method of grant payment.
- (c)
Except as provided in subsections (d) and (i), grants shall be fifty-five percent (55%) of the eligible portion of the wastewater treatment works project, except that where innovative or alternative projects or portions of projects have been approved by the department, the grant shall be seventy-five percent (75%) of the portion of the project which utilizes, or is necessary for the utilization of, an innovative or alternative technology.
- (d)
In addition to the basic grant provided for in subsection (c), municipalities that are receiving grants or that have received grants pursuant to this section may be eligible for a supplemental grant. Supplemental grants shall be grants to municipalities receiving either a basic grant or grant from the United States environmental protection agency (EPA). The combination of a supplemental grant and either a basic grant or a grant from the EPA may not be more than ninety percent (90%) of the eligible portion of the wastewater treatment works project. The amount of the supplemental grant shall be determined in relation to an economic index, which is based upon factors which include, but are not limited to, per capita incomes and property values. Municipalities with the lowest economic index shall be eligible for the largest supplemental grants. The department shall promulgate regulations which shall include the economic index, the size of supplemental grants for different levels on the economic index, the level on the economic index above which municipalities will be ineligible for supplemental grants, and give preference to those municipalities that are eligible for EPA grants.
- (e)
Grants shall be made only for those wastewater treatment works projects that qualify for funding based on their placement on the department priority ranking list.
- (f)
Grants may be made for the most cost effective innovative or alternative collection system or the most cost effective on-site system or systems.
- (g)
No portion of a grant made pursuant to this part may be used to acquire land or to pay any costs associated with acquisition of land; provided, that expenditures for land that will be an integral part of the treatment process or that will be used for the ultimate disposal of residues resulting from such treatment may be made out of a grant made pursuant to this part.
- (h)
No portion of a grant made pursuant to this part shall be used to construct reserve capacity in a wastewater treatment works; provided, that reserve capacity in eligible interceptors and in collection systems for a community with a population of less than three thousand five hundred (3,500), according to the 1980 federal census or any subsequent federal census, using alternative technology may be funded out of such grants.
- (i)
Grants made in conjunction with loans from the wastewater facility revolving loan fund pursuant to the Wastewater Facilities Act of 1987, compiled in part 10 of this chapter, may be made in such amounts as may be determined by the department.
§ 68-221-805. State preliminary engineering grants and grant allowances.
- (a)
- (1)
The state is authorized to make grant allowances to municipalities for purposes of preliminary engineering for wastewater treatment works construction.
- (2)
The department shall administer this grant program.
- (b)
- (1)
The department shall promulgate regulations setting forth procedures for the submission of applications by municipalities for these grants and for the approval or denial of these applications by the department and setting forth the criteria upon which these approvals and denials will be made, and further setting forth the amounts of such allowances which shall be based on construction cost and the percentage grant amounts bear to total construction cost.
- (2)
Such rules and regulations shall also include a method of grant payments.
- (c)
Grant allowances for preliminary engineering shall be made at the same time as the grant for construction as provided in § 68-221-804.
- (d)
Grant allowances made to municipalities pursuant to this section shall pay the same percentage of the eligible preliminary engineering costs as the grant made pursuant to § 68-221-804 pays of construction costs.
- (e)
- (1)
Grants for preliminary engineering for wastewater treatment works construction projects which are financed by a municipality's own resources may be made by the department.
- (2)
Such grants shall be at the rate of eighty percent (80%) of allowable preliminary engineering costs.
- (3)
Such grants shall be paid at the time of construction of the project.
- (f)
Any municipality receiving a grant under this section and subsequently receiving funds for preliminary engineering from other state or federal sources shall refund such grant to the department, and municipalities previously receiving such grants shall not be eligible for preliminary engineering grant allowances under this section.
§ 68-221-806. Wastewater works grant account.
-
There is established in the general fund of the state treasury an account to be known as the wastewater works grant account; provided, that the commissioner of finance and administration, with the approval of the comptroller of the treasury, may establish the account in such other manner and in such other fund as may be deemed appropriate.
§ 68-221-807. Appropriations.
- (a)
- (1)
There are authorized to be appropriated to the department such funds as the general assembly may appropriate to enable the department to carry out its functions under this part.
- (2)
Such funds, once appropriated, shall remain available until obligated by the department for not more than two (2) years, without reverting to the general fund.
- (b)
- (1)
Not more than twenty-five percent (25%) of such annual appropriation may be allocated to grants under § 68-221-805.
- (2)
Not more than twenty percent (20%) of such annual appropriation may be used by the department to pay the difference between seventy-five percent (75%) and fifty-five percent (55%) for innovative and alternative technologies under § 68-221-804(c).
- (3)
Not more than fifteen percent (15%) of such annual appropriation may be made to cover costs for building a reserve capacity as provided in § 68-221-804(h).
§ 68-221-808. Contracts for technical assistance to municipalities.
-
The department may contract with the municipal technical advisory service, the University of Tennessee, for providing technical assistance to municipalities to assist them in receiving or planning to receive funds under these sections in an amount not to exceed three hundred thousand dollars ($300,000) per annum and from funds appropriated for the purposes of funding these sections.
§ 68-221-809. Implementation of technological and fiscal systems.
- (a)
- (1)
The department shall promulgate rules and regulations to assure selection of appropriate technology, cost effective design, and use of value engineering in the construction of wastewater treatment works, and also to establish a peer review system for review of construction projects prior to any grants being made pursuant to this part.
- (2)
Such peer review system shall be eligible for funding under this part.
- (b)
- (1)
- (A)
The department shall adopt rules and regulations to assure that municipalities receiving grants pursuant to this part adopt and maintain user rate structures that will fund operation, maintenance, principal and interest obligations and an adequate depreciation account to replace the cost of the wastewater treatment works over its useful life based upon the straight line method of accounting.
- (B)
Useful life and straight line method shall be determined in accordance with 26 U.S.C. § 167 and 26 CFR 1.167 (a)-1 et seq.
- (2)
A municipality aggrieved by action taken pursuant to this subsection (b), or regulations promulgated pursuant to it, may seek relief in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.
§ 68-221-810. Contracts between state and municipalities.
- (a)
The department may, in the name of the state of Tennessee, enter into contracts with municipalities concerning grants for construction of wastewater treatment works and concerning grants for preliminary engineering.
- (b)
The department is authorized to adopt rules and regulations governing such contracts.
§ 68-221-811. Audits of municipalities.
- (a)
The comptroller of the treasury, through the department of audit, shall be responsible for ensuring that audits of those municipalities receiving grants under this part are conducted to determine whether the municipalities are continuing to comply with all applicable requirements of this part.
- (b)
These audits are to be prepared in accordance with § 6-56-105.
- (c)
The auditor shall report directly to the comptroller of the treasury and the department of environment and conservation, in a compliance management letter, such auditor's findings on the compliance or noncompliance of the municipality with the terms of the grants and all applicable requirements of this part.
Part 9 Water And Wastewater Operator Certification Act
§ 68-221-902. Legislative purpose.
-
Recognizing that correct operation of water and wastewater systems is necessary for the protection of the public health and the quality of the environment, it is declared to be the purpose of this part to prevent inadequate operation of all such systems through a system of certification of operators and penalties for noncompliance.
§ 68-221-903. Part definitions.
-
As used in this part, unless the context otherwise requires:
- (1)
“Board” means the board of certification created in § 68-221-905;
- (2)
“Certificate” means a certificate of competency issued by the commissioner stating that the operator has met the requirements for the specified operator classification of the certification program;
- (3)
“Commissioner” means the commissioner of environment and conservation or the commissioner's duly authorized representative;
- (4)
“Operator” means a person who is in direct charge, or that by education, training and experience is qualified to be in direct charge, of a water treatment plant, wastewater treatment plant, water distribution system or wastewater collection system;
- (5)
“Wastewater collection system” means the entire system of pipes, valves, pumping stations and appurtenances through which wastewater is collected and conveyed to the wastewater treatment plant;
- (6)
“Wastewater treatment plant” means the facility or group of units provided for the treatment of wastewater, either or both domestic and industrial wastes. Industrial wastes which do not enter a public wastewater system are excluded;
- (7)
“Water distribution system” means that portion of the water supply system in which water is conveyed from the water treatment plant or other supply point to the premises of the consumer;
- (8)
“Water supply system” means the system of pipes, structures and facilities through which water is obtained, treated, and sold, distributed or otherwise offered to the public for household use or any use by humans, if such system has at least fifteen (15) service connections or regularly serves an average of at least twenty-five (25) individuals at least one hundred twenty (120) days or at least sixty (60) consecutive days out of the year. An industrial water system not delivering water for human consumption is excluded from this definition; and
- (9)
“Water treatment plant” means the portion of the water supply system which in some way alters the physical, chemical or bacteriological quality of the water.
§ 68-221-904. Certified operators only — Violations of part — Penalties.
- (a)
It is unlawful for any person, firm or corporation, both municipal and private, operating a water supply system or wastewater system, to operate the water treatment plant, wastewater treatment plant, water distribution system, or wastewater collection system unless the competency of the operators in direct charge of such system are duly certified by the commissioner under this part in effect on and after May 25, 1984, or under former chapter 13, part 3 of this title in effect prior to May 25, 1984.
- (b)
Any municipality, utility district, corporation, or persons violating any provisions of this part or the rules and regulations adopted thereunder commits a Class C misdemeanor, and each day in violation constitutes a separate offense.
- (c)
- (1)
Additionally, any municipality, utility district, corporation or persons violating any provisions of this part, or the rules and regulations adopted thereunder, shall be subject to civil penalties up to ten thousand dollars ($10,000) per day, for each day during which the violation occurs.
- (2)
The commissioner has the duty and authority to levy civil penalties authorized in subdivision (c)(1), the duty and authority to issue orders requiring compliance with this part, and to hold show cause meetings with the persons or entities to whom the orders are proposed to be issued.
§ 68-221-905. Board of certification.
- (a)
- (1)
A board of certification is established for the administration of the certification program.
- (2)
The board is charged with the responsibility of conducting all work necessary to promote the program and maintain records, and shall also promulgate rules and regulations required in performing its obligations.
- (b)
- (1)
Such board shall be composed of the following members, appointed by the governor:
- (A)
One (1) member shall be a certified operator of a water or wastewater system who holds a certificate of the highest class issued by the board, who may be appointed from lists of qualified persons submitted by interested water and wastewater groups including, but not limited to, the Tennessee Water and Wastewater Association;
- (B)
One (1) member shall be a certified operator of a water or wastewater utility district, who may be appointed from lists of qualified persons submitted by interested utility district groups including, but not limited to, the Tennessee Association of Utility Districts;
- (C)
One (1) member shall be a person knowledgeable about water or wastewater systems with experience working for such systems, who may be appointed from lists of qualified persons submitted by interested municipal groups including, but not limited to, the Tennessee Municipal League;
- (D)
One member shall be a faculty member of a college, university or state technical institute whose major field is related to water or wastewater systems, who may be appointed from lists of qualified persons submitted by interested engineering groups including, but not limited to, the Tennessee Society of Professional Engineers; and
- (E)
The commissioner or such qualified member of the commissioner's staff as the commissioner may designate.
- (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.
- (c)
- (1)
Board members shall serve for three-year terms except as designated herein, and all appointments shall expire on June 30 of the appropriate year. A board member shall continue to serve, however, until a successor has been appointed, or until the board member has been reappointed.
- (2)
Appointments to succeed a board member who is unable to serve such board member's full term shall be for the remainder of that term.
- (3)
Board members may be reappointed, but they do not succeed themselves automatically.
- (4)
Appointments to the board for the remainder of an unexpired term, and reappointments shall be made in the same manner as under subsection (b).
- (5)
Any board member who moves from Tennessee is automatically terminated from the board.
- (d)
At the first meeting each year after July 1, the board shall elect from its membership a chair and vice chair.
- (e)
The director of the division of water resources or the director's designated representative shall serve as secretary of the board and be responsible for maintaining records.
- (f)
Each member of the board, other than the ex officio member, shall be entitled to be paid fifty dollars ($50.00) for attendance at each meeting of the board at which a quorum is present and for actual and necessary expenses incurred. 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.
- (g)
A quorum of the board shall be at least three (3) members.
§ 68-221-906. Powers and duties of board.
- (a)
Duties and authority of the board include:
- (1)
Adopt, modify, repeal, promulgate in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, and, after due notice, enforce rules and regulations which the board deems necessary for proper administration of this part;
- (2)
Hold at least one (1) examination annually at a designated time and place for the purpose of examining candidates for certification;
- (3)
Advertise and promote the program;
- (4)
Encourage other operators to become certified besides those required by law;
- (5)
Distribute applications and notices;
- (6)
Receive and evaluate applications;
- (7)
Prepare, conduct and grade examinations;
- (8)
Set up a system of fees and late penalties for applicants to support the expenses of the program;
- (9)
Maintain all records of the program, and maintain a register of certified operators;
- (10)
Promote and schedule regular training schools and programs;
- (11)
Hear appeals from any order or ruling issued by the commissioner, and affirm, modify or revoke such order or ruling; issue notices of such appeals and subpoenas requiring attendance of such witnesses and production of such evidence; administer oaths; and take such testimony as the board deems necessary. Any such appeals must be filed with the board within thirty (30) days of issuance of such order or ruling; and
- (12)
Recommend to the commissioner the staff required to effectively administer the requirements of this part.
- (b)
The board has the authority to hear appeals from orders and civil penalties made or assessed by the commissioner under this part.
§ 68-221-907. Classification of facilities and systems.
-
The board shall classify all water treatment plants, wastewater treatment plants, water distribution systems, and wastewater collection systems with due regard to the size, type, physical conditions affecting such treatment plants, collection systems and distributions systems, and according to the skill, knowledge and experience that the operator must have to supervise successfully the operation of the plant or system, so as to protect the public health.
§ 68-221-908. Certification by commissioner.
-
The commissioner, in accordance with the rules and regulations of the board, shall certify persons as to their qualifications to supervise successfully the operation of such water treatment plants, wastewater treatment plants, water distribution systems, and wastewater collection systems, after considering the recommendations of the board appointed by the governor.
§ 68-221-909. Certification of operators — Responsibilities — Multiple functions.
- (a)
All operators of water and wastewater systems are encouraged to become certified, although this part requires only that a person in direct charge of a water treatment plant, wastewater treatment plant, water distribution system or wastewater collection system be certified.
- (b)
There is nothing in the part to prohibit a single person becoming a certified operator for more than one (1) of the functions listed in subsection (a).
- (c)
It is permissible for one (1) certified operator to have the responsibility for more than one (1) water and/or wastewater system where two (2) or more systems are involved in reasonable proximity to one another, and where the duties of operation are such that the work time of one (1) person may properly be divided among two (2) or more systems, or where a certified operator may adequately supervise the work of others in more than one (1) system.
§ 68-221-910. Issuance, duration and renewal of certificates — Reciprocity.
- (a)
- (1)
Upon satisfactory fulfillment of the requirements and based upon recommendation of the board, the commissioner shall issue a suitable certificate to the applicant designating the applicant's competency.
- (2)
The certificate will indicate that portion of the plant or system for which the operator is qualified.
- (3)
Certificates shall be permanent except as noted subsequently in this part.
- (b)
Certificates shall be renewed annually upon payment of the renewal fee and the fulfillment of continuing education and/or experience requirements established by the board, unless revoked or replaced by one of a higher grade.
- (c)
Operators who desire to become certified in a higher grade must satisfactorily complete the requirements before the certificate is issued.
- (d)
- (1)
Certificates shall be valid only so long as the holder uses reasonable care, judgment and application of such holder's knowledge in the performance of such holder's duties.
- (2)
No certificate will be valid if obtained through fraud, deceit or the submission of inaccurate data on qualifications.
- (e)
Certificates may be issued, without examination, in a comparable classification to any person who holds a certificate in another state; provided, that the requirements of that state are comparable or higher; and provided further, that such requirements do not conflict with this part. Such issuance of a certificate may be contingent upon reciprocal privileges being granted by that state to an operator from Tennessee.
§ 68-221-911. Revocation of certificates — Appeals.
- (a)
The board may revoke the certificate of an operator when it is found that the operator has practiced fraud or deception; that reasonable care, judgment or the application of such operator's knowledge was not used in performance of such operator's duties; or that the operator is incompetent to properly perform such operator's duties.
- (b)
When the commissioner believes an operator has engaged in any of the activities set forth in subsection (a), the commissioner may issue an order suspending the operator's certificate until the board conducts a hearing on the revocation of the operator's certificate for such activities. When the commissioner has issued a suspension order, the board shall conduct its revocation hearing and render its decision within ninety (90) days of the operator's suspension. In the event the board does not render its decision within ninety (90) days of the operator's suspension, the suspension order shall expire and no longer be in force or effect. However, the commissioner may reissue an order of suspension for a period not to exceed ninety (90) days.
- (c)
When the board determines an operator's certificate should be revoked under subsection (a), the board shall establish the timing, terms and conditions for any reinstatement of the operator's certificate.
§ 68-221-912. Replacement of certified operator.
- (a)
The board may allow a period of up to six (6) months for the replacement of a certified operator whose services have been lost by death, illness or other unusual events.
- (b)
Further extensions of thirty (30) days, up to a total of one hundred eighty (180) additional days, may be granted if deemed necessary by the board.
- (c)
A system shall notify the board in writing within thirty (30) days of the loss of certified operator(s).
§ 68-221-913. Collection of fees — Funding.
- (a)
All fees collected under this part shall be paid into the state treasury.
- (b)
The department of finance and administration, with the governor's approval, is authorized to allot to the department of environment and conservation such funds as are necessary for the administration of this part, and the department is designated as the administrative agency for the board created by this part.
§ 68-221-914. Appeals of board's rulings.
- (a)
Any party to a hearing before the board regarding a revocation or an appeal of an order or assessment of a civil penalty by the commissioner may appeal the final order of the board to the chancery court of Davidson County.
- (b)
Such appeal must be filed within sixty (60) days.
§ 68-221-915. Complaints — Procedures — Determinations — Appeals.
- (a)
Any person may file with the commissioner a signed complaint against any person allegedly violating any provisions of this part.
- (b)
Unless the commissioner determines that such a 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 shall notify the alleged violator of what action, if any, the commissioner will take.
- (c)
In all cases, the commissioner shall notify the complainant of the commissioner's action or determination within ninety (90) days from the date of the commissioner's receipt of the written complaint.
- (d)
- (1)
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 person may appeal to the board for a hearing which will be conducted pursuant to this part.
- (2)
Such appeal must be made within thirty (30) days after receipt of the notification sent by the commissioner.
- (e)
If the commissioner fails to take the action stated in the 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.
- (f)
The department shall not be obligated to assist a complainant in gathering information or making investigations or to provide counsel for the purpose of drawing such complainant's complaint.
Part 10 Wastewater Facilities
§ 68-221-1002. Purpose and intent.
- (a)
The purpose of this part is to:
- (1)
Facilitate statewide compliance with state and federal water quality standards;
- (2)
Provide local governments in the state with low-cost financial assistance relative to necessary wastewater facilities through the creation of a self-sustaining revolving loan program so as to improve and protect water quality and public health; and
- (3)
Establish fiscal self-sufficiency of wastewater facilities.
- (b)
It is intended that the revolving loan program be used in coordination with state and federal assistance programs.
§ 68-221-1003. Part definitions.
-
As used in this part, unless the context otherwise requires:
- (1)
“Authority” means the Tennessee local development authority as created by title 4, chapter 31;
- (2)
“Board” means the Tennessee board of utility regulation established under § 7-82-701;
- (3)
“Clean Water Act” means the Water Pollution Control Act of 1972, P.L. 92-500, as amended, (33 U.S.C. § 1251 et seq.), and rules and regulations promulgated thereunder;
- (4)
“Department” means the department of environment and conservation;
- (5)
[Deleted by 2022 amendment.]
- (6)
“Fund” means the wastewater facility revolving loan fund;
- (7)
- (A)
“Local government” means:
- (i)
A county, incorporated town or city, metropolitan government, state agency, water/wastewater authority, energy authority or any instrumentality of government created by any one (1) or more of these or by an act of the general assembly:
- (a)
Which has authority to administer a wastewater facility; or
- (b)
Whose residents are served or are eligible to be served, in whole or in part, by a wastewater facility operated by another local government as defined by this subdivision (7);
- (ii)
One (1) of the foregoing acting jointly with a utility district operating or having the authority to operate a wastewater facility; or
- (iii)
Any combination of two (2) or more of the foregoing acting jointly in connection with a wastewater facility;
- (B)
“Local government” also means any utility district created pursuant to title 7, chapter 82, existing on July 1, 1984, and which operates a wastewater facility; and also includes such utility district created after July 1, 1984, if such utility district operates a wastewater facility comprised of at least five hundred (500) customer connections;
- (C)
“Local government” also means, for the purposes of this part only, a privately owned community wastewater treatment system subject to regulation by the Tennessee public utility commission;
- (8)
“Security” means that which is determined by the authority to be acceptable to secure a loan to a local government under this part and includes, but is not limited to, revenues of the facility, ad valorem taxes, state-shared taxes, letters of credit or bond insurance;
- (9)
“Stormwater” has the same meaning as “storm water” as defined in § 68-221-1102;
- (10)
“Stormwater facilities” has the same meaning as “storm water facilities” as defined in § 68-221-1102; and
- (11)
- (A)
“Wastewater facility” means any facility, including the reserve capacity thereof, whose purpose is to collect, store, treat, neutralize, stabilize, recycle, reclaim or dispose of wastewater, including treatment or disposal plants, interceptors, outfall, and outlet sewers, pumping stations, equipment and furnishings thereof and their appurtenances which are necessary to accomplish the foregoing purposes;
- (B)
“Wastewater facility” also includes best management practice projects for controlling non-point sources of water pollution, failed innovative/alternative wastewater construction projects, and the planning or replanning requirements of designated management authorities; and
- (C)
“Wastewater facility”, for purposes of the program administered by the department pursuant to § 68-221-1005(a), also includes stormwater facilities, stormwater management projects, or other eligible projects as outlined in the Clean Water Act.
§ 68-221-1004. Wastewater facility revolving loan fund.
- (a)
- (1)
There is created in the state treasury a revolving loan fund to be known as the “wastewater facility revolving loan fund.”
- (2)
The authority shall administer the fund and shall adopt rules and regulations for such administration.
- (3)
All interest and earnings of the fund shall remain a part of the fund.
- (4)
No part of the fund shall revert to the general fund on any June 30, but shall remain a part of the fund available for expenditure in accordance with this part.
- (5)
The authority may charge and collect from local governments administrative fees and expenses, including, but not limited to, reimbursement of all cost of financing by the authority that the authority determines to be reasonable and required. These fees and expenses shall not become part of the fund.
- (b)
- (1)
The authority shall deposit in the fund all receipts from the repayment of loans made pursuant to this part.
- (2)
The fund shall be established, maintained and credited with repayments, and the fund balance shall be available in perpetuity for providing such loans, pursuant to §§ 68-221-1001 — 68-221-1006.
- (c)
The department shall deposit in the fund federal funds allocated to the state pursuant to the Clean Water Act (33 U.S.C. § 1251 et seq.), which have been determined by the department to be for the purpose of making loans to local governments and for which state matching funds are available.
- (d)
- (1)
The department shall recommend annually to the general assembly the appropriate state funds necessary for the receipt of all available matching federal funds.
- (2)
State money appropriated to the department or to the authority to carry out this part may be used, in addition to other purposes, to match federal funds allocated to the state pursuant to the Clean Water Act for the purpose of making loans to local governments.
- (e)
The department shall deposit into the fund any federal funds allocated to the state to make loans and to subsidize loans made under the program authorized by this part.
§ 68-221-1005. Program for loans, financing and refinancing — Powers of department and authority — Audit — Assignment of rights and obligations.
- (a)
The department, in conjunction with the authority, shall administer a program for low cost loans to local governments for wastewater facilities, and shall adopt regulations to govern the application procedure for loans under this part.
- (b)
The department shall recommend to the authority an appropriate financing method for each wastewater facility which has applied for financial assistance under this part and which appears on the construction grants program wastewater treatment project priority list established under the authority of part 8 of this chapter. As part of the recommended financing method, the department may consider partial grants to wastewater facilities to be funded pursuant to part 8 of this chapter. In recommending the interest rate for a loan, the department shall utilize an economic index based upon factors which include, but are not limited to, per capita incomes and property values of the local government applicant. Local governments falling within the lower economic scale on the index shall be eligible for lower interest rates. The department shall promulgate regulations regarding the appropriate index, interest rate and loan percentages to be recommended.
- (c)
The department shall present to the authority no less than annually its recommendations, in descending order of priority, for loans to local governments. Prior to making a recommendation for loans to local governments, the department may ensure through an environmental review that loan funded projects shall be environmentally sound. The authority shall have final approval of such loans. Both the department and the authority shall be parties to the contracts with local governments concerning loans.
- (d)
The comptroller of the treasury shall make an annual audit of the fund as part of the comptroller's annual audit of the authority and the department pursuant to § 9-3-211.
- (e)
The authority and the department shall have such other authority as may be necessary and appropriate for the exercise of the powers and duties conferred by this part.
- (f)
Notwithstanding any other provision of this part to the contrary, the department, in conjunction with the authority, may develop alternative financial assistance programs, which may include the issuance of the authority's revenue bonds, for wastewater facilities using the funds appropriated herein to effect the legislative intent of providing low-cost financial assistance to local governments for wastewater facilities, provided such programs are permissible under the Clean Water Act (33 U.S.C. § 1251 et seq.).
- (g)
Local governments are empowered and are authorized to contract debts for the construction of a wastewater facility and to make contracts and execute instruments with the authority for the purpose of obtaining a loan under this part. In order to provide adequate security as may be required by the authority for a loan under this part, local governments are further empowered and authorized to:
- (1)
Pledge the full faith and credit and unlimited taxing power, if any, of the local government as to all taxable property of the local government or a portion of the local government, if applicable, to the punctual payment of the principal and interest on the loan;
- (2)
Assess, levy and collect ad valorem taxes on all taxable property within the local government or a portion of the local government, if applicable, sufficient to pay the principal of and interest on the loan;
- (3)
Fix, levy and collect fees, rents, tolls or other charges in connection with any wastewater facility and pledge all or any of such fees, rents, tolls or other charges to the payment of principal and interest on the loan; and
- (4)
Pledge any other security determined by the authority to be acceptable to secure a loan under this part.
- (h)
- (1)
Any pledge made by the local government pursuant to this part shall be valid and binding from the time when the pledge is made, the moneys or property so pledged and thereafter received by the local government shall immediately be subject to the lien of such pledge without any physical delivery thereof or further act, and the lien of any such pledge shall be valid and binding as against all parties having claims of any kind in tort, contract or otherwise against the local government, irrespective of whether such parties have notice of the lien of such pledge.
- (2)
Neither the resolution nor any other instrument by which a pledge is created need be recorded.
- (i)
- (1)
In the event any local government having entered into a loan agreement pursuant to this part and having pledged its state-shared taxes, as defined in § 4-31-102, fails to remit funds in accordance with the loan agreement, the commissioner of finance and administration shall deliver by certified mail a written notice of such failure to the local government within five (5) days of such failure.
- (2)
In the event the local government fails to remit the amount set forth in the notice within sixty (60) days of the receipt of the notice, the commissioner shall, without further authorization, withhold for the benefit of the authority such sum or part of such sum from any state-shared taxes which are otherwise apportioned to such local government.
- (3)
A local government shall not have any claim on state-shared taxes withheld as permitted under this part and the loan agreement.
- (4)
For purposes of this subsection (i), notice of failure to remit funds shall be delivered to any entity jointly participating in the wastewater facility being funded pursuant to the loan agreement and qualifying as a local government as provided in § 68-221-1003(7), and funds shall be withheld as provided therein.
- (j)
To encourage joint action by governmental entities, including utility districts, in the establishment of fiscally self-sufficient wastewater facilities, utility districts and other entities which constitute “local governments,” as defined under this part, are authorized and empowered to serve as guarantors and to provide such other security as required by the authority for loans under this part.
- (k)
With consent of the authority and upon provision of such other security as required by the authority for loans under this part, any local government is authorized to assign its rights and obligations under a loan received pursuant to this part to any other local government. Any local government is authorized to receive such assignment and to assume such obligations. Upon such assignment, the local government originally obligated under the loan and any security provided therefore shall be released from all obligations under the loan; provided, however, that the local government originally obligated under the loan may agree upon resolution of the governing body to retain its obligation to make payments under the loan in the event that the local government to which the loan is assigned fails to make such payments.
- (l)
- (1)
The department and the authority may use any federal funds allocated to the state to make loans and to subsidize loans made through the program authorized by this part, through such mechanisms as forgiveness of principal, other loan forgiveness, and through refinancing or restructuring of debt;
- (2)
The department and the authority may administer the program using the funds in accordance with the criteria set by the federal government; and
- (3)
The department may promulgate rules and develop forms that may be deemed necessary for the program.
- (m)
Subsections (g), (h), (i), and (k) do not apply to a local government as defined in § 68-221-1003(7)(C).
§ 68-221-1006. Prerequisites for and terms of loans.
- (a)
- (1)
Loans shall be made only to local governments that:
- (A)
Operate a wastewater facility that is on the department's project priority ranking list established pursuant to § 68-221-804 and regulations thereunder;
- (B)
In the opinion of the authority, demonstrate sufficient revenues to operate and maintain the facility for its useful life and to repay the loan;
- (C)
Pledge security as required by the authority for repayment of the loan;
- (D)
Agree to adjust periodically fees and charges for services of the wastewater facility in order that loan payments and costs of the wastewater facility are timely paid; provided, however, upon determination that fees and charges are reasonable, the authority may in its discretion make a loan to a local government which is relying upon and using ad valorem taxes or other lawful sources of revenue, in addition to fees and charges, to pay timely loan payments and costs of the facility;
- (E)
Certify to comply with a plan of operations approved by the department regarding the quality, compensation and number of facility personnel for the life of the loan;
- (F)
Agree to maintain financial records in accordance with governmental accounting standards and to conduct an annual audit of the facility's financial records in accordance with generally accepted governmental auditing standards and with minimum standards prescribed by the comptroller of the treasury, and to file such audit with the comptroller. In the event of the failure or refusal of the local government to have the audit prepared, then the comptroller of the treasury may appoint an accountant or direct the department of audit to prepare the audit at the expense of the local government; and
- (G)
Provide such assurances as are reasonably requested by the authority and the department.
- (2)
In regard to a local government as defined in § 68-221-1003(7)(C), loans are subject to the following conditions and requirements:
- (A)
The local government will not be considered for loans with principal forgiveness under the program;
- (B)
The local government must be categorized as one hundred percent (100%) ability to pay on the index established pursuant to § 68-221-1005;
- (C)
The local government must have at least a debt service coverage ratio of 1.25;
- (D)
The local government must provide security determined by the authority to be acceptable to secure a loan under this part; and
- (E)
The authority is authorized to direct the local government to the Tennessee public utility commission, created by § 65-1-101, for compliance.
- (b)
Loans for public purpose projects relating to privately owned, non-point sources of pollution shall not be made to a local government which pledges its credit to secure such loan except upon the assent of three-fourths (¾) of the votes cast in an election of the qualified voters of the local government.
- (c)
A local government may use the proceeds from a loan made from the fund to provide a local match for a federal (except for EPA Title II construction grants) or state wastewater facility grant.
- (d)
A loan shall be made for a period of time not to exceed thirty (30) years or the design life of the wastewater facility; however, loans made with funds governed by the Clean Water Act (33 U.S.C. § 1251 et seq.) shall be for such period of time as provided in that act. For each loan, the authority shall determine the interest rate and the payment schedule for repayment of the loan.
- (e)
Loans shall be made only for items approved by the department.
- (f)
The requirements of this section with respect to “local governments” are deemed satisfied when any one (1) of the entities jointly participating in the wastewater facility being funded pursuant to the loan agreement and qualifying as a local government as provided in § 68-221-1003(7) satisfies the requirement.
- (g)
The comptroller of the treasury, through the department of audit, shall be responsible for determining that any audit required in this chapter is prepared in accordance with generally accepted governmental auditing standards. The comptroller of the treasury is authorized to direct the department of audit to make an audit of financial review of the books and records of the local government.
§ 68-221-1015. Part supplemental — Loan agreements governed by this part.
- (a)
This part is in addition and supplemental to any other law providing for the financing of water systems and wastewater facilities of local governments, and shall not be deemed to amend or repeal any other law.
- (b)
No proceedings by a local government shall be required for loan agreements hereunder except such as are provided by this part, notwithstanding any law to the contrary.
- (c)
No requirements or restraints applicable to borrowing by local governments contained in any other law shall be applicable to loans under this part.
- (d)
[Deleted by 2023 amendment.]
§ 68-221-1017. Review and approval of new water or wastewater system — Petition.
- (a)
Notwithstanding any law to the contrary, any city or county attempting to purchase, develop, acquire, or build a new water or wastewater system shall seek the approval of the Tennessee board of utility regulation in the manner provided for in this section before finalizing plans for purchase, development, acquisition, or construction.
- (b)
The governing body of a city or county shall adopt, and its executive officer shall approve, a resolution to submit a petition to the Tennessee board of utility regulation for review and approval of a new water or wastewater system. The petition must include:
- (1)
A statement of the service the proposed water or wastewater system will provide and the necessity for that service;
- (2)
The boundaries of the proposed system's service area;
- (3)
The statutory authority for the purchase, development, acquisition, or building of the water or wastewater system;
- (4)
A statement describing the managerial structure of the new water or wastewater system, including the type of governing body;
- (5)
A statement explaining why an existing utility district, treatment authority, or municipal or county service cannot adequately provide the needed service because of cost, time, or other service delivery factors; and
- (6)
An estimate of:
- (A)
The cost of the acquisition or construction of the system;
- (B)
The cost of operating the proposed facility;
- (C)
Anticipated personnel needs; and
- (D)
The rates and charges for utility service.
- (c)
An estimate pursuant to subdivision (b)(6)(A) is not a limitation on the financing of improvements or extensions of a facility.
- (d)
A majority of the governing body of the creating governmental entity and its executive officer must sign the petition.
- (e)
The petition must include the notarized signatures and residential addresses of both a majority of the governing body and its executive officer.
- (f)
- (1)
The Tennessee board of utility regulation shall issue an order approving or disapproving the petition for the new utility system within ninety (90) calendar days of receipt of the petition by the board, its agent, or its representative.
- (2)
If the Tennessee board of utility regulation approves the petition, then the Tennessee board of utility regulation shall forward its order of approval and the original petition to the governing body of the city or county and its executive officer.
- (3)
If the Tennessee board of utility regulation fails to act on the petition within ninety (90) calendar days of receipt of the petition, then the Tennessee board of utility regulation, its agent, or its representative shall return the original petition to the governing body and its executive officer.
- (4)
If the Tennessee board of utility regulation disapproves the petition, then the Tennessee board of utility regulation shall forward its order of disapproval to the governing body of the creating governmental entity and its executive officer. The petitioners may appeal the order disapproving the petition to the circuit court of the county in the manner provided by law for appeals from the court of general sessions.
§ 68-221-1018. Promulgation of emergency rules.
-
The commissioner of environment and conservation is authorized to promulgate emergency rules in the manner provided under the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, for the program authorized by this part if deemed to be necessary by the commissioner to make full use of available federal funding.
Part 11 Storm Water Management
§ 68-221-1101. Legislative purpose.
-
The purpose of this part is to facilitate compliance with the Water Quality Act of 1977, by municipalities which are affected by environmental protection agency (EPA) storm water regulations, particularly those arising from § 405 of the Water Quality Act of 1987, and § 402(p) of the Clean Water Act of 1977, regulating storm water discharges to protect water quality. This part shall enable municipalities to regulate such discharges, to establish a system of drainage facilities, and to fix and require payment of fees for the privilege of discharging storm water. This part shall also enable municipalities to construct and operate a system of drainage facilities for storm water management and flood control.
§ 68-221-1102. Part definitions.
-
As used in this part, unless the context otherwise requires:
- (1)
“Agricultural land” means land used for agriculture, as defined in § 1-3-105;
- (2)
“Construction” means the erection, building, acquisition, alteration, reconstruction, improvement or extension of storm water facilities; preliminary planning to determine the economic and engineering feasibility of storm water facilities; the engineering, architectural, legal, fiscal and economic investigations and studies, surveys, designs, plans, working drawings, specifications, procedures, and other action necessary in the construction of storm water facilities; and the inspection and supervision of the construction of storm water facilities;
- (3)
“Contaminant” means any physical, chemical, biological, or radiological substance or matter in water;
- (4)
“Municipality” means any incorporated city or town, county, metropolitan or consolidated government, or special district of this state empowered to provide storm water facilities;
- (5)
“Person” means any and all persons, natural or artificial, including any individual, firm or association and any municipal or private corporation organized or existing under the laws of this or any other state or country;
- (6)
“Qualified farmer or nurseryman” has the meaning as defined in § 67-6-207;
- (7)
“Storm water” means storm water runoff, snow melt runoff, surface runoff, street wash waters related to street cleaning or maintenance, infiltration (other than infiltration contaminated by seepage from sanitary sewers or by other discharges) and drainage;
- (8)
“Storm water facilities” means the drainage structures, conduits, combined sewers, sewers, and all device appurtenances by means of which storm water is collected, transported, pumped, treated or disposed of; and
- (9)
“Surface water” includes waters upon the surface of the earth in bounds created naturally or artificially including, but not limited to, streams, other water courses, lakes, and reservoirs.
§ 68-221-1103. Authorization of storm water facilities or flood control improvements by municipality.
-
The governing body of any municipality may authorize the construction, extension, enlargement, or acquisition of necessary storm water facilities or flood control improvements within its corporate boundaries. The improvements may include, but are not limited to, the extension, enlargement, construction, or acquisition of storm water facilities or flood control improvements; the widening, straightening, or relocating of streams, surface waters, or water courses; and the acquisition, extension, enlargement, or construction of any works necessary to regulate the quantity or quality of water for the protection of streams, water courses, surface waters, life, and property; provided, that the municipality obtains all applicable permits and complies with all applicable state and federal laws.
§ 68-221-1104. Condemnation of property.
-
A municipality may condemn either the fee or such right, title, interest, or easement in property within its corporate boundaries for any of the purposes mentioned in this part, and such property or interest in such property may be so acquired whether or not the same is owned or held for public use by corporations, associations or persons having the power of eminent domain, or otherwise held or used for public purposes; provided, that such prior public use will not be interfered with by this use. Such power of condemnation may be exercised in the mode or method of procedure prescribed by any other applicable statutory provisions now in force or hereafter enacted for the exercise of the power of eminent domain.
§ 68-221-1105. Municipal authority.
- (a)
In order to protect the public health, municipalities authorized to provide storm water and flood control facilities by this part are authorized by appropriate ordinance or resolution to:
- (1)
Exercise general regulation over the planning, location, construction, and operation and maintenance over storm water facilities in the municipality, whether owned and operated by the municipality or not;
- (2)
Adopt any rules and regulations deemed necessary to accomplish the purposes of this part, including the adoption of a system of fees for services and permits;
- (3)
Establish standards to regulate the quantity of storm water discharged and to regulate storm water contaminants as may be necessary to protect water quality;
- (4)
Review and approve plans and plats for storm water management in proposed subdivisions or commercial developments;
- (5)
Issue permits for storm water discharges, or for the construction, alteration, extension, or repair of storm water facilities;
- (6)
Suspend or revoke permits when it is determined that the person has violated any applicable ordinance, resolution, or condition of the permit;
- (7)
Regulate and prohibit discharges into storm water facilities of sanitary, industrial, or commercial sewage or waters that have otherwise been contaminated; and
- (8)
Expend funds to remediate or mitigate the detrimental effects of contaminated land or other sources of storm water contamination, whether public or private.
- (b)
Municipalities may only exercise the authority granted by subsection (a) in a manner consistent with all requirements of state and federal law that apply to such activities.
- (c)
In counties with a metropolitan form of government, the legislative body may, by ordinance, assign responsibility for the planning, location, construction, and operation and maintenance over storm water facilities in the metropolitan county to any department, board or commission.
- (d)
In counties having governments other than metropolitan or consolidated governments, the county shall only be empowered to exercise the authority granted by this part outside the jurisdiction of an incorporated city or town.
§ 68-221-1106. Civil penalty for violation of ordinance.
- (a)
A municipality may establish by ordinance or resolution that any person who violates any ordinance or resolution regulating storm water discharges or facilities shall be subject to a civil penalty of not less than fifty dollars ($50.00) or more than five thousand dollars ($5,000) per day for each day of violations. Each day of violation may constitute a separate violation. A municipality shall give the violator reasonable notice of the assessment of any penalty. A municipality may also recover all damages proximately caused to the municipality by such violations.
- (b)
In assessing a civil penalty, the following factors may be considered:
- (1)
The harm done to the public health or the environment;
- (2)
Whether the civil penalty imposed will be substantial economic deterrent to the illegal activity;
- (3)
The economic benefit gained by the violator;
- (4)
The amount of effort put forth by the violator to remedy this violation;
- (5)
Any unusual or extraordinary enforcement costs incurred by the municipality;
- (6)
The amount of penalty established by ordinance or resolution for specific categories of violations; and
- (7)
Any equities of the situation which outweigh the benefit of imposing any penalty or damage assessment.
- (c)
The municipality may also assess damages proximately caused by the violator to the municipality which may include any reasonable expenses incurred in investigating and enforcing violations of this part, or any other actual damages caused by the violation.
- (d)
The municipality shall establish a procedure for a review of the civil penalty or damage assessment by either the governing body of the municipality or by a board established to hear appeals by any person incurring a damage assessment or a civil penalty. If a petition for review of such damage assessment or civil penalty is not filed within thirty (30) days after the damage assessment or civil penalty is served in any manner authorized by law, the violator shall be deemed to have consented to the damage assessment or civil penalty and it shall become final. The alleged violator may appeal a decision of the governing body or board pursuant to title 27, chapter 8.
- (e)
Whenever any damage assessment or civil penalty has become final because of a person's failure to appeal the municipality's damage assessment or civil penalty, the municipality may apply to the appropriate chancery court for a judgment and seek execution of such judgment. The court, in such proceedings, shall treat the failure to appeal such damage assessment or civil penalty as a confession of judgment.
§ 68-221-1107. Facilities user's fee.
- (a)
All municipalities constructing, operating, or maintaining storm water or flood control facilities are authorized to establish a graduated storm water user's fee which may be assessed and collected from each user of the storm water facilities provided by the municipality. These fees shall be reasonable in amount and used exclusively by the municipality for purposes set forth in this part. Such a graduated storm water user's fee shall be based on actual or estimated use of the storm water and/or flood control facilities of the municipality, and each user or user class shall only be required to pay its proportionate share of the construction, administration, operation and maintenance including replacement costs of such facilities based on the user's actual or estimated proportionate contribution to the total storm water runoff from all users or user classes. To ensure a proportionate distribution of all costs to each user or user class, the user's contribution shall be based on factors such as the amount of impervious area utilized by the user, the water quality of user's storm water runoff or the volume or rate of storm water runoff. Persons whose storm water runoff is not discharged into or through the storm water or flood control facilities, or both, of the municipality; and owners and/or operators of agricultural land, in the municipality, upon which the owner and/or operator conducts activities that enable the owner and/or operator to satisfy the requirements of a qualified farmer or nurseryman shall be exempted from payment of the graduated storm water user fee authorized by this section. The fee structure shall provide adjustments for users who construct facilities to retain and control the quantity of storm water runoff. Prior to establishing or amending such user's fees, the municipality shall advertise its intent to do so by notice published in a newspaper of general circulation in such municipality at least thirty (30) days in advance of the meeting of the governing body which shall consider such adoption or amendment.
- (b)
The municipality providing such service is authorized to enter into a contract for the collection of such storm water facilities fees with any public or private corporation or municipal utilities board or commission operating a water, gas, or electric system other than an electric cooperative incorporated under the Electric Cooperative Law, compiled in title 65, chapter 25, part 2, in the area of the storm water facilities or to make contracts with any other city, town, or utility district to bill and collect storm water fees as a designated item on its utility bill or, in any county which is not in the state's computer assisted appraisal system (CAAS), to enter into a contract or interlocal agreement with the county in which such municipality is located to bill and collect storm water fees for the municipality as a designated item on the ad valorem tax notice issued by the county trustee. In addition, if any county which is not in the state's CAAS constructs, operates or maintains storm water or flood control facilities and establishes and assesses on each user of the storm water facilities provided by the county a graduated storm water user's fee in accordance with this chapter, then the county trustee of such county is authorized to bill and collect such storm water fees for such county as a designated item on the ad valorem tax notice issued by the county trustee. The contract may provide for the discontinuance of utility service to storm water facility users who fail or refuse to pay storm water facility user charges, including the right not to accept payment of the utility bill from any user without receiving at the same time payment of any storm water facility charges owed by such user and not to re-establish utility services until such time as all past due storm water facility service charges owed by such user have been paid and/or the user of the storm water facility has performed all acts and discharged all obligations required by the ordinances or resolutions of the municipality.
§ 68-221-1108. Financing of facilities.
-
A municipal legislative body may finance storm water facilities under the Local Government Public Obligations Act of 1986, compiled in title 9, chapter 21. To protect the public health and to assure payment of bonds issued for storm water facilities, the municipality may by appropriate ordinance or resolution use the procedures set forth in §§ 68-221-208 and 68-221-209, for payment and collection of charges.
§ 68-221-1110. Permit conditions for discharges.
-
To the extent practicable, municipalities shall provide permit conditions for storm water discharges associated with industrial activities that are consistent with any permits issued pursuant to the National Pollution Discharge Elimination System (NPDES), unless the discharge contains hazardous substances in excess of reporting quantities, or the facility and the municipality are not in compliance with applicable provisions of the NPDES permits issued to them for storm water, or the discharge materially affects the municipal storm water facilities through either the quantity of wastewater or its contamination.
§ 68-221-1111. Water quality regulation authority not limited by this part.
-
Nothing herein shall be construed to limit the power or authority of the department of environment and conservation or of the Tennessee board of water quality, oil and gas with respect to regulation of the waters of the state. Any ordinances or regulations adopted or imposed by municipalities shall be subject to regulation and oversight by the department of environment and conservation or the Tennessee board of water quality, oil and gas.
§ 68-221-1112. Notice of federally mandated charges.
-
Any bill rendered as a result of this part shall contain the following statement with respect to the charges assessed under this part, which statement shall be printed in bold-faced type:
-
“THIS FEE HAS BEEN MANDATED BY CONGRESS.”
§ 68-221-1113. Annual report to state legislative delegation.
- (a)
The chief administrative officer of the agency or entity responsible for implementing this part or such officer's designated representative shall report annually and personally to the legislative delegation of any municipality to which this section applies on the storm water management program for which such officer is responsible. Such report shall include, at a minimum, the following:
- (1)
The status of the storm water management program in such municipality;
- (2)
The fee structure imposed to fund the implementation of this part and the adequacy of such fees to implement this part;
- (3)
Any long-range plans which have been developed to implement this part;
- (4)
The status of any projects to control storm water runoff;
- (5)
The status of any condemnation proceedings pursuant to this part; and
- (6)
Any other information deemed relevant by such officer or requested by the delegation.
- (b)
This section only applies to municipalities in counties having a population of not less than two hundred eighty-five thousand (285,000) nor more than two hundred eighty-six thousand (286,000), according to the 1990 federal census or any subsequent federal census. This section also applies to the municipality having the largest population in any county with a population of not less than three hundred thirty-five thousand (335,000) nor more than three hundred thirty-six thousand (336,000), according to the 1990 federal census or any subsequent federal census. This section shall also apply to the municipality having the largest population in any county with a population in excess of eight hundred thousand (800,000), according to the 1990 federal census or any subsequent federal census.
Part 12 Drinking Water Revolving Loan Fund Act of 1997
§ 68-221-1202. Purpose and intent.
- (a)
The purpose of this part is to:
- (1)
Facilitate statewide compliance with state and federal drinking water standards;
- (2)
Provide Tennessee water systems with low-cost loans and other financial assistance for system improvements through the creation of a self-sustaining revolving loan program so as to improve drinking water systems; and
- (3)
Enable the department to receive and use federal funds for the loan program and other purposes, including, but not limited to, technical assistance, authorized by the federal act.
- (b)
It is intended that the drinking water revolving loan program be used in coordination with state and federal assistance programs.
§ 68-221-1203. Part definitions.
-
Terms used in this part that are defined in §§ 68-221-703 and 68-221-1003 shall have the same meaning in this part. As used in this part, unless the context otherwise requires:
- (1)
“Federal act” means the Safe Drinking Water Act, or Title XIV of the Public Health Service Act (42 U.S.C. § 300f et seq.), as amended, and rules and regulations promulgated thereunder;
- (2)
“Fund” means the water system revolving loan fund;
- (3)
“Loan” means loans, loan guarantees, or a source of reserve and security for leveraged loans;
- (4)
“Security” means that which is determined by the authority to be acceptable to secure a loan to a water system under this part and includes, but is not limited to, dedicated or other revenues of the system, collateral, letters of credit, and surety bonds;
- (5)
“State act” means the Tennessee Safe Drinking Water Act of 1983, compiled in part 7 of this chapter, as amended, and rules and regulations promulgated thereunder; and
- (6)
“System” and “water system” mean the community public water systems of a county, incorporated town or city, metropolitan government, a privately owned for-profit community public water system, utility district formed pursuant to the Utility District Law, compiled in title 7, chapter 82, water/wastewater authority, energy authority, state agency, or an instrumentality of government created by any one (1) or more of these or by an act of the general assembly as well as such governmental entity.
§ 68-221-1204. Drinking water revolving loan fund.
- (a)
- (1)
There is created in the state treasury a revolving loan fund to be known as the “drinking water revolving loan fund.”
- (2)
The authority shall administer the fund and may adopt rules and regulations for such administration.
- (3)
All interest and earnings of the fund shall remain a part of the fund.
- (4)
No part of the fund shall revert to the general fund on any June 30, but shall remain a part of the revolving fund available for expenditure in accordance with this part.
- (5)
The authority may charge and collect from systems and water systems administrative fees and expenses, including, but not limited to, reimbursement of all cost of financing by the authority that the authority determines to be reasonable and required. These fees and expenses shall not become part of the fund.
- (b)
- (1)
The authority shall deposit in the fund all receipts from the repayment of principal and interest on loans made pursuant to this part.
- (2)
The fund shall be established, maintained and credited with repayments, and the fund balance shall be available in perpetuity for providing such loans, pursuant to this part.
- (c)
The department shall deposit in the fund federal funds allocated to the state pursuant to the federal act which have been determined by the department to be for the purpose of making loans to water systems and for which state matching funds are available.
- (d)
- (1)
The department shall recommend annually to the general assembly the appropriate state funds necessary for the receipt of all available matching federal funds.
- (2)
State money appropriated to the department or to the authority to carry out this part may be used, in addition to other purposes, to match federal funds allocated to the state pursuant to the Safe Drinking Water Act for the purpose of making loans to water systems.
- (e)
The department shall deposit into the fund any federal funds allocated to the state to make loans and to subsidize loans made under the program authorized by this part.
§ 68-221-1205. Program for loans, financing and refinancing — Powers of department and authority — Priority system and list — Affordability criteria — Intended use plan — Recommendations for loans — Audit.
- (a)
The department, in conjunction with the authority shall administer a program for loans to water systems and the department may adopt regulations to govern the application procedure for loans under this part as well as to effectuate the purposes of this part.
- (b)
The department shall recommend to the authority an appropriate financing method for each water system which has applied for financial assistance under this part and which appears on the drinking water priority list established under this section. In recommending the interest rate for a loan, the department shall utilize the affordability criteria developed pursuant to this section. Water systems serving jurisdictions falling within the lower economic scale on the index shall be eligible for lower interest rates.
- (c) Priority System.
The department shall, after notice and opportunity for public comment, establish a priority system for loans under this part that to the maximum extent practicable, gives priority for the use of funds to projects that:
- (1)
Address the most serious risk to human health;
- (2)
Are necessary to ensure compliance with the requirements of the federal and state acts (including requirements for filtration); and
- (3)
Assist systems most in need on a per household basis according to state affordability criteria.
- (d) Priority List.
The department shall, after notice and opportunity for public comment, publish and periodically update a list of projects in the state that are eligible for assistance under this part, including the priority assigned to each project.
- (e)
The department shall, after notice and opportunity for public comment, establish affordability criteria for loans under this program which shall utilize an economic index based on factors which include, but are not limited to, per capita income and property values of the jurisdiction to be served.
- (f)
After providing for public review and comment, the department shall annually prepare a plan that identifies the intended uses of the amounts available to the fund. An intended use plan shall include:
- (1)
A list of the projects to be assisted in the first fiscal year that begins after the date of the plan, including a description of the project, the expected terms and schedule of financial assistance, and the size of the community served;
- (2)
The criteria and methods established for the distribution of funds, including the priority system; and
- (3)
A description of the financial status of the fund and the short-term and long-term goals of the fund.
- (g)
The department shall present to the authority its recommendations for loans to water systems. Prior to making a recommendation for loans to water systems, the department may ensure through an environmental review that loan funded projects shall be environmentally sound. The authority shall have final approval of such loans. Both the department and the authority shall be parties to the contracts with water systems concerning loans.
- (h)
The comptroller of the treasury shall make an annual audit of the fund as part of the comptroller of the treasury's annual audit of the authority and the department pursuant to § 9-3-211.
- (i)
The authority and the department shall have such other authority as may be necessary and appropriate for the exercise of the powers and duties conferred by this part.
- (j)
Notwithstanding any other provision of this part to the contrary, the department, in conjunction with the authority, may develop alternative financial assistance programs, which may include the issuance of the authority's revenue bonds, for water systems using the funds appropriated herein to effect the legislative intent of providing low-cost financial assistance to water systems, provided such programs are permissible under the federal act.
- (k)
Water systems and the authority shall have the powers discussed in § 68-221-1005(g), (h), (i), and (k), and may use such powers in the manner stated therein in relation to projects receiving loans under this part; provided, that this subsection (k) does not apply to privately owned for-profit community public water systems.
- (l)
- (1)
The department and the authority may use any federal funds allocated to the state to make loans and to subsidize loans made through the program authorized by this part, through such mechanisms as forgiveness of principal, other loan forgiveness, and through refinancing or restructuring of debt;
- (2)
The department and the authority may administer the program using the funds in accordance with the criteria set by the federal government; and
- (3)
The department may promulgate rules and develop forms that may be deemed necessary for the program.
§ 68-221-1206. Prerequisites for and terms of loans.
- (a)
Loans shall be made only to water systems that:
- (1)
Are on the department's water system priority ranking list established pursuant to § 68-221-1205;
- (2)
Use the funds only for expenditures that will facilitate compliance with the federal act and the state act or otherwise significantly further the public health protection objectives of those acts;
- (3)
In the opinion of the authority, demonstrate technical, managerial, and financial capability to ensure compliance with the requirements of the federal act and the state act; provided, that systems without such current capability may receive loans if the owner or operator of the system agrees to undertake feasible and appropriate changes in operations as approved by the Tennessee board of utility regulation (including ownership, management, accounting, rates, maintenance, consolidation, alternative water supply, or other procedures) to ensure that the system has the technical, managerial, and financial capability to comply with the requirements of the state and federal acts over the long term;
- (4)
Are not in significant noncompliance with the federal act or the state act unless the use of the assistance will ensure compliance;
- (5)
- (A)
In the opinion of the authority, demonstrate sufficient revenues to operate and maintain the water system for its useful life and to repay the loan;
- (B)
Pledge security as required by the authority for the repayment of the loan;
- (C)
Agree to adjust periodically fees and charges for services of the water system in order that loan payments and costs of the water system are timely paid; provided, however, upon determination that fees and charges are reasonable, the authority may in its discretion make a loan to a local government which is relying upon and using ad valorem taxes or other lawful sources of revenue, in addition to fees and charges, to pay timely the loan payments and costs of the water system;
- (6)
Agree to maintain financial records in accordance with governmental accounting standards and to conduct an annual audit of the system's financial records in accordance with generally accepted governmental auditing standards and with minimum standards prescribed by the comptroller of the treasury, and to file such audit with the comptroller. In the event of the failure or refusal of the system to have the audit prepared, then the comptroller of the treasury may appoint an accountant or direct the department of audit to prepare the audit at the expense of the system; and
- (7)
Provide such assurances as are reasonably requested by the authority and the department.
- (b)
Loan funds may not be used for the acquisition of real property or interests therein, unless the acquisition is integral to a project authorized by this section and the purchase is from a willing seller.
- (c)
Of the amount credited to the fund in any fiscal year, fifteen percent (15%) shall be available solely for providing loan assistance to water systems which regularly serve fewer than ten thousand (10,000) persons to the extent such funds can be obligated for eligible projects of water systems.
- (d)
The interest rate for each loan shall be less than or equal to the market interest rate, or the loan may be interest free.
- (e)
Principal and interest payments on each loan will commence not later than one (1) year after completion of the project for which the loan was made, and each loan will be fully amortized not later than thirty (30) years after the completion of the project, except that in the case of a disadvantaged community, as defined in subdivision (i)(2), the authority may provide an extended term for a loan, if the extended term:
- (1)
Terminates not later than forty (40) years after the date of project completion; and
- (2)
Does not exceed the expected design life of the project.
- (f)
The drinking water revolving loan fund may also be used:
- (1)
To buy or refinance the debt obligation of a municipality or an inter-municipal or interstate agency at an interest rate that is less than or equal to the market interest rate if the debt obligation was incurred after July 1, 1993;
- (2)
To guarantee, or purchase insurance for, a local obligation (all of the proceeds of which finance a project eligible for assistance under this section) if the guarantee or purchase would improve credit market access or reduce the interest rate applicable to the obligation;
- (3)
As a source of revenue or security for the payment of principal and interest on debt of the authority, if the proceeds of the sale of the bonds will be deposited into the fund;
- (4)
To earn interest on the amounts deposited into the fund;
- (5)
For loans to any systems to acquire land or a conservation easement from a willing seller or grantor, if the purpose of the acquisition is to protect the source water of the system from contamination and to ensure compliance with national primary drinking water regulations;
- (6)
For loans to any water system to implement local, voluntary source water protection measures to protect source water in areas delineated pursuant to section 1453 of the federal act, in order to facilitate compliance with national primary drinking water regulations applicable to the system under section 1412 of the federal act or otherwise significantly further the health protection objectives of this title. Funds authorized under this clause may be used to fund only voluntary, incentive-based mechanisms;
- (7)
For loans to any water system to provide funding in accordance with section 1454(a)(1)(B)(i) of the federal act;
- (8)
To provide assistance, including technical and financial assistance, to any water system as part of a capacity development strategy developed and implemented in accordance with section 1420(c) of the federal act;
- (9)
To make expenditures from the capitalization grant for fiscal years 1996 and 1997 to delineate and assess source water protection areas for water systems in accordance with section 1453 of the federal act, except that funds set aside for such expenditure shall be obligated within four (4) fiscal years;
- (10)
To make expenditures from the fund for the establishment and implementation of wellhead protection programs for water systems under section 1428 of the federal act; and
- (11)
For loans to privately owned for-profit community public water systems as provided in federal law pursuant to 40 CFR Part 35; provided, that:
- (A)
No privately owned for-profit community public water systems shall be considered for loans with principal forgiveness under this program;
- (B)
Privately owned for-profit community public water systems shall be categorized as one hundred percent (100%) ability to pay on the index established pursuant to § 68-221-1205;
- (C)
A privately owned for-profit community public water system borrower shall have at least a debt/service coverage ratio of 1.25;
- (D)
Privately owned for-profit community public water systems shall provide security determined by the Tennessee local development authority to be acceptable to secure a loan under this part; and
- (E)
The Tennessee local development authority has the authority to direct a privately owned for-profit community public water system to the Tennessee public utility commission, created by § 65-1-101, for compliance.
- (g)
Loan funds may only be used for expenditures approved by the department.
- (h)
The requirements of this section applicable to water systems applying for loans are deemed satisfied if any one of the entities jointly participating in the project being funded pursuant to the loan agreement satisfies the requirements.
- (i)
- (A)
Notwithstanding any other provision of this part, in any case in which the state makes a loan pursuant to this part to a water system serving a disadvantaged community or a community that the state expects to become a disadvantaged community as the result of a proposed project, the state may provide additional subsidization, including forgiveness of principal, other loan forgiveness, and through refinancing or restructuring of debt.
- (B)
For purposes of this subsection (i), “disadvantaged community” means the service area of a water system that meets affordability criteria established pursuant to this part.
§ 68-221-1207. Promulgation of emergency rules.
-
The commissioner of environment and conservation is authorized to promulgate emergency rules in the manner provided under the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, for the program authorized by this part if deemed to be necessary by the commissioner to make full use of available federal funding.
Part 13 Regional Water and Wastewater Treatment Authority Act
§ 68-221-1302. Authorities created as public and governmental bodies — Property and revenue exempt from taxes.
- (a)
It is declared that water and wastewater treatment authorities created pursuant to this part shall be public and governmental bodies acting as agencies and instrumentalities of the creating and participating governmental entities; and that the acquisition, operation and finance of water and wastewater treatment works by the authorities is declared to be for a public and governmental purpose and a matter of public necessity.
- (b)
The property and revenues of the authority, or any interest in the property or revenues, are exempt from all state, county and municipal taxation.
§ 68-221-1303. Part definitions.
-
As used in this part, unless the context otherwise requires:
- (1)
“Authority” means a water and wastewater treatment authority created pursuant to this part;
- (2)
“Board” means the board of commissioners of an authority;
- (3)
“Bonds” includes notes, interim certificates or other obligations of an authority;
- (4)
“Creating governmental entity” means any city, metropolitan government, county or utility district that creates an authority pursuant to this part;
- (5)
“Executive officer” means the mayor, county mayor or other chief executive officer of any creating or participating governmental entity;
- (6)
“Governing body” means the chief legislative body of any creating or participating governmental entity;
- (7)
“Participating governmental entity” means any utility district, metropolitan government, city, town or county, which utility district, city, town or county, pursuant to a resolution of its governing body, has sold, leased, dedicated, donated or otherwise conveyed its water or wastewater treatment works, or both, or a portion of its water or wastewater treatment works, to the authority for operation by the authority in order to make the treatment works an operational part of its treatment works;
- (8)
“State” means the state of Tennessee; and
- (9)
“Treatment works” means any devices and systems used in the storage, treatment, recycling and reclamation of sewage or industrial wastes of a liquid nature to restore and maintain the chemical, physical and biological integrity of the state's waters, or any devices and systems used in the treatment and distribution of water, including intercepting sewers, outfall sewers, sewage collection systems, water storage facilities, water transmission lines, pumping, power and other equipment, and their appurtenances, extensions, improvements, remodeling, additions and alterations thereof; elements essential to provide a reliable recycled supply, such as standby treatment units and clear well facilities, and any works.
§ 68-221-1304. Creation of authority — Resolution — Petition — Order of approval or disapproval — Hearing — Resolution or ordinance — Agreement for transfer.
- (a)
Any contiguous city, metropolitan, or county government or utility district may create a water or wastewater treatment authority in the manner provided for in this part.
- (b)
- (1)
The governing body of the creating governmental entity shall adopt, and its executive officer shall approve, a resolution to submit a petition to the Tennessee board of utility regulation for review and approval. The petition must include:
- (A)
A statement of the service the proposed authority will provide and the necessity of that service;
- (B)
The proposed corporate name and boundaries of the authority's service area;
- (C)
A statement explaining why existing utility districts, treatment authorities, or municipal or county services cannot adequately provide the needed service because of cost, time, or other service delivery factors; and
- (D)
An estimate of:
- (i)
The costs of the acquisition or construction of the facility;
- (ii)
The cost of operating the proposed facility;
- (iii)
Anticipated personnel needs; and
- (iv)
The rates and charges for the proposed service.
- (2)
An estimate pursuant to subdivision (b)(1)(D)(i) is not a limitation on the financing of improvements or extensions of a facility.
- (3)
A majority of the governing body of the creating governmental entity and its executive officer must sign the petition.
- (4)
The petition must include the notarized signatures and residential addresses of both a majority of the governing body and its executive officer.
- (c)
- (1)
The Tennessee board of utility regulation shall issue an order approving or disapproving the petition for the incorporation of the authority within ninety (90) calendar days of receipt of the petition by the board, its agent, or its representative.
- (2)
If the Tennessee board of utility regulation approves the petition, then the Tennessee board of utility regulation shall forward its order of approval and the original petition to the governing body of the creating governmental entity and its executive officer.
- (3)
If the Tennessee board of utility regulation fails to act on the petition within ninety (90) calendar days of receipt of the petition, then the Tennessee board of utility regulation, its agent, or its representative shall return the original petition to the governing body of the creating governmental entity and its executive officer.
- (4)
If the Tennessee board of utility regulation disapproves the petition, then the Tennessee board of utility regulation shall forward its order of disapproval to the governing body of the creating governmental entity and its executive officer. Petitioners may appeal the order disapproving the petition to the circuit court of the county in the manner provided by law for appeals from the court of general sessions.
- (d)
- (1)
If the Tennessee board of utility regulation approves a petition under subdivision (c)(1), or fails to act on a petition under subdivision (c)(3), then the governing body of the creating governmental entity shall adopt, and its executive officer shall approve, a resolution calling a public hearing on the question of creating an authority.
- (2)
The creating governmental entity shall publish notice of the date, time, place, and purpose of the hearing at least once each week for two (2) consecutive weeks in a newspaper of general circulation, the last publication occurring at least one (1) week prior to the date of the hearing.
- (e)
The hearing will be before the governing body and all interested persons shall have an opportunity to be heard.
- (f)
- (1)
If the governing body determines, after a hearing, that the public convenience and necessity require the creation of an authority, then the governing body shall adopt, and its executive officer shall approve, a resolution or an ordinance so declaring and creating an authority.
- (2)
A resolution or ordinance under subdivision (f)(1) must designate the name and principal office address of the authority.
- (3)
A governing body shall file a certified copy of the resolution or ordinance with the secretary of state, along with the resolution approving the appointment of the board of commissioners as provided for in § 68-221-1305. The authority constitutes a body politic and corporate upon adoption and filing.
- (g)
- (1)
A creating governmental entity and a participating governmental entity shall enter into an agreement with the authority for the orderly transfer to the authority of the treatment works' properties, functions, service area, and outstanding obligations.
- (2)
The agreement may include provisions for the reimbursement of any governmental entity for its obligations issued for treatment works.
§ 68-221-1305. Appointment of commissioners — Members — Election of officers — Jurisdiction.
- (a)
- (1)
The governing body of the authority shall be a board of commissioners appointed by the executive officer of the creating governmental entity and approved by its governing body.
- (2)
The board of commissioners shall include a person of good standing and reputation.
- (b)
If there are one (1) or more participating governmental entities, one (1) member of the board shall be appointed by the executive officer of each participating governmental entity and approved by its governing body, giving the board a total membership equal to the number of participating governmental entities.
- (c)
Commissioners first appointed to the board shall be appointed for terms of one (1), two (2), three (3), four (4) and five (5) years, respectively, but thereafter each commissioner shall be appointed for a term of five (5) years. If a board has more than five (5) members, each additional member shall be appointed for a term of five (5) years. A commissioner may be reappointed at the end of that commissioner's term.
- (d)
- (1)
Any vacancy by reason of nonresidence, incapacity, resignation or death shall be filled in like manner for the unexpired term.
- (2)
A commissioner's term shall continue until the appointment and qualification of that commissioner's successor.
- (3)
A commissioner may be removed from office by a two-thirds (⅔) vote of the governing body of the governmental entity that approved the commissioner's appointment, but only after notice of the cause of the removal is served on the commissioner, and only after the commissioner is granted an opportunity for a public hearing on the cause.
- (e)
- (1)
The board shall elect from among its members a chair and vice chair, each of whom shall continue to be voting members, and shall adopt its own bylaws and rules of procedure.
- (2)
The presence of commissioners having a majority of the voting strength of the commissioners shall constitute a quorum for the transaction of business.
- (3)
Except as expressly otherwise specified in this part, all powers granted in this part to an authority shall be exercised by the board.
- (4)
Commissioners may receive compensation and shall be reimbursed for necessary expenses incurred in the performance of their official duties.
- (5)
An authority shall be subject to the jurisdiction of the Tennessee board of utility regulation in accordance with this chapter; provided, however, that the environmental statutes in titles 68 and 69 currently administered by the department of environment and conservation shall apply to the activities of the authority in the same manner as those statutes would apply to the activities of any local government.
- (f)
- (1)
All members of the board shall, within one (1) year of initial appointment or election to the board of commissioners or within one (1) year of reappointment or reelection to the board of commissioners, attend a minimum of twelve (12) hours of training and continuing education in one (1) or more of the subjects listed in subdivision (f)(3).
- (2)
In each continuing education period after the initial training and continuing education required by subdivision (f)(1), a board member shall attend a minimum of twelve (12) hours of training and continuing education in one (1) or more of the subjects listed in subdivision (f)(3). For the purposes of this subsection (f), “continuing education period” means a period of three (3) years beginning January 1 after the calendar year in which a board member completes the training and continuing education requirements set forth in subdivision (f)(1) and each succeeding three-year period thereafter.
- (3)
The subjects for the training and continuing education required by this subsection (f) shall include, but not be limited to, board governance, financial oversight, policy-making responsibilities, and other topics reasonably related to the duties of the members of the board of commissioners of an authority.
- (4)
Any association or organization with appropriate knowledge and experience may prepare a training and continuing education curriculum for board members covering the subjects set forth in subdivision (f)(3) to be submitted to the comptroller of the treasury for review and approval prior to use. The comptroller shall file a copy of approved training and continuing education curriculum with the Tennessee board of utility regulation. Changes and updates to the curriculum shall be submitted to the comptroller for approval prior to use. Any training and continuing education curriculum approved by the comptroller shall be updated every three (3) years and resubmitted to the comptroller for review and approval.
- (5)
For purposes of this subsection (f), a board member may request a training and continuing education extension of up to six (6) months from the comptroller of the treasury or the comptroller's designee. The request shall only be granted upon a reasonable showing of substantial compliance with this subsection (f). If the extension is granted, the board member must complete any additional required training hours necessary to achieve full compliance for only the relevant continuing education period within the extension period. The board member shall file copies of any extension request letters and corresponding comptroller of the treasury determination letters with the Tennessee board of utility regulation.
- (g)
If any member of the board fails to meet the training and continuing education requirements set forth in subsection (f) before the end of the continuing education period or before the end of any extension approved by the comptroller of the treasury or the comptroller's designee, then such member shall not be eligible for reappointment or reelection to another term of office.
§ 68-221-1306. Executive director — Budget.
- (a)
The board shall appoint an executive director, who shall be the chief executive and administrative officer of the authority. The board shall enter into a contract with the executive director establishing the director's salary and term of office.
- (b)
The executive director is responsible for all personnel matters related to the authority, including, but not limited to, recruitment, discipline and compensation.
- (c)
- (1)
The executive director shall annually prepare the operating budget of the authority and submit the budget to the board for approval at least sixty (60) days prior to the beginning of the fiscal year.
- (2)
If the board has not acted on the budget by the first day of the fiscal year, the budget shall then automatically go into effect.
- (3)
- (A)
Prior to the beginning of the fiscal year, an authority, whether created pursuant to this chapter or a public or private act, shall adopt a balanced annual operating budget that identifies the authority's anticipated revenues by source and anticipated expenses by type of expense. The budget must be:
- (i)
Based upon historical operating results and reasonably anticipated future operations; and
- (ii)
Created in conformity with generally accepted accounting principles and prepared in a form consistent with accepted governmental standards and as approved by the comptroller of the treasury, or the comptroller's designee.
- (B)
A budget as adopted must be submitted to the comptroller of the treasury, or the comptroller's designee, for approval.
- (C)
The comptroller of the treasury, or the comptroller's designee, shall provide guidance to the form of a budget, including supplemental schedules, as necessary, to demonstrate that an authority has adequate cash to meet current obligations, including principal and interest, as applicable.
- (D)
If a proper budget is not approved by or submitted to the comptroller of the treasury, or the comptroller's designee, within two (2) months of the beginning of the fiscal year, then the authority shall not issue a debt or financing obligation until the comptroller of the treasury, or the comptroller's designee, has approved the budget, or as otherwise provided for in a manner approved by the comptroller of the treasury, or the comptroller's designee.
- (E)
In the case of an emergency, the comptroller of the treasury, or the comptroller's designee, may waive the requirement of budget approval in order to allow the authority to enter into emergency financial transactions.
- (d)
The executive director shall also submit periodic reports to the board that it may direct.
- (e)
The executive director shall attend all meetings of the board.
§ 68-221-1307. Powers of authority — Prohibited actions — County growth plan.
- (a)
An authority has all powers necessary to accomplish the purposes of this part, excluding the power to levy and collect taxes. The powers include, but are not limited to, the following:
- (1)
Have perpetual succession, sue and be sued, and adopt a corporate seal;
- (2)
Plan, establish, acquire, construct, improve and operate one (1) or more treatment works within or without the creating and participating governmental entities and within this state and within any adjoining state;
- (3)
Acquire real or personal property or any interest in property by gift, lease or purchase, for any of the purposes provided in this part; and to sell, lease or otherwise dispose of any such property;
- (4)
Enter into agreements with the creating governmental entity or with participating governmental entities, to acquire by lease, gift, purchase or otherwise, any treatment works, or property related to any treatment works, of the creating governmental entity and operate the treatment works as a part of its treatment works; or enter into agreements with participating governmental entities providing for the operation by the authority of the treatment works, or any portion of the treatment works, owned by any participating governmental entity;
- (5)
Enter into agreements with the creating governmental entity and participating governmental entities with respect to the manner of transfer of treatment works employees of the governmental entities to the authority, and with respect to the retention by those employees of accrued pension, disability, hospitalization and death benefits;
- (6)
Enter into, by contract with the creating governmental entity or otherwise, a plan for pension, disability, hospitalization and death benefits for the officers and employees of the authority;
- (7)
Make application directly to the proper federal, state, county and municipal officials and agencies, or to any other source, public or private, for loans, grants, guarantees or other financial assistance in aid of treatment works operated by it, and accept the financial assistance;
- (8)
Make studies and recommend to the appropriate commissions and legislative bodies of the creating and participating governmental entities, zoning changes in the area of any treatment works operated by the authority;
- (9)
Have control of the authority's treatment works with the right and duty to establish and charge fees, rates and other charges, as set out in this part, and collect revenues from the fees, rates and other charges, not inconsistent with the rights of the holders of its bonds;
- (10)
Appoint an executive director, and acknowledge the executive director's staff appointments of a secretary, a treasurer, an auditor, legal counsel and a chief engineer; prescribe their duties and qualifications; and fix their compensation;
- (11)
Use in the performance of its functions the officers, agents, employees, services, property, facilities, records, equipment, rights and powers of the creating governmental entity or any participating governmental entity, with the consent of any such governmental entity, and subject to any terms and conditions that may be agreed upon;
- (12)
Enter any lands, waters or premises that, in the judgment of the authority, may be necessary for the purpose of making surveys, soundings, borings and examinations to accomplish any purpose authorized by this part, the authority to be liable for actual damage done;
- (13)
Designate an independent certified public accountant firm to do an annual post audit of all books, accounts and records of the authority and issue a public report on the audit;
- (14)
Adopt by majority vote of the board the purchasing procedures for utility districts as defined in title 7, chapter 82, part 8; and
- (15)
Adopt regulations by majority vote of the board, including, but not limited to, requirements for the posting of performance bonds and maintenance bonds, governing the operation and maintenance of nontraditional sewage disposal systems. “Nontraditional sewage disposal systems” does not include subsurface sewage disposal systems that are subject to the permitting requirements of part 4 of this chapter, nor to wastewater collection and disposal systems that are owned or operated by a governmental entity. The Water Quality Control Act, compiled in title 69, chapter 3, and regulations adopted under that act, shall prevail over any such regulations of an authority in the event of a conflict; provided, that the authority may adopt regulations that are more stringent than the Water Quality Control Act and regulations promulgated under that act, if a copy of the regulations is filed with the department.
- (b)
The commissioners, all appointed officers, and all personnel employed by the board of commissioners of any water and wastewater authority under this chapter, are prohibited from receiving any money or other goods or services of value of any sort as a result of any agreement, contractual or otherwise, for the installation of water and wastewater service within the bounds of the district; and further, those persons are also prohibited from receiving any moneys or other goods or services of value of any sort as a result of any agreement, contractual or otherwise, for the sale of any materials to be installed within the bounds of the district as water and wastewater service.
- (c)
Authorities shall provide information requested for the county growth plan to the county or counties in which they provide service. The plans, services, and projects of an authority shall be consistent with the relevant county growth plan.
§ 68-221-1308. Charges for services — Classification of customers — Contracts for collection of sewer charges.
- (a)
The authority may fix the price or charges for its water and waste treatment services rendered to users within and without the service area of the authority; provided, that the rates charged shall be uniform for the same class of customers or service and may represent the equitable or proportionate share of treatment costs of that class of customers or service.
- (b)
In classifying customers served or service furnished by the system of sewerage or water, the authority may, in its discretion, consider any or all of the following factors:
- (1)
The difference in cost of service to the various customers;
- (2)
The location of the various customers within and without the service area of the authority;
- (3)
The difference in cost of maintenance, operation, repair and replacement of the various parts of the system;
- (4)
The different character of the service furnished various customers;
- (5)
The quantity and quality of the sewage delivered and the time of its delivery;
- (6)
Capital contributions made to the system, including, but not limited to, assessments; and
- (7)
Any other matters that present a reasonable difference as a ground for distinction.
- (c)
- (1)
As used in this subsection (c), “sewer” means waste water collection or treatment, or both.
- (2)
- (A)
The board may enter into contracts with any utility district or municipality providing sewer services within the jurisdiction, or with any municipal utilities board or commission operating a water system within the jurisdiction of the authority, for the collection of sewer charges. The authority, or any public corporation, utility district or municipal utilities board or commission so contracting with the authority or contracting directly with any public or private corporation providing sewer services within the jurisdiction, is authorized and empowered:
- (i)
To meter, bill and collect sewer service charges as an added designated item on its water service bills, or otherwise;
- (ii)
To discontinue water service to sewer users who fail or refuse to pay sewer service charges;
- (iii)
Not to accept payment of water service charges from any customer without receiving at the same time payment of any sewer service charges owed by that customer; and
- (iv)
Not to reestablish water service for any customer until such time as all past due sewer service charges owed by that customer have been paid.
- (B)
The utility district or municipal utilities board or commission is authorized to perform all acts and discharge all obligations required by any such contract or contracts.
§ 68-221-1309. Collection from industrial users for construction costs — Assumption of commitment to repay recovery costs — Allocation of right to discharge industrial wastes into system.
- (a)
- (1)
In providing a treatment works to treat industrial wastes, either independently or in conjunction with other wastes, the authority has the authority to collect from those industrial users all or any part of the construction costs of the treatment works reasonably attributed to treatment of the industrial wastes.
- (2)
The apportionment of the costs shall be equitable as among industrial users, and the costs may be collected by assessment, connection fee, periodic charges, or by other method or combinations of methods as in the judgment of the authority is equitable and will assure industrial cost recovery.
- (b)
- (1)
The commitment of an industrial user of waste treatment service to repay its share of industrial recovery costs may be assumed by another industry replacing the former as a user of waste treatment services; provided, that the assumption shall not release the original or former user without the written consent of the agency, which consent shall not be unreasonably withheld.
- (2)
The authority shall have the right to allocate and reallocate among industrial users the right to discharge industrial wastes into the treatment system.
- (3)
In the event of reallocation, the share of industrial cost recovery of each participating industry shall be reallocated proportionately among all industrial users; provided, that the share of an industrial user may not be increased except in proportion to the industrial user's increased use of the system.
§ 68-221-1310. Power to condemn property.
- (a)
An authority has the power to condemn either the fee or any right, title, interest or easement in the property that the board may deem necessary for any of the purposes mentioned in this part, and the property or interest in that property may be so acquired whether or not the property or the interest in the property is owned or held for public use by corporations, associations or persons having the power of eminent domain, or otherwise held or used for public purposes; provided, that that prior public use shall not be interfered with by this use.
- (b)
The power of condemnation may be exercised in the mode or method of procedure prescribed by title 29, chapter 17, or in the mode or method of procedure prescribed by any other applicable statutory provisions now in force or hereafter enacted for the exercise of the power of eminent domain.
§ 68-221-1311. Power to issue bonds — Conditions of bonds — Rights of bondholders — Execution — Tax exemption — Legal investment — Conflicting laws — Full faith and credit.
- (a)
- (1)
The authority has the power to issue negotiable bonds from time to time in order to accomplish any of the purposes authorized by this part. The authority also has the power to issue bonds in the same manner and under the same provisions as municipalities or metropolitan governments or counties are empowered to issue bonds under the laws of this state, for the purposes authorized by this part.
- (2)
All these bonds shall be payable from all or any part of the revenues, income and charges of the authority and the bonds may also constitute an obligation of one (1) or more of the creating and participating governmental entities.
- (b)
- (1)
The bonds shall be authorized by resolution of the board and shall bear such date, mature at such time or times, bear interest at such rate or rates payable annually or semiannually, be in such form and denominations, be subject to such terms of redemption with or without premium, carry such registration privileges, be payable in such medium and at such place or places, be executed in such manner, all as may be provided in the resolution authorizing the bonds.
- (2)
The bonds may be sold at public or private sale in such manner and for such amount as the board may determine.
- (c)
The resolution may include any covenants that are deemed necessary by the board to make the bonds secure and marketable, including, but not limited to, covenants regarding:
- (1)
The application of the bond proceeds;
- (2)
The pledging, application and securing of the revenues of the authority;
- (3)
The creation and maintenance of reserves;
- (4)
The investment of funds;
- (5)
The issuance of additional bonds;
- (6)
The maintenance of minimum fees, charges and rentals;
- (7)
The operation and maintenance of the authority's treatment works;
- (8)
Insurance and insurance proceeds;
- (9)
Accounts and audits;
- (10)
The sale of treatment works properties;
- (11)
Remedies of bondholders;
- (12)
The vesting in a trustee or trustees such powers and rights as may be necessary to secure the bonds and the revenues and funds from which they are payable;
- (13)
The terms and conditions upon which bondholders may exercise their rights and remedies;
- (14)
The replacement of lost, destroyed or mutilated bonds;
- (15)
The definition, consequences and remedies of an event of default;
- (16)
The amendment of such resolution; and
- (17)
The appointment of a receiver in the event of a default.
- (d)
Any holder of any such bonds, including any trustee for any bondholders, may enforce their rights against the authority, its board or any officer, agent or employee of the authority, by mandamus, injunction or other action in any court of competent jurisdiction, subject to the covenants included in the bond resolution.
- (e)
- (1)
Sums received as accrued interest from the sale of any bonds may be applied to the payment of interest on the bonds.
- (2)
All sums received as principal or premium from the sale shall be applied to the purpose for which the bonds were issued, and may include, but not be limited to, expenses for fiscal, legal, engineering and architectural services, expenses for the authorization, sale and issuance of the bonds, expenses for obtaining an economic feasibility survey in connection with the bonds, and to create a reserve for the payment of not exceeding one (1) year of interest on the bonds.
- (f)
Bonds issued pursuant to this part executed by officers in office on the date of the execution shall be valid obligations of the authority, notwithstanding that before the delivery of the bonds, any or all of the persons executing the bonds shall have ceased to be officers.
- (g)
Bonds issued pursuant to this part, and the income from the bonds, shall be exempt from all state, county and municipal taxation except inheritance, transfer and estate taxes.
- (h)
All public officers and bodies of the state, municipal corporations, political subdivisions, all insurance companies and associations, all savings banks and savings institutions, including savings and loan associations, all executors, administrators, guardians, trustees, and all other fiduciaries in the state may legally invest funds within their control in bonds of an authority.
- (i)
Any bonds issued for the purpose of financing the cost of the establishment, construction, installation, acquisition, extension or improvement of any treatment works, as defined by § 68-221-603, that are to be the joint obligations of the authority and any creating governmental entity, or participating governmental entity, shall be authorized and issued by the governmental entity in the form and manner prescribed by the applicable provisions of [former] title 5, chapter 11 [repealed] and [former] title 7, chapter 36 [repealed], and the construction, installation, acquisition, extension or improvement of any treatment works shall be deemed to be a public works project, as defined in [former] title 5, chapter 11 [repealed] and [former] title 7, chapter 36 [repealed]. To the extent any of [former] title 5, chapter 11 [repealed] and [former] title 7, chapter 36 [repealed], relating to the terms and conditions of any bonds so issued, conflict with this section, the former shall prevail.
- (j)
Any bonds upon which any creating governmental entity, or participating governmental entity, is jointly obligated with the authority may be secured by the full faith and credit and taxing powers of the governmental entity as provided in the chapters cited in subsection (i).
- (k)
A bond or note authorized by this chapter shall not be issued until the resolution authorizing the issuance of bonds or notes, together with a statement as of the beginning of the then current fiscal year, which statement must show in detail the total outstanding bonds, notes, warrants, refunding bonds, and other evidences of indebtedness of the authority, together with the maturity dates of the bonds, notes, warrants, refunding bonds, and other evidences of indebtedness, interest rates, special provisions for payment, the project to be funded by the bonds or notes, the current operating financial statement of the authority and any other pertinent financial information, is submitted to the comptroller of the treasury or the comptroller's designee for review, and the comptroller of the treasury or the comptroller's designee shall report thereon to the authority within fifteen (15) days from the date the plan is received by the comptroller of the treasury or the comptroller's designee. The comptroller of the treasury or the comptroller's designee shall immediately acknowledge receipt in writing of the proposed bond or note issue statement and information. The report thus received by the authority must be published once in a newspaper of general circulation in the county of the principal office of the authority or the county the authority primarily serves if its principal office is not also located in that county, and once on the authority's website, during the week following the report's receipt. After receiving the report of the comptroller of the treasury or the comptroller's designee, and after publication of such report, or after the expiration of fifteen (15) days from the date the statement and information are received by the comptroller of the treasury or the comptroller's designee, whichever date is earlier, the authority may take such action with reference to the proposed bond or note issue as it deems advisable. Such report of the comptroller of the treasury or the comptroller's designee must also be made a part of the bond transcript.
- (l)
Any provision of this section related to the review or approval of any bond or note issued by the comptroller of the treasury or the comptroller's designee, or other state agency, does not apply when the bond or bonds or other evidence of indebtedness of the authority are to be purchased or the loan is to be made by the farmers home administration or any other direct lending department of the government of the United States.
- (m)
If an authority proposes to sell bonds in excess of fifty million dollars ($50,000,000) at a negotiated sale, a written request for proposal must be sent to a minimum of five (5) qualified firms no later than thirty (30) days prior to the first meeting of the board of commissioners to discuss the specific bond transaction. A minimum of three (3) proposals must be received no later than fourteen (14) days prior to such first meeting. This requirement applies to both financial advisory and underwriting services.
§ 68-221-1312. Powers to incur debt in anticipation of federal or state aid — Sale of bonds to federal agency — Issuance of temporary obligations.
- (a)
- (1)
Notwithstanding any other laws of this state or any of this state's political subdivisions, any authority that has contracted for and accepted an offer or a grant of federal or state aid, or both, for a particular project for which the authority may raise or expend money, may, upon resolution of its board, incur indebtedness in anticipation of the receipt of the aid for the particular project by issuing the authority's general obligation notes payable in not more than one (1) year, which notes may be renewed from time to time by the issue of other notes; provided, that no notes shall be issued or renewed in an amount that at the time of issuance or renewal exceeds the unpaid amount of the federal or state aid, or both, in anticipation of which the notes are issued or renewed.
- (2)
To any extent that the federal or state aid in anticipation of which the notes were issued when received exceeds the amount of aid remaining to be paid under contract or accepted offer, plus the amount of any outstanding notes issued in anticipation of the state or federal aid, the excess shall be kept in a separate account and used solely for the payment of the outstanding notes.
- (b)
Every authority has the power and is authorized to:
- (1)
Sell bonds at private sale to any federal agency without any public advertisement;
- (2)
Issue interim receipts, certificates or other temporary obligations, in such form and containing such terms, conditions and provisions as the authority issuing the interim receipts, certificates or other temporary obligations may determine, pending the preparation or execution of definite bonds for the purpose of financing the construction of a public works project; and
- (3)
- (A)
Issue bond anticipation notes in anticipation of the sale of bonds that have been duly authorized, but all those bond anticipation notes, including any renewals of the bond anticipation notes, shall finally mature not later than three (3) years from the date of the original notes.
- (B)
All such bond anticipation notes shall have the same security as the bonds in anticipation of which the notes are issued.
§ 68-221-1313. Powers of creating and participating governmental entities.
-
Any creating governmental entity and any participating governmental entity has all necessary powers in order to further the purposes of this part, including, but not limited to, the following, any or all of which powers may be exercised by resolution of the governmental entity's governing body, to:
- (1)
Advance, donate or lend money on real or personal property to the authority;
- (2)
Provide that any funds on hand or to become available to the governmental entity for treatment works purposes shall be paid directly to the authority;
- (3)
Sell, lease, dedicate, donate or otherwise convey to the authority any of the governmental entity's interest in any existing treatment works or other related property, or grant easements, licenses or other rights or privileges therein to the authority;
- (4)
Enter into agreements with the authority with regard to the transfer of the governmental entity's treatment works' employees to the authority with the retention by the employees of any accrued rights in pension, disability, hospitalization and death benefits; and
- (5)
Permit the governmental entity's rights, duties and powers under the governmental entity's charter or the laws of the state to be performed or exercised by the authority.
§ 68-221-1314. Dissolution of authority.
- (a)
Whenever the governing bodies of the creating governmental entity and the participating governmental entities each, by resolution, determine that the purposes for which the authority was created have been substantially accomplished, that all of the bonds and other obligations of the authority have been fully paid, and that such governmental entities have agreed on the distribution of the funds and other properties of the authority, then the executive officers of the governmental entities shall execute and file for record with the secretary of state a joint certificate of dissolution reciting those facts and declaring the authority to be dissolved.
- (b)
Upon this filing, the authority shall be dissolved, and title to all funds and other properties of the authority at the time of dissolution shall vest in and be delivered to the governmental entities in accordance with the terms of their agreement relating to the dissolution.
§ 68-221-1315. Powers conferred by part additional and supplemental.
- (a)
The powers conferred by this part shall be in addition and supplemental to the powers conferred by any other law, and are not in substitution for those powers, and the limitations imposed by this part shall not affect those powers.
- (b)
The powers granted in this part may be exercised without regard to requirements, restrictions or procedural provisions contained in any other law or charter, except as expressly provided in this part.
- (c)
Any metropolitan government or any home rule municipality authorized under this part to create a water and wastewater treatment authority may do so without the necessity of a charter amendment, notwithstanding anything in its charter to the contrary.
§ 68-221-1316. Liberal construction.
-
This part shall be liberally construed to effect the purposes of this part, and insofar as this part may be inconsistent with any other law, this part shall be controlling.
§ 68-221-1318. Policy of competitive bidding — Purchasing.
- (a)
The national policy in favor of competition shall ensure a policy of competitive bidding for all authorities.
- (b)
An authority shall be subject to the applicable purchasing laws of the creating governmental entity, or if two (2) or more creating governmental entities form a water and wastewater treatment authority, then an authority shall be subject to the County Purchasing Law of 1983, compiled in title 5, chapter 14, part 2.
2024 Tennessee Code Unannotated