Tennessee § 68-201-108 - Hearings.

§ 68-201-108. Hearings.

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. 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 web site. 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. 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. 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. Acts 1967, ch. 367, § 8; 1970, ch. 538, § 3; 1970, ch. 539, § 2; 1971, ch. 84, § 1; 1971, ch. 108, §§ 2-7; 1971, ch. 322, § 1; 1973, ch. 325, § 5; modified; Acts 1979, ch. 299, § 7; 1981, ch. 131, § 28; T.C.A., § 53-3415; Acts 1984, ch. 788, § 7; T.C.A., § 68-25-108 ; Acts 2013, ch. 181, § 3; 2014, ch. 507, §§ 1, 2. Compiler's Notes. Acts 2013, ch 181, § 19 provided that for the purpose of construing the act in relation to the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, the act shall be deemed to be procedural in nature. It is the intent of the general assembly that Acts 2013, chapter 181 and the Uniform Administrative Procedures Act shall be complied with, however when in conflict, the provisions of Acts 2013, chapter 181 shall govern. Acts 2013, ch 181, § 20 provided that the act, which amended subsection (a), shall apply to all cases filed on or after July 1, 2013. Acts 2014 ch. 507, § 5 provided that the act, which amended subsection (a), shall apply to all cases filed on or after July 1, 2014. Former title 68, ch. 25, parts 1 and 2 were transferred to title 68. ch. 201, parts 1 and 2 in 1992. See the parallel reference table in § 68-201-101 for the former and new section locations. Amendments. The 2013 amendment rewrote (a) which read: “A person aggrieved by a decision or action of the technical secretary on a permit, order, or assessment may request a hearing before the board pursuant to this part. Such hearing and hearings before the board on requests for variances, certificates of exemption, and permits shall be conducted as contested cases in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, part 3.” The 2014 amendment, in (a), added “Except as provided in subdivision (a)(2),” at the beginning of (1), added (2), and redesignated former (2) as present (3). Effective Dates. Acts 2013, ch. 181, § 20. July 1, 2013. Acts 2014, ch. 507, § 5. July 1, 2014. Collateral References. Air pollution control. Sufficiency of evidence of violation in administrative proceeding terminating in abatement order. 48 A.L.R.3d 795. Necessity of showing scienter, knowledge, or intent, in prosecution for violation of air pollution or smoke control statute or ordinance. 46 A.L.R.3d 758.