Tennessee § 68-211-113 - Review of correction order or plan disapproval — Hearing — Appeal.

§ 68-211-113. Review of correction order or plan disapproval — Hearing — Appeal.

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. 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. 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. 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. 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. [Deleted by 2013 amendment, effective July 1, 2013.] [Deleted by 2013 amendment, effective July 1, 2013.] 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. 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). Acts 1969, ch. 295, § 13; 1974, ch. 486, § 2; 1975, ch. 109, § 4; 1980, ch. 899, § 7; T.C.A., § 53-4313; Acts 1985, ch. 337, § 2; 1989, ch. 147, § 10; T.C.A., § 68-31-113 ; Acts 2013, ch. 181, §§ 4-6; 2014, ch. 507, § 3. Compiler's Notes. Former title 68, ch. 31, parts 1-9 were transferred to title 68, ch. 211, parts 1-9, respectively, in 1992. See the parallel reference table in § 68-211-101 for the former and new section locations. Acts 1989, ch. 147, § 12 provided that any and all matters filed or pending as of July 1, 1989, shall be disposed of under prior law. 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 subsections (a), (b) and (h) and deleted subsections (e) and (f), shall apply to all cases filed on or after July 1, 2013. Acts 2014 ch. 507, § 5 provided that the act, which amended subsection (d), shall apply to all cases filed on or after July 1, 2014. Amendments. The 2013 amendment rewrote (a) and (b) which read: “(a) Except in counties having populations of not less than two hundred thousand (200,000) nor more than two hundred seventy-five thousand (275,000), 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.“(b) Any person whose plans for the construction of, or change in, any solid waste processing facility or disposal facility or site 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 notice of disapproval is served. For purposes of review, approval of plans subject to modifications, conditions or regulations specified by the commissioner with which the person submitting the plans disagrees shall constitute disapproval.”; deleted (e) and (f) which read: “(e) Upon receipt of a written petition as provided in subsections (a) and (b), the commissioner shall forthwith deliver the petition and all papers relating to the case to the chair of the board who shall thereupon determine the time and place for a hearing before the board. The chair shall give the commissioner and petitioner thirty (30) days' written notice of the time and place of the hearing, and such hearing shall be held not later than sixty (60) days from receipt of the written petition by the commissioner; provided, that upon request of the petitioner or upon the agreement of the petitioner, such hearing may be held not later than one hundred twenty (120) days from receipt of the written petition by the commissioner. At such hearing before the board, the commissioner, the petitioner, and any other interested party may appear in person, and by counsel present witnesses, and submit evidence. The chair shall have the power to administer oaths and issue subpoenas on behalf of the department or at the request of the petitioner.“(f) On the basis of the evidence, produced at the hearing, the board shall make findings and enter such orders as, in its opinion, will best further the purposes of this part and shall give written notice of such decisions and orders to the parties affected. The order issued under this subsection (f) shall be issued no later than thirty (30) days following the close of the hearing.”; and added the last sentence to (h). The 2014 amendment rewrote (d) which read: “Notwithstanding any law to the contrary except chapter 213 of this title, the approval of the commissioner of a solid waste processing facility or disposal facility or site shall be final and not subject to review by any administrative board, commission or other administrative officer or body.” Effective Dates. Acts 2013, ch. 181, § 20. July 1, 2013. Acts 2014, ch. 507, § 5. July 1, 2014. Law Reviews. The Tennessee Court System — Supreme Court (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 191.