Tennessee § 68-212-112 - [Reserved.]

§ 68-212-112. [Reserved.]

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. 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. 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. 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. 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. 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. Acts 1977, ch. 175, § 12; 1979, ch. 410, § 7; 1980, ch. 899, § 15; T.C.A., § 53-6313; Acts 1984, ch. 577, § 10; 1985, ch. 337, § 4; 1988, ch. 559, § 3; 1989, ch. 321, § 11; 1989, ch. 552, § 7; T.C.A., § 68-46-113 ; Acts 2013, ch. 181, § 8; 2014, ch. 507, § 4. Compiler's Notes. Former title 68, ch. 46, parts 1-3 were transferred to title 68, ch. 212, parts 1-3, respectively, in 1992. See the parallel reference table in § 68-212-101 for the former and new section locations. 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 (b), shall apply to all cases filed on or after July 1, 2013. Acts 2014 ch. 507, § 5 provided that the act, which amended subdivision (a)(2)(B), shall apply to all cases filed on or after July 1, 2014. Amendments. The 2013 amendment rewrote (b) which read: “The hearing before the board shall be in accordance with the rules and procedures adopted by the board pursuant to the Uniform Administrative Procedures Act, compiled in title 4, chapter 5. Following such hearing, the board shall issue a final order, which sustains, modifies, reverses or revokes the commissioner's action, also in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.” The 2014 amendment rewrote (a)(2)(B) which read: “Notwithstanding subdivision (a)(2)(A) to the contrary, any person aggrieved by a final decision of the commissioner concerning the permitting of any commercial hazardous waste transportation, storage or disposal facility may petition the board for review. Review proceedings may be instituted by filing with the commissioner a written petition within thirty (30) days after publication of the commissioner's final decision. Upon receipt of any such petition, the commissioner shall transmit to the board a copy of the record of the commissioner's decision. This record shall consist of the permit application, copies of notices required by this chapter, geological and other technical reports, comments received from the permit applicant and the public, and the department's evaluation of all of the preceding. The hearing before the board shall be a de novo hearing. Notwithstanding any law to the contrary, the board shall schedule and conduct such hearing in the county where the facility or site is proposed to be located. The board may affirm, reverse or modify the commissioner's decision. As used in this subdivision (a)(2)(B), “person aggrieved” is limited to persons applying for permits, persons who own property or live within a three (3) mile radius of the facility or site that is proposed for permitting, cities and counties which have authority to submit reports pursuant to § 68-212-108(f) , and any resident of any such city or county. Judicial review of the board's determination shall be in the manner prescribed in § 4-5-322 ; provided, that the court in its discretion shall have the authority to review additional material evidence necessary to the judicial review of the board's determination. Notwithstanding any law to the contrary, the court conducting the judicial review shall be the chancery court for the county in which the facility or site is proposed to be located.” Effective Dates. Acts 2013, ch. 181, § 20. July 1, 2013. Acts 2014, ch. 507, § 5. July 1, 2014.