Tennessee § 68-215-107 - Supervision, inspection, and enforcement responsibilities.

§ 68-215-107. Supervision, inspection, and enforcement responsibilities.

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. 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. 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. 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. 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: 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; 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; Conduct monitoring or testing of the tanks, associated equipment, contents, or surrounding soils, air, surface water or groundwater; 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; Issue subpoenas to compel attendance of witnesses or production of documents or data; and Bring suit in the name of the department for: 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 Any other statutory or common law remedy available. 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: 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; 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; Requirements for reporting releases and corrective actions taken in response to a release from a petroleum underground storage tank; Requirements for taking corrective action in response to a release from a petroleum underground storage tank; Requirements for the closure of petroleum underground storage tanks to prevent future releases of petroleum substances into the environment; Requirements that new petroleum underground storage tanks meet design standards promulgated by the board before such tanks may be installed; 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; 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 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; Requirements providing for the assessment and collection of fees as provided in this chapter; 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 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. 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: The physical and chemical characteristics of petroleum, including its toxicity, persistence, and potential for migration; The hydrogeologic characteristics of the petroleum site and the surrounding land; The proximity, quality, and current and future uses of groundwater; An exposure assessment; and The proximity, quality, and current and future uses of surface waters. 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. Acts 1988, ch. 984, § 9; 1990, ch. 855, § 4; T.C.A., § 68-53-107 ; Acts 2002, ch. 821, § 1; 2005, ch. 283, § 1; 2008, ch. 794, §§ 2-5; 2015, ch. 292, § 2. Compiler's Notes. Former title 68, ch. 53, §§ 68-53-101 — 68-53-128 , was transferred to title 68, ch. 215, part 1, §§ 68-215-101 — 68-215-128 , respectively, in 1992. Acts 2008, ch. 794, § 15 provided that the changes made by the act in regard to eligibility for fund reimbursement shall apply only to tanks that have not been permanently closed as of July 1, 2008. Amendments. The 2015 amendment added (e)(6). Effective Dates. Acts 2015, ch. 292, § 16. July 1, 2015. Cross-References. Provisions not retroactive, § 68-215-102 . Attorney General Opinions. Underground storage tank operators’ records. OAG 14-16, 2014 Tenn. AG LEXIS 17 (2/11/14). Cited: Texaco Ref. & Mktg. v. State Dep't of Env't & Conservation, 185 S.W.3d 818, 2005 Tenn. App. LEXIS 611 (Tenn. Ct. App. 2005).