Section 0400-40-01-.03 - COMMISSIONER'S RESPONSIBILITIES AND AUTHORITY(1) Responsibilities(a) The responsibilities of the Commissioner are set out in detail in T.C.A. § 69-3-107. In general, the Commissioner is to "exercise general supervision and control over the quality of all state waters, administer and enforce all laws relating to pollution of such waters, and administer and enforce this part, and all standards, policies, rules and regulations promulgated thereunder."(b) Any delegation by the Commissioner to the Director pursuant to T.C.A. § 69-3-107(13) must be in writing.(c) Authority 1. Pursuant to the responsibility placed upon the Commissioner, he/she is granted the following remedies for violations of this act.2. Complaints and Orders Any complaint issued by the Commissioner pursuant to T.C.A. §§ 69-3-109 and 69-8-205 shall comply in form with the Tennessee Rules of Civil Procedure, Rule 10; and with Rule 5.02 with regard to Service of Process.
3. Assessment of Damages Whenever the Commissioner assesses the liability of a violator of one or more of the provisions of the act, the damages to the state may include only those set out in T.C.A. § 69-3-116(a). The form will be that of a memorandum stating specifically events leading to damage to the state, probable cause, and conclusions drawn. Damages should be itemized and totaled, and the violator ordered to pay. Said assessment must be signed by the Commissioner, or by the Director for the Commissioner.
4. Civil Penalties Whenever the Commissioner assesses civil penalties pursuant to T.C.A. § 69-3-115(a) he/she must do so in the form of a memorandum stating specifically those facts giving rise to the proposed assessment and in consideration of the factors determinative of its amount. The memorandum must be signed by the Commissioner.
5. Criminal Penalties Prior to the issuance of a warrant for the arrest and prosecution of a violator of the act, the Commissioner shall authorize in writing a member or members of the Division to apply for a warrant or warrants for a specific charge stated therein, and pursue the same through to termination.
6. Injunctions The complaint and accompanying plea for injunctive relief shall conform to the Rules of Tennessee Civil Procedure. Neither the Board nor the Commissioner need take administrative action prior to a plea for an injunction. The Board or the Commissioner may file a complaint and a plea for an injunction to enforce any order issued.
7. Other Remedies T.C.A. § 69-3-118(b) states a savings clause; that is, it provides that the remedies provided for explicitly in the act do not stop the state or any person from pursuing existing remedies at equity, or common law, or statutory law to suppress nuisances, abate pollution, or recover damages resulting from such pollution.
(d) In conjunction with the stated remedies available to the Commissioner in subparagraph (c) of this paragraph, he/she is authorized to receive and act upon a written and signed complaint of any person alleging violations of a provision or provisions of the act by another person, in the manner set forth in T.C.A. § 69-3-118(a). The Commissioner may or may not act upon the complaint, depending upon his/her determination of it. The Commissioner shall determine whether any action shall be taken as a result of the complaint after making his/her own finding with respect to the facts alleged in the complaint, but in all instances he/she shall notify the complainant of his/her determination within 90 days. Should the Commissioner wish to act, he/she may choose any of the remedies detailed in subparagraph (c) of this paragraph. Should either the complainant or defendant wish to appeal the Commissioner's action to the board as set forth in T.C.A. § 69-3-118(a), said person shall make written petition to the board, filed with the commissioner in duplicate, and shall state in numbered paragraphs the action sought of the Commissioner, the Commissioner's determination, and supporting reasons why the Commissioner's determination and/or action should be overruled. The Department or any of its personnel shall not be obligated to assist a complainant toward preparing his/her case.(e) The Commissioner is not obligated to pursue an administrative remedy prior to pursuing a judicial remedy. The only exception to this course of action is that the Commissioner may not pursue a right of action or remedy in existing common law or statutory law as provided for in T.C.A. § 69-3-118(b), where there is an administrative question involved. For the purpose of these regulations, an administrative question is defined as involving a matter which may be actionable at common law, but due to enactment of the act, the Commissioner of Environment and Conservation has been granted power and authority to take action thereon. The purpose of this exception is to insure that rights of action and/or remedies in existing common law and statutory law shall not be inconsistent with the provisions of the act.Tenn. Comp. R. & Regs. 0400-40-01-.03
Original rule filed September 17, 2013; effective December 16, 2013. Rule originally numbered1200-04-01.Authority: T.C.A. §§ 69-3-101 et seq. and 4-5-201 et seq.