Section 0400-49-01-.11 - SUMMARY SUSPENSION AND REVOCATION OF CERTIFICATE(1) An operator's certificate may be revoked when:(a) In accordance with paragraph (2) of this rule, an operator has not used reasonable care, judgment, or the application of his/her knowledge in the performance of his/her duties as a certified operator, or(b) In accordance with paragraph (3) of this rule, an operator is incompetent to perform those duties properly; or(c) In accordance with paragraph (4) of this rule, an operator has practiced fraud or deception.(2) An operator shall be deemed to have not used reasonable care, judgment, or the application of his/her knowledge in the performance of his/her duties if he/she does not comply with the laws, rules, permit requirements, or orders of any governmental agency or court which govern the water supply system or the wastewater system he/she operates. Such acts of noncompliance include but are not limited to the following: (a) The intentional or the negligent failure by the operator or persons under his/her supervision to act that results in a water supply system facility or a wastewater system facility not operating in the manner in which it is capable of being operated for the performance of its designed function.(b) The intentional or the negligent failure by the operator or persons under his/ her supervision to comply with the monitoring, sampling, analysis, or reporting requirements for a water supply system facility or a wastewater system facility.(c) The intentional or the negligent unlawful discharge of wastes from a water supply system facility or a wastewater system facility.(d) The intentional or the negligent failure by the operator or persons under his/ her supervision to notify the Department of conditions: which may affect the quantity or quality of water being supplied to the customers of a water supply system; which cause the pollution of the waters of the State of Tennessee; or, which are violative of a standard of water quality promulgated by any governmental agency.(3) An operator shall be deemed to be incompetent to perform his/her duties properly when he/she does not possess the basic skills and knowledge necessary to operate a water supply system facility or a wastewater system facility including laboratory functions or if he/she fails to have a system of verification and oversight of employees under his/her charge. Incompetency shall be determined by examining the technical skills of the operator in operating the type of facility of which he/she is in direct charge.(4) An operator shall be deemed to have practiced fraud or deception as follows: (a) Obtained his/her certificate through fraud, deceit, or the submission of inaccurate data regarding his/her qualifications upon his/her application for a certificate.;(b) Has practiced fraud or deception during the performance of his/her duties as a certified operator; or(c) Has prepared and/or signed reports of laboratory analysis results for the system that: 1. Contain inaccurate data and are known or should be known by the operator to be false; or,2. Contain inaccurate data because the operator has not used reasonable care, judgment, or the application of his/her knowledge either in the performance of the laboratory analysis or in the preparation of the laboratory analytical reports.(5) Revocation (a) The Commissioner may initiate the process to revoke a certificate when he/she believes an operator has engaged in any of the activities set forth in paragraph (1) of this rule.(b) The Commissioner shall give notice by mail to the affected operator of facts or conduct that warrants revocation of the certificate and give the affected operator an opportunity to show compliance with these rules by conducting an informal hearing as provided in T.C.A. § 4-5-320(c).(c) After the T.C.A. § 4-5-320(c) informal hearing, if the Commissioner determines that the affected operator has failed to demonstrate compliance, the Commissioner shall issue a notice of hearing for revocation and include a recommendation to the Board to revoke and reinstate or not to reinstate the certificate. Any recommendation of reinstatement of the certificate shall include terms for such reinstatement.(d) The notice of hearing for revocation shall contain the information required by part 1. of this subparagraph and be served in accordance with part 2. of this subparagraph. 1. The notice shall include: (i) A statement of the time, place, nature of the hearing, and the right to be represented by counsel;(ii) A statement of the legal authority and jurisdiction under which the hearing is to be held, including a reference to the particular sections of the statute and rules involved; and(iii) A short and plain statement of the facts or conduct that warrant a revocation. (If the Commissioner is unable to state the matters in detail at the time the notice is served, the initial notice may be limited to a statement of the issues involved. Thereafter, upon timely, written application a more definite and detailed statement shall be furnished ten (10) days prior to the time set for the hearing.)2. A copy of the notice of hearing shall be:(i) Served upon the operator no later than thirty (30) days prior to the hearing date; and(ii) Served by personal service, return receipt mail or equivalent carrier with a return receipt, A person making personal service on the operator affected shall return a statement indicating the time and place of service, and a return receipt must be signed by the operator affected. However, if the affected operator evades or attempts to evade service, service may be made by leaving the notice or a copy of the notice at the affected operator's dwelling house or usual place of abode with some person of suitable age and discretion residing therein, whose name shall appear on the proof of service or return receipt card. Service may also be made by delivering the notice or copy to an agent authorized by appointment or by law to receive service on behalf of the affected operator, or by any other method allowed by law in judicial proceedings.(6) Summary Suspension and Revocation(a) The Commissioner may initiate the process of summary suspension and revocation of the certificate when the Commissioner believes that an emergency action is needed to protect the public health, safety or welfare.(b) The Commissioner shall give a notice to the affected operator by any reasonable means and shall inform the affected operator of the intended action, the acts or conduct that warrants summary suspension and revocation of the certificate and hold an informal hearing, as provided in T.C.A. § 4-5-320(d), to give the operator an opportunity to address the issue of whether there is an emergency.(c) The Commissioner shall appoint a hearing officer to conduct this T.C.A. § 4-5-320(d ) hearing and the hearing shall be recorded and transcribed.(d) After the informal hearing as provided in T.C.A. § 4-5-320(d), if the Commissioner determines that an emergency action is warranted, the Commissioner shall issue an Order of Summary Suspension and a notice of hearing for revocation and include a recommendation to the Board to reinstate or not to reinstate the certificate. Any recommendation of reinstatement of the certificate shall include terms for such reinstatement.(e) The Order of Summary Suspension and the notice for revocation shall contain the information required by part (5)(d)1. of this rule and be served in accordance with part (5)(d)2. of this rule.(f) When the Commissioner has issued an Order of Summary Suspension and Notice of Revocation, the Board shall conduct its revocation hearing and render a decision within ninety (90) days of the operator's summary suspension. In the event the Board does not render its decision within ninety (90) days of the operator's summary suspension, the Order of Summary Suspension shall expire and no longer be in force or effect. However, the Commissioner may reissue an Order of Summary Suspension in accordance with this paragraph, for a period not to exceed ninety (90) days.(7) The revocation hearing before the Board shall be held in accordance with T.C.A. §§ 4-5- 301 et seq. and Rule Chapter 1360-04-01 Uniform Rules of Procedure for Hearing Contested Cases Before State Administrative Agencies.(8) The Board may revoke the certificate of an operator when it is found that the operator has practiced fraud or deception; that reasonable care, judgment or the application of such operator's knowledge was not used in performance of such operator's duties; or that the operator is incompetent to properly perform such operator's duties. If the certificate is revoked and is to be reinstated, the Board shall determine the timing, terms and conditions for reinstatement.(9) An operator who receives an order of the Board for the revocation of his/her certificate may appeal the order to the Chancery Court of Davidson County within sixty (60) days.(10) An operator whose certificate is revoked for failure to use reasonable care, judgment or the application of operator knowledge in performing the operator's duties or for incompetency shall be ineligible to again apply for certification as an operator for a minimum of one (1) year. An operator whose certificate is revoked for practicing fraud or deception, willfully violating regulations or permit conditions, or falsifying records and reports shall be ineligible to again apply for certification as an operator for a minimum of five years. When an operator whose certificate has been revoked has applied for a certificate after the minimum time has passed, the Board shall determine whether the operator has taken appropriate action to address the circumstances that were the cause of the revocation. The Board may request records and review his/her experience, education, training and past performance. The Board may request the former operator's presence at a meeting of the Board and interview him/her to assess the potential of future violations. After the reviews, the Board shall decide to accept or refuse the application.Tenn. Comp. R. & Regs. 0400-49-01-.11
Original rule filed May 21, 2014; effective August 19, 2014. Rule renumbered from 1200-05-03.Authority: T.C.A. §§ 4-5-201, et seq. and 68-221-901, et seq.