(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.
