Current through September 24, 2024
(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.
Authority: T.C.A. §§
4-5-201,
et seq. and 68-221-901, et seq.
