TCA § 68-211-106 — Registration — Variances, waivers, and exemptions — Permits-by-rule — Public notice — Denial of permit — Liability or obligation for cleanup or remediation

No solid waste processing facility or disposal facility or site in any political subdivision of the state shall be operated or maintained by any person unless such person has registered with the commissioner in the name of such person for the specified facility or site. All registrations, including those of persons who dispose of only their own wastes on their own land, except as set out in § 68-211-110, shall be with the commissioner. The board is authorized to specify procedures for registration by means of rules and regulations duly promulgated under the authority of this part. Such rules and regulations shall include provisions for public notice and an opportunity for a public hearing on permit applications. After public notice and an opportunity for comment, the commissioner may, to the extent allowed in regulations adopted by the board, grant variances and waivers for persons; and the board may, through the rulemaking process, establish exemptions from the requirements of this part and permits-by-rule for classes of activities subject to the requirements of this part; provided, that it is demonstrated to a reasonable degree of certainty that design or operating practices will prevent degradation of the environment and will adequately protect the public health, safety and environment. Disposal or processing facilities or sites currently registered with the department shall not need a new permit unless and until their current registration must be amended to encompass any process modifications or expansions of operations currently allowed. Other program approval, prior to the issuance of a solid waste permit, may be fulfilled by a certification from the applicable program stating the extent of application to that program or that an application for a permit has been submitted to the applicable program. The division of solid and hazardous waste management using technical support and advice, to the extent available, from the bureau of environment shall evaluate the proposed application in order to determine that water quality standards have been adequately addressed to prevent pollution of the waters of the state. The commissioner may deny or revoke any registration if the commissioner finds that the applicant or registrant has failed to comply with this part or the rules promulgated pursuant hereto. Actions taken by the department, commissioner or board in accordance with this section shall be conducted in accordance with title 13, chapter 18, when the action involves a major energy project, as defined in § 13-18-102. In order to inform interested persons in the area of solid waste disposal of the proposed facility and its tentative approval, public notice shall be circulated within the geographical area of the proposed facility by any of the following means: Posting in the post office and public places of the municipality nearest the site under consideration; or Publishing in local newspapers and periodicals, or, if appropriate, in a daily newspaper of general circulation. Public notice of a proposed site approval shall include the following: Name, address, and telephone number of the solid waste management division; Name and address of the site owner and/or operator; Location and size of the proposed site; Brief description of the type of operation to be operated at the site and the type of waste that will be accepted; A description of the time frame and procedures for making a final determination on the facility application approval or disapproval; and Address and telephone number of the premises at which persons may obtain further information, request copies of data on the site, and inspect this data. A copy of the public notice and fact sheet shall be sent to any person who specifically requests one. The commissioner shall send a copy of each notice of application and fact sheet within the state or a certain geographical area thereof to those persons who have requested the addition of their names to a mailing list. The commissioner may annually purge the mailing list of those persons who do not renew their request. Interested persons may submit written comments on the tentative determinations within thirty (30) days of the public notice or such greater period as the commissioner allows. All written comments submitted shall be retained and made available to the board in its final determination of registration of the proposed site. Interested persons may request in writing that the commissioner hold a public hearing on any proposed solid waste management facility registration. The request must be filed within the period allowed for public comment and must indicate the interest of the party filing it and the reason why a hearing is warranted. If there is a significant public interest in having a hearing, the commissioner shall hold one in the geographical area of the proposed site. Instances of doubt should be resolved in favor of holding a hearing. The commissioner shall transcribe or record the comments made at the hearing to assist the commissioner in the commissioner's final determination of registration of the proposed site. No less than fifteen (15) days in advance of the hearing, public notice of it shall be circulated at least as widely as was the notice of the proposed site approval and registration. Procedure for circulation of public notice for the hearing shall include the following: Publication in a newspaper of general circulation within the geographical area of the site; and Sending notice to all persons who received a copy of the notice or fact sheet for the site registration and any person who specifically requests a copy of the notice of the hearing. Each notice of a public hearing shall include at least the following contents: Name, address and telephone number of the solid waste management division; Name and address of each site and site owner or operator that will be heard at the hearing; A description of the type of facility that will be located on the site; A brief reference to the public notice issued for each proposed site; Information regarding the time and location for the hearing; The purpose of the hearing; A concise statement of the issues raised by the persons requesting the hearing; Address and telephone number of the premises at which interested persons may obtain further information, request a copy of each draft permit, request a copy of each fact sheet, and inspect and copy forms and related documents; and A brief description of the nature of the hearing, including the rules and procedures to be followed. Any person applying for a registration for a solid waste processing facility or disposal facility or site for which a core drilling is required shall notify the department at least forty-five (45) days in advance of the time, date and location at which such drilling is to be conducted. At least thirty (30) days in advance of such drilling, the applicant shall give public notice of such drilling. Such notice shall include the time, date and location at which the drilling is to be conducted, the name and address of the applicant, the name and address of the owner of the property on which the drilling is to be conducted, and a brief description of the type of operation to be operated at the proposed site and the type of waste that will be accepted. Such notice shall be published in a daily newspaper of general circulation in the area in which the drilling is to occur. The person applying for a registration shall include a copy of the newspaper notice required pursuant to subdivision (g)(1), if core drilling is required as part of the application. The application of any person who fails to meet the requirements of this subsection (g) shall be denied. This subsection (g) only applies in counties having a population of not less than nine thousand six hundred fifty (9,650) nor more than nine thousand seven hundred fifty (9,750) and not less than thirty-four thousand seventy-five (34,075) nor more than thirty-four thousand one hundred seventy-five (34,175), according to the 1980 federal census or any subsequent federal census. As used in this subsection (h), unless the context otherwise requires: “Applicant” means any person, as defined in § 68-211-103 of the Tennessee Solid Waste Disposal Act, making application for the approval of a permit pursuant to the Solid Waste Disposal Act; “Compliance history” means a record of operation or ownership of a facility subject to the Tennessee Solid Waste Disposal Act, compiled in this chapter, or the Tennessee Hazardous Waste Management Act, compiled in chapter 212 of this title; “Responsible party” means: Any individual who is an applicant, an officer or director of a corporation, partnership, or business association that is an applicant, or person with overall responsibility for operations of the site of a waste management unit subject to the Solid Waste Disposal Act; or The commissioner shall not issue a permit under this section for the disposal of coal ash or for the expansion of an existing coal ash disposal facility unless the plans for the disposal facility include a liner and a final cap; however, this subsection (j) shall not apply to the use of coal ash for fill, to any agricultural use, to any engineered uses as a feedstock for the production of a product, to wastewater treatment units or to the disposal of coal ash in connection with any of these uses, as authorized by the department pursuant to this part. Any official or management committee member of the state or political subdivision thereof that is an applicant; “Solid Waste Disposal Act” means this chapter; and “Tennessee Hazardous Waste Management Act” means chapter 212 of this title. Subject to the requirements of subdivision (h)(3), the commissioner may refuse to issue or renew a permit issued pursuant to the Solid Waste Disposal Act if the commissioner finds that the applicant or a responsible party has: Intentionally misrepresented or concealed any material fact which would have resulted in the denial of the application submitted to the department; Obtained a permit from the department by intentional misrepresentation or concealment of a material fact which would have resulted in the permit being denied; Been convicted of, or incarcerated for, a felony environmental criminal offense within three (3) years preceding the application for a permit for any violation of the Solid Waste Disposal Act, the Hazardous Waste Management Act or § 39-14-408 ; or, in the case of an applicant with less than three (3) years of compliance history in Tennessee, has been convicted of, or incarcerated for, a felony environmental criminal offense in another jurisdiction; Been adjudicated in contempt of any order of any court of this state enforcing the Solid Waste Disposal Act or the Hazardous Waste Management Act or has been incarcerated for such contempt within the three (3) years preceding the application for a permit or, in the case of an applicant with less than three (3) years of compliance history in Tennessee, has been adjudicated in contempt of any order of any court enforcing a federal or state solid or hazardous waste management law; or Been convicted of a violation of either state or federal racketeer influenced and corrupt organization (RICO) statutes; (A) An applicant that has three (3) or more years of compliance history in Tennessee shall submit, at the time of application, a statement to the effect that neither the applicant nor any responsible party has been convicted of a felony, been incarcerated or been adjudicated in contempt of court as described in subdivision (h)(2)(C), or (h)(2)(D), (h)(2)(E) or alternatively list any applicable conviction, term or incarceration, or adjudication of contempt. The applicant may submit information or documentation related to such convictions, incarcerations, or adjudications, including evidence regarding one (1) or more of the facts enumerated in subdivision (h)(4). An applicant with less than three (3) years of compliance history in Tennessee shall submit, at the time of application, a compliance history disclosure form prepared by the commissioner. The form shall include the information required for applicants with three (3) or more years of compliance history in Tennessee, and additionally require a listing of the names, social security numbers, taxpayer identification numbers and business addresses of the responsible parties for the regulated activities of the applicant, along with a description of any offenses identified in subdivisions (h)(2)(C), (D) and (E). In making the decision to issue, renew or deny any such permit, the commissioner shall determine pursuant to subdivisions (h)(2) and (3), as applicable, whether any such material misrepresentation, concealment, conviction or adjudication demonstrates a disregard for environmental regulations or a pattern of prohibited conduct. In making any finding under this subdivision (h)(4), the commissioner shall consider the following factors and the applicant may submit information or documentation related to the following: The nature and seriousness of the offense; The circumstances in which the offense occurred; The date of the offense; Whether the offense was an isolated offense or part of a series of related incidents; The applicant's environmental record and history of compliance regarding waste management in this state; The number and types of facilities operated by the applicant; Any evidence that the applicant reported or investigated the offense itself and took action to halt or mitigate the offense; Disassociation from any persons convicted of felony environmental criminal activity; The payment by a party convicted of felony environmental criminal activity of restitution to any victims of such criminal activity, remediation of any damages to natural resources and the payment of any fines or penalties imposed for such conduct; Other corrective actions the applicant has undertaken to prevent a recurrence of the offense, including, but not limited to, the establishment and implementation of internal management controls; and The need for the permit in advancing the state's welfare, health, and safety, including, but not limited to, the role of the facility in any solid waste region's approved plan. This subsection (h) shall not apply to permits-by-rule that are issued pursuant to rules adopted by the board in accordance with subdivision (a)(2). Nothing in this chapter shall be construed as imposing liability or any obligation for cleanup or remediation of any solid waste, as defined in § 68-211-103 , or baled waste as defined in § 68-211-103 , or any solid waste or baled waste facility or site as defined by rules promulgated by the department of environment and conservation, on any person who, without participating in the management of the solid waste facility or site, holds indicia of ownership in such facility or site primarily to protect a security interest in the facility or site. Acts 1969, ch. 295, § 6; 1980, ch. 662, § 9; 1980, ch. 899, § 3; 1981, ch. 131, § 32; 1981, ch. 174, § 1; T.C.A., § 53-4306; Acts 1985, ch. 337, § 1; 1986, ch. 644, § 1; 1988, ch. 966, § 1; 1989, ch. 521, § 1; 1990, ch. 1069, §§ 1, 2; 1991, ch. 451, § 20; T.C.A., § 68-31-106 ; Acts 1995, ch. 181, § 1; 2002, ch. 556, § 1; 2009, ch. 255, § 1. Compiler's Notes. Former title 68, ch. 31, parts 1-9 were transferred to title 68, ch. 211, parts 1-9, respectively, in 1992. See the parallel reference table in § 68-211-101 for the former and new section locations. For tables of U.S. decennial populations of Tennessee counties, see Volume 13 and its supplement. Law Reviews. Bad Actor Statutes: An Environmental Trojan Horse?, 48 Vand. L. Rev. 771 (1995).