§ 9-12-7. Penalties for noncompliance.

A.

Failure to comply with any of the provisions of the city air pollution control code shall constitute a violation thereof and shall subject the person or persons responsible therefor to any and all of the penalties provided by law.

B.

The Memphis-Shelby County health department in conjunction with the local air pollution control board shall have authority, at their option, to institute and litigate proceedings for violations as set out therein. Any person who knowingly:

1.

Violates or fails to comply with any provision of the city air pollution control code, any board or administrative order or any permit condition;

2.

Makes any false material statement, representation, or certification in any record, report, plan or other document required by permit to be either filed or maintained;

3.

Falsifies, tampers with, renders inaccurate or fails to install any monitoring device or method required to be maintained or followed; or

4.

Fails to pay a fee; commits a Class C misdemeanor pursuant to the Tennessee Code Annotated with the fine not to exceed $10,000.00 per day per violation. For the purpose of this section, each day of continued violation constitutes a separate offense and is punishable as such.

No warrant, presentment or indictment arising under subsection B of this section shall be issued except upon application, authorized in writing, by the health officer on behalf of the local air pollution control program operating under a certificate of exemption pursuant to T.C.A. § 68-201-115, for a violation within its jurisdiction.

C.

Willful and knowing violation of any provision of the city air pollution control code is declared to be a misdemeanor, and each day of violation shall constitute a separate offense. Conviction of a misdemeanor is punishable with the fine not to exceed $10,000.00 per day per violation or with imprisonment not greater than 30 days, or both.

D.

In addition and supplemental to any criminal action which may be prosecuted under this section, the health officer has and is vested with jurisdiction and authority to determine whether or not any provision of the city air pollution control code, any permit condition, or any order has been violated, and whether or not such violation constitutes a public nuisance. Upon such finding that a public nuisance exists, the health officer has authority to abate any such public nuisance in the manner provided by the general law relating to the abatement of public nuisances.

E.

Orders and assessments of damages and civil penalties and appeals.

1.

When the health officer discovers that any provision of the city air pollution control code has been violated, the health officer may issue an order for correction to the responsible person, and this order shall be complied with within the time limit specified in the order. Such order shall be served by personal service or sent by certified mail, return receipt requested. The recipient of such an order may appeal in the same manner as with an assessment of damages or civil penalty under subdivision 2 of this subsection.

2.

a.

In addition to the criminal penalties in this section, any person who violates or fails to comply with any provision of the city air pollution control code or any standard adopted pursuant thereto in a permit, shall be subject to a civil penalty of up to $25,000.00 per day for each day of violation. Any person against whom an assessment in excess of $10,000.00 for each violation has been issued by a local pollution control program pursuant to this section may petition the technical secretary for de novo review of the assessment under the provisions of T.C.A. § 68-201-116. The technical secretary shall render an initial determination, and that initial determination may be appealed to the Tennessee Air Pollution Control Board pursuant to this section. Each day such violation continues constitutes a separate punishable offense, and such person shall also be liable for any damages to the municipality resulting therefrom.

b.

Any civil penalty or damages shall be assessed in the following manner:

i.

The health officer on behalf of the Memphis-Shelby County health department operating under a certificate of exemption pursuant to T.C.A. § 68-201-115 may issue an assessment against any person responsible for the violation or damages. Such person shall receive notice of such assessment by certified mail, return receipt requested;

ii.

Any person against whom an assessment has been issued may appeal the assessment by filing a petition for review with the health officer, or with the technical secretary of an assessment in excess of $10,000.00 for each violation, within 30 days after receipt of the assessment, setting forth the grounds and reasons for such person's objections and requesting a hearing on the matter; and

iii.

If a petition for review of the assessment is not filed within 30 days after the date the assessment is served, the violator shall be deemed to have consented to the assessment and it shall become final.

c.

In assessing such civil penalty, the factors specified in T.C.A. § 68-201-106 and 42 USC 7413 and 7420 may be considered. Damages to the state or to the city may include any expenses incurred in investigating the enforcing of this section; in removing, correcting, or terminating the effects of air pollution; and also compensation for any expense, loss or destruction of plant or animal life or any other actual damages or clean-up expenses caused by the pollution or by the violation. The plea of financial inability to prevent, abate or control pollution by the polluter or violator shall not be a valid defense to liability for violations of the provisions of the city air pollution control code.

d.

The issuance of an order or assessment of civil penalty by the Memphis-Shelby County health department operating under a certificate of exemption as provided for in this section is intended to provide additional and cumulative remedies to prevent, abate and control air pollution in Tennessee. Nothing herein shall be construed to preempt, supersede, abridge or otherwise alter any rights, action or remedies of the technical secretary, Tennessee Air Pollution Control Board or commissioner of the state Department of Environment and Conservation.

e.

i.

Whenever any order or assessment under this section has become final, a notarized copy of the order or assessment may be filed in the office of the clerk of the chancery court of the county if the final order or assessment is from the Memphis-Shelby County health department.

ii.

When filed in accordance with subdivision (2)(e)(i) of this subsection, a final order or assessment shall be considered as a judgment by consent of the parties on the same terms and conditions as those recited therein. Such judgment shall be promptly entered by the court. Except as otherwise provided in this section, the procedure for entry of the judgment and the effect thereof shall be the same as provided in T.C.A. title 26, ch. 6.

iii.

Within 45 days after entry of a judgment under subdivision (2)(e)(ii) of this subsection, any citizen of the city shall have the right to intervene on the ground that the penalties or remedies provided are inadequate or are based on erroneous findings of facts. Upon receipt of a timely motion to intervene, the court shall determine whether it is duplicitous or frivolous, and shall notify the movant and the parties of its determination. If the motion is determined not to be duplicitous or frivolous, all parties shall be considered to have sought review of the final order or assessment, and the court shall proceed in accordance with T.C.A. § 4-5-322. If no timely motion to intervene is filed, or if any such motion is determined to be duplicitous or frivolous, the judgment shall become final 45 days after the date of entry.

iv.

A final judgment under this subsection has the same effect, is subject to the same procedures, and may be enforced or satisfied in the same manner, as any other judgment of a court of record of this state.

(Code 1967, § 3-3; Code 1985, § 16-57; Ord. No. 1265, § 1, 4-25-1972; Ord. No. 3230, § 1(2), 8-3-1982; Ord. No. 4981, § 3, 12-17-2002)