This Technical Bulletin provides an overview (not a comprehensive analysis) of the Attorney General\u27s opinion concerning the amount of the penalty that a municipality can charge for wastewater pretreatment violations

Archer, Edward C.

English

University of Tennessee, Knoxville: Trace

University of Tennessee, Knoxville TRACE: Tennessee Research and Creative Exchange MTAS Publications: Technical Bulletins Municipal Technical Advisory Service (MTAS) 5-7-1990 Technical Bulletins: Civil Penalties for Wastewater Pretreatment Violations Edward C. Archer Municipal Technical Advisory Service Follow this and additional works at: https://trace.tennessee.edu/utk_mtastech  Part of the Public Administration Commons The MTAS publications provided on this website are archival documents intended for informational purposes only and should not be considered as authoritative. The content contained in these publications may be outdated, and the laws referenced therein may have changed or may not be applicable to your city or circumstances. For current information, please visit the MTAS website at: mtas.tennessee.edu. Recommended Citation Archer, Edward C., "Technical Bulletins: Civil Penalties for Wastewater Pretreatment Violations" (1990). MTAS Publications: Technical Bulletins. https://trace.tennessee.edu/utk_mtastech/339 This Bulletin is brought to you for free and open access by the Municipal Technical Advisory Service (MTAS) at TRACE: Tennessee Research and Creative Exchange. It has been accepted for inclusion in MTAS Publications: Technical Bulletins by an authorized administrator of TRACE: Tennessee Research and Creative Exchange. For more information, please contact trace@utk.edu. , ,, , l • • TECHNICAL BULLETIN MUNICIPAL TECHNICAL ADVISORY SERVICE ur THE UNIVERSITY OF TENNESSEE IN COOPERATION WITH THE TENNESSEE MUNICIPAL LEAGUE ,j Bulletin No. 17 May 7, 1990 CIVIL . .PENALTIES FOR WASTEWATE�PRETREATMENT VIOLATIONS by Ed Archer On September 5, 1989 the Attorney General's office issued Opinion Number 89-109 concerning the amount of the penalty that a municipality ctn charge for wastewater pretreatment violations. The specific questions answered were: 1. Are there any constitutional prohibitions to the imposition by municipalities, pursuant to Tennessee Code Annotated (TCA) 69-3-125, of civil penalties of up to $10,000 per day against persons in violations of pretreatment requirements? 2. Assuming there to be no constitutional impediments to such civil penalty assessments, would a charter provision prohibiting the imposition of a fine in excess of $50 bar the imposition of such civil penalties? .. These questions arose because the Tennessee Constitution provides that one is entitled to a jury trial in cases involving fines exceeding $50. It is generally believed that municipal courts in Tennessee cannot levy fines exceeding $50. That belief is reflected in many municipal charters. The opinion replied no to both questions. Municipalities have the legal right to charge up to $10,000 per day in civil penalties for a violation of their pretreatment ordinance. Many reasons were given for the opinion but major issues settled include: 1. The State of Tennessee assumed responsibility from the federal government (EPA) for establishing a permit system (NPDES) to control the discharge of pollutants to waterways within the state. The state placed requirements on cities based on the limits of the receiving stream used for discharge. Since many cities take industrial waste into their systems, they (cities) must have the legal authority to control these discharges. Therefore, cities must develop pretreatment ordinances and programs for enforcement. The state transferred this authority to municipalities with TCA 69-3-101 ("The Water Quality Control Act of 1977") and gave them the authority to assess civil penalties of up to $10,000 . MtlY ' 5 1998 Bulletin No. 17 Page 2 2. The State constitution provision limiting fines, as well as other state laws and city charters, were either superseded or do not apply because they applied to criminal penalties. The Attorney General's office sees a distinct difference between a civil penalty and a criminal penalty (fine). The opinion cites several cases supporting that distinction, including some that make these points: o Although a fine is always a penalty, a j#enalty is not always a fine. o As a broad category, "a penalty is a sum of money exacted by way of punishment for doing some act which is prohibited or omitting to do something which is required to be done." o A fine "is imposed as a punish�nt for the commission of a criminal offense." / ) o " ... the term 'fine' is a term of art limited to punishment for a criminal offense as opposed to a civil sanction for acts or omissions prohibited by statute." Therefore, wastewater pretreatment violations have been properly termed civil penalties and are legally enforceable by the municipality in amounts up to $10,000 per day. For More Information • This bulletin is by no means a complete analysis of the Attorney General's opinion. For additional information or a copy of the opinion, contact Ed Archer, Utility Management Consultant in Jackson at • 901 /423-3710 or your MTAS Municipal Consultant. • The Municipal Technical Advisory Service (MTAS) is a statewide agency of The University of Tennessee's Institute for Public. Service. MTAS operates in cooperation with the Tennessee Municipal League in providing technical assistance services to officials of Tennessee's incorporated municipalities. Assistance is offered in areas such as accounting, administration, finance, public works, ordinance codHication, and wastewater management. MTAS TECHNICAL BULLETINS are Information briefs that provide a timely review of topics of interest to Tennessee municipal officials. The BULLETINS are free to Tennessee loca1 state, and federal government officials and are available to others for $2.00 each. Contact MTAS for a list of recent BUL:LETINS. Municipal Technical Advisory Service The University of Tennessee 600 Henley Street, Suite 120 Knoxville, Tennessee 37996-4105 E14-1050-00-001-90 / 6,0() HENLEY !3T Bl.JITE :1.2\) l<N()XVH .. l...E TN ;379<;;e, The UnlY9nllty ot Ter111-don oot dtcm.Si• an 1111 � of r-. Mx, col«, raliglon, nalional origin, age, handicap, or veterWI lltah.11 In provision of ecllcalio1uf oppol'MlllM Of .,t opporll.rl-and benefits. The Uriverllity �not cltcmlinlte en Iha N.i.. ol Mx ot hlnclicap i'I Ila �on program• and actlvlllet 'Miich it operal98, JUrlUll'lllo flerequlrementaolTlle IX d llMI Edvoalon Amendm9nls ol 1972, Pub.L 92·318; and Section 504 otlhe RehlblHtaton Act ol 1973, PIJ:l.L �112; fftf*lthl'ely. Thi• pa!q exi.ida ID bolh em�enlby and lldmlMion to the Urivel'elty. lnquiri111 DDOQ8mi"lg Tiile IX&nd s.c11on $04 lhould be directed lo Mt. MllfY H. Tfl)'lar, AMI.tan! lollMI Vice Pl.aldenl, 109 Student SeM0911 Bullclng, Knoxvi119, T.m- 37996-0212, (615) 97•-6621. Chari!" ol vlolalian ol rie above policy lhWd allobe directed lo Ms. Taylor. Non-Profit Org. U.S. POSTAGE PAID Knoxville, Tenn. Permit No. 870 • • 

Technical Bulletins: Civil Penalties for Wastewater Pretreatment Violations

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Technical Bulletins: Civil Penalties for Wastewater Pretreatment Violations

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University of Tennessee, Knoxville: Trace