Bill Penny
Bill Penny

Bill Penny is a Member in the Nashville office of Stites & Harbison. He is a member of the firm's Environmental, Natural Resources and Energy Service Group as well as the Green Industry Practice Group. Bill has more than 25 years experience in environmental law. You can contact him at william.penny@stites.com or by phone at 615-782-2308.

Martin Corinne
Corinne Martin

Corinne Martin is an Associate in the Nashville office of Stites & Harbison. She is a member of the Environmental, Natural Resources & Energy Service Group, the Green Industry Practice Group, and the Business Litigation Service Group. cmartin@stites.com or by phone at 615-782-2218.

tennessee

BOARD CAN APPROVE SETTLEMENT AGREEMENT OVER OBJECTION OF INTERVENOR

01.13.11 10:46 AM
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In contested case hearings before environmental boards, it is not uncommon for a person or groups of persons to intervene.  Intervention is permitted by statute and by rules of the Secretary of State's Office, assuming the criteria are met.  However, what if the agency, such as the Tennessee Department of Environment and Conservation (TDEC) and the regulated party decide to settle the case but the intervenor disagrees?  Can the intervenor hold the settlement up?  According to the Attorney General, in an AG Opinion  issued January 11, 2011, the answer is "no."  If the intervenor objects the board must make an independent assessment of the settlement on its merits.  If the Board determines that the settlement agreement is reasonable and the public interest in protected, the Board can approve the settlement over the intervenor's objection.  However, the AG opinion goes on to say that it does not dispose of claims of the intervenor.  So, consider the following hypothetical situation.  TDEC issues an order to Respondent for a stormwater violation which includes a civil penalty of $10,000.  The Respondent appeals and the TDEC agrees to reduce the penalty by 25%.  Because of the appeal, however, it has become a contested case, and a citizen group intervened.  The Administratrive Judge grants intervention.  The Board agrees to the 25% reduction over the objection of the Intervenor.  However, according to the AG, the claims of the intervenor are not affected.  So, is the intervenor entitled to continue to insist on a full blown hearing on the matter assuming they made appropriate claims as part of the intervention and their participation was not otherwise limited?  It appears so. 

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