Tennessee Environmental Law Blog

Legislation effective May 11, 2010 extends liability to other persons not previously considered to be responsible parties, allows the Commissioner to order permanent closure of a UST site and allows the commissioner to apportion liability between liable parties for costs incurred by the department. In addition, the legislation, which became Public Chapter No. 903, clarifies that the underground storage tank fund can be used not only for petroleum sites that contain the underground tanks, but allow the fund to be used to address releases where the UST’s have been removed. More significant, however, the Act adds two additional categories of responsible parties: (1) Persons who intentionally directly cause the release of petroleum and (2) any person who negligently directly causes the release of petroleum. This latter category is directed at persons not affiliated with the owner or operator of the UST or the owner of the site. Thus, the fuel supplier, for example, who negligently causes a release of petroleum when resupplying the tanks could be liable for cleanup.

The legislation also permits the Commissioner to order permanent closure of a UST if the UST is not brought into compliance within six months of being prohibited from receiving petroleum or if all fees, penalties and interest are not paid by the following year when the next year’s fees are due. Current law permits the Commissioner to file an action in court to collect its oversight costs. Public Chapter No. 903 makes that easier by allowing the Commissioner to issue an administrative order. In doing so, the Commissioner can apportion the amount among the responsible parties. The factors for apportionment, however, are those that typically appear in penalty considerations rather than apportionment. For example in Superfund type apportionments of oversight costs, the commissioner considers the relative contribution and other equitable factors. Apportionment among the responsible parties in this legislation include, financial benefit, culpability, efforts and expenses already paid. Like other Commissioner’s orders the assessment is final if not appealed within thirty days of receipt.