Tennessee Department Of Environment And Conservation v. Thomas Marlin Robert, Et Al.

This appeal concerns the authority of an administrative judge when sitting with the Tennessee Underground Storage Tanks and Solid Waste Disposal Control Board during its review of an initial order in a contested case. In 2016, the Tennessee Department of Environment and Conservation issued an order pursuant to the Tennessee Petroleum Underground Storage Tank Act to recover funds spent for investigating and closing a petroleum site. The Department alleged that petroleum was released from three underground storage tanks on the respondents’ property. The respondents filed a petition for review and sought a contested case hearing. Following the hearing before an administrative judge sitting alone, the administrative judge issued an initial order that upheld the assessment. The judge concluded that the respondents were “responsible parties” because they owned the site in 2010 when the tanks were removed. The respondents then filed a petition for appeal, seeking a review hearing before the Board. A different administrative judge was assigned to sit with the Board for the hearing. After the parties submitted their briefs but prior to the hearing, the second administrative judge issued an order independent of the Board that reversed several substantive rulings in the initial order and prohibited the Department from making certain legal arguments to the Board. Instead of proceeding with the review hearing, the Department obtained a stay from the Board to file a petition for judicial review to challenge the intermediate order issued by the second administrative judge. The trial court reversed the intermediate order, finding that inter alia, the administrative judge’s decisions were “in excess of his authority and an abuse of discretion” because the statutory interpretation issue was a substantive matter for the Board to consider. The trial court also remanded the matter to the Board for a hearing with the burden of proof assigned to the respondents. This appeal followed. We respectfully disagree with the trial court’s ruling as to the burden of proof because it is the duty of an administrative judge who “sits with” a Board to advise the Board on the applicable law. In all other respects, we affirm the judgment of the trial court and remand for further proceedings consistent with this opinion.