Public Chapter 181, adopted this past legislative session by the Tennessee General Assembly, provided that appeals of enforcement orders, permits, and certain other contested cases be heard first by administrative law judges, with appeal rights therefrom to the relevant environmental board or, in certain circumstances, to Chancery Court. The new statute stated that it would apply only to cases filed after July 1, 2013. Existing law permitted boards to assign cases to administrative law judges, but environmental boards have rarely done this.

Over the last two weeks, TDEC’s Office of General Counsel raised this issue with the Air Pollution Control Board, the Underground Storage Tanks – Solid Waste Disposal Board, and the Water Quality, Oil and gas Board. In each case these Boards referred all pending appeals to administrative law judges for a decision. This was apparently done without any notice to opposing counsel on these cases, which seems problematic. It is not clear what position the Office of General Counsel will take if opposing counsel objects in a specific case. That is something that should be discussed with Office of General Counsel, which hopefully would not oppose a Board trial of an appeal filed before July 1. If that fails, it would appear that opposing counsel have the right to file a motion for reconsideration with the Board.uld apply only to cases filed after July 1, 2013. Existing law permitted boards to assign cases to administrative law judges, but environmental boards have rarely done this.