ITEM#· __ ___,3~---- PREPARED BY _______ _ 

COMMISSIONER _ ___..REND~=...T,..ORFF~'-- APPROVED.BY _______ _ 

ORDINANCE NO: 265 

ORDINANCE BY THE. BOARD OF COMMISSIONERS FOR SHELBY COUNTY, 

TENNESSEE, TO AME~ THE 'SHELBY COUNTY AIR CODE TO RETAIN THE 

SAME ANNUAL El'YfiSSION FEE AMOUNT FOR CALENDAR YEAR 2001; AND, BY 

PROVIDING FOR REVISIONS FOR PENALTIES . FOR NONCOMPLIANCE; 

VARIANCES; OPEN BURNING; VOLA'ITI.,E ORGANIC COMPOUNDS; HEARINGS; 

TO ADD A NEW RULE AUTHORIZING RIGHT OF ENTRY; A NEW RULE FOR 

EMERGENCY EPISODES; AND A NEW RULE FOR THE CONFORMITY OF 

MOBR.E SOURCE EMISSIONS WITH AIR QUALITY PLANS. 

WHEREAS, It is the declared public policy of Shelby County to maintain purity of the air resources of 

the community consistent with the protection of normal health, general welfare and physical property of the people, 

maximum employment and the full industrial development of the state. and to seek the accomplishment of these 

objectives through the prevention, abatement and control of air pollution by all practical and economically feasible 

methods. It is also the intent of Shelby County to qualify for receipt of federal' funds available for air pollution 

control programs and to that end, this ordinance shall be construed to give the authority to so qualify and maintain 

such qualification; and 

WHEREAS, Local regulation of air quality is the most efficient means towards that end; and 

WHEREAS, The operation of a local air pollution control program by the Memphis/Shelby County Health 

Department, which was established in the Shelby Colmty Ali Code, adOpted on June 30, 1969 by the Shelby County 

Quarterly Court, and as amended, has seived to protect the air quality in Shelby CountY and efficiently meet the needs 

of those regulated by air pollution control laws; and · · · · 

. . . 

·WHEREAS, In order to maintain the Certificate of Exemption from State of Tennessee (State).supervision 

granted by the Tennessee Air Pollution Control Board, it is necessary to adopt requireJ;llents no less stringent than State 

standards; and · · 

WHEREAS, Title V of the Clean Air Act of 1990 requires air pollution control programs that wish to 

operate a major source operating permit program to establish a fee structure sufficient to fund the direct and indirect 

costs of such a program; and 

WHEREAS, The Board of County Commissioners for Shelby County has previously established a fee 

system to collect and administer emissions fees and annual inspectioDioperating fees which has also been adopted in the 

other municipalities of Shelby County~ .and · · · 

WHEREAS, The Board of County Commissioners wishes to retain the same annual $29.65 per ton 

emission fee without Consumer Price Index adjustment for calendar year 200 I; and 

WHEREAS, Te~.see Code AnnOtated§ 68-201·1 15(a) provides that any municipality or county may 

adopt an ordinance or resolution which incorporates by reference any federal or state regulations when such regulations 

are properly identified as to date and source, and when at least three (3). copies of such regulations which are 

incorporated by reference are filed in the office of the county clerk for public use, inspection md examination for a 

period of thirty (30) days before adoption of the ordinance or resolution incorporating regulations by reference; and 

WHEREAS, The Clerk of the County Commission has caused. to be published in a newspaper having 

general circulation in Shelby County, Temi.essee, notice of the avaiiabilityforp)lblic use, inspection and examination at 

the office of the Shelby County Clerk of three (3) copies of federal and State regulations to be incorporated by reference 

for a period of thirty (30) days before adoption of the ordinance or resolution incorporating regulations by reference and 

notice that the date of the Second Reading of this ordinance scheduled for June 17, 2002, is the date of public hearing 

on adoption of such ordinance; and · · 

G 

WHEREAS, Shelby County has enacted air pollution control regulations not less stringent !han standards 

adopted by the state pursuant to Chapter 68-201, Part 1; of the Tennessee Code AruJotated; and 

WHEREAS, Such ordinance or resolution incorporating regulations by reference shall become effective 

only after publication in a newspaper having a general circulation in !he county; and 

WHEREAS, Maintaining up to date technical standards promulgated by the Tennessee Department of 

Environment and Conservation (Tennessee) for the control of IUr pollution prevents the need for state control of Shelby 

County air pollution sources subject to these controls, specifically those provisions found in the Rules and Regulations 
'of Tennessee Chapter 1200-3-2, titled Definitions; Chapter 1200-3-3, titled Ambient Air Quality Regulations; Chapter 

1200-3-5, titled Visible Emissions: Chapter 1200-3-6,. titled Nonprocess Emission Standards; Chapter 1200-3-7, titled 

Process Emissions Standards: Chapter 1200-3-9, titled Construction and Operating Pezmits; Chapter 1200-3-10, titled 

Required Sampling. Recording and Reoortil!g: Chapter 1200-3-11, titled Hazardous Air Contllminants; Chapter 1200-

3-12, titled Methods of Sampling and Analvsis; Chapter 1200-3-14, titled Control of Sulfur Dioxide Emissions; Chapter 

1200-3-15, titled Emergency Episode Plan: Chapter 1200-3-18, titled Volatile Organic Compounds; Chapter 1200-3-

20, titled Limits on Emissions due to Malfunctions. Startups and Shutdowns; Chapter 1200-3-21, titled General 

Alternate Emission Standards; Chapter 12Cl0-3-22, titled Lead Emission Standards; Chapter 1200-3-24, titled Good 

Engineering Practices Stack Height Regulations; Chapter 1200-3-25, titled Standards for Infectious Waste lncioerators; 

Chapter 1200-3-30, titled Acid Precipitation Standard; Chapter 1200-3-31, titled National Emission Standards for 

Hazardous Air Pollutants for Source Categories; Chapter 1200-3-32, titled Prevention of Acciclental Releases; Chapter 

1200-3-34, titled Conformity; and the New Source Performance Standards (with the exception of Subparts B, C, Cb, 

Cc, Cd, Ce, AAA) and Appendices A, Band F of the Code ofFederal Regulations (CFR), Title 40, Part 60 (Revised as 

of July 1, 2001) except for the authorities therein retained by the Administrator and not transferred to a State. 

NOW, THEREFORE, BE IT O:)IDAlNED BY. THE BOARD OF COUNTY 

COMMISSIONERS OF SHELBY COUNTY, TENNESSEE: .. 

SECI'ION 1. That the Shelby County Air Code, Section 3-3. PENALTIES -MISDEMEANOR. 

CIVIL, AND NONCOMPLIANCE, be amended by deleting in its entirety Section 3-3 and substituting in lieu 

thereof a new Section 3-3. PENALTIES FOR NONCOMPLIANCE to read as follows: [Note: Updated to track 

T.CA. §68-201-112 and §68-201-1161 

Section 3-3. PENAL TIES FOR NONCOMPLIANCE: 

(a) Failure to comply V<ith any of the provisions of the Shelby County Aif Code or Chapter 14.5 of the Code of 

Shelby County shall constitute a violation thereof and shall subject -the person or persons responsible therefore 

to any and all of the penalties provided by law. 

(b) The Memphis and Shelby County Health Department in corijunction ·with the local Air Pollution Control 

Board shall have authority, at their option; to institute and litigate proceedings for violations as set out therein. 

Any person who knowingly: 

(1) 

(2) 

(3) 

(4) 

Violates or fails to comply with any provision of the Shelby County Air Code or of Chapter 14.5 of 

the Code of Shelby County, any board or administrative order or any permit condition; 

Makes any false matetial stiltement, representation, or certification in any record, report, plan or other 

document required by permit. to be either filed or maintained; · 

Falsifies, tampers with, renders inaccurate or fails to· install any monitoring device or method 

required to be maintained or followed; or 

Fails to pay a fee 

commits a Class C misdemeanor pursuant to the Tennessee Code Annotated with the fine not to exceed ten 

thousand dollars ($10,000) per day per violation. For the pUipose of this section, each day of continued 

violation constitutes a sepante offense and is pwllshable as such. 

No warrant, presen1roent or iodictment arisiog under Section 3~3(b). shall be issued except upon application, 

authorized in writing, by the Health Officer on behalf of the local air pollution control program operating 

under a certificate of exemption pursuant to T.C.A. §68-201-115, for a violation within its jurisdiction. 

(c) Willful and knowing violation of any provision of the Shelby County Air Code or of Chapter 14.5 of the Code 

of Shelby County is declared to be a misdemeanor, and each day of violation shall constitute a separate 

offense. Conviction of a misdemeanor is punishable as provided in Section 1-8 of the Code of Shelby County. 

(d) In addition and supplemental to any criminal action whicb may be prosecuted under this section, Health 

Officer has and is vested with jurisdiction and authority to determine whether or not any provision of the 

Shelby County Air Code or of Chapter 14.5 of the Code of Shelby County, any permit condition, or any 

order has been violated, and whether or not such violation consti~es a public nuisance. Upon such finding 

that a public nuisance exists, the Health Officer has authority to abate any such public nuisance in the 

manner provided by th~ gen~ law rel~g to the abatement of public nuisances. 

(e) Orders andAssessments.ofDamages and Civil Penalties and Appeals 

0 (1) 

(2) 

When the Health Officer discovers that any provision of the Shelby County Air Code or of Chapter 

14.5 of the Code of Shelby County has been violated, the Health. Officer may issue an order for 

correction to the responsible person, and this order shall be complied with within the time limit 

specified in the order. S.uch. order shall bib served by personal sen<ice or. sent by certifi~ maj_l, 

return receipt requested. The recipient of such an order may appeal in the same manner as with an 

assessment of damages or civil p~ty under subsection (2) .. 

(a) In addition to the criminal penalties. in this section, any person who violates or fails to 

2 
comply with iny proviSion of the Shelby County Air Code or of Chapter 14.5 of the Code 

of Shelby County or any standard adopted pursuant thereto iri a permit, shall be subject to 

a civil penalty of up to twenty-five thousand dollm ($25,000) per day for each day of 

violation. Any person against whom an assessment in excess of ten thousand dollars 

($10,000) for. each violation has been ·iSsued by a local pollution control program 

pursuant to this section may petition the Technical Secretary for de novo review of the 

assessment under the provisions of T.C.A. §68-201-II6. The Technical Secretary shall 

render an initial determination, and that initial determination may be appealed to the 

Tennessee Air Pollution Control Board pursuant to thiS s.ection. Each day such violation 

continues constitutes a "separate punishable" offense; and such person shall also be liable 

for any damages to the municipality resulting therefrom. 

(b) AJ:Y civil penalty or damages shall be assessed in the.following manner: 

The Health Officer on behalf of Shelby County operatiiig under a ceitificate of 

exemption pursuant to T.C.A.. §68-201~115 may issue an assessment against any 

person responSible for the violation or damages. Such person shall receive 

notice of such assessment by certified mai~ return reCeipt requested; . 

2. Any person . aga.mst whom an assessment has been issued may appeal the 

assessment by filing a petition for review with the Health Officer, or with the 

Technical Secretary, of an assessment in excess of $10,000 for each violation, 

within thirty (30) days after receipt of. the assessment, setting forth the grounds 

and reasons for such person's objections and requesting a hearing on the matter; 

and 

3. If a petition for review of the assessment is. not filed within thirty (30) days after 

the date the assessment is served, the violator shall be deemed to have consented 

to the assessment and it shall become final. 

(c) In assessing such civil penalty, the factors specified in _T.C.A.. §68-201-106 and Title 42 

U.S.C. §7413 and §7420-may be considered.: D~ages to the state or to Shelby County 

may include· any expeb.ses incurred in investigating the enforcing of this section; in 

removing, ccirrecting, ·or terminating the effi:cts of air pollution; and also compensation 

for any expense, loss or.destruction of plant or animal life.or any other actual damages or 

clean-up expenses caused by the pollution or by the violation. The plea of fmancial 

inability to preven~ abate or control pollution by the polluter or violator shall not be a 

valid defense to liability for violations of the provisions of the Shelby County Air Code or 

ofChapter-14.5 of the Code of Shelby County. 

(d) The issuance of an order or assessment of civil penalty by Shelby County operating 

under a certificate of exemption as provided for ·in this section is intended to provide 

additional and cumulativ.e remedies to prevent, abate and control air pollution in 

Tennessee. Nothing herein shall be construed to preempt, supersede, abridge or otherwise 

alter any rights, action or remedies of the Technical Secretary, Tennessee Air Pollution 

Control Board or Commissioner of the . Tennessee Department of Environment and 

(e) 

Conservation. · 

1. Whenever any order or assessment under .this section hi!S become final, a 

notarized copy of the order or assessment may be filed in the office of the clerk 

of the chancery court of Shelby County_ifthe final order or assessment is from 

Shelby County. 

2. When filed in accordance wit!u1,1bdivision (c)l., a final order or assessment 

shall be considered as a judgment by consent of the parties on the same terms 

and conditions as those recited therein. Such jlldgment shall be promptly entered 

by the. court Except as otherwise. pro\dded:in this secti9n, the procedure for 

entry of the judgment and the effect thereof shall be the same as provided in 

Title 26, Chapter 6, Tennessee Code . .Annotated.: · 

- . 3. Within.forty-five (45) days after entry of a judgment under subdivision (e)2., 

any citizen of Shelby County shall have the right to intervene on the ground that 

the penalties or remedies provided are: inadequate or are based on erroneous 

fipdings of facts. Upon receipt of a timely motion to intervene, the court shall 

determine whether it is duplicitous pr fri,volou,s, and shall notify the movant and 

the parties of its determination. If the mc;~tion is determined not to be. duplicitous 

or frivolous, all, parties shall be considered t.o have sought review of the final 

order or assessment, and the .coUrt shall pro~ed in accordance with T. C.A.. §4-5-

322. If no timely motion to . intervene is filed, or if any such motion is 

determined to be duplicitous or frivolous, the jlldgment shall become final fortyfive (45) days after the date of ent!Y,. 

3 
4. A final judgment ·under .this subsection has.the same effect, is subject. to the 

same procedures, and may be enforced or satisfied in the same manner, as any 

other judgment of a court of record of this state. 

SECI'ION 2. That the Shelby County Air Code, Section 3-5, Reference 1200-3-9, CONSTRUCTION 

AND OPERATING PERMITS, be amended by deleting in its entirety item 1200-3-9-.02(11)(b)14.(ii)(XXVm and 

substituting in lieu thereof a new item 1200-3-9-.02(11)(b)l4.(ii)(XXVD}so that it reads as follows: 

{Xxvn)Any other stationary source cate8ozy, 'whlch as of August 7, 1980 is 

being regulated under section lll:or (IZ of the Act . 

SECTION 3 .. Thatthe Shelby Count)' Air Code, Section 3-Io; V~CES, be amended by deleting 

in its entirety Section 3-10 and substinitiD.g in lieu thereof a new Section 3-lo,y .AlliANCES, to read as follows: 

(a) AJ:J.y person who o~ or is in control of any plant; building, structure, establishmen~ process or equipment 

including a gi:Oilp of persons who· own or control ·like processe,'l or lik~ equipment may apply to the Air 

Pollution Control Hearing Board, hereinafter referred to as "the· Board", for a variance from rules or 

regulations governing the qu!lity, .nature,' duration or extent of discharge of air contaminants. The 

application for a variance sha.i! include information and data sufficient for the Board to make the fmdings 

required below. The hea.ring held hereunder shall be condu~ed in accordance with the rules of evidence as 

set forth in Section 3-35(£) of the Shelby County Air Code. The Board may grant such variance, but only 

after public hearing on· due notice· and subject to the Certificate of Exemption issued pursuant to T. C.A. 

§68-201-115 if it finds that . 

(b) 

(c) 

(d) 

e 

(c) 

(f) 

1. nie emissions proposed to occur as a result of a variance would not endanger or tend to endanger 

human health, safety, or welfare, and would not cause.or tend to cause property damage; and 

2. Compliance with the rules or regUlations from which variance is sought would produce serious 

hardship without equal or gteater benc;fits to the public or. a variance is needed only until a rule 

adopted by the Tennessee ·Air Pollution Control Board becomes State effective. If economic 

hardship is claimed, a description of expected monetary losses shall be included. . . ' . . . 

No variance shall be granted or denied ·pursuant to thls section untii the Board has considered the relative 

interests of the applicant, other. owners of property likfiilY to be affectcd.by the discharges, and others who 

may be affected by gi-azlting or denying_ a reqUest for vam,nce . · 

Any variance or renewal thereaf shall be granted within the requirements of subsection (a) for time periods 

and under conditions consistent with the reasons therefore, ~d with the following limitations: ... 

1; If the variance is granted cin tlie grounds that there is no practicable means known or available for 

the adequate prevention, abatement, . or eontrol of the air pollution .involved, the variance shall be 

permitted only until the necessary means for prev~ntion, abatement, or control become known and 

available, and the variance shall be subject to the taking of any substitute or alternate measures 

that the Board may prescn'be. · . 

2. If the variance is 'granted on the ground that compliance with the particular requirement or 

requirements from which .variance is sought will .. n~itate the taking ofmeasures which, 

because of their extent or cost, inust be spread over a cons.iderable period' .of time,, it .shall be for a 

period not to exceed such reasonable time as; in view of the Board, is requisite for the taking of 

necessary measures. A vari.ance granted on the ground specified herein shall contain a timetable 

for the taking of action in an expeditious manner .!Qid shill b~ c()nditioned on adherence to such 

timetable and submittal of p~ocif that such timeable is being inei. . 

3. Any variance or renewal pted shall be for a tiiiie'peri~d not to exceed one (1) year. 

Any variance granted pursuant tci this section may be ~11ew'~ by the Air Pollutio11 COntrol Hearing Board 

on tenns and conditions and for periods which would be'. appropriate on fuitial granting of the variance 

following the same procedures required for issuance of the initial variance. If complaint is made to the 

Board on account of the variance, no renewal thereof shall be grarited, unless, following public bearing on 

the complaint, the Board finds that renewal is justified No .renewai: shan· be granted except on · application 

therefore. Any such application shall be made at least sixty (60) days pnor to the expiration of the variance. 

Immediately upon a receipt of an application for ~ewal, the Board .shall give public notice of such 

application in accordance with rules and regulations of the B.oard.· .. 

A variance of renewal shall not be a right of the applicant or holder thereof: but shall be in the discretion of 

the Board. However, any applic8nt adversely· affected. by the deniil.! or the terms and conditions of the 

granting of an application for a variance or renewal of a variance by the Board may obtain judicial review 

thereof only in a court of competent jurisdiction. 

Nothing in this secti6n and no vari3nce or renewal granted pursuant hereto shall be construed to prevent or 

limit the application of the emergency provisions and procedliz.es' of Sections 3-4 and 3-14 (Reference 

1200-3-15) to any person or his property. · · 

4 
SECI'ION 4. That the Shelby County Air Code, Section 3-13, RESERVED, be amended by deleting in 

its entirety Section 3-13 and substituting in lieu thereof a new Section 3-13, RlGHT OF ENTRY, to read as follows: 

For the putpose of canying out the requirements of the Shelby County Air Code and Section 14.5 of the Code of 

Shelby County, the Health Officer and his authorized representatives, .including engineers, assistants, environmentalists 

and other employees, shall be pennittcd at all reasonable times to enter into any manufacturing plants, business 

buildings or o1her buildings. and all lots, grounds and premises, in order to 1horoughly examine any items in relation to 

public health and air pollution thereon and therein. · 

SECTION 5. That Chapter 1200-3·15 of the Rulc5 of Tennessee DiVision of Air Pollution, as effective on 

December 31, 2000, which is incorporated herein by reference as if set out in its entirety, shall be adopted and approved 

as part of the Shelby County Air Code which was adopted on June 30, 1969, and as amended, by the Board of County 

Commissioners, in accordance with T.C.A. §68-201-115, and that the Shelby County Air Code, Section 3-14 

RESERVED, be amended by deleting in its entirety Section 3-14 and substituting in lieu thereof a new Section 3-14 

(Reference 1200-3·15) EMERGENCY EPISODE PLAN. . 

SECTION 6. That the Shelby County Air Code, Section 3-1~ OPEN BURNING, be amended by 

deleting in its entirety Section 3-16 and substitUting in lieu thereofa.new Section 3-16 OPEN BURNING to read as 

follows: [Note: this amendment add.! defUJ,itiow, air curtain destructor siting criteria, materials prohibited 

from burning and natural disaster excep~on in ll00-3-4 ofthe'State rule.} 

Section 3-16. Open Burning 

(a) 

(b) 

0 

(c) 

No person shall cause, suffer, allow or permit open burning of refuse, garbage, trade waste, trees, limbs, 

brush, or materials from salvage operations. The open ~uming of tires and other rubber products, vinyl 

shingles and siding. other· plastics; asphalt shingles and other asphalt roofmg materials, and/or asbestos 

containing materials is expressly prohibited, and such materials. shall not be lawful in any open burning 

conducted under the provisions of Seetion 3-16. 

Open bwning as listed below may be conducted without permit subject to ftre department approval and 

provided further that no. public nWsao.cc is or will be created by the open burning. 

I) Fires used for the cooking of food or for ceremonial, recreational or comfort-heating purposes 

including barbecues and outdoor fireplaces. This exception does not include commercial food 

preparation facilities and their operation. 

(2) Fires set for the training and instruction of firemen or for ~earch in tire protection or prevention. 

However, routine demolition of structures via supervised open burning by responsible tire control 

persons will not be considered fire training. Additionally, the person responsible for such burning, 

unless conducted at a recognized fire training academy, must certify compliance with the following 

requirements by written stateinent The certification .must be delivered to the Pollution Control 

Section of the MemPhis and Shelby Co1.Dlty Health Department (Department) at least ten (10) 

working days prior to commencilig the bum: · 

(i) The open burning is being conducted solely for fire training purposes. 

(ii) All vinyl sirung, carpet, vinyl flooring, ;!sphalt fi,ofmg ~terials, and any ~ther materials 

expressly prohibited in ~ubsection 3-16.(a), have·~ rem9vecl. 

(iii) AD regulated asbestos containing materialS 'have been removed in accordance with Section 

3-25, Reference 1200-3-11~.02(2Xd)3.(x). 

(iv) A 1raffic hazard will not be caused by the aii- contaJn.inants generated by the fire training. 

(v) A public nuisance will not be created by the O:J)en burning. 

(3) Smokeless flares or safety flares for the combustion of waste gaiies provided other applicable sections 

of this Section are met 

(4) Fires used for the reduction of leaves on the premises on which .they fall by the person in control of 

(5) 

the~es. · 

Fire used for carrying out recogmed · agricultuxai procedw necessary for the production or 

harvesting of crops or for the control of diseases or pests, In accordance with practices acceptable to 

the Department . · · ·· 

(6) Fires for tlie bllinin& ~f bodies of dead animals, including p~ultry, where no other safe and/or 

p~cal disposal m~od exists. · · 

Exceptions to subsection (a) maybe permitted'for vegetation ifall oftlie f~Jowillg conditions-are inefwnen 

an air curtain destructor is used: . · 

. ' 

(1) A request is filed with 1he health officer giving the reason why no method except open burning can 

be employed to dispose of the material involved, the amount and kind of material to be burned, the 

5 
exact location where the burning will take place, and the dates when the open burning will be done. 

All changes in . types of, or ·increase in quantitieS of, materials burned must be preceded by 

notification. The no.tificatfon must be delivered to the Department at least ten ( 1 0) working days prior 

to commencing the chailge in the bum. 

(2) The person appl);ng for the permit certifies, by written statement, compliance with following 

distance requirements, at a minimum: 

(3) 

(4) 

(5) 

((6) 

((7) 

(8) 

(i) The open buriling site must be at least five hundred (500) feet from any Federal and from 

any State highway; and 

(ii) The open burning site must"~ at least one.thousand (1,000) feet from any school national 

or state parlc, !llltional reservation, national or state forest, wildlife area, and/or residence not 

on the same property as the air curtain destructor; and 

(iii} . The open burning site must be at least one-half (1/2) mile from any airport, nursing home or 

hospital 

The plume froni. the· air curtain destructor must meet the visible emission standards specified in 

Section 3-17, Reference 1200-3-5-.01(1); however, for certain materials the Department may allow 

one start-up period in excess of the standard, per day, not to exceed 20 minutes in 24 hours. 

All material to be burned must be dry and in other respects be in a state to sustain good combustion. 

Open burning must be conducted· when ambient conditions are such that · good dispersion of 

combustion products will result: Priming materials used to facilitate such burning shall be limited to 

#1 or #2 grade fuel oiLS. 

No fire shall be ignited while any air pollution emergency episode is in effect in the area of the bum. 

No fire shall be ignited during any exceedance of the National· Ambient Air Quality Standard for 

ozone, oxides of nitrogen; earbon monoxide, . or particulate 'matter. P=ittee is required to contact 

the Department's Computerized Local Air Index Reporting system (CLAIR) recorded line at (901) 

544-7489 or 544-7490 before igniting afire to determine if it is a Burning Day cir a No-Burning Day. 

Approval is reCeived from the Health Officer in writing. 

Permission is secured from the me dep8rtment in the jurisdiction involved. 

The burning shall.be done between the hours of 9:00 a.~. Jllld 4:00 p.m. or as authorized by the 

health officer. · · · · · · · 

This approval shall not r-elieve the person responsiJ?le for such, burning from. the consequences of any damages, 

injuries, or claims resulting from such burning. . : . . . . . 

(d) 

• 

Definitions. 

(1) 

(2) 

(3} 

(4) 

(5) 

"Air Curtain Destructor'' is. a portable or stationary !:ombuSrlon device that directs a plane of high 

velocity forced~ air through a manifold head into a bum chamber with vertical walls in such a 

manner as to maintain a curtain of air over the surface. of the bum chamber and a recirculating 

motion of air under the cUrtain. The use of an air curtain destructor is considered controlled open 

burning. 

"Air Pollution Emergency Episode"· is defined ~ air pollution alerts, warnings, or emergencies 

declared by the Health Officer during adverse air· disperSion .·conditions that may result in harm to 

public heath or welfare. 

"Natural Disaster" is defined as any event commonly referred to as an "Act of God" and includes 

but is not limited to the following weather related or naturally occurring categories of events: 

tornadoes, hail.and wind storms, snow or ice storms, tloodins.,, apd earthquakes. 

"Open Burning" is the burning of any matter under such co_nditions. that products of combustion 

are emitted directly into the open atmosphere without passing directly through a stack. 

"Person" is any individual, partnership, co-partnership, firm, company, corporation, association, 

·joint stock company; trust, eState, political" rubcllvision, an agency, authority, commission, or 

department of ihe United States government, or of the State of Tennessee government; or any 

other legal entity, or its legal rel'resentative, agent, or assigns: 

(e) Burning after natural disasters. 

(1) OPen bUmmg ormatei':ialsresulting from a-natUral ~er,and-when conductedJn_conformity _ 

with the following conditions:conditions, may-be p~itted: · 

(i) Fires disposing of structural and household materials and vegetation are allowed only 

when those structures or materials are destroyedqrseverely damaged by natural disaster. 

6 
(2) 

(3) 

(ii) 

(iil) 

(iv) 

(v) 

.· .. : 

Input from ·Emergency ~anagement personnel may be requested in determining 

qual~cation with this criteria. The provisions of this Section pertaining to structural and 

household materials may ·be waived if the persons seeking to open bum under this 

provision make a reasonable effort to rcmove all c:Xpressly prohibited material from the 

structural remains before ignition. The Department reserves the right to inspect the 

proposed materials to be burned before ignition. The alternative use of chippers and 

grinders, lanclfilling, or. on-site bu?aJ of waste in lieu ofburning, if lawful, is encouraged. 

If a governmental collective bum site for disposing of structural and household materials 

and vegetation damaged by a natural disaster is planned, the person responsible for such 

burning must notify the Department of the proposed lacation. The notification must be 

delivered to the··oepartment at least three (3) daYs prior to commencing the burn. The 

Department .may requtst that il.lteniate sites be 'identified to minimize impact to air 

quality. The alternative usc of chippers and grinders in lieu of burning is encouraged. 

A traffic· hazai-d 'will not tie .caused b). the air contaminants generated by the fire. . . 

No fire shall be ignited while any air pollution emergency episode is in effect in the area 

of the bum: No fire shall be ignited during any exceedance of the National Ambient Air 

Quality Standard for ozone, oxides of nitrogen, carbon monoxide, or particulate matter. 

Contact the Department's Computerized Local Air Index Reporting systcm {CLAIR) 

recorded line at (901) 544-7489 Or 544-7490 before igniting a fire to determine if it is a 

Burning Day or a No-Burning Day. 

Open burning con.ducted ·tinder this exception is only ail owed where no other safe imcll or 

practical means of disposal iS. available.· : . ··. · · · · 

The Health Officer reserves the right to require a ·person to cease or limit open burning if 

emissions from the fires are deemed by the Health Officer or his designee to jeopardize public 

health or welfare, create a pub1ic nuisance .or safety hUard, create a potentiil.l safety hazard, or 

·interfere with the attainntent or ~e.intenance of the air. quality standards . • · ..... =: •.• •. 

AIJ.y exception to the open bUrning prohibition gnmted by this Section docs not relieve any person 

of the rcsponsibilicy to obtain a permit requir~d by any other agency, or of complying with other 

applicable requirements, ~ces, orrcstrictions . .[Pm:tjc:UJar.attenti.on is directed to T.C.A. §39-

14-306, which prohibits open afr fires between October 15 and May 15 within five hundred {500) 

feet of any forest, grasslands or woodlands without first securing a permit from the State forester 

in unincorporated portions of Shelby County.] 

. . 

SECTION 7. That ~c Sheiby County Air Code, Section.3-22, Reference 1200-3-18-.79, VOLATILE 

ORGANIC CO:Iv.IPOUNDS, be amended by adding language to part 1200.-3-18~.79(1)(e)2. so that it reads as 

follows: 

2. Sources subject to source-specific standards approved iit lieu of standards .in Rules .11 

through . 77 of this .chapter and sources subject to a National Emission Standard for 

Hazardous Air Pollutants (also called a MACT standard) that applies to all volatile organic 

compound emissions at the source; and 

SECTION 8. That Chapter 1200-3-34 of the Rules ofTennessee Division of Air Pollution, as effective on 

November 14, 200l,which is incorporated herein by reference as if set out in its,entirety, shall be adopted and approved 

as part of the Shelby County Air Code which was adopted on June 30; 1969, and a5 amended, by the Board of County 

Commissioners, in accordance with T.C.A. §68-201-115; and that the Shelby County Air Code, Section 3-26 

RESERVED, be amended by deleting in its entirety Section 3-26 and substituting in lieu thereof a new Section 3-26 

(Reference 1200-3-34) TRANSPORTATION CONFORMITY. . 

SECTION 9. That the Shelby County Air Code, Section 3-35, .. CREATED; MEM:BERSHIP; TERMS 

OF OFFICE; JURISDICTION HEARINGS; APPEALS, be amended by replacing existing paragraphs (e) and (±) 

with new paragraphs (e) and (f) as follows: · · 

(e) AIJ.y person taking exception to and who is uniquely affected by any decision, ruling, requirement, rule, 

regulation, or order of the Health Director or by his failure to act within a reasonable amount oftime may 

take an appeal to the Board as established by this section. Such appeals shall be made within fifteen (15) 

days after receiving notice of such decision, nl!ing, requirement, ru!e, regulation, or order or failure to act 

by filing a written notice of appeal directly to the Board specifying the ground thereof and the relief 

requested. Such an appeal shall ac;t as a stay of the decision, ruling, requirement, rule; regulation or order in 

question until the Board has taken final action on the .appw; except when the Health Director· has acted 

under Section 16-59, "Emergency aider." The Board, not more than thirty (30) days after the date of filing 

an appeal, shall set a date for the hearing not more than sixty (60} days after the date of filing of the appeal 

andshall give noticeihereofby~.to the..intercstedparties. 

(±) Hearings before the Board Shall be conducted in the following manner: 

(1) Notice of any and all hearings shall be given at. least fifteen (15) days prior to the scheduled date 

of the hearing by public advertisement in a newspaper of general circulation in Shelby County, 

7 
(2) 

(3) 

(4) 

(5) 

(6) 

(7) 

(8) 

. •· 

Tennessee giving the da,~, ,time;~ place and purpose of the hearing; and 

The chairman of the 'Board shall act as the hearing examiner to conduct such hearing; and 

Any person see!cing a variance or any party who bas· filed a written notice of appeal pursuant to 

Section 3-35 oi Section 3-5 [Reference 1200-3-9-.05], may appear in person or by agent or 

attorney and present evidence, both written or oral, relevant to the questions and issues involved 

and may examine and cross examine witnesses. 

All testimony shall.be under oath and recorded. The Board is ·authorized to have all testimony 

transcn'bed and a trans¢pt of such testimony, if transct:~1ied, shall be made available to the 

respondent or any party to ·the hearing upon payment of the normal fee, which shall not exc.eed the 

cost of transcribing such testimony. · 

After due consideration of the written and ora,! statements, the testimony and arguments submitted 

at the hearing upon such complaint, or, upon default in appearance of the respondent on the return 

date specified in the formal notice ot'complaint, the Board shall issue and enter such final order or 

make such final determination as it shall deem appropriat.e not later than sixty (60) days after the 

hearing date, and shall immediately notify the respondent thereof, in writing, by certified mail. 

SJ.!ch order or determination shall be approved by at least a majority of members to which the 

Board is entitled. " · · 

Upon failure or' the Board to enter a final order or determination within sixty (60) days after the 

final argument of such .. hearing, the respondent shall be entitled to treat for all purposes such 

failure to act as a finding favorable to the respondent 

The burden of proof sball be on the Health Director or his duly authorized representative where 

appeal has been sought pursuant to Section 3-35 or Section 3-5. The burden of proof is on the 

applicant where a variance has been sought pursuant tO ~ection 3-10, in accordance with T.C.A. 

§68-201-IIB(k).. . 

Any person aggrieved by any final order or determination of the Board hereunder shall have 

judicial review thereof by writ of certiorari pursuant to T. c.A. §27-9-1 OJ et seq. No judicial 

review shall be available until and after all administrative remedies have been exhausted. 

SECTION 10. That the Code of Shelby County, Section 14.5-27, ALLOWABLE USES FOR 

EMISSIONS FEE, be amended by deleting the first sentence in Section 14.5-27 and replacing it with the following 

sentence that reads as follows: 

The Department shall collect an annUal emissiom· fee from. those. en~~es ·within Shelby County which operate 

stationary air pollutant sources required to'make application ClD or after July 1, 1992, to the Memphis and Shelby 

County Health Department for issuance, re-isSu.ance ·or modification of a permit in accordance with the Shelby 

County Air Code and Chapter 14.5 of the Code of Shelby County, and shall be subject to the fee schedule set out in 

Section 14.5-37, Appendix B. · · 

SECTION 11. Thattbe.Coqe ofS)le1byCounty, Section 14.5-28, El'vfiSSIONS FEE FOR STATIONARY 

SOURCES, APPEND DC A (EMISSION FEE RA 'IE), paragraph a., show an annual emission fee of twenty-nine dollars 

and sixty-fiVe cents ($29.65) per ton of actual emissions for calendar year 2001 emissions, which does not require 

changing the text of Section 14.5-.28, Appendix A and which does not trigger the Consumer Price Index adjustment. 

This emissions fee rate will be noted in footnote 1 to Section i 4.5~28, Appendix A. 

SECTION 12. That the Code of Shelby County, Section 14.5-28, EMISSIONS FEE FOR STATIONARY 

SOURCES, be amended by replacing the word "hasn in the first sentence of the Section 14.5-28 with the word "emits" 

so that the sentence shall read as follows: 

A fee shall be collected from each Stationary air pollution source which emitS more than one ton cif actual emissions 

annually of a regulated pollutant as defined herein, called the "emissions fee", which shall equal the amount 

determined by the requirements set forth in Appendix A of this article.· · 

SECTION 13. That Rules and Regulations ofTennessee Chapters1 1200-3-2, titled Definitions; 1200-3-3, 

titled Ambient Air Quality Regulations; 1200-3-5, titled Visible Emissions: 1200-3-6, titled Nonprocess Emission 

Standards; 1200-3-7, titled Process Emissions Standards; 1200-3-9, titled Construction and Operating Permits: Chapter 

1200-3-10, titled Required Sampling, Recording and Reporting; 1200-3-11, titled Hazardous Air Contaminants; 1200-

3-12, titled Methods of Sampling and Analysis; 1200-3-14,-titled Control of Sulphur Dioxide Emissions: Chapter 1200-

~5, titled Emergency Episode Plan: 1200-3-1·8, titled Volatile Organic Comoounds; 1200-3-20, titled Limits on 

Emissions due to Malfunctions, Startups and Shutdowns; 1200-3-21, titled General Alternate Emission Standards; 

1200-3-22, titled Lead Emission Standards; 1200'-3-24, titled Good Engineering Practices Stack Height Regulations; 

1200-3-25, titled Standards for Infectious Waste Incinerators; 1200-3-30, titled Acid Precipitation Standard; 1200-3-31, 

titled National Einiss!on Semdards for Hazardous Air PoUutairts for Source Categories: and, 1200-3-32, titled 

Prevention of Accidental Releases: T.C.A, §68-201-101 through §68-201-J/8, as effective on Decembei- 31, -2000; 

Chapter 1200-3-34, titled Conformity. as effective on .November· 14, .2001; .and, the New Source Perfonnance 

Standards (with the exception of Subparts B,-C, Cb, Cc, Cd, Ce, AAA) and Appendices A, Band F of the Code of 

Federal Regulations (CFR), Title 40, Part 60 (Revised as of July 1, 200 I) , are incorporated herein by reference as if set 

8 
out in their entirety and shall be adopted and approved as part of the Shelby County Air Pollution Code, thereby 

amending the Shelby County Air Code. 

SECTION 14. SEVERABfi.,ITY. The provisions of this ordinance are hereby declared to be 

severable. Sho:tlld any of these sections, provisions, sentences, clauses, phrases, words, or parts be held unconstitutional 

or void, the remaining portions shall contiitue in full force and effect 

SECTION 15. BE IT FURTHER ORDAINED, That. exiiept as amended by this Ordinance, the 

Shelby County Air Code and Chapter 14.5 of the. Code of Shelby .County shall remain in full force and effect as 

previously adopted. - · 

SECTION 16. BE IT FURTHER ORDAINED, Th!!t lhil OWmi!llce s 

aftr.r tile date i · sbmll have b-~~ eneded.11cwrdfug to dne pro!X!SS of law, Ifill public wclf:m: -n"'""''""" 

ty Commission 

· 

Shelby County Mayor 

First Reading JUNE 17. 2002 

Second Reading JULY 8, 2002 

Adopted 

Third Reading: SEPTEMBER 9. 2002 

1 NOT!!: RULES INCORPORATED BY REFERENCE HEREIN FD..ED WITH tHE RECORD IN TilE OFFICE OF THE ~ OF THE 

COJJNTI COMMISSION AS REQUIR.ED BY T.CA.. §68-201-1 IS. 

9