Item# 36 PreparedBy



### -- **-- --** **---- --** **-- --** **--** Commissioner BOLTON ApprovedBy-------------------- CountyAttorney 

### ORDINANCE NO: 241 ORDINANCE BY THE BOARD OF COMMISSIONERS FOR SHELBY COUNTY, TENNESSEE, TO AMEND THE SHELBY COUNTY AIR POLLUTION CONTROL CODE TO ADD ADDITIONAL BOARD MEMBERS; TO AMEND APPELLATE TIME FRAME SO AS TO MINIMIZE THE EFFECT OF DELAYED COMPLIANCE ON THE HEALTH AND WELFARE OF THE PUBLIC; TO RETAIN THE SAME ANNUAL EMISSION FEE AMOUNT FOR CALENDAR YEAR 1999; TO AMEND AN EMISSION FEE ADJUSTMENT FACTOR; AND, TO UPDATE VARIOUS AIR POLLUTION CONTROL CODE TECHNICAL REQUIREMENTS
WHEREAS, The operation of a local air pollution control program by the Memphis/ShelbyCountyHealthDepartment, which was established in the Shelby County
Air Pollution Code, adopted on June 30, 1969 by the Shelby County Quarterly Court,
and as amended, has served to protect the air quality in Shelby County and efficientlymeet theneeds of thoseregulatedbyairpollutioncontrol laws; and 

### WHEREAS, The Memphis and Shelby CountyAir Pollution Control Boardpursuant

to Section 3-35 of the Shelby County Air Pollution Control Code is the appellate authority for air pollution control actions taken by the Memphis and Shelby County HealthDepartment; and 

### WHEREAS, TheMemphis andShelbyCountyAir Pollution Control Board currently consists of seven members, which if increased to nine members, would better enable
the attendanceof a quorumatmeetingsof theBoard; and

**~EREAS,** The interests of Shelby County and the City of Memphis are representedbythejointappointment of the current sevenmembers of theMemphis and Shelby CountyAir Pollution Control Boardby the Mayor of the City of Memphis and
the Mayor of Shelby County and confirmedbyboth the Memphis City Council and the Shelby County Board of Commissioners, which if increased to eight of nine members wouldpresentbetterbalance and easier confirmationof themembers; and WHEREAS, An additional ninth member on the Memphis and Shelby County Air Pollution Control Board would provide representation of the interests of the six municipalities in Shelby County also subject to Health Department jurisdiction in
airpollutioncontrolmatters; and WHEREAS, Amendment of the appellate timeframe will minimize the effect of delayed compliance on the health and welfare of the public during the period of a stayof thedecisioninquestionpending finalBoardaction; and WHEREAS, TitleVof the CleanAirAct of 1990 requiresAir PollutionControl Programs thatwishto operate a major sourceoperatingpermitprogramto establisha fee structure sufficient to fund the direct and indirect costs of such a program; 

### a...-.d WHEREAS, The Boardof County Commissioners for Shelby County has previously

**est~blished** a fee system to collect and administer emissions fees and annual inspection/operating fees which have been adopted by reference in the other municipalities of Shelby
.County; and WHEREAS, The Boardof County Commissioners wishes to retain the same annual
pertonemissionfee for calendaryear 1999; and 

### WHEREAS, The Clerk of the County Commissionhas caused to bepublished in a

**newsp er**  having general circulation in Shelby County, Tennessee, a date of public hearing on adoption of suchproposed changes and a statement of availabilityof the proposed changes in his office and open for public inspection for a period of at
least thirty (30) daysprior tothe adoptionof anyordinance; and· WHEREAS, An adjustment factor in the air pollution control code is used to

### set the emission fee rate when new fee rates are not set by the Board of County Commissioners; and 

### WHEREAS, The Memphis and Shelby County Health Department has enacted air pollution control regulations not less stringent than standards adoptedby the state pursuant to Chapter 68-201, Part 1; and 

### WHEREAS, Maintaining up to date technical standards promulgated by the Tennessee Department of Environment and Conservation (Tennessee) for the control of air pollution prevents the need for state control of Shelby County air pollution sources subject to these controls, specifically those provisions found in Chapter 1200-3-2, titled Definitions; Chapter 1200-3-3, titled Affibient Air Quality Regulations; Chapter 1200-3-5, titled Visible Emissions; Chapter 1200-3-6, titled Nonprocess Emission Standards; Chapter 1200-3-7, titledProcess Emissions Standards; Chapter 1200-3-9, titled Construction and Operating Permits; Chapter 1200-3-10, titled Required Sampling. Recording and Reporting; Chapter 1200-3-11, titled Hazardous Air Contaminants; Chapter 1200-3-12, titled Methods of Sampling and Analysis; Chapter 1200-3-14, titled Control of Sulphur Dioxide Emissions; Chapter 1200-3-16, titled New Source Performance Standards; 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 1200-3-22, titledLead Emission Standards; Chapter 1200- 3-24, titledGood Engineering Practices StackHeight Regulations; Chapter 1200-3-25, titled Standards for Infectious Waste Incinerators; Chapter 1200-3-30, titled Acid Precipitation Standard; Chapter 1200-3-31, titled National Emission Standards for Hazardous Air Pollutants for Source Categories; and, Chapter 1200-3-32, titled PreventionofAccidental Releases. 

### NOWI 

### THEREFOREI 

### BE IT ORDAINED BY THE COMMISSIONERS OF SHELBY COUNTY, TENNESSEE: BOARD OF COUNTY
SECTION

**~.** 

### That the Air Pollution Code of Shelby County, Section 3-35, CREATED; MEMBERSHIP; TERMS OF OFFICE; JURISDICTION HEARINGS; APPEALS, be amended by replacing existing paragraphs (a) and (b) with new paragraphs (a) and (b) as follows: (a) There is hereby created the Memphis and Shelby County Air Pollution Control Board, hereinafter referred to as " the Board" to be coroposed of nine members to be appointed as described in (1) and (2) below. No member of the Board shall hold any elective office or receive any governmental salary except as a member of the faculty or staff of a school in the Tennessee education system. Otherwise, all members shall serve without coropensation. Anymember of theBoardwho has anyconflict of interest or potential conflict of interest shall make adequate disclosure of itandabstain frommatters related to it.



## <jl (l} Eight (8) members of the Board are to be appointedjointlyby the Mayor of the City of Merophis and the Mayor of Shelby County and confirmed by both the Memphis City Council and the Shelby County Board of Commissioners. These eight members shall consist of the following: Oneprofessional engineerknowledgeable in the field of air pollution control, one physician licensed to practice in Tennessee, one attorneylicensedtopractice law inTennessee, one member of academia, a representative of industry at large, and such other citizen members as may be appointed, except that industry.mayhavenomore than two repres.entatives. (2) One member of the Board is to be appointed by the Executive Committee of the Memphis Area Association of Governments. This member is to be a representative for the municipalities of Arlington, Bartlett, Collierville, Germantown, Lakeland, and Millingtonandis tobe a citizenof one of these communities. The terms of the members shall be four years except that of

.the initially appointed members, of which three shall serve for four years, two shall serve for three years, two shall serve for two years and two shall serve for one year as designated at the time of appointment. Whenever a vacancyoccurs, the vacancyshallbe filled for theunexpired term in the same manner as the original appointment. Should the term of



### 2any Board member expire without a replacement member being appointed, the existing member shall continue to hold the Board membership until suchappointment orreappointment occurs. 

### SECTION 2. That the Air Pollution Code of Shelby County, Section 

### 3-35, CREATED; MEMBERSHIP; TERMS OF OFFICE; JURISDICTION HEARINGS; APPEALS, be amended as described inA. andB. below:
A Inserting the words "

...not more than sixty (60) days after the filing of the appeal..." into the last sentence of paragraph Section

### 3-35 so that as amended theparagraph shall read: date of (e) of
(e) Anyperson seeking a variance from the provisions of this Chapter or anyperson 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 of time 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, ruling, requirement, rule, 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 act as a stay of the decision, ruling, requirement, rule, ·regulation or order in question until the Board has taken final action on the appeal, except when the Health Director has acted under Section 16-59, "Emergency Order." 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 and shall givenotice thereof bymail to the interested parties. B. Inserting the words "

...not later than sixty (60) days after the hearing date"." into the first sentence of subparagraph (f)(5) of Section 3-35 so that as amendedtheparagraphshall read: (f) Hearings before the Board shall be conducted in the following manner: (5} After due consideration of the written and oral statements, the testimony and arguments submitted at the hearing upon such complaint, or, upon default in appearance of the respondent onthe returndate specifiedin the formal notice of complaint, the Board shall issue and enter such final order or make such final determination as it shall deem appropriatenot laterthan sixty (60) days after the hearing date, and shall immediately notify the respondent thereof, inwriting, by certifiedmail. Such order or determination shallbe approvedbyat least a majorityofmembers towhich the Board is entitled. 

### SECTION 

### 3. That the Air Pollution Code of Shelby County, Section 14.5-28, EMISSIONS FEE FOR STATIONARY SOURCES, APPENDIX A (EMISSION FEE RATE), paragraph a., showan annual emission fee of twenty-nine dollars and sixty-five cents ($29.65) per ton of actual emissions for calendar year 1999 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 ratewill benoted in footnote 1 to Section 14.5-28, AppendixA. 

### SECTION 4. That the Air Pollution Code of Shelby County, Section 14.5-28, EMISSIONS FEE FOR STATIONARY SOURCES, APPENDIX A (EMISSION FEE RATE), paragraphb., be amendedto readas follows: b. 

# • Ifno adjustment in the emissions fee rate established for any calendar year after 1992 is made by the County Commission, the fee shall be increasedby the percentage, if any, by which the Consumer Price Index for the most recent calendar yearpreceding the unadjusted year exceeds the Consumer Price Index for the calendar year two years prior to the unadjustedyear. This rate amount shall thenreflect a one-year Consumer Price Index Adjustment. For purposes of this ordinance, the ConsumerPrice Index 

### is the average of the Consumer Price Index for all urban consumers published by the Department of Labor, as of the close of the twelve month period ending on August 31 of each calendar year, and the rev1s1on of the Consumer Price Index which 

### is most consistent with the Consumer Price Indexfor 1989 shallbeused. 

### SECTION 5. That Tennessee Chapters• 1200-3-2, titled Definitions; 1200-3-3· , titled Ambient Air Quality Regulations; 1200-3-5, titledVisible Emissions; 1200-3- 6, titled Nonorocess 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; 1200-3-16, titled New Source Performance Standards; 1200-3-18, titledVolatile Organic Compounds; 1200-3-20, titledLimits 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 Standarg; 1200-3-31, titledNational Emission Standards for Hazardous Air Pollutants for Source Categories; and, 1200-3-32, titled Prevention of Accidental Releases; and T.C.A. §68-201-101 through §68-201-118, as effective on December 31, 2000, are incorporated herein by reference as if set out in their entirety and shall be adopted and approved as part of the Shelby County Air Pollution Code, thereby amending Shelby County Ordinance No. 159, adopted April 24, 1995 and Shelby County OrdinanceNo. 203 adoptedAugust 24, 1998. 

### SECTION 6• BE IT FURTHER ORDAINED1 That except as amended by this Ordinance, the Shelby County Air Pollution Code shall remain in full force and effect as previouslyadopted. 

### SECTION 7. BE IT FURTHER ORDAINED 1 That this Ordinance shall take effect from and after the date it shall have been enacted according to due process of law, thepublic welfare requiring same.

FirstReading May 14, Seconp.Reading June 4, Adopted ThirdReading: July 30,2001 2001

2001 Jl.c)u Ccnmty

**Jl~y**
D a. _ .



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1 NOTE: RULES INCORPORATED BY REFERENCE HEREIN FILED WITH THE RECORD IN THE OFFICE OF THE CLERK OF THE COUNTY COMMISSION AS REQUIRED BY T.C.A. §68- 201-115. 0



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