Item# 36 Prepared By -- ----------------

Commissioner BOLTON Approved By -------------------- County Attorney 

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/Shelby County Health Department, 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 

efficiently meet the needs of those regulated by air pollution control laws; and 

WHEREAS, The Memphis and Shelby County Air Pollution Control Board pursuant 

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 

Health Department; and 

WHEREAS, The Memphis and Shelby County Air Pollution Control Board currently 

consists of seven members, which if increased to nine members, would better enable 

the attendance of a quorum at meetings of the Board; and 

~EREAS, The interests of Shelby County and the City of Memphis are 

represented by the joint appointment of the current seven members of the Memphis and 

Shelby County Air Pollution Control Board by the Mayor of the City of Memphis and 

the Mayor of Shelby County and confirmed by both the Memphis City Council and the 

Shelby County Board of Commissioners, which if increased to eight of nine members 

would present better balance and easier confirmation of the members; 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 

air pollution control matters; 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 

stay of the decision in question pending final Board action; 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; 

a...-.d 

WHEREAS, The Board of 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 Board of County Commissioners wishes to retain the same annual 

per ton emission fee for calendar year 1999; and 

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

newsp er having general circulation in Shelby County, Tennessee, a date of public 

hearing on adoption of such proposed changes and a statement of availability of the 

proposed changes in his office and open for public inspection for a period of at 

l east thirty (30) days prior to the adoption of any ordinance; 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 adopted by 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, titled Process 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, titled Lead Emission Standards; Chapter 1200-

3-24, titled Good Engineering Practices Stack Height 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 

Prevention of Accidental Releases. 

NOW I THEREFORE I 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. Any member of the Board who has any conflict 

of interest or potential conflict of interest shall make adequate 

disclosure of it and abstain from matters related to it. 

<jl 

(l} Eight (8) members of the Board are to be appointed jointly by 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: One professional engineer knowledgeable in the field of 

air pollution control, one physician licensed to practice in 

Tennessee, one attorney licensed to practice law in Tennessee, one 

member of academia, a representative of industry at large, and 

such other citizen members as may be appointed, except that 

industry. may have no more 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 

Millington and is to be a citizen of 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 vacancy occurs, the vacancy shall be filled for the unexpired 

term in the same manner as the original appointment. Should the term of 

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any Board member expire without a replacement member being appointed, 

the existing member shall continue to hold the Board membership until 

such appointment or reappointment 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 in A. and B. 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 the paragraph shall read: 

date of 

(e) of 

(e) Any person seeking a variance from the provisions of this Chapter 

or any 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 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 give notice thereof by mail 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 amended the paragraph shall 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 on the return date specified in the formal notice 

of complaint, the Board shall issue and enter such final 

order or make such final determination as it shall deem 

appropriate not later than sixty (60) days after the hearing 

date, and shall immediately notify the respondent thereof, 

in writing, by certified mail. Such order or determination 

shall be approved by at least a majority of members to which 

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. , 

show an 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 rate will be noted in footnote 1 

to Section 14.5-28, Appendix A. 

SECTION 4. That the Air Pollution Code of Shelby County, Section 14.5-28, 

EMISSIONS FEE FOR STATIONARY SOURCES, APPENDIX A (EMISSION FEE RATE), paragraph b., 

be amended to read as follows: 

b. 

• 

If no adjustment in the emissions fee rate established for any calendar 

year after 1992 is made by the County Commission, the fee shall be 

increased by the percentage, if any, by which the Consumer Price Index 

for the most recent calendar year preceding the unadjusted year exceeds 

the Consumer Price Index for the calendar year two years prior to the 

unadjusted year. This rate amount shall then reflect a one-year Consumer 

Price Index Adjustment. For purposes of this ordinance, the Consumer 
Price 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 Index for 1989 shall be used. 

SECTION 5. That Tennessee Chapters• 1200-3-2, titled Definitions; 1200-3-3·, 

titled Ambient Air Quality Regulations; 1200-3-5, titled Visible 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, titled Volatile Organic Compounds; 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 

Standarg; 1200-3-31, titled National 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 

Ordinance No. 203 adopted August 24, 1998. 

SECTION 6 • BE IT FURTHER ORDAINED 1 That except as amended by this 

Ordinance, the Shelby County Air Pollution Code shall remain in full force and 

effect as previously adopted. 

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, the public welfare requiring same. 

First Reading May 14, 

Seconp. Reading June 4, 

Adopted 

Third Reading: July 30, 

2001 

2001 

2001 

Jl.c)u 

Ccnmty Jl~y 

D a._. · f2,£---f/+-o__,_i ~ 

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. 

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