ORDINANCE 03-39 

AN ORDINANCE TO ADOPT AN AIR POLWTION CONTROL 

CODE FOR THE CI1Y OF LAKELAND 

WHEREAS, It is the declared public policy of this municipality to maintain purity of the air resources of the 

municipality 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 this municipality 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 quali~' 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 County Air Pollution Code, first adopted on June 30, 1969 by the 

Shelby County Quarterly Court, and subsequently adopted by the City of Lakeland and has served to protect the air 

quality in the City of Lakeland and efficiently meet the needs of those regulated by air pollution control laws; and 

WHEREAS, In order to maintain the Certificate of Exemption granted by the Tennessee Air Pollution Control 

Board to the local air pollution control program it is necessary to adopt regulations no less stringent than state 

standards; and 

WHEREAS, The City of Lakeland desires to enact air pollution control regulations not less stringent than 

standards adopted by the state pursuant to Chapter 68-20 I . Part I; 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 Mayor and Aldermen has previously established a fee system to collect and administer 

emissions fees and annual inspection/operating fees which has also been adopted in the other municipalities of Shelby 

County; and 

WHEREAS, the Board of Mayor and Aldermen wishes to retain the same annual $29.65 per ton emission fee without 

Consumer Price Index adjustment for emissions beginning with calendar year 1995; and 

WHEREAS, Tennessee Code Annotated §68-201-1 /5{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 and examination for a period of thirty 

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

0 WHEREAS. such ordinance or resolution incorporating regulations by reference shall become effective only after 

publication in a newspaper having a general circulation in the county; and 

WHEREAS, the Memphis and Shelby County Health Department has caused to be published in a newspaper having 

general circulation in Memphis and Shelby County, Tennessee, notice of the availability for public 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 June 17, 2002, was the date of public hearing on adoption of such 

ordinance: 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 the City of Lakeland 

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 

1200-3-3, 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 Sulfur Dimdde 

Emissions: Chapter 1200-3-15, titled Emergency Episode Plan: 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 N.r Pollutants for 

Source Categories: Chapter 1200-3-32, titled Prevention of Accidental Releases; Chapter 1200-3-34. titled 

Conformitv: and the New Source Performance Standards (with the exception of Subparts B. C, Cb, Cc, Cd, Ce, AAN 

of the Code of federal Regulations, Title 40, Part 60 (40 CFR 60) (Revised as of July 1, 2002), and Appendices A B 

and f of 40 CFR 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 ORDAINED BY THE BOARD OF COMMISSIONERS OF THE CI1Y OF 

LAKELAND, that the air pollution control ordinance in Title 20, Chapter 1, Sections 20-1 01, 20-1 02, and 20-

103 of the Lakeland Municipal Code, codified November 7, 2002, be, and hereby is, amended as herein set forth. 

Section 1. That Sections 20-101, 20-102. and 20-103 of the Lakeland Municipal Code of Ordinances are 

hereby repealed in their entirety. 

Section 2. That Title 20, Chapter 1 shall be the "CI1Y OF LAREI.AND, TENNESSEE--AIR 

POLWTION CONTROL CODE" and shall be titled the same. 

Section 3. That the following shall be adopted as Title 20, Chapter 1 , Section 20-1 (1) and shall be titled 

Words and Phrases Substituted in State Regulations Adopted by Reference: 

(1) for the purpose of enforcement of the City of Lakeland, Tennessee--Air Pollution Control Code, the 

following shall apply: 

(a) Wherever the terms Air Pollution Control Board of the State of Tennessee, Tennessee Air Pollution 

Control Board, or Board appear, they shall be replaced by Memphis and Shelby County Air Pollution 

Control with the foflbwing exceptions: 

1. 

2. 

3. 

4. 

5. 

20-1 <t 09) 

20-1007) 

20-1,:1 06) 

20-1 :114) 

20-1:11 1) 

1200-3-9-.04 

1200-3-7-.06 

1200-3- 6-.01 

1200-3-14-.01 (l)(a), and 

1200-3-11-.01(1) 

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(b) 'Wherever the tenns Tennessee, State of Tennessee, or State appear. they shall be replaced by City of 

Lakeland with the following exceptions: 

1. 

2. 

3. 

4. 

20-1(109) 

20-1(114) 

1200-3-9-.04 

1200-3-14-.01 (l)(a) 

When referring to Tennessee Code Annotated, and 

When referring to the Tennessee Air Quality Act 

(c) Wherever the tenns Technical Secretary of the Tennessee Air Pollution Control Board. Technical 

Secretary, or Secretary appear, they shall be replaced by Health Officer except in subparagraphs 20-

1 (5)(e)(2)(a) and (b) for the purposes of Tennessee Code Annotated §68-201-116(b)(1). 

(d) Wherever the tenns "Department of Environment and Conservation of the State of Tennessee". 

"Tennessee Department of Environment and Conservation". or "Department" appear, they shall be 

replaced by "Memphis and Shelby County Health Department". 

(e) Wherever the tenns Tennessee Air Pollution Control Division of Air Pollution Control, or Division 

appear, they shall be replaced by Memphis and Shelby County Health Department, Air Pollution Control 

Section. 

(f) Wherever the terms Tennessee Air Pollution Control Regulations or Regulations appear, they shall be 

replaced by City of Lakeland, Tennessee--Air Pollution Control Code. · 

(g) Wherever the term Nashville Office appears, it shall be replaced by Memphis and Shelby County Health 

Department. 

(h) Wherever the tenn "State Civil Defense" appears. it shall be replaced by "Memphis and Shelby County 

Emergency Management Agency". 

(i) Wherever the tenns "Chapter 1200-3-26". "Rule 1200-3-26-.02"' or other citations involving "1200-3-

26" appear, they shall be replaced by "Sections 20-1(11) through (21 )". 

Section 4. That the following shall be adopted as Title 20. Chapter 6. Section 20-1(2) and shall be titled 

Open Burning: 

·(a) 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 burning of tires and other rubber products, vinyl shingles and siding, 

other plastics, asphalt shingles and other asphalt roofing 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 

Section 20-1 (2). 

(b) Open burning as listed bel~ may be conducted without pennit subject to fire department approval and provided 

further that no public nuisance is or will be created by the open burning. 

(1) 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. 

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(2) fires set for the training and instruction of firemen or for research in fire protection or prevention. 

However, routine demolition of structures via supervised open burning by responsible fire 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 statement. The certification must be delivered to the Pollution Control Section of the 

Memphis-Shelby County Health Department (Department) at least ten (1 0) working days prior to 

commencing the bum: 

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

(ii) All vinyl siding, carpet, vinyl flooring, asphalt roofing materials, and any other materials expressly 

prohibited in subsection 20-1 (2)(a}, have been removed. 

(iii) All regulated asbestos containing materials have been removed in accordance with Section 20-

1(111) [Reference 1200-3-11-.02(2)(d)3.(x)]. 

(iv) A traffic hazard will not be caused by the air contaminants generated by the fire training. 

(v) A public nuisance will not be created by the open burning. 

(3) Smokeless flares or safety flares for the combustion of waste gases provided other applicable paragraphs 

of this section are met. 

(4) Resenred. 

(5) fire used for carrying out recognized agricultural procedures necessary for the production or hanresting of 

crops or for the control of diseases or pests, in accordance with practices acceptable to the Department. 

(6) fires for the burning of bodies of dead animals, including poultry, where no other safe and/or practical 

disposal method exists. 

(c) Exceptions to paragraph (a) may be permitted for vegetation if all of the following conditions are met when an air 

curtain destructor is used: 

(l) A request is filed with the 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 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 

notification must be delivered to the Department at least ten (1 0) working days prior to commencing the 

change in the bum. 

(2) The person applying for the permit certifies, by written statement, compliance with following distance 

requirements, at a minimum: 

0 

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

State highway; and 

(ii} The open burning site must be at least one thousand (1 ,000} feet from any school. national or state 

park. national resenration, national or state forest, wildlife area, and/or residence not on the same 

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property as the air curtain destructor; and 

(iii) The open burning site must be at least one-half 0/2) mile from any airport, nursing home or 

hospital. 

(3) The plume from the air curtain destructor must meet the visible emission standards specified in Section 20-

l(lOS) [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. 

(4) 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. 

(S) 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. Permittee is required to contact the Department's 

Computerized Local Air Index Reporting system (CLAIR) recorded line at (901) 5447489 or 544-7490 

before igniting a fire to determine if it is a Burning Day or a No-Burning Day. 

(6) Approval is received from the Health Officer in writing. 

(7) Permission is secured from the fire department in the jurisdiction involved 

(8) The burning will be done between the hours of 9:00 am and 4:00 pm or as authorized by the health 

officer. 

This approval will not relieve the person responsible for such burning from the consequences of any damages, 

injuries, or claims resulting from such burning. 

(d) Definitions. 

(1) "Air Curtain Destructor" is a portable or stationary combustion device that directs a plane of high velocity 

forced draft 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. 

(2) "Air Pollution Emergency Episode" is defined as 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. 

(3) "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, flooding, and earthquakes. 

0 

(4) "Open Burning" is the burning of any matter under such conditions that products of combustion are 

emitted directly into the open atmosphere without passing directly through 'll stack:· - - - - · 

(S) "Person" is any individual, partnership, co-partnership, firm, company, corporation, association, joint 

stock company, trust, estate, political subdivision, an agency, authority, commission, or department of the 

United States government, or of the State of Tennessee government; or any other legal entity, or its legal 

5 
representative, agent, or assigns. 

(e) Burning after natural disasters. 

0) Open burning of materials resulting from a natural disaster, and when conducted in conformity vMh the 

following conditions, may be permitted: 

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

those structures or materials are destroyed or severely damaged by natural disaster. Input from 

Emergency Management personnel may be requested in determining qualification 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 

remove all expressly 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, landfilling, or on-site burial of waste in lieu of 

burning, if lawful. is encouraged. 

(ii) 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 location. The notification must be delivered to the 

Department at least three (3) days prior to commencing the bum. The Department may request 

that alternate sites be identified to minimize impact to air quality. The alternative use of 

chippers and grinders in lieu of burning is encouraged. 

(iii) A traffic hazard shall not be caused by the air contaminants generated by the fire. 

(iv) 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 system (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. 

(v) Open burning conducted under this exception is only allowed where no other safe and/or 

practical means of disposal is available. 

(2) 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 

public nuisance or safety hazard, create a potential safety hazard, or interfere with the attainment or 

maintenance of the air quality standards. 

(3) Any exception to the open burning prohibition granted by this Section does not relieve any person of the 

responsibility to obtain a permit required by any other agency, or of complying with other applicable 

requirements, ordinances, or restrictions. [Particular attention is directed to TCA. §39-14-306. which 

prohibits open air fires between October 15 and May 15 within five hundred (500) feet of any forest, 

grasslands or wof!tllands without first securing a permit from the State forester in unincorporated 

portions of Shelby County.] 

Section 5. That the following shall be adopted as Title 20, Chapter 6, Section 20-1 (3) and shall be titled 

Severability of Parts of Articles: 

6 
The provisions of this Air Pollution Control Code are hereby declared to be severable, and if any sections. provisions, clauses, or 

parts be held unconstitutional or void, then the remainder of this Air Pollution Control Code shall continue in full force and 

effect, it being the legislative intent that this Air Pollution Control Code would have been adopted even if such unconstitutional or 

void matter had not been included therein. 

Section 6. That the following shall be adopted as Title 20, Chapter 6, Section 20-1 ( 4) and shall be titled 

Enforcement - Violations of Chapter - Notice: Citation: Injunctive Relief: 

(a) Whenever evidence has been obtained or received establishing that a violation of this code has been committed. the 

Health Officer shall issue a notice to correct the violation or a citation to cease the violation. Such notice or 

citation shall briefly set forth the general nature of the violation and specify a reasonable time within which the 

violation shall be rectified or stopped. If the violation is not corrected within the time so specified, or the violation 

stopped, or reasonable steps taken to rectify the violation, the Health Officer shall have the power and authority to 

issue an order requiring the violator to cease or suspend operation of the facility causing the violation until the 

violation has been corrected, or initiate proceedings to prosecute the violator for violation of this code. 

(b) In the event any person fails to comply \\~th a cease or suspend operation order, that is not subject to a stay pending 

administrative or judicial review, the Health Officer shall institute proceedings in a court of competent jurisdiction for 

injunctive relief to enforce the regulations or orders pursuant hereto. 

Section 7. That the following shall be adopted as Title 20, Chapter 6, Section 20-1(5) and shall be titled 

Enforcement Penalties- Misdemeanor. Civil. and Noncompliance: 

(a) failure to comply with any of the provisions of the City of Lakeland, Tennessee--Air Pollution Control Code shall 

constitute a violation thereof and shall s~bject the person or persons responsible therefore to any and all of the 

penalties provided by law. 

(b) The Memphis-Shelby County Health Department in conjunction 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) Violates or fails to comply with any provision of the City of Lakeland, Tennessee--Air Pollution Control 

Code, any board or administrative order or any permit condition; 

(2) Makes any false material statement, representation, or certification in any record, report, plan or other 

document required by permit to be either filed or maintained; 

(3) falsifies, tampers with, renders inaccurate or fails to install any monitoring device or method required to be 

maintained or followed; or 

(4) fails to pay a fee commits a Class C misdemeanor pursuant to the Tennessee Code Armotated with the fine 

not to exceed ten ljlousand dollars ($1 0.000) per day per violation. for the purpose of this section, each day 

of continued violation constitutes a separate offense and is punishable as such. 

No warrant, presentment or indictment arising under subsection 20-1 (5)(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. CA. §68-20 I-I I 5. for a violation within its jurisdiction. 

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(c) Willful and knowing violation of any provision of the City of Lakeland, Tennessee--Air Pollution Control Code is 

declared to be a misdemeanor, and each day of violation shall constitute a separate offense. Conviction of a 

misdemeanor is punishable with the fine not to exceed ten thousand dollars ($1 0,000) per day per violation or v.~th 

imprisonment not greater than thirty (30) days, or both. 

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

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

Tennessee--Air Pollution Control Code, any permit condition, or any order has been violated, and whether or not 

such violation constitutes 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 the general law relating to the abatement of 

public nuisances. 

(e) Orders and Assessments of Damages and Civil Penalties and Appeals 

(1) \Vhen the Health Officer discovers that any provision of the City of Lakeland, Tennessee--Air Pollution 

Control Code has been violated, the Health Officer may issue an order for correction to the responsible 

person. and this order shall be complied v.~th v.~thin the time limit specified in the order. Such order shall 

be served by personal service or sent by certified mail. return receipt requested. The recipient of such an 

order may appeal in the same manner as with an assessment of damages or civil penalty under paragraph 

(2) 

(2). 

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

with any provision of the City of Lakeland, Tennessee--Air Pollution Control Code or any 

standard adopted pursuant thereto in a permit, shall be subject to a civil penalty of up to twentyfive thousand dollars ($25,000) per day for each day of violation. Any person against whom an 

assessment in excess of ten thousand dollars ($1 0,000) 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 TCA. §68-201-116. 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 section. 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) Any civil penalty or damages shall be assessed in the following manner: 

The Health Officer on behalf of the Memphis-Shelby County Health Department 

operating under a certificate of exemption pursuant to TCA. §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 mail. return receipt 

requested; 

2. Any person against 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 

af 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 

object-ions and requesting 0; 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 

8 
assessment and it shall become final. 

(c) In assessing such civil penalty, the factors specified in T. CA. §68-20 1-106 and Title 42 

U.S.C. §7413 and §7420 may be considered. Damages to the state or to the City of Lakeland 

may include any expenses incurred in investigating the enforcing of this section; in removing, 

correcting, or terminating the effects 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 financial inability to prevent, abate or 

control pollution by the polluter or violator shall not be a valid defense to liability for violations 

of the provisions of the City of Lakeland, Tennessee--Air Pollution Control Code. 

(d) The issuance of an order or assessment of ch~l penalty by the Memphis-Shelby County Health 

Department operating under a certificate of exemption as provided for in this section is intended 

to provide additional and cumulative 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 Conservation. 

(e) 'Whenever any order or assessment under this section has 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 if the final order or assessment is from the Memphis-Shelby 

County Health Department. 

Section 8. 

Enforcement · Variances 

2. When filed in accordance with clause (e) 1.. 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 judgment shall be promptly entered by the court. Except 

as otherwise provided in this section, 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 clause (e)2 .. any citizen of 

the City of Lakeland shall have the right to intervene on the ground that the penalties 

or remedies provided are inadequate or are based on erroneous findings of facts. 

Upon receipt of a timely motion to intervene, the court shall determine whether it is 

duplicitous or frivolous, and shall notify the movant and the parties of its 

determination. If the motion is determined not to be duplicitous or frivolous. all 

parties shall be considered to have sought review of the final order or assessment, and 

the court shall proceed in accordance with T. CA. §4-D-322. If no timely motion to 

intervene is filed. or if any such motion is determined to be duplicitous or frivolous, 

the judgment shall become final forty-five (45) days after the date of entry. 

4 A final judgment under this subparagraph has the same effect, is subject to the same 

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

dudgment of a court of record of this state. 

That the following shall be adopted as Title 20, Chapter 6, Section 20-1 (6) and shall be titled 

(a) Any person who owns or is in control of any plant, building, structure. establishment, process or equipment 

including a group of persons who own or control like processes or like equipment may apply to the Air Pollution 

9 
Control Hearing Board, hereinafter referred to as "the Board", for a variance from rules or regulations governing 

the quality, nature, duration or extent of discharge of air contaminants. The application for a variance shall include 

information and data sufficient for the Board to make the findings required below. The hearing held hereunder 

shall be conducted in accordance with the rules of evidence as set forth in subsection 20-1 (8)(f) of the City of 

Lakeland, Tennessee--Air Pollution Control 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. §68-20 1-115 if it 

finds that: 

The 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 \\~th the rules or regulations from which variance is sought would produce serious hardship 

\\~thout equal or greater benefits 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. 

(b) No variance shall be granted or denied pursuant to this section until the Board has considered the relative interests 

of the applicant, other owners of property likely to be affected by the discharges, and others who may be affected by 

granting or denying a request for variance. 

(c) Any variance or renewal thereof shall be granted \\~thin the requirements of subsection (a) for time periods and 

under conditions consistent with the reasons therefore, and \\~th the following limitations: 

If the variance is granted on the grounds that there is no practicable means known or available for the 

adequate prevention, abatement, or control of the air pollution involved, the variance shall be permitted 

only until the necessary means for prevention, 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 

prescribe. 

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

from whicl1 variance is sought will necessitate the taking of measures which, because of their extent or 

cost, must be spread over a considerable 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 variance 

granted on the ground specified herein shall contain a timetable for the taking of action in an expeditious 

manner and shall be conditioned on adherence to such timetable and submittal of proof that such 

timetable is being met. 

3 Any variance or renewal granted shall be for a time period not to exceed one 0) year 

(d) Any variance granted pursuant to this section may be renewed by the Air Pollution Control Hearing Board on terms 

and conditions and for periods which would be appropriate on initial 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 granted, unless, following public hearing on the complaint, the Board finds 

that renewal is justified. No renewal shall be granted except on application therefore. Any such application shall be 

made at least sixty (60) days prior to the expiration of the variance. Immediately upon a receipt of an application 

for renewal, the Board shaU,give public notice of such application in accordance with rules and regulations of the 

Board. 

(e) A variance or renewal shall not be a right of the applicant or holder thereof, but shall be in the discretion of the 

Board. However, any applicant adversely affected by the denial or the terms and conditions of the granting of an 

10 
application for a variance or renewal of a variance by the Board may obtain judicial review thereof only in a court 

of competent jurisdiction. 

(f) Nothing in this section and no variance or renewal granted pursuant hereto shall be construed to prevent or limit 

the application of the emergency provisions and procedures of Sections 20-1 (7) and 20-1 (115) [Reference 1200-3-

15] to any person or his property. 

Section 9. That the following shall be adopted as Title 20. Chapter 6, Section 20-1 (7) and shall be titled 

Enforcement - Emergency Powers of Health Officer: 

(a) Any other provisions of the law notwithstanding, if the Health Officer finds that a generalized condition of air pollution 

exists and that it creates an emergency requiring immediate action to protect human health or safety, the Health Officer 

shall order persons causing or contributing to the air pollution to reduce or discontinue immediately the emission of air 

contaminants. Upon issuance of any such order, the Health Officer shall fix a place and time. not later than twenty-four 

(24) hours thereafter, for a hearing to be held before the Air Pollution Control Hearing Board. Such hearing shall be 

held in conformity with the provisions of Section 20-1 (8), insofar as applicable. Not more than twenty-four (24) hours 

after the commencement of such hearing, and without adjournment thereof. the Air Pollution Control Hearing Board 

shall affirm. modify or set aside the order of the Health Officer. 

(b) In the absence of a generalized condition of air pollution of the type referred to in subsection (a) of this section. but if 

the Health Officer finds that emissions from the operation of one or more air contaminant sources is causing imminent 

danger to human health or safety, he may order the person responsible for the operation in question to reduce or 

discontinue operations immediately, without regard to the provisions of this Chapter. In such event, the requirements 

for hearing and affirmance, modification or setting aside of orders set forth in subsection (a) of this section shall apply. 

Section 10. That the following shall be adopted as Title 20. Chapter 6. Section 20-1 (8) and shall be titled 

Air Pollution Control Hearing Board- Created: Membership: Term of Office: Jurisdiction: Hearings: Appeals: 

(a) There is hereby created the Memphis and Shelby County Air Pollution Control Board, hereinafter referred to as 

"the Board" to be composed 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 compensation. 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. 

(1) Eight (8) members of the Board are to be appointed jointly 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. 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 representatives 

(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. 

11 
(b) 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 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. 

(c) The Board shall select annually a chairman from among its members. The Board shall hold at least four regular 

meetings each year and such additional meetings as the chairman deems necessary. All hearings conducted by the 

Board shall be open to the public. The Health Director shall act as secretary to the Board and shall keep records of 

its hearings and other official actions. All hearings shall be held before not less than a majority of the Board. 

(d) The Board is hereby vested with the following jurisdiction and authority: 

(1) Grant, deny or revoke variance applications. 

(2) To decide appeals from any decisions, rulings, or determinations of the Health Director or his designated 

representative under this Air Pollution Control Code. 

(3) To hear appeals arising from the failure of the Health Director or his designated representative to act 

within a reasonable period on complaints under this Air Pollution Control Code. 

(e) 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 v.~thin 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 20-1 (7), "Emergency Order" or except when an 

appeal has been filed pursuant to Section 20-1(109), Reference 1200-3-9-.05(8). 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. 

(f) 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, Tennessee giving 

the date, time, place and purpose of the hearing; and 

(2) The chairman of the Board shall act as the hearing examiner to conduct such hearing; and 

(3) Any person seeking a variance or any party who has filed a written notice of appeal pursuant to Section 

20-1(8) or SectioiJ,20-1(1 09) [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. 

(4) All testimony shall be under oath and recorded. The Board is authorized to have all testimony transcribed 

and a transcript of such testimony, if transcribed, shall be made available to the respondent or any party 

to the hearing upon payment of the normal fee, which shall not exceed the cost of transcribing such 

12 
testimony. 

(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. 

(6) Upon failure of 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 shall be on the Health Director or his duly authorized representative where appeal 

has been sought pursuant to Section 20-1 (8) or Section 20-1 (1 09). The burden of proof is on the 

applicant where a variance has been sought pursuant to Section 20-1 (6), in accordance \\1th T CA. §68-

201-118(k). 

(8) 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 CA. §27-9-1 0 I et seq. No judicial review shall be 

available until and after all administrative remedies have been exhausted. 

Section 11. That the following shall be adopted as Title 20, Chapter 6, Section 20-1 (9) and shall be titled 

Nuisance Abatement: 

A When dust, fumes, gases, mist, vapors, or any combination thereof escape from a building or equipment in such a 

manner and amount as to cause a nuisance or to violate any regulation. the Health Officer may order that the building 

or equipment in which processing, handling and storage are done be tightly closed and ventilated in such a way that all 

air and gases and air or gas-borne material leaving the building or equipment are treated by removal or destruction of 

air contaminants before discharge to the open air. 

B. No person shall cause, suffer, allow, or permit any air contaminant source to be operated without employing suitable 

measures for the control of the emission of objectionable odors. Suitable measures shall include permit limitations, 

wet scrubbers, incinerators, or such other devices as may be approved by the Health Officer. 

Section 12. That the following shall be adopted as Title 20, Chapter 6. Section 20-1 (l 0) and shall be titled 

Fugitive Dust: 

No person shall cause, suffer, allow, or permit any materials to be handled, transported. or stored; or a building, its 

appurtenances, or a road to be used, constructed, altered, repaired or demolished \\1thout taking reasonable precautions to 

prevent particulate matter from becoming airborne. Such reasonable precautions shall include, but not be limited to, the 

following: 

0) Use, where possible, water ~r chemicals for control of dust in the demolition of existing buildings or structures, 

construction operations, the grading of roads or the clearing of land; 

(2) Application of asphalt. oil. water. or suitable chemicals on material stockpiles, and other surfaces which can create 

airborne dusts; 

13 
(3) Installation and use of hoods, fans, and fabric filters to enclose and vent the handling of dusty materials. Adequate 

containment methods shall be employed during sandblasting or other similar operations. 

(4) Covering, at all times when in motion, open bodied trucks transporting materials likely to become airborne 

(5) Conduct of agricultural practices such as tilling of land. application of fertilizers, etc. in such manner as to not create a 

nuisance to others residing in the area. 

(6) The paving of roadways and their maintenance in a clean condition 

(7) The prompt removal of earth or other material from paved street which earth or other material has been 

transported thereto by trucking or earth moving equipment or erosion by water. 

Section 13. That the following shall be adopted as Title 20. Chapter 6, Section 20-1(11) and shall be titled 

Permits and Fees- Aoplicabilitv and Enforcement Authority: 

(1) The provisions of this section on Permit Fees shall apply to any person required to make application on or after July 1, 

1992. to the Memphis-Shelby County Health Department for issuance, re-issuance or modification of a permit in 

accordance ·with this Chapter and Air Pollution Control Code, and shall be subject to the fee schedule set out in 

Section 20-1(12). The provisions of this Chapter on Emissions Fees shall apply to any person holding or obtaining a 

valid air pollution permit from the Memphis and Shelby County Health Department on or after July 1 , 1992, and shall 

be subject to the fees set out in Section 20-1 (20) .. 

(2) The Memphis-Shelby County Health Department {hereinafter referred to as the Department) is designated to carry out 

and enforce the provisions of this Air Pollution Control Code and to promulgate any regulations consistent with it as 

may be required for proper administration of the fee system created herein. 

Section 14. · That the following shall be adopted as Title 20, Chapter 6, Section 20-1 (12) and shall be titled 

Permits and Fees- Permit Fee Schedule: 

Fees for permits are hereinafter set out as follows, and shall apply to any "person" as defined in this Chapter: 

(1) Construction Permits 

a. Any person making application to the Memphis-Shelby County Health Department for a construction permit 

shall pay an initial filing fee of two hundred dollars ($200.00) per permit unit. This filing fee shall not be 

refundable if the permit is denied or if the application is withdrawn, nor shall it be applied to any subsequent 

application. 

b. In addition to the fees in (1 )a. above, the largest of the following fees, if applicable, shall be paid: 

Preventi'i of significant deterioration (PSD) review. $3,000 

2. Major source or major modification review, except PSD sources review. requiring modeling. 

$2.000 

3. Minor source or minor modification review, requiring modeling. $500 

14 
4 New Source performance standard (NSPS) source re\~ew. per permit unit. $500 

5. National Emission Standard for Hazardous Air Pollutant (NESHAP) source re\~ew, per permit 

unit... ... $500 

(2) Inspection/Operating Permit 

a. Any person making application to the Memphis-Shelby County Health Department for an 

inspection/operating permit shall pay the larger of the applicable fees in accordance v.~th the follov.mg 

schedule: 

Asbestos demolition/renovation removal, per notice ...... $1 00 

2. Air Curtain destructor, per permit unit... ... $100 

3. NSPS Source, per permit unit. $1 00 

4 NESHAP source, per permit unit... ... $1 00 

5. Any permit unit with actual emissions of 1 00 tons or more a year of any single pollutant. ..... $150 

6. Any permit unit with· actual emissions of 50 tons or more a year, but less than 1 00 tons per year of 

any single pollutant... ... $1 00 

7. Any permit unit with actual emissions of 25 tons or more per year, but less than 50 tons per year 

of a single pollutant... ... $75 

8. Any permit unit with actual emissions of less than 25 tons per year of a single pollutant... ... $50 

9. Any permit issued as the result of a permit by rule or annual notification and general standards 

application to a particular business or business group ...... $100 

10. Any source issued a permit pursuant to local rules implementing Title 40. Code of federal 

Regulations. Section 70 (Major Source Permits) ...... $150.00 

b. No portion of the inspection/operating fee shall be refundable in the event the source discontinues operation 

or service during the permitted period. 

(3) Modification of a Permit 

a. Any person making application to the Memphis-Shelby County Health Department for the modification of a 

permit shall pay a fee for each permit unit being modified, except that no fee is required for modification of a 

permit to correct clzical. typographical, or calculations errors. This fee shall be set as follows: 

If the modification is anticipated to result in an increase in all pollutants less than 1 0 tons per 

year ...... $100 

2. If the modification is anticipated to result in an increase in all pollutants more than 1 0 tons per 

year, but less than 50 tons per year ...... $250 

15 
3. If the modification is anticipated to result in an increase in all pollutants more than 50 tons per 

year ...... $500 

(4) Stack Sampling 

a. If a source is required to demonstrate compliance by stack sampling its emissions, it shall pay the following 

additional fees: 

Any testing requiring US/EPA methods 1 through 4 only, per permit unit. $100 

2. Particulate emissions testing requiring US/EPA Method 5, per permit unit. $300 

3. Any other pollution testing by Methods other than US/EPA Method 5, (excepting those subject to 

subparagraph 1. immediately above), per permit unit.. .... $500 

h Any retest required to demonstrate compliance shall be subject to the fee schedule as stated in the subparts 

a.1. through a.3., immediately above. 

Section 15. That the following shall be adopted as Title 20, Chapter 6, Section 20-1(13) and shall be titled 

Permits and Fees- Emissions Fee for StationaJY Sources: 

(1) EMISSIONS fEE 

A fee shall be collected annually from each stationary air pollution source which has more than one ton of 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 as follows: 

a. Twenty-nine Dollars and Sixty-five Cents ($29.651

) per ton of emissions emitted from the source beginning 

with calendar year 1995, not including fugitive emissions and actual excess emissions that are the result of 

process malfunctions and facility start-up and shutdown determined by the Health Department to be in 

compliance with the Air Pollution Code Sections that excuse these emissions from enforCement of each 

regulated pollutant as defined in Section 502 (b)(3)(B)(ii) of the federal Clean Air Amendments of 1990. . . This is the effective emissions fee rate (after adjustment for carryover overage) approved by the City of 

Lakeland. 

APPROVED ADOPTED EFFECTIVE APPLICABLE 

RATE IN RATE TO 

$ 9.00 1992 $ 9.00 1991 EMISSIONS 

$18.00 1993 $18.00 1992 EMISSIONS 

$19.00 1994 $17.10 1993 EMISSIONS 

$29.65 0 1995 $29.65 1994 EMISSIONS 

$29.65 1995 EMISSIONS 

$29.65 1996 EMISSIONS 

$29.65 1998 $29.65 1997 EMISSIONS 

$29.65 1999 $29.65 1998 EMISSIONS 

$29.65 2001 $29.65 1999 EMISSIONS 

$29.65 2001 $29.65 2000 EMISSIONS 

16 
b. If no adjustment in the emissions fee rate established for any calendar year after 1992 is made by the County 

Commission and the Lakeland Board of Mayor and Aldermen, 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, unless the 

Shelby County Commission adopts an emissions fee rate that excludes a Consumer Price Index adjustment. 

This rate amount shall then reflect a one-year Consumer Price Index Adjustment. for purposes of this 

Chapter and Air Pollution Control Code, 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 revision of the Consumer Price Index which is 

most consistent with the Consumer Price Index for 1989 shall be used. 

c. The fee collected shall be adjusted by resolution of the Board of Shelby County Commissioners and the 

Lakeland Board of Mayor and Aldermen from time to time consistent v.~th the need to cover the costs 

authorized by the Air Pollution Control Code and in accordance with the procedures in Section 20-1 (20). 

for purposes of this Air Pollution Control Code a "stationary air pollution source" shall be that group of air 

pollution sources located v.~thin a contiguous area and under common control. 

(2) MAXIMUM AMOUNT SUBJECf TO EMISSIONS FEE 

Each stationary air pollution source shall be assessed the Emissions fee on no more than four thousand (4,000) tons 

per year of each regulated pollutant it emits. 

(3) EXEMPTION FOR UNITS SUBJECT TO SECfiON 404 PROVISIONS Of THE CLEAN AIR AMENDMEJ\'TS 

Of 1990 

No fee will be charged until the year 2000 with respect to emissions from any unit which is classified as "an affected 

unit" under Section 404 of the Clean Air Act Amendments of 1990, entitled "Phase I Sulfur Dioxide Requirements". 

Section 16. That the following shall be adopted as Title 20, Chapter 6, Section 20-1 (14) and shall be titled 

Permits and fees- Payment of fees: 

(1) Any person acquiring a permit shall be subject to the following payment of permit fees and the following procedure 

shall be used in payment thereof: 

a. 

b. 

c. 

d. 

Initial filing fees for construction permits must be submitted with the initial permit applications. 

Additional fees related to construction permits including those related to public notice are due within thirty 

(30) days of receipt of billing by the Department. 

fees related to stack testing are due within thirty (30) days of receipt of billing by the Department. 

Inspection/Operating fees are assessed annually on the anniversary date of the issuance of the permit where 

applicable. • 

fees for asbestos removal must be submitted with the written notice of intent to remove. 

2. fees for air curtain destructors must be submitted within ten (1 0) days of receipt of permit. 

fees related to modification of a permit shall be submitted with the permit application. 

17 
fees related to public notice necessary for the regulation of a source shall be due v.~thin thirty (30) days of 

receipt of billing by the Department. 

(2) If the emissions fees assessed to a stationary air pollution source are less than five thousand ($5.000) dollars. the fees 

owed shall be submitted by September 30 of the year folloMng the year the emissions occurred. lf more than five 

thousand ($5.000) dollars is owed, then the amount due shall be submitted by January 31 of the year two years after 

the emissions occurred. 

Section 17. That the follov.~ng shall be adopted as Title 20. Chapter 6. Section 20-1 (15) and shall be titled 

Permits and fees· Allowable Uses for Emissions fee: 

The Department shall collect an annual emissions fee from those entities Mthin the City of Lakeland which operate 

stationary air pollutant sources required to make application on or after July 1. 1992. to the Memphis-Shelby County Health 

Department for issuance. re-issuance or modification of a permit in accordance Mth the City of Lakeland. Tennessee--Air 

Pollution Control Code, and shall be subject to the fee schedule set out in Section 20-1 (12). This fee shall be used for: 

1) Re\~eMng and acting upon any application for a permit or permit modification under the City of Lakeland, Tennessee-· 

Air Pollution Control Code as amended: 

2) Implementing and enforcing the terms and conditions of any permit issued under the City of Lakeland, Tennessee--Air 

Pollution Control Code. provided, however, such cost shall not include any court cost or other costs associated Mth 

any judicial enforcement action: 

3) Emissions and ambient monitoring and inspection of source operated monitoring programs; 

4) Preparing generally applicable regulations or guidance; 

5) Modeling. analyses and demonstrations; 

6) Preparing inventories and tracking emissions. 

7) Development of and support for the small business stationaJY source technical and environmental compliance 

assistance program as it applies to part 70 sources. 

8) Information management activities to support and track permit applications. compliance certifications and related data 

entry. 

The emission and annual Operating/lnspection fees collected from major stationary air pollution sources as defined herein, shall 

be used exclusively for and be suffici;tt to pay, the direct and indirect costs of the major stationary source operating permit 

program allowable under the federal Clean Air Act and under regulations in support of those federal provisions as adopted 

locally in the City of Lakeland, Tennessee--Air Pollution Control Code. The owner or operator of any stationary source shall also 

pay any cost of expense associated Mth public notices or notifications required pursuant to the City of Lakeland, Tennessee--Air 

Pollution Control Code or the federal Clean Air Act. 

18 
Section 18. That the following shall be adopted as Title 20, Chapter 6, Section 20-1 (16) and shall be titled 

Permits and Fees- Reporting Requirements: 

(a) Except as provided below, each permitted stationary air pollution source must submit to the Department an annual 

report that establishes the amount of actual emissions of each regulated pollutant, including carbon monoxide, for that 

source. This report will be for the emissions of that source that occurred during the calendar year starting in 1991 and 

continuing for succeeding years thereafter. The Department may request, and the air pollution source shall prO\~de. 

additional information on the emissions data submitted when the Department determines, the data previously provided 

is inadequate to establish the actual type or amount of emissions from the source subject to fees. 

(b) Not including air toxics as they are defined in the Clean Air Act Amendments of 1990 and the amendments thereto, if 

the source emits fewer than twenty five (25) tons of actual emissions of pollutant during a year, it may at its option, use 

as the actual emissions figure, its permitted pollutant levels where available and known. If the source is a "major 

source" under the air toxics provisions of the Clean Air Act Amendments of 1990 it too must calculate its actual 

emission of regulated pollutants. Failure to provide, on a timely basis, any additional information requested shall be 

considered failure to pay the fees. 

Section 19. That the following shall be adopted as Title 20. Chapter 6. Section 20-1 (17) and shall be titled 

Permits and Fees- Small Business Waiver: 

The Director of the Department, in his discretion but consistent \\~th Section 507 (f) of the Clean Air Act Amendments of 1990. 

may, upon written petition setting forth in detail the justification therefore, reduce or waive for up to three (3) years, any 

emissions fee required under this Chapter to take into account the financial resources of small business stationary air pollution 

sources as defined under the federal act or regulations promulgated pursuant thereto. A decision to deny the waiver may be 

appealed to the Local Air Pollution Control Board by the party requesting the waiver and will be heard under the same 

procedures as any other decision that is appealed to this Board. If a waiver is granted, it will be reviewed by the Board in its 

annual review process and is then subject to revocation or modification by the Board if found to be unwarranted or granted in an 

arbitrary fashion. Such action will have no effect on prior years emissions fees and will only apply to the collection of future 

emissions fees. 

Section 20. That the following shall be adopted as Title 20. Chapter 6. Section 20-1 (18) and shall be titled 

Permits and Fees- Surolus Funds Cany Forward: 

Any surplus in emissions fee funds shall be carried forward from year to year for these stated purposes only. If. however, in any 

year after 1993, this carry forward surplus exceeds on February 15th thirty five percent (35 %) of the previous twelve (12) 

months fee, a ten percent (1 0 %) per ton credit on the established emissions fee amount shall be given to all stationary sources in 

the next emissions fee payment. . 

Section 21. That the following shall be adopted as Title 20. Chapter 6, Section 20-1 (19) and shall be titled 

Permits and Fees- Penalty Provisions: 

0 

Failure to pay the fees set forth in this Air Pollution Control Code shall be a violation of the City of Lakeland, Tennessee--Air 

Pollution Control Code and can result in the assessment of penalties and injunction against the stationary air pollution source. In 

addition to any fees owed, a maximum penalty equal to fifty percent (50%) of the fees owed may be assessed for late payment. 

Interest in the amount equal to the maximum allowed under State Law shall also be charged for all fees paid more than thirty 

(30) days late. When an emissions fee amount is contested, only the contested portion can be withheld. Any uncontested fee 

amount must be paid by the due date for payment. Due process for contested amounts is provided by appeal under the 

19 
administrative and judicial review provisions of the City of Lakeland, Tennessee--Air Pollution Control Code for appeal of 

decisions of the Health Officer. 

Section 22. That the follo\\~ng shall be adopted as Title 20. Chapter 6, Section 20-1 (20) and shall be titled 

Permits and Fees- Annual Review of Fee Structure and rmancial Need: 

The Memphis-Shelby County Air Pollution Control Board shall annually review the fee structure established for the local air 

pollution control program and recommend to the Shelby County Commission any change in rate or make-up of the fee it 

determines, after public hearing, is necessary to meet the financial requirements of the Memphis-Shelby County Health 

Department Air Pollution Control Program to fulfill the activities allowed to be funded by these fees. Such review shall include 

an estimate of other funds available to the progratl\ including surplus or carry forward funds as well as changes in state or federal 

laws that could effect the program. The recommendation shall be provided to the commission no later than April 1 of each year. 

The county commission shall not. however, be required to adopt this recommendation, nor to change fees on any predetermined 

schedule. If the Shelby County Commission adopts a change in the rate or makeup of the fee, that adoption shall be provided to 

the Lakeland Board of Mayor and Aldermen for adoption prior to collection of changed emission fees by the Memphis-Shelby 

County Health Department. 

Section 23. That the following shall be adopted as Title 20, Chapter 6, Section 20-1(21) and shall be titled 

Severance: 

The provisions of this ordinance are hereby declared to be severable. Should any of these sections, provisions, sentences, 

clauses, phrases, or parts be held unconstitutional or void, the remaining portions shall continue in full force and effect. 

Section 24. That the follo\\~ng shall be adopted as Title 20. Chapter 6, Section 20-1 (22) and shall be titled 

Regulation of Particulate Matter from Incinerators: 

(a) No person shall cause, suffer, allow or permit the emissions from any incinerator having a charging rate of 2.000 

pounds per hour or less. fly ash or other particulate matter in quantities exceeding 0.2 grains per cubic foot of flue gas 

at standard conditions corrected to 12 per cent carbon dioxide by volume excluding the contribution of auxiliary fuel. 

(b) No person shall cause. suffer. allow or permit the emissions from any incinerator having a charging rate greater than 

2.000 pounds per hour, fly ash or other particulate matter in quantities exceeding 0.1 grains per standard cubic foot of 

flue gas at standard conditions corrected to 12 per cent carbon dioxide by volume excluding the contribution of 

auxiliary fuel. 

(c) No person shall cause, suffer, allow or permit the emissions of particles of unburned waste or ash from any incinerator 

which are individually large enough to be visible while suspended to the atmosphere. 

(d) No person shall construct, install. use or cause to be used any incinerator which will result in odors being detectable by 

sense of smell in any area of human use or occupancy. 

(e) No person shall install or construct an incinerator to be used for disposal of combustible waste from dwelling units if 

such incinerator is to be used to burn such wastes produced by fewer than twenty-five (25) dwelling units. 

0 

(f) No person shall use or cause to be used any incinerator unless all components connected to or attached to, or serving 

the incinerator, including control apparatus, are functioning properly and are in use. Incinerators shall be operated so 

as to comply with recognized good practices. 

20 
(g) Incinerators having Vi cubic feet furnace volume or less used solely for the disposal of infective dressings and other 

similar material shall not be required to meet these emission standards. 

(h) No person shall cause, suffer, allow, or permit to be discharged into the atmosphere from any incinerator, visible 

emissions with an opacity in excess of twenty percent (20%). 

Section 25. That the following shall be adopted as Title 20, Chapter 6, Section 20-1 (23) and shall be titled 

Right of Entry: 

For the purpose of carrying out the requirements of the City of Lakeland, Tennessee--Air Pollution Control Code, the Health 

Officer and his authorized representatives, including engineers, assistants, environmentalists and other employees. shall be 

permitted at all reasonable times to enter into any manufacturing plants, business buildings or other buildings, and all lots, 

grounds and premises, in order to thoroughly examine any items in relation to public health and air pollution thereon and 

therein. 

Section 26. That Rules and Regulations ofT ennessee Chapters 1 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 1200-3-1 0. 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 1200-3-15, titled Emergeng' Eoisode 

Plan: Chapter 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 Standard: 

1200-3-31, titled National Emission Standards for Hazardous Air Pollutants for Source Categories; and, 1200-3-32, titled 

Prevention of Accidental Releases; TCA. §68-201-101 through §68-201-118. as effective on December 31, 2000: Chapter 

1200-3-34, titled Conformitv, as effective on November 14, 2001: and, the New Source Performance Standards (with tl1e 

exception of Subparts B. C, Cb, Cc, Cd, Ce, AAN of the Code of Federal Regulations, Title 40, Part 60 (40 CFR 60) (Revised 

as of July 1. 2002), and Appendices A B and F of 40 CFR 60 (Revised as of July 1. 2001), are incorporated herein by 

reference as if set out in their entirety and shall be adopted and approved as part of the City of Lakeland, Tennessee--Air 

Pollution Control Code, thereby amending the City of Lakeland, Tennessee--Air Pollution Control Code. Section nomenclature 

is identified in accordance with the following table. 

Lakeland 

Code State Federal 

Nomenclature Regulations Regulations Title 

20-1(1 02) 1200-3-2 Definitions 

20-1(1 03) 1200-3-3 Ambient Air Quality Regulations 

20-1(1 05) 1200-3-5 Visible Emissions 

20-1(106) 1200-3-6 Nonprocess Emission Standards 

20-1(1 07) 1200-3-7 Process Emissions Standards 

20-1(109) 1200-3-9 Construction and Operating Permits 

20-1(110) 1200-3-10 Required Sampling, Recording and Reporting 

20-1(111) 1200-3-11 0 ···-·········· Hazardous Air Contaminants 

20-1(112) 1200-3-12 Methods of Sampling and Analysis 

20-1(114) 1200-3-14 Control of Sulfur Dioxide Emissions 

20-1(115) 1200-3-15 Emergency Episode Plan 

20-1 (116) 1200-3-16 40 CFR60 New Source Performance Standards 

as defined above 

20-1 (118) 1200-3-18 Volatile Organic Compounds 

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20-1(120) 

20-1(121) 

20-1(122) 

20-1(124) 

20-1(125) 

20-1(130) 

20-1 (131) 

20-1(132) 

20-1(134) 

1200-3-20 

1200-3-21 

1200-3-22 

1200-3-24 

1200-3-25 

1200-3-30 

1200-3-31 

1200-3-32 

1200-3-34 

Limits on Emissions due to Malfunctions, Startups '32 Shutdowns 

General Alternate Emission Standards 

Lead Emission Standards 

Good Engineering Practice Stack Height Regulations 

Standards for Infectious Waste Incinerators 

Acid Precipitation Standard 

National Emission Standards for Hazardous Air Pollutants for 

Source Categories 

Prevention of Accidental Releases 

Conformity 

Section 27. That the City of Lakeland, Tennessee--Air Pollution Control Code, Section 20-1(102), 

Definitions. be amended by adding at. the end of the section the following definitions for "Health Officer" and "Odor" that 

read as follows: 

Health Officer is the Health Officer for Memphis and Shelby County. 

Odor is a sensation of smell perceived as a result of olfactory stimulation. An odor is deemed objectionable, and 

therefore a nuisance, when one third (1/3) or more of a sample of persons exposed to it believe it to be objectionable in 

usual places of occupancy. The sample size is to be at least twenty-five (25) persons, or when fewer than twenty-five (25) are 

exposed, one half (1/2) must believe it to be objectionable. 

Section 28. That the City of Lakeland, Tennessee--Air Pollution Control Code, Section 20-1 (109), 

Reference 1200-3-9, Construction And Operating Permits, be amended by deleting in its entirety item 1200-3-9-

.02(11)(b)14.(ii)(XXVII) and substituting in lieu thereof a new item 1200-3-9-.02(11)(b)l4.(ii)(XXVII) so that it reads as 

follows: 

(XA'VII) Any other stationary source category, which as of August 7, 1980 is being 

regulated under section 111 or 112 of the Act; 

Section29. That the City of Lakeland, Tennessee--Air Pollution Control Code, Section 20-1(109), 

Reference 1200-3-9, Construction And Operating Permits, be amended by replacing the phrase "T. C.A. Section 68-201-

1 08" in the last sentence of paragraph 1200-3-9-.05(5) \\~th the phrase "City of Lakeland, Tennessee--Air Pollution Control 

Code Section 20-1(8)" so that the paragraph reads as follows: 

(5) In any case where a condition is placed on a permit, the imposition of that permit condition may be appealed 

by filing a petition for reconsideration of the permit condition. The petition for reconsideration of permit 

conditions shall specify which conditions and portions of conditions are objected to and specifying in detail 

the objections. The petition of appeal must be delivered to the Technical Secretary within thirty (30) days 

after the mailing date of the permit. 

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If the Technical Secretary is considering denying the petition he shall schedule a conference with the 

petitioner to discuss the matters under appeal within forty-five (45) days of his receipt of the petition. If the 

Technical Secretary's resultant decision on the matters under appeal aggrieves the petitioner, the petitioner 

may request a hearing pursuant to City of Lakeland, Tennessee--Air Pollution Control Code Section 20-1 (8). 

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Section 30. That the City of Lakeland. Tennessee--Air Pollution Control Code. Section 20-1(1 09). 

Reference 1200-3-9. Construction And Operating Pennits. be amended by replacing the phrase "T.C.A. Section 4-5-301 et 

seq." in paragraph 1200-3-9-.05(6) with the phrase "City of Lakeland, Tennessee--Air Pollution Control Code Section 20-

1 (8)" so that the paragraph reads as follows: 

(6) All applicable provisions of City of Lakeland. Tennessee--Air Pollution Control Code Section 20-1 (8), on 

contested cases shall apply to the hearing before the Board on such appeals. 

Section31. That the City of Lakeland. Tennessee--Air Pollution Control Code Section 20-1(118). 

Reference 1200-3-18-.79, Volatile Organic Compounds, 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 in 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 MACf standard) that applies to all volatile organic compound emissions 

at the source; and 

Section 32. SEVERABIU'IY. The provisions of this ordinance are hereby declared to be severable. Should 

any of these sections, provisions, sentences. clauses, phrases, words, or parts be held unconstitutional or void, the remaining 

portions shall continue in full force and effect. 

Section 33. BE IT FURTHER ORDAINED TiiAT one (1) copy of the City of Lakeland, Tennessee--Air 

Pollution Control Code shall be available for public inspection in the office of the city clerk. 

Section 34. BE IT FURTHER ORDAINED TiiAT except as amended by this Ordinance, the City of Lakeland, 

Tennessee--Air Pollution Control Code shall remain in full force and effect as previously adopted as to any violation that 

occurred prior to the effective date of this ordinance. 

Section 35. BE IT fURTHER ORDAINED THAT this ordinance shall take effect from and after its passage 

on third and final reading. 

PASSED FIRST READING May 0 8, . 2 0 0 3 

PASSED SECOND READING June 12, 2003 

PASSEDTHIRDREADING June 12, 2003 

I hereby certify the foregoing i$ a true COpY 

and document which was ap~g and 

adopted by the Board-of Commissioners of 

ihe City of Lakeland in a Rr@LAL/Is R Session 

. on UU~t 11.. 2003 

(;Jir.tllnJ ou/25 loa 

Date F I 

1 NOTE: RULES INCORPORATED BY REFERENCE HEREIN HAVE BEEN FILED IN THE OFFICE OF THE CLERK OF 

THE COUNTY COMMISSION AS REQUIRED BY T.CA §68-20 1-115. 

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