... ,-, 

ORDINANCE 2003 - 2 

AN ORDINANCE TO ADOPT AN AIR 

POLLUTION CONTROL CODE FOR THE 

CITY OF GERMANTOWN 

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 prope1ty 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 qualify and maintain 

such qualification; and 

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

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

Department, which was established in the Shelby County Air Pollution Code, first adopted on June 30, 1969 by the 

Shelby County Quatterly CoUlt, and subsequently adopted by the City of Germantown and has served to protect the air 

quality in the City of Gemtantown 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 Germantown desires to enact air pollution control regulations not less stringent 

than standards adopted by the state pursuant to Chapter 68-201, Part 1; and 

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

operate a major source operating pennit 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 tl1e 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-ll5(a) provides that any municipality or county may 

adopt an ordirtance 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 

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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 Germantown 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 

RegJJlations; 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 Constmction and Operating Permits; 

Chapter 1200-3-10, titled Required SampHng, 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 ofSnlfi1r 

Dioxide 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 Malfimctions, Startups and Shutdowns; Chapter 1200-3-21, titled General Alternate Emission 

Standards; Chapter 1200-3-22, titled T.ead Emission Standards; Chapter 1200-3-24, titled Good Engineering Practices 

Stack Height Reg11lations; 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 Po!Jutants 

for Somce Categmies; Chapter 1200-3-32, titled Prevention of Accidental Releases; Chapter 1200-3-34, titled 

Conformity; and the New Source Performance Standards (with the exception of Subparts B, C, Cb, Cc, Cd, Ce, AAA) 

and Appendices A, B and F of the Code of Federal Regulations (CFR), Title 40, Part 60 (Revised as of July 1, 2001) 

except for the authorities therein retained by the Administrator and not transfened to a State. 

NOW, THEREFORE, BE IT ORDAINED BY THE BOARD OF MAYOR AND 

ALDERMEN OF THE CITY OF GERMANTOWN, that the air pollution control ordinance in Section 

9-21 of the Germantown Municipal Code, codified August 9, 1999, be, and hereby is, amended as herein set forth. 

Section 1. That Sections 9-21 and 9-22 of the Gennantown Municipal Code of Ordinances are 

hereby repealed in their entirety. 

Section 2. That Section 9-21 shall be the "CITY OF GERMANTOWN, TENNESSEE- AIR 

POLLUTION CONTROL CODE" and shall be titled tl1e same. 

Section 3. That the following shall be adopted as Subsection 9-21(1) and shall be titled Words and 

Phrases Substituted jn State Begulatjons Adopted by Reference: 

(1) For the pw-pose of enforcement of the City of Germantown, 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 following exceptions: 

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4. 

9-21(109) 

9-21(107) 

9-21(106) 

9-21(114) 

9-21(111) 

1200-3- 9-.04 

1200-3- 7-.06 

1200-3- 6-.01 

1200-3-14-.01(1)(a), and 

1200-3-11-.01(1) 

(b) Wherever the terms Tennessee, State of Tennessee, ·or State appear, they shall be replaced by City 

of GermantO\\(Tj with the following exceptions: 

I. 9-21(109) 1200-3-9-.04 

2. 9-21(114) 1200-3-14-.01(1)(a) 

3. When referring to Tennessee Code Annotated, and 

4. When referring to the Tennessee Air Quality Act 

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(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 Subsection 9-

21(5)(e)(2)(a) and (b) for the purposes of Tennessee Code Annotated §68-201-116(b)(l). 

(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 terms 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 tenns Tennessee Air Pollution Control Regulations or Regulations appear, they shall 

be replaced by City of Germantown, 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 term "State Civil Defense" appears, it shall be replaced by "Memphis and Shelby 

County Emergency Management Agency". 

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

''1200-3-26" appear, they shall be replaced by" Subsections 9-21(11) through (21). 

Section 4. That the following shall be adopted as Subsection 9-21(2) and shall be titled ~ 

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 roofmg materials, and/or asbestos 

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

conducted under the provisions of Subsection 9-21(2). 

(b) Open burning as listed below may be conducted without permit 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. 

(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 burn: 

e 

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

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

expressly prohibited in Subsection 9-21 (2 )(a), have been removed. 

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

Subsection 9-21(111) [Reference 1200-3-11-.02(2)(d)3.(x)]. 

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(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 subsection are met. 

(4) Reserved. 

(5) Fire used for canying out recognized agricultural procedures necessary for the production or 

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

the Department. 

(6) Fires for 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 destmctor is used: 

(1) 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 wrillt:n statement, compliance with following distance 

requirements, at a minirmun: 

(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 reservation, national or state forest, wildlife area, and/or residence not on 

the same property as the air curtain destructor; and 

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

hospital. 

(3) The plume from the air cw'tain destructor must meet the visible emission standards specified in 

Subsection 9-21(105) [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 grad~el oils. 

( 5) No fire shall be ignited while any air pollution emergency episode is in effect in the area of the burn. 

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) 544-

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

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(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 of9:00 am and 4:00pm 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. 

(I) "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 burn chamber with vertical walls in such a 

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

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

buming. 

(2) "Air Pollution Emergency Episode" is defmed 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 occutTing categories of events: 

tornadoes, hail and wind storms, snow or ice storms, flooding, and earthquakes. 

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

are emitted directiy into the open atmosphere without passing directly lhruugh a slack. 

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

joint stock company, trust, estate, political subdivision, an agency, authority, commission, or 

depattment of the United States government, or of the State ofTennessee governn1ent; or any other 

legal entity, or its legal representative, agent, or assigns. 

(e) Burning after natural disasters. 

(1) Open burning of materials resulting from a natural disaster, and when conducted in confomlity 

with 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 Subsection 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 ofbuming, if lawful, is encouraged. 

0 

(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. 

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(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 burn. 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 Subsection 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 T.C.A. §39-14-306, which 

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

grasslands or woodlands without first securing a permit from the State forester in unincorporated portions of 

Shelby County.) 

Section 5. 

of Parts of Articles: 

That the following shall be adopted as Subsection 9-21(3) and shall be titled Severability 

The provisions of this Air Pollution Control Code are hereby declared to be severable, and if any subsections, 

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 tlus 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 Subsection 9-21(4) and shall be titled 

Enforcement- violations of Sectjon- Notice; Citation; lnjunctjye 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 comcted 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 with 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 C!he following shall be adopted as Subsection 9-21(5) and shall be titled 

Enforcement Penalties- Misdemeanor, Cjyi!, and Noncompliance: 

(a) Failure to comply with any of the provisions of the City of Germantown, Tennessee--Air Pollution Control 

Code shall constitute a violation thereof and shall subject the person or persons responsible therefore to any 

and all of the penalties provided by law. 

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(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 Germantown, 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 Annotated with the fme not to exceed ten 

thousand dollars ($10,000) 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 Paragraph 9-21 ( 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.C.A. §68-201-115, for a violation within its 

jmisdiction. 

(c) Willful and !mowing violation of any provision of the City of Germantown, 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 with 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 Ge1mantown, 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 ofDamages and Civil Penalties and Appeals 

(1) When the Health Officer discovers that any provision ofthe City of Germantown, 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 with within 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 Germantown, Tennessee--Air Pollution Control 

Code or any standard adopted pursuant thereto in a permit, shall be subject to a civil 

penal&' of up to twenty-five 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 T. C. A. §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 

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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: 

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

operating under a certificate of exemption pursuant to T. C.A. §68-20 1-115 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 of an assessment in excess of $10,000 for each violation, 

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

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

and 

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

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

to the assessment and it shall become final. 

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

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

Germantown may include any expenses incuned in investigating the enforcing of this 

section; in removing, conecting, 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 poliution 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 

Germantown, Tennessee--Air Pollution Control Code. 

(d) The issuance of an order or assessment of civil penalty by the Memphis-Shelby County 

Health Department operating under a ce1tificate 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 

Depa1tment 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 fmal order or assessment is from 

the Memphis-Shelby County Health Department. 

When filed in accordance with clause (e)l., a final order or assessment shall be 

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

conditions as those recited therein. Such judgment shall be promptly entered by 

0 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 Germantown shall have the right to intervene on the ground 

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

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

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Section 8. 

determine whether it is duplicitous or frivolous, and shall notify the movant and 

the parties of its detennination. If the motion is determined not to be duplicitous 

or frivolous, all parties shall be considered to have sought review of the fmal 

order or assessment, and the court shall proceed in accordance with T.C.A. §4-5-

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

to be duplicitous or frivolous, the judgment shall become final forty-five (45) 

days after the date of entry. 

4. A fmal 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 judgment of a court of record of this state. 

That the following shall be adopted as Subsection 9-21(6) and shall be titled 

Enforcement- variances: 

(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 Control Hearing Board, hereinafter referred to as "the Board", for a variance from mles or 

regulations governing the quality, nature, duration or extent of discharge of air contaminants. The 

application for a variance shall include info1mation and data sufficient for the Board to make the fmdings 

required below. The hearing held hereunder shall be conducted in accordance with the rules of evidence as 

set forth in paragraph 9-21(8)(£) of the City of-, 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. §68-201-115 if it finds that: 

The emissions proposed to occur as a result of a variance would not endanger or tend to endanger 

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

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

hardship without equal or 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 within the requirements of subsection (a) for time pe1iods 

and under conditions consistent with the reasons therefore, and with 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 which variance is sought will necessitate the taking of measures which, because 

of their extenCior 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 (1) year. 

9 
(d) Any variance granted pursuant to this section may be renewed by the Air Pollution Control Hearing Board 

on tenns 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 fmds 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 shall 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 application for a vruiance 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 Subsections 9-21(7) and 9-21(115) 

[Reference 1200-3-15] to any person or his property. 

Section 9. That the following shall be adopted as Subsection 9-21(7) and shall be titled 

F.nforcement- 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 confomlity with the provisions of Subsection 9-21(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 refen-ed to in paragraph (a) of tllis 

subsection, but if the Health Officer fmds that emissions from the operation of one or more air contaminant 

sow·ces 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 tllis 

Section. In such event, the requirements for hearing and affmnance, modification or setting aside of orders set 

forth in paragraph (a) of this subsection shall apply. 

Section 10. That the following shall be adopted as Subsection 9-21(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) mel.lli:>ers of the Board are to be appointed jointly by the Mayor of the City of Memphis 

and the Mayor of Shelby County and confrrrned 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. 

10 
(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. 

(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 autholity: 

(I) 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 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 fmal action on the appeal, except when the Health Director has acted 

under Subsection 9-21 (7), "Emergency Order" or except when an appeal has been filed pursuant to 

Subsection 9-21(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 weking a variance or any party who has filed a written notice of appeal pursuant to 

Subsection 9-21(8) or Subsection 9-21(109) [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 

11 
respondent or any party to the hearing upon payment of the normal fee, which shall not exceed the 

cost of transcribing such 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 fmal 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 fmal 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. 

(7) The burden of proof shall be on the Health Director or his duly authorized representative where 

appeal has been sought pursuant to Subsection 9-21(8) or Subsection 9-21(109). The burden of 

proof is on the applicant where a variance has been sought pursuant to Subsection 9-21 ( 6), in 

accordance with T.C.A. §68-201-1 18(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. C. A. §2 7-9-10 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 Subsection 9-21(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 destJ.uction 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 scmbbers, incinerators, or such other devices as may be approved by the Health Officer. 

Section 12. That the following shall be adopted as Subsection 9-21 ( 1 0) and shall be titled Fugitive 

D.ust: 

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 without taking reasonable precautions 

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

the following: 

(1) Use, where possible, water or 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, i!il, water, or suitable chemicals on material stockpiles, and other surfaces which can 

create airborne dusts; 

(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; 

12 
(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 Subsection 9-21(11) and shall be titled Permjts 

and Fees - App!icabi!ity and Enforcement Authority: 

(1) The provisions of this subsection 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 Section and Air Pollution Control Code, and shall be subject to the fee 

schedule set out in Subsection 9-21(12). The provisions of this Section on Emissions Fees shall apply to any 

person required to make application on or after July 1, 1992, to the Memphis-Shelby County Health 

Department, and shall be subject to the fees set out in Subsection 9-21(20). 

(2) The Memphis-Shelby County Health Depattment (hereinafter refen·ed to as the Department) is designated to 

carry out and enforce the provisions of tltis 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 Subsection 9-21(12) and shall be titled Permits 

and Fees- Permit Fee Schedule: 

Fees for pennits are hereinafter set out as follows, and shall apply to any "person" as defmed in this Section: 

( 1) Construction Permits 

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

pemtit shall pay an initial filing fee of two hundred dollars ($200.00) per permit unit. This filing fee 

shall not be reii.mdable 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: 

Prevention of significant detelioration (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 

4. New Source performance standard (NSPS) source review, per permit unit... ... $500 

5. National Emission Standard for Hazardous Air Pollutant (NESHAP) source review, per 

permit unit. ..... $500 

(2) Inspection/Operating P«rnit 

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

inspection/operating permit shall pay the larger of the applicable fees in accordance with the 

following schedule: 

Asbestos demolition/renovation removal, per notice ...... $100 

13 
2. Air Curtain destructor, per permit unit... ... $100 

3. NSPS Source, per permit unit.. $100 

4. NESHAP source, per permit unit. ..... $100 

5. Any permit unit with actual emissions of 100 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 100 tons per 

year of any single pollutant... ... $100 

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 pa1ticular 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 

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 Petmit 

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 clerical, typographical, or calculations errors. This fee 

shall be set as follows: 

1. If the modification is anticipated to result in an increase in all pollutants less than 10 tons per 

year ...... $100 

2. If the modification is anticipated to result in an increase in all pollutants more than 10 tons 

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

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: 

1 Any testing requiring US/EPA methods 1 through 4 only, per permit unit... ... $1 00 

0 

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

14 
b. Any retest required to demonstrate compliance shall be subject to the fee schedule as stated in the 

clauses a.l. through a.3., immediately above. 

Section 15. That the following shall be adopted as Subsection 9-21(13) and shall be titled Permjts 

and Fees Emjssjons Fee for Stationary Sources: 

(1) EMISSIONS FEE 

A fee shall be collected annually from each stationary air pollution source which emits more than one ton of 

actual emissions annually of a regulated pollutant as defmed 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 defmed in Section 502 (b)(3)(B)(ii) of the Federal 

Clean Air Amendments of 1990. 

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

CoWlty Commission and the Gennantown Board of Mayor and Aldermen, the fee shall be increased 

by the percentage, if any, by which the Consm11er 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 Consun1er Price Index adjustment. This rate amount shall then reflect a one-year 

Consun1er 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 Conswner 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 Germantown Board of Mayor and Aldermen from time to time consistent with the need to cover 

the costs authorized by the Air Pollution Control Code and in accordance with the procedures in 

Subsection 9-21(20). For purposes of this Air Pollution Control Code a "stationaty air pollution 

source" shall be that group of air pollution sources located within a contiguous area and under 

common control. 

This is the effective emissions fee rate (after adjustment for canyover overage) approved by the City of 

Germantown. 

APPROVED ADOPTED EFFECTIVE APPLICABLE 

RATE IN RATE TO 

$ 9.00 1992 $ 9.00 1991 EMISSIONS 

$18.00 1993 $18.00 1992 EMISSIONS 

$19.~ 1994 $17.10 1993 EMISSIONS 

$29.65 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 

15 
(2) MAXIMUM AMOUNT SUBJECT 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) EXEl\1PTION FOR UNITS SUBJECT TO SECTION 404 PROVISIONS OF THE CLEAN AIR 

AMENDMENTS 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 Subsection 9-21(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. Initial filing fees for construction perrnits must be submitted witl1 the initial permit applications. 

b. 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. 

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

d. 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 (10) days of receipt of permit. 

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

f. Fees related to public notice necessary for the regulation of a source shall be due within tltirty (30) 

days of receipt ofbilling 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 following the year the emissions occurred. If 

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 following shall be adopted as Subsection 9-21(15) and shall be titled Permits 

and Fees- Allowable I!ses for Emissions Fee: 

The Department shall collect an annual emissions fee from those entities within the City of Germantown which 

operate stationary air pollutant sources required to make application on or after July 1, 1992, to the Memphis-Shelby 

County Health Department fo0 issuance, re-issuance or modification of a permit in accordance with the City of 

Germantown, Tennessee--Air Pollution Control Code, and shall be subject to the fee schedule set out in Subsection 9-

21 ( 12 ). This fee shall be used for: 

1) Reviewing and acting upon any application for a permit or permit modification under the City of Germantown, 

Tennessee--Air Pollution Control Code as amended; 

16 
2) Implementing and enforcing the terms and conditions of any pernrit issued under the City of Germantown, 

Tennessee--Air Pollution Control Code, provided, however, such cost shall not include any court cost or other 

costs associated with 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 stationary source teclmical and environmental compliance 

assistance program as it applies to part 70 sources. 

8) Infomllltion management activities to support and track pernrit applications, compliance certifications and 

related data entry. 

The emission and atmual Operating/Inspection fees collected from major stationary air pollution sources as defined 

herein, shall'be used exclusively for and be sufficient 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 Germantown, Tennessee--Air Pollution Control Code. The owner or 

operator of any stationary source shall also pay any cost of expense associated with public notices or notifications 

required pursuant to the City of Germantown, Tennessee--Air Pollution Control Code or the Federal Clean Air Act. 

Section 18. That the following shall be adopted as Subsection 9-21(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 provide, 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 taxies as they are defmed 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 Subsection 9-21 ( 17) and shall be titled Permits 

and Fees Small Business Wajyer: 

The Director of the Department, in his discretion but consistent with 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 requiBd under this Section 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. 

17 
Section 20. That the following shall be adopted as Subsection 9-21(18) and shall be titled Permits 

and Fees- Surplus Funds Carry 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 (10 %) 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 Subsection 9-21(19) and shall be titled Permits 

and Fees- Penalty Provisions: 

Failw·e to pay the fees set forth in this Air Pollution Control Code shall be a violation of the City of Germantown, 

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 tlllity (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 administrative and judicial review provisions of the City of 

Germantown, Tennessee--Air Pollution Control Code for appeal of decisions of the Health Officer. 

Section 22. That the following shall be adopted as Subsection 9-21(20) and shall be titled Permits 

and Fees Annual Review of Fee Structure and Financial Need: 

The Memphis-Shelby County Air Pollution Control Board shall atmually review the fee sttucture established for the 

local air pollution control program and recommend to the Shelby County Commission atly 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 ftmded by these tees. Such 

review shall include an estin1ate of other funds available to the program including surplus or carry forward fi.mds 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 tltis 

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 Germantown Board ofMayor 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 Subsection 9-21(21) and shall be titled Severance: 

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

sentences, clauses, phrases, or parts be held unconstitutional or void, tl1e remaining portions shall continue in full force 

and effect. 

Section 24. That the following shall be adopted as Subsection 9-21 (22) and shall be titled Regulation 

of Particulate Matter from Jncjneratprs: 

(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 !andard 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. 

18 
(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. 

(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. 

(g) Incinerators having 2.5 cubic feet fumace 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 Subsection 9-21(23) and shall be titled Right of 

For the purpose of canying out the requirements of the City of Germantown, Tennessee--Air Pollution Control Code, 

the Health Officer and his authorized representatives, including engineers, assistants, environmentalists and other 

employees, shall be pe1mitted at all reasonable times to enter into any manufacturing plants, business buildings or other 

buildirlgs, and all lots, grounds and premises, in order to thoroughly examine any items irl relation to public health and 

air pollution thereon and therein. 

Section 26. That Rules and Regulations of Teru1essee 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 Nonprncess Emission 

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

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

12, titled Methods of Samp!ing and Analysis; 1200-3-14, titled Control of Sulphur Dioxide Emissions; Chapter 1200-3-

15, titled Emergency Episode Plan; Chapter 1200-3-16, titled New Source Performance Standards; 1200-3-18, titled 

Volatile Organic Compmmds; 1200-3-20, titled I imits on Emissions due to Malfimctions Startups and Shutdowns; 

1200-3-21, titled General Alternate Emission Standards; 1200-3-22, titled I ead Emission Standards; 1200-3-24, titled 

Good Engineering Practices Stack Height Regulations; 1200-3-25, titled Standards for Infections 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; T.C.A. §68-20/-/01 through 

§68-201-1 /8, as effective on December 31, 2000; Chapter 1200-3-34, titled Conformity, as effective on November 14, 

2001; and, the New Source Perfmmance Standards (with the exception of Subparts B, C, Cb, Cc, Cd, Ce, AAA) and 

Appendices A, B and F of the Code of Federal Regulations (CFR), Title 40, Part 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 

Germantown, Tennessee--Air Pollution Control Code, thereby amending the City of Germantown, Tennessee--Air 

Pollution Control Code. Section nomenclature is identified in accordance with the following table. 

Germantown 

Code State 

~omenclatnte Begnlations 

9-21( 102) 1200-3- 2 

9-21(103) 1200-3- 3 

9-21(105) 1200-3- s 

9-21(106) 1200-3- 6 

9-21(107) 1200-3- 7 

9-21(109) 1200-3- 9 

9-21(110) 1200-3-10 

9-21(111) 1200-3-11 

9-21(112) 1200-3-12 

Federal 

Begnlatioos 

------------ 0 -----------

Ii!l£ 

Definitions 

Ambient Air Quality Regulations 

Visible Emissions 

Nonprocess Emission Standards 

Process Emissions Standards 

Construction and Operating Permits 

Required Samplirlg, Recordirlg and Reporting 

Hazardous Air Contaminants 

Methods of Sampling and Analysis 

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9-21(114) 1200-3-14 

9-21(115) 1200-3-15 

9-21(116) 1200-3-16 

9-21(118) 1200-3-18 

9-21(120) 1200-3-20 

9-21(121) 1200-3-21 

9-21(122) 1200-3-22 

9-21(124) 1200-3-24 

9-21(125) 1200-3-25 

9-21(130) 1200-3-30 

9-21(131) 1200-3-31 

9-21(132) 1200-3-32 

9-21(134) 1200-3-34 

40CFR60 

as defined above 

Control of Sulfur Dioxide Emissions 

Emergency Episode Plan 

New Source Performance Standards 

Volatile Organic Compounds 

Limits on Emissions due to Malfunctions, Startups & 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 Germantown, Tennessee--Air Pollution Control Code, Subsection 9-

21 ( 1 02), 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. 

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

and therefore a nuisance, when one third ( 113) 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 Germantown, Tennessee--Air Pollution Control Code, Subsection 9-

21(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)14.(ii)(XXVII) so 

that it reads as follows: 

(XXVII)Any other stationary source category, which as of August 7, 1980 is 

being regulated under section 111 or 112 of the Act; 

Section 29. That the City of Germantown, Tennessee--Air Pollution Control Code, Subsection 9-

21(109), Reference 1200-3-9, Constructjon And Operating Permits, be amended by replacing the phrase "T.C.A. 

Section 68-201-108" in the last sentence of paragraph 1200-3-9-.05(5) with the phrase "City of Germantown, 

Tennessee--Air Pollution Control Code Subsection 9-21 (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 pennit 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. 

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 ~ request a hearing pursuant to City of Germantown, Tennessee--Air Pollution Control 

Code Subsection 9-21(8). 

Section 30. That the City of Germantown, Tennessee--Air Pollution Control Code, Subsection 9-

21(109), Reference 1200-3-9, Construction And Operating Permits, 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 Germantown, Tennessee--Air 

Pollution Control Code Subsection 9-21(8)" so that the paragraph reads as follows: 

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(6) All applicable provisions of City of Germantown, Tennessee--Air Pollution Control Code 

Subsection 9-21(8), on contested cases shall apply to the hearing before the Board on such 

appeals. 

Section 31. That the City of Germantown, Tennessee--Air Pollution Control Code, Subsection 9-

21(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 MACT standard) that applies to all volatile organic 

compound emissions at the source; and 

Section 32. That the following shall be adopted as Section 9-22 and shall be titled Copies Available: 

One (1) copy of the City of Germantown, Tem1essee--Air Pollution Control Code shall be available for public 

inspection in the office of the city clerk. 

Section 33. SEVERABILITY. The prov1Slons 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 pmtions shall continue in full force and effect. 

Section 34. BE IT FURTHER ORDAINED THAT except as amended by this Ordinance, the 

City of Germantown, 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 April 14, 2003 

PASSED SECOND READING _...uM'"a~y_.l-'-2...-, 2'"'"0w0u.3 ______ _ 

PASSED THIRD READING __ .u.Inwn~e..:z9,...., 2.wO.Ll.Ow3 _______ _ 

,.....__/ 

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

COMMISSION AS REQUIRED BY T.C.A. §68-201-115. 

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