# ... ,-, ORDINANCE 2003 - 2

AN ORDINANCE TOADOPTANAIR POLLUTIONCONTROL CODEFORTHE CITY OFGERMANTOWN WHEREAS, It is the declaredpublic policy ofthis municipality to maintainpurity ofthe air resources of the municipality consistent with the protection ofnormal health, general welfare and physical prope1ty ofthe people, maximum employment and the full industrial development ofthe state and to seek the accomplishment of these objectives through the prevention, abatement and control ofair pollution by all practical and economically feasible methods. It is also the intent ofthis municipality to qualify for receipt offederal 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 ofair quality is the most efficientmeans towards that end; and 

### WHEREAS,The operation ofalocal airpollution control programby the Memphis-Shelby CountyHealth 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 ofGermantown and has served to protect the air quality in the City ofGemtantown and efficientlymeetthe needs ofthose regulatedby airpollution control laws; and 

### WHEREAS, In order to maintain the Certificate ofExemption 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 ofGermantown desires to enact airpollution control regulations not less stringent than standards adoptedbythe state pursuant to Chapter 68-201, Part 1; and 

### WHEREAS, Title V ofthe 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 ofsuch aprogram; and 

### WHEREAS, the Board ofMayor 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 ofShelbyCounty; and 

### WHEREAS, the Board ofMayor and Aldermen wishes to retain tl1e same annual $29.65 per ton emission fee without ConsumerPrice Index adjustmentfor emissions beginning with calendaryear 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 ofthe county clerk for public use, inspection and examination for a periodofthirty 

### (30) days before adoption ofthe ordinance orresolutionincorporatingregulationsbyreference; and 

# • WHEREAS, such ordinance or resolution incorporating regulations by reference shall become effective only afterpublication in anewspaperhaving ageneral circulation inthe 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 ofthe 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 incorporatedby reference for aperiod ofthirty

### (30) days before adoption ofthe ordinance orresolution incorporating regulations byreference andnotice that the date June 17, 2002, was the date ofpublic hearing on adoption ofsuch ordinance; and

## WHEREAS, maintaining up to date technical standards promulgated by the Tennessee Department of Environment and Conservation (Tennessee) for the control ofairpollutionprevents the need for state control ofthe 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, titledMethods ofSampling 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 ofSubparts B, C, Cb, Cc, Cd, Ce, AAA) and Appendices A, B and F ofthe Code ofFederal Regulations (CFR), Title 40, Part 60 (Revised as ofJuly 1, 2001) exceptfor the authorities therein retainedbythe Administrator andnot transfenedto a State. 

## NOW, THEREFORE, BE IT ORDAINED BY THE BOARD OF MAYOR AND ALDERMEN OFTHE CITYOFGERMANTOWN, that the air pollution control ordinance in Section 9-21 ofthe Germantown Municipal Code, codifiedAugust 9, 1999, be, and herebyis, 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 shallbe 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 StateBegulatjons Adopted by Reference: (1) For the pw-pose ofenforcement ofthe City ofGermantown, 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:



### 2 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 ofTennessee, ·or State appear, they shall be replaced byCity ofGermantO\\(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 CodeAnnotated, and 4. Whenreferring to the Tennessee Air QualityAct



### 2(c) Wherever the tenns Technical Secretary ofthe Tennessee AirPollution 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 thepurposes ofTennessee Code Annotated §68-201-116(b)(l). 

### (d) Wherever the tenns "Department ofEnvironment and Conservation of the State ofTennessee", "Tennessee Department ofEnvironment and Conservation", or "Department" appear, they shall be replacedby "Memphis and Shelby County HealthDepartment". (e) Wherever the terms Tennessee AirPollution Control DivisionofAirPollution Control, orDivision 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 orRegulations appear, they shall be replaced by City ofGermantown, 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 ofrefuse, 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 ofSubsection 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 orwill be createdbythe openburning. 

### (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 andtheir operation. (2) Fires set for the training and instruction offiremen or for research in fire protection or prevention. However, routine demolition ofstructures via supervised open burning byresponsible 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 ofthe Memphis-Shelby County Health Department (Department) at least ten ( 1 0) working days prior to commencing the burn: 

### e (i) The openburning

### is being conducted solely for fire trainingpurposes. (ii) All vinyl siding, carpet, vinyl flooring, asphalt roofmg materials, and any other materials expresslyprohibited in Subsection 9-21(2)(a), have beenremoved. (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)]. 

### 3(iv) A traffic hazard will notbe causedbythe air contaminants generatedbythe fire training. (v) A public nuisance will notbe createdbythe openburning. (3) Smokeless flares or safety flares for the combustion of waste gases provided other applicable paragraphs ofthis subsection are met. (4) Reserved. (5) Fire used for canying out recognized agricultural procedures necessary for the production or harvesting ofcrops or for the control ofdiseases 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) maybepermitted for vegetation ifall ofthe following conditions are met when an air curtain destmctoris used: (1) A request is filed with the Health Officer giving the reason why no method except open burning canbe employed to dispose ofthe material involved, the amount andkind ofmaterial 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 priorto commencing the change in the bum. (2) The person applying for the permit certifies, 

### by wrillt:n statement, compliance with following distance requirements, at aminirmun: (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 mustbe 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 propertyas the air curtaindestructor; and The open burning site mustbe 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 ofthe standard, per day, not to exceed 20 minutes in 24 hours. ( 4) All material to be burned mustbe dry and in otherrespects 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 ofthe burn. No fire shall be ignited during any exceedance ofthe National Ambient Air Quality Standard for ozone, oxides ofnitrogen, carbonmonoxide, orparticulate matter. Permittee is required to contactthe Department's Computerized Local Air Index Reporting system (CLAIR) recorded line at (901) 544- 7489 or 544-7490 before igniting afire to determine ifitis aBurning Day ora No-Burning Day.


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### (6) Approval is receivedfromthe Health Officer in writing. (7) Permission is secured from the fire department in thejurisdictioninvolved. (8) Theburning will be donebetween the hours of9:00 amand 4:00pmor as authorized bythe health officer. This approval will not relieve the person responsible for such burning from the consequences of any damages, injuries, or claims resulting from suchburning. (d) Definitions. (I) "Air Curtain Destructor" is a portable or stationary combustion device that directs a plane ofhigh 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 ofthe burn chamber and a recirculating motion ofair under the curtain. The use ofan 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 ofGod" 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 ofcombttstion are emitted directiy into the open atmosphere withoutpassing 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 ofthe United States government, or ofthe 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 ofthis Subsection pertaining to structural and household materials may be waived ifthe 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 ofwaste in lieu ofbuming, iflawful, is encouraged. 0 

### (ii) Ifa governmental collective bum site for disposing ofstructural and household materials and vegetation damaged by a natural disaster is planned, the person responsible for such burning must notify the Department ofthe 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 ofchippers and grinders in lieu ofburning is encouraged.


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### (iii) A traffic hazardshall notbe causedbythe air contaminants generatedbythe 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 ofthe 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 BurningDayoraNo-Burning Day. (v) Open burning conducted under this exception is only allowed where no other safe and/or practical means ofdisposal is available. (2) The Health Officerreserves the right to require a personto cease or limit openburning ifemissions from the fires are deemed by the Health Officer or his designee to jeopardize public health or welfare, create a public nuisance or safetyhazard, create a potential safetyhazard, or interfere with the attainment ormaintenance ofthe air quality standards. (3) Any exception to the openburning prohibition granted bythis Subsection does not relieve any person ofthe 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 orwoodlands without first securing apermit from the State forester in unincorporated portions of Shelby County.) 

### Section 5. ofParts ofArticles: 

### 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 ofthis AirPollution 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 ifsuchunconstitutional orvoid matterhad notbeenincluded therein. 

### Section 6. That the following shall be adopted as Subsection 9-21(4) and shall be titled Enforcement- violations ofSectjon- Notice; Citation; lnjunctjyeRelief: 

### (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 citationto cease the violation. Such notice or citation shall briefly set forth the general nature ofthe violation and specify a reasonable time within which the violation shall be rectified or stopped. Ifthe 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 ofthis 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 orjudicial review, the Health Officer shall institute proceedings in a court ofcompetent jurisdictionfor injunctive reliefto 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 ofthe provisions ofthe City ofGermantown, Tennessee--Air Pollution Control Code shall constitute a violation thereofand shall subject the person or persons responsible therefore to any and all ofthe penalties providedbylaw.



### 6(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 personwho knowingly: (1) Violates or fails to comply with any provision ofthe City ofGermantown, Tennessee--Air Pollution Control Code, anyboardoradministrative orderoranypermitcondition; (2) Makes any false material statement, representation, orcertificationin anyrecord, report, plan or other documentrequiredbypermittobe eitherfiled ormaintained; (3) Falsifies, tampers with, renders inaccurate orfails to install anymonitoring device ormethod required to be maintained orfollowed; or (4) Fails to paya 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 behalfofthe 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 ofanyprovision ofthe City ofGermantown, Tennessee--Air Pollution Control Code is declared to be a misdemeanor, and each day ofviolation shall constitute a separate offense. Conviction ofa misdemeanor is punishable with the fine not to exceed tenthousanddollars ($10,000)perdayper violation orwith imprisonment not greaterthanthirty (30) days, orboth. (d) In addition and supplemental to any criminal action which maybe prosecuted under this section, the Health Officer has and is vested withjurisdiction and authority to determine whether or not any provision ofthe City ofGe1mantown, 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 ofpublic nuisances. (e) Orders and Assessments ofDamages and CivilPenalties and Appeals (1) When the Health Officer discovers that any provision ofthe City ofGermantown, 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 ofsuch an order may appeal inthe same manner as with an assessment of damages or civilpenaltyunderparagraph (2). 

### (2) (a) In addition to the criminal penalties in this section, any person who violates or fails to comply with any provision ofthe City ofGermantown, Tennessee--Air Pollution Control Code or any standard adopted pursuant thereto in a permit, shall be subject to a civil penal&' ofup to twenty-five thousand dollars ($25,000) per day for each day ofviolation. Any person against whom an assessment in excess often thousand dollars ($10,000) for each violation has been issued by a local pollution control program pursuant to this section may petition the Technical Secretary for de novo review ofthe 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 7

### constitutes a separate punishable offense, and such person shall also be liable for any damages to the municipalityresulting therefrom. (b) 

### Any civil penalty ordamages shall be assessed inthe following manner: 

### 1 The Health Officer onbehalfofthe Memphis-Shelby County HealthDepartment operating under a certificate ofexemption pursuant to 

### T.C.A. §68-201-115 may issue an assessment against any person responsible for the violation or damages. Such person shall receive notice of such assessment by certified mail, return receiptrequested; 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 ofthe 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 ofthe 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 bythe poliution orby the violation. The plea offinancial inability to prevent, abate or control pollutionbythe polluter or violator shall not be a valid defense to liability for violations of the provisions of the City of Germantown, Tennessee--AirPollution Control Code. (d) The issuance ofan order or assessment ofcivil 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 ofEnvironment and Conservation

. 

## • (e) Whenever any order or assessment under this section has become final, a notarized copy ofthe order or assessment may be filed in the office ofthe clerk ofthe chancery court ofShelby County ifthe 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. Suchjudgment 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 ofthe City ofGermantown shall have the right to intervene on the ground that the penalties or remedies provided are inadequate or are based on erroneous fmdings offacts. Upon receipt of a timely motion to intervene, the court shall 8

### Section 8. determine whether it is duplicitous or frivolous, and shall notify the movant and the parties ofits detennination. Ifthe motion is determined not to be duplicitous or frivolous, all parties shall be considered to have sought review ofthe fmal order or assessment, and the court shall proceed inaccordance with T.C.A. §4-5- 322. Ifno timely motionto intervene is filed, orifany suchmotionis determined to be duplicitous or frivolous, the judgment shall become final forty-five (45) days afterthe date ofentry. 4. A fmaljudgment 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 otherjudgmentofa court ofrecord ofthis 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 ofany plant, building, structure, establishment, process or equipment including a group ofpersons 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 ofevidence as set forth in paragraph 9-21(8)(£) ofthe 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 pursuantto T.C.A. §68-201-115ifit finds that: The emissions proposed to occur as a result ofa variance would not endanger or tend to endanger hunum health, safety, or welfare, and would not cause ortend 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 descriptionofexpected monetary losses shallbe included. (b) No variance shall be granted or denied pursuant to this section until the Board has considered the relative interests ofthe applicant, other owners ofproperty likely to be affected by the discharges, and others who may be affected bygranting ordenying a request for variance

. (c) Any variance or renewal thereofshall be granted within the requirements ofsubsection (a) for time pe1iods and under conditions consistent with the reasons therefore, and with the following limitations: Ifthe variance is granted on the grounds that there is no practicable means known or available for the adequate prevention, abatement, or control ofthe 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 ofany 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 ofmeasures which, because oftheir extenCior cost, must be spread over a considerable period oftime, it shall be for a period not to exceed suchreasonable time as, in view ofthe Board, is requisite for the taking ofnecessary measures. A variance granted on the ground specified herein shall contain a timetable for the taking ofaction in an expeditious manner and shall be conditioned on adherence to such timetable and submittal ofproofthat such timetable is being met. 3 Anyvariance orrenewal granted shallbe for a time periodnotto 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 ofthe variance following the same procedures required for issuance of the initial variance. If complaint is made to the Board on account ofthe variance, no renewal thereofshall be granted, unless, following public hearing on the complaint, the Board fmds that renewal isjustified. No renewal shall be granted except on application therefore. Any such application shall be made at least sixty (60) days priorto the expiration ofthe variance. Immediately upon a receipt of an application for renewal, the Board shall give public notice of such application inaccordance with rules and regulations ofthe Board. (e) A variance orrenewal shall notbe a right ofthe applicant orholder 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 ofan application for a vruiance or renewal ofa variance by the Board may obtainjudicialreview thereofonly in a court ofcompetentjurisdiction. (f) Nothing in this section and no variance or renewal grantedpursuanthereto 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 anyperson or his property. 

### Section 9. That the following shall be adopted as Subsection 9-21(7) and shall be titled F.nforcement- Emergency Powers ofHealth Officer: (a) Any otherprovisions ofthe law notwithstanding, ifthe Health Officer finds that a generalized condition ofair 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 ofair contaminants. Upon issuance ofany such order, the Health Officer shall fix a place and time, not later thantwenty-four (24) hours thereafter, for ahearing to be held before the Air Pollution Control Hearing Board. Such hearing shall be held in confomlity with the provisions ofSubsection 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 ofthe HealthOfficer. (b) In the absence of a generalized condition of air pollution of the type refen-ed to in paragraph (a) of tllis subsection, but ifthe Health Officer fmds that emissions from the operation ofone 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 oftllis Section. In such event, the requirements for hearing and affmnance, modification or setting aside oforders set forth in paragraph (a) ofthis subsection shall apply. 

### Section 10. That the following shall be adopted as Subsection 9-21(8) and shall be titled 

### Air Pollution Control HearingBoard- Created; Membership; Term ofOffice; 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 ofnine members to be appointed as described in (1) and (2) below. No member ofthe Board shall hold any elective office or receive any governmental salary except as a member ofthe faculty or staff of a school in the Tennessee education system. Otherwise, all members shall serve without compensation. Any member ofthe Board who has any conflict of interest or potential conflict of interest shall make adequate disclosure ofitand abstain from matters related to it. (1) Eight (8) mel.lli:>ers ofthe Board are to be appointedjointlyby the Mayor ofthe City ofMemphis and the Mayor ofShelby County and confrrrned byboththe 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 ofair 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, exceptthat industry mayhave no more than two representatives. 

### 10

### (2) One member ofthe Board is to be appointed by the Executive Committee ofthe 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 ofthese communities. (b) The terms ofthe members shallbe four years except that ofthe initially appointed members, ofwhichthree 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 ofappointment. Whenever a vacancy occurs, the vacancy shall be filled for the unexpired term in the same manner as the original appointment. Should the term ofany Board member expire without a replacement member being appointed, the existing member shall continue to hold the Board membership until such appointment orreappointment 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 ofits hearings and other official actions. All hearings shall be held before not less than a majority ofthe Board. (d) The Boardis hereby vested with the followingjurisdictionand autholity: (I) Grant, deny orrevoke variance applications. (2) To decide appeals from any decisions, rulings, or determinations of the Health Director or his designated representative under this AirPollution Control Code. (3) To hear appeals arising from the failure ofthe Health Director or his designated representative to actwithin areasonable 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 ofthe Health Director or by his failure to act within a reasonable amount oftime may take an appeal to the Board as established by this section. Such appeals shall be made within fifteen (15) days after receiving notice ofsuch 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 ofthe 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 offiling an appeal, shall set a date for the hearing not more than sixty (60) days after the date offiling ofthe appeal and shall give notice thereofbymail to the interestedparties. (f) 

### Hearings before the Board shallbe conducted in the following manner: (1) Notice ofany and all hearings shall be given at least fifteen (15) days priorto 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 ofthe hearing; and (2) The chairman ofthe Board shall act as the hearing examiner to conduct suchhearing; and {3) Any person weking a variance or any party who has filed a written notice ofappeal 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


### 11respondent or any party to the hearing upon payment ofthe normal fee, which shall notexceed the costoftranscribing suchtestimony. (5) After due consideration ofthe written and oral statements, the testimony and arguments submitted at the hearing upon such complaint, or, upon default in appearance ofthe respondent on the return date specified in the formal notice ofcomplaint, 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 ofmembers to which the Board is entitled. (6) Upon failure ofthe Board to enter a fmal order or determination within sixty (60) days after the final argument ofsuchhearing, the respondent shallbe entitled to treatfor all purposes such failure to act as a finding favorable to the respondent. (7) The burden ofproof 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. §68-201-118(k). (8) Any person aggrieved by any final order or determination of the Board hereunder shall have judicial reviewthereofby writ ofcertioraripursuant to 

### T.C.

### A. §27-9-10I etseq. Nojudicialreview shallbe available until and afterall 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 thereofescape from abuilding or equipmentin such amanner and amount as to cause a nuisance or to violate any regulation, the Health Officermay 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 orequipment are treated by removal or destJ.uction ofair 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 ofthe emission ofobjectionable odors. Suitable measures shall include permit limitations, wet scmbbers, incinerators, or suchotherdevices 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 orchemicals for control ofdust in the demolition ofexistingbuildings or structures, construction operations, the grading ofroads or the clearing ofland; (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 containmentmethods shallbe employed during sandblasting orother similar operations. ( 4) Covering, at all times wheninmotion, openbodied trucks transporting materials likelyto become airborne; 

### 12(5) Conduct ofagricultural practices such as tilling ofland, application offertilizers, etc. in suchmanner as to not create anuisance to others residing in the area. (6) Thepaving ofroadways andtheirmaintenance ina cleancondition. (7) The prompt removal of earth or other material from paved street which earth or other material has been transported theretoby trucking orearthmoving equipment or erosionbywater. 

### 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 ofthis subsection onPermitFees shall apply to any person required to make application on or after July 1, 1992, to the Memphis-Shelby County HealthDepartment for issuance, re-issuance ormodification ofa 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 ofthis 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 subjectto the fees setout in Subsection9-21(20). (2) The Memphis-Shelby County Health Depattment (hereinafter refen·ed to as the Department) is designated to carry out and enforce the provisions oftltis Air Pollution Control Code and to promulgate any regulations consistent with it as maybe requiredfor proper administration ofthe fee systemcreatedherein. 

### Section 14. That the following shall be adopted as Subsection 9-21(12) and shall be titled Permits and Fees- PermitFee Schedule:
Fees for pennits are hereinafter set out as follows, and shall applyto any "person" as defmed in this Section: (1) ConstructionPermits

a. Any personmaking application to the Mempltis-Shelby County Health Departmentfor a construction pemtit shall pay an initial filing fee oftwo hundred dollars ($200.00) perpermit unit. 

### This filing fee shall notbereii.mdable ifthe permit is denied or ifthe application is withdrawn, nor shall itbe applied to any subsequent application. b. In addition to the fees in ( 1 )a. above, the largest ofthe following fees, ifapplicable, shallbepaid: Preventionofsignificant detelioration (PSD) review

...... $3,000 2. Major source or major modification review, except PSD sources review, requiring modeling

...... $2,000 3. Minor source orminormodification review, requiring modeling

...... $500
4. NewSourceperformance standard (NSPS) source review, perpermitunit...

... $500 5. National Emission Standard for Hazardous Air Pollutant (NESHAP) source review, per permitunit.

..... $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/renovationremoval, pernotice

...... $100 

### 132. 

### AirCurtaindestructor, perpermit

### unit...

... $100
3. NSPS Source,perpermitunit.. $100
4. NESHAP source, perpermitunit.

..... $100
5. Anypermitunitwith actual emissions of 100 tons ormore a year ofany single pollutant.... $150
6. Any permit unit with actual emissions of50 tons or more a year, but less than 100 tons per year ofany single pollutant...

... $100
7. Any permitunitwith actual emissions of25 tons ormore peryear, butless than 50 tons per year ofa singlepollutant...

... $75
8. Anypermitunit with actual emissions ofless than 25 tons per year ofa single pollutant. $50 9. Any permit issued as the result of a permit by rule or annual notification and general standards application to apa1ticularbusiness orbusiness group...... $100
10. Any source issued apermitpursuantto local rules implementing Title 40, Code ofFederal Regulations, Section

### 70 (MajorSource Permits)

...... 

### $150
b. No portion ofthe inspection/operating fee shall be refundable in the event the source discontinues operation or service duringthe permittedperiod. (3) Modificationofa 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 ofa permitto correct clerical, typographical, orcalculations errors. This fee shallbe set as follows: 1. Ifthe modification is anticipatedto result in an increase inallpollutants less than 10 tons per year...... $100 2. Ifthe modification is anticipated to result in an increase in all pollutants more than 10 tons peryear, butless than

### 50 tons peryear...... $250
3. Ifthe modification is anticipated to result in an increase in all pollutants more than 50 tons peryear...... $500 ( 4) Stack Sampling

a. Ifa source is required to demonstrate compliance by stack sampling its emissions, it shall pay the following additional fees: 

### 1 Anytesting requiring US/EPA methods 

### 1through4 only, perpermitunit...

... 

### $100 0 2. Particulate emissions testing requiringUS/EPAMethod 5, perpermit

### unit..

.... $300
3. Any other pollution testing by Methods other than US/EPA Method 5, (excepting those subjectto clause 1. immediately above), perpermitunit...

... $500



### 14b. 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 determinedbythe requirements set forth as follows:

a. Twenty-nine Dollars and Sixty-five Cents ($29.65 1) per ton ofemissions emitted from the source beginning with calendar year 1995, not including fugitive emissions and actual excess emissions that are the result ofprocess 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 ofeach regulated pollutant as defmed in Section 502 (b)(3)(B)(ii) ofthe Federal CleanAirAmendments of 1990. b. Ifno adjustment in the emissions fee rate established for any calendar year after 1992 is made by the CoWlty Commission and the Gennantown Board ofMayor 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 calendaryeartwo 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. Forpurposes ofthis Chapter and Air Pollution Control Code, the Consumer Price Index is the average ofthe Consumer Price Index for all urban consumers published by the Department ofLabor, as ofthe close ofthe twelve monthperiod ending on August 31 ofeach calendar year, and the revision of the Conswner Price Index which is most consistent with the ConsumerPrice Index for 1989 shallbe used.

c. The fee collected shall be adjusted by resolution ofthe Board ofShelby County Commissioners and the Germantown Board ofMayor 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 SUBJECTTO EMISSIONS FEE Each stationary airpollution source shallbe assessedthe Emissions Fee on no more than four thousand (4,000) tons peryear ofeachregulatedpollutantitemits. (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 ofthe 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 ofFees: (1) 

### Any person acquiring a permit shall be subject to the following payment ofpermit fees and the following procedure shall be used inpaymentthereof:

a. Initial filing fees for constructionperrnits mustbe submittedwitl1 the initial permit applications. b. Additional fees related to construction permits including those related to public notice are due within thirty 

### (30) days ofreceiptofbilling bythe Department.

c. Fees related to stacktesting are due within thirty 

### (30) days ofreceiptofbillingby the Department. d. Inspection/Operating Fees are assessed annually on the anniversary date ofthe issuance ofthe permit where applicable. Fees for asbestos removal mustbe submitted with the writtennotice ofintent to remove. 2. Fees for air curtaindestructors mustbe submitted withinten (10) days ofreceipt ofpermit.

e. Fees relatedto modificationofapermit shallbe submitted withthe permit application. f. Fees related to public notice necessary for the regulation ofa source shall be due within tltirty (30) days ofreceiptofbillingbythe Department. (2) Ifthe 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 ofthe year following the year the emissions occurred. If more than five thousand ($5,000) dollars is owed, then the amount due shall be submittedby January 

### 31 ofthe year two years afterthe 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 subjectto the fee schedule set out in Subsection 9- 21(12). 

### This fee shallbe used for: 1) 

### Reviewing and acting upon any application for apermit orpermit modification under the City ofGermantown, Tennessee--AirPollution Control Code as amended;



### 162) Implementing and enforcing the terms and conditions of any pernrit issued under the City ofGermantown, Tennessee--Air Pollution Control Code, provided, however, such cost shall not include any courtcost or other costs associatedwith anyjudicialenforcement action; 3) Emissions and ambientmonitoring andinspectionofsource operatedmonitoring programs; 4) Preparing generallyapplicable regulations orguidance; 5) Modeling, analyses and demonstrations; 6) Preparing inventories andtracking emissions. 7) Development ofand support for the small business stationary source teclmical and environmental compliance assistanceprogramas it applies to part70 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 ofthe major stationary source operating permit program allowable under the Federal Clean Air Act and under regulations in support ofthose 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 ofexpense associated with public notices or notifications requiredpursuantto the City ofGermantown, Tennessee--AirPollutionControl Code orthe Federal CleanAirAct. 

### 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 reportwill be for the emissions ofthat 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 previouslyprovided is inadequate to establish the actual type oramount ofemissions 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, ifthe source emits fewer than twenty five (25) tons ofactual emissions ofpollutant during a year, it may at its option, use as the actual emissions figure, its permittedpollutant levels where available andknown. If the source is a "major source" under the air toxics provisions ofthe CleanAir Act Amendments of 1990 it too must calculate its actual emission ofregulated pollutants. Failure to provide, on a timely basis, any additional informationrequested shallbe considered failure to paythe 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 ofthe Department, in 

### his discretion but consistent with Section 507 (f) ofthe Clean Air Act Amendments of 1990, may, upon written petition setting forth in detail thejustification 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 promulgatedpursuant thereto. A decision to deny the waiver may be appealed to the Local AirPollution Control Boardbythe partyrequestingthe waiver and will be heardunder the same procedures as any other decisionthat is appealed to this Board. Ifa 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 onprior years emissions fees and will only applyto the collectionoffuture 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 CarryForward: Any surplus in emissions fee funds shallbe carriedforward fromyear to yearfor these statedpurposes only. If, however, 

### in any year after 1993, this carry forward surplus exceeds onFebruary 15th thirty five percent (35 %) ofthe previous twelve (12) months fee, a tenpercent (10 %) perton credit onthe established emissions fee amount shallbe 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- PenaltyProvisions: Failw·e to pay the fees set forth in this Air Pollution Control Code shall be a violation ofthe City of Germantown, Tennessee-AirPollution Control Code and canresult 

### inthe assessment ofpenalties and injunction against the stationary air pollution source. Inaddition to any fees owed, amaximumpenalty equal to fifty percent (50%) ofthe fees owedmay 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--AirPollution Control Code for appeal ofdecisions ofthe HealthOfficer. 

### Section 22. That the following shall be adopted as Subsection 9-21(20) and shall be titled Permits and Fees Annual Review ofFee Structure and Financial Need:
The Memphis-Shelby County Air Pollution Control Board shall atmually review the fee sttucture established for the local airpollution 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 ofthe Memphis-ShelbyCounty Health Department Air Pollution Control Program to 

### fulfill the activities allowed to be ftmded by these tees. Such review shall include an estin1ate ofotherfunds available to the programincluding surplus orcarryforward 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 ofeach year. The county commission shall not, however, be required to adopt tltis recommendation, nor to change fees on anypredetermined schedule. Ifthe Shelby County Commission adopts a change in the rate or makeup ofthe fee, that adoption shall be provided to the Germantown BoardofMayor and Aldermen for adoption prior to collection ofchanged emissionfees bythe Memphis-Shelby CountyHealth Department. 

### Section 23. Thatthe following shallbe adopted as Subsection9-21(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. Thatthe following shall be adopted as Subsection 9-21(22) and shallbe titled Regulation ofParticulateMatter 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 ofauxiliary fuel. {b) No person shall cause, suffer, allow orpermit the emissions from any incinerator having a charging rate greater than 2,000 pounds perhour, fly ash or other particulate matter in quantities exceeding 0.1 grains per standard cubic foot offlue gas at !andardconditions corrected to 12 per cent carbon dioxide by volume excluding the contributionofauxiliary fuel. (c) No person shall cause, suffer, allow or permit the emissions ofparticles ofunburned waste or ash from any incinerator which are individually large enoughto 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 bysense ofsmell in anyareaofhumanuse oroccupancy. (e) No person shall install or construct an incinerator to be used for disposal ofcombustible waste from dwelling units ifsuch 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 complywithrecognized goodpractices. (g) Incinerators having 2.5 cubic feet fumace volume orless used solely for the disposal ofinfective dressings and other similarmaterial shall notberequiredto 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 opacityin excess oftwenty percent (20%). 

### Section 25. That the following shall be adopted as Subsection 9-21(23) and shall be titled Right of

For the purpose ofcanying out the requirements ofthe City ofGermantown, 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 andpremises, in order to thoroughly examine any items irl relation to public health and airpollutionthereon and therein. 

### Section 26. That Rules and Regulations ofTeru1essee Chapters1 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 ofSamp!ing and Analysis; 1200-3-14, titled Control ofSulphurDioxide 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 ofAccidental 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 onNovember 14, 2001; and, the New Source Perfmmance Standards (with the exception ofSubparts B, C, Cb, Cc, Cd, Ce, AAA) and Appendices A, B and F ofthe Code ofFederal Regulations (CFR), Title 40, Part 60 (Revised as ofJuly 1, 2001), are incorporated herein by reference as ifset out in their entirety and shall be adopted and approved as part ofthe City of Germantown, Tennessee--Air Pollution Control Code, thereby amending the City of Germantown, Tennessee--Air Pollution Control Code. Sectionnomenclature is identified in accordance withthe 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 AmbientAir Quality Regulations Visible Emissions Nonprocess EmissionStandards Process Emissions Standards Construction and Operating Permits Required Samplirlg, Recordirlg andReporting Hazardous Air Contaminants Methods ofSampling and Analysis 

### 199-21(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 ofSulfurDioxide Emissions EmergencyEpisode Plan NewSourcePerformance Standards Volatile Organic Compounds Limits onEmissions due to Malfunctions, Startups 

### & Shutdowns GeneralAlternateEmission Standards LeadEmission Standards GoodEngineeringPractice StackHeightRegulations Standards for Infectious Waste Incinerators AcidPrecipitation Standard National Emission Standards for Hazardous Air Pollutants for Source Categories Prevention ofAccidental Releases Conformity 

### Section 27. That the City of Germantown, Tennessee--Air Pollution Control Code, Subsection 9- 21( 1 02), Definitions, be amendedby adding at the end ofthe section the following definitions for "Health Officer" and "Odor" thatread as follows: Health Officer is the Health Officer for Memphis and ShelbyCounty. 

### D.dar is a sensation ofsmell perceived as a result ofolfactory stimulation. An odoris deemed objectionable, and therefore a nuisance, when one third (113) ormore ofa sample ofpersons exposedto itbelieve itto be objectionable inusualplaces ofoccupancy. 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) mustbelieve 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 thereofa 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 regulatedunder section 111 or 112 ofthe Act; 

### Section 29. That the City of Germantown, Tennessee--Air Pollution Control Code, Subsection 9- 21(109), Reference 1200-3-9, Constructjon And OperatingPermits, 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 paragraphreads as follows: (5) In any case where a condition is placed on a permit, the imposition ofthat permit condition may be appealed by filing a petition for reconsideration of the pennit condition. The petition for reconsideration ofpermit conditions shall specify which conditions and portions ofconditions are objected to and specifying in detail the objections. The petition ofappeal must be delivered to the Technical Secretarywithinthirty (30) days after the mailing date ofthe permit. Ifthe 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 ofhis receipt ofthe petition. Ifthe Technical Secretary's resultant decision onthe matters under appeal aggrieves the petitioner, the petitioner

**~** request a hearing pursuant to City ofGermantown, 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 Subsection9-21(8)" so that the paragraphreads 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 atthe source; and 

## Section 32. Thatthe following shall be adopted as Section 9-22 and shallbe titled Copies Available: 

### One (1) copy of the City of Germantown, Tem1essee--Air Pollution Control Code shall be available for public inspectioninthe office ofthe city clerk. 

## Section 33. SEVERABILITY. The prov1Slons of this ordinance are hereby declared to be severable. Should any ofthese sections, provisions, sentences, clauses, phrases, words, orparts be held unconstitutional orvoid, the remaining pmtions shall continue infull force and effect. 

## Section 34. BE ITFURTHERORDAINED THAT except as amendedbythis Ordinance, the City ofGermantown, Tennessee--Air Pollution Control Code shall remain in full force and effect as previously adopted as to anyviolation that occurredpriorto the effective date ofthis ordinance. 

## Section 35. BE IT FURTHER ORDAINED THAT this ordinance shall take effect from and after its passage on third andfinal 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
_______ _

,.....__/

1NOTE: RULES INCORPORATED BY REFERENCE HEREIN HAVE BEENFILED IN THEOFFICEOFTHE CLERKOFTHECOUNTY COMMISSIONAS REQUIRED BYT.C.A. §68-201-115.



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