## ORDINANCE

## 2llill- 01 

## AN ORDINANCETO ADOPTANAIR POLLUTION CONTROL CODE FORTHE TOWN OFARLINGTON 

# APR 10 2003

WHEREAS, Itis the declared public policy ofthis municipality to maintain purity ofthe air resources of the municipality consistent with the protection ofnormal health, general welfare and physical property ofthe 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 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 qua.lity is the most efficient means towards that end; and 

### WHEREAS, The operation ofa local air pollution control program by the Memphis-Shelby County Health Department, which was established in the Shelby County Air Pollution Code, first adopted on June 30, 1969 by the Shelby County Quarterly Court, and subsequently adopted by the Town ofArlington and has served to protect the air quality in the Town ofArlington and efficiently meet the needs ofthose regulated by air pollution control laws; and 

### WHEREAS, In order to maintain the Ce11ificate 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 Town ofArlington desires to enact air pollution control regulations not less stringent than standards adopted by the state pursuantto Chapter68-201· , Part I; and 

### WHEREAS, Title V ofthe Clean Air Act of 1990 requires air pollution control programs that wish to operate a major source operating permit program to establish a fee structure sufficient to fund the direct and indirect costs ofsuch aprogram; 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 ofShelby County; and 

### WHEREAS, the Board ofMayor and Aldermen wishes to retain the same annual $29.65 per ton emission fee withoutConsumer Price Index adjustment for emissions beginning with calendaryear 1995; and 

### WHEREAS, Tennessee Code Annotated §68-201-115(a) provides that any municipality or county may adopt an ordinance or resolution which incorporates by reference any federal or state regulations when such regulati ons are properly identified liS 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 period ofthirty (30) days before adoption ofthe ordinance orresolution incorporatingregulations by reference; and 

### WHEREAS, such ordinance or resolution incorporating regulations by reference shall become effective only afterpublication in anewspaperhaving ageneral 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 ofthe availability for public use, inspection and examination at the office ofthe Shelby County Clerk of three (3) copies of federal and State regulations to be incorporated by reference for aperiod ofthirty (30) days before adoption ofthe ordinance orresolution incorporating regulations by reference and notice 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 ofair pollution prevents the need for state control ofthe Town ofArlington air pollution sources subject to these controls, specifically those provisions found in the Rules and

**Rej~lations** of Tennessee Chapter 1200-3-2, titled Definitions; Chapter 12(i0-3-3, titled Ambient Air Quality Regulations; Chapter 1200-3-5, titled Visible Emissions; Chapter 1200-3-6, titled Nonprncess Emission Standards; Chapter 1200-3-7, titled Process Emissions Standards; Chapter 1200-3-9, titled Consm•ction and Operating Pennits; Chapter 1200-3-10, titled Required Sampling, Recocrling and Reporting; Chapter 1200-3-11, titled Hazardous Air Contaminants; Chapter 1200-3-12, titled Methods ofSampling and Anal,ysis; Chapter 1200-3-14,titled Control ofSulfj!r Dioxide Emissions; Chapter 1200-3-15, titled Emergency Episode Plan; Chapter 1200-3-16, titled New Source Perfonnance Standards; Chapter 1200-3-18, titled Volatile Organic Compmmds; Chapter 1200-3-20, titled 

### Limi.ts...Do Emissions due to Malfimctions Startups and Shutdowns; Chapter 1200-3-21, titled General Altemate Emission 

### Slallda!:ds; Chapter 1200-3-22, titled Iead Emission Standards; Chapter 1200-3-24, titled Good Engineering PracticesStack Height Regulations; Chapter 1200-3-25, titled Standards for Infectious Waste Incinerators; Chapter 1200-3-30, titled Acid Precipitation Standard; Chapter 1200-3-31, titled National Emission Standards for Hazardous Air Pollutants for Source Categories; Chapter 1200-3-32, titled Prevention of Accidental Releases; Chapter 1200-3-34, titled ConformiQI: and the New Source Performance Standards (with the exception ofSubparts B,C, Cb, Cc, Cd, Ce, AAA) of the Code offederal Regulations, Title 40, Part 60 (40 CFR 60) (Revised as ofJuly I, 2002), and Appendices A, Band F of40 CFR 60 (Revised as ofJuly I, 200I) except for the authorities therein retained 

### by the Administrator and not transferred to a State
. 

### NOW, THEREFORE, BE IT ORDAINED BY THE BOARD OF MAYOR AND ALDERMEN OF THE TOWN OF ARLINGTON, that the air pollution control ordinance in Title 8, Chapter 

### 5, Sections 8

-502, 8-503, and 8-504 of the Arlington Municipal Code, codified June 20, 1994, be, and hereby is, amended as herein set forth
. 

### Section 

### 1. That Sections 8-502, 8-503, and 8-504 ofthe Arlington Municipal Code ofOrdinances
are hereby repealed in their entirety. 

### Section 2. That Title 8, Chapter 5 shall be the "TOWN OF ARLINGTON, TENNESSEE-AIR POLLUTIONCONTROLCODE" and shall be titled the same. 

### Section 3. That the following shall be adopted as Title 8, Chapter 5, Section 8-5(I) and shall be titled Words opd Phrases Suhstjtuter! in State Regulations Adopted by Reference: (I) For the purpose of enforcement ofthe Town ofArlington, 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: I. 8-5(109) 1200-3- 9-.04 2
. 8-5(107) 1200-3- 7-.06 3. 8-5(106) 1200-3
- 6-.0I 4
. 8-5(114) 1200-3-14-.0l(l)(a), and 

### 5. 8-5(111) 1200-3-11-.01(1) (b) Wherever the terms Tennessee, State of Tennessee, or State appear, they shall be replaced by Town ofArlington with the following exceptions: I. 8-5(109) 1200-3-9-
.04 2
. 8-5(114) 1200-3-14-.0I(I)(a) 3. When referringto Tennessee Code Annotated, and 4. When referringto the Tennessee Air Quality Act (c) Wherever the terms Technical Secretary ofthe Tennessee Air Pollution Control Board, Technical Secretary, orSecretary appear, they shall be replaced by Health Officer except in subparagraphs 8- 5(5)(e)(2)(a) and (b) for the purposes ofTennessee CodeAnnotated §68-201-116(b)(I)
. (d) Wherever the terms "Department of Environment and Conservation ofthe State ofTennessee", "Tennessee Department ofEnvironment 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 ofAir Pollution Control, orDivision appear, they shall be replaced by Memphis and Shelby County Health Department, Air Pollution Control Section. (f) Wherever the terms Tennessee Air Pollution Control Regulations orRegulations appear, they shall be replaced by Town ofArlington, Tennessee--Air Pollution Control Code
. (g) Wherever the term Nashville Office appears, it shall be replaced by Memphis and Shelby County Healt h Department. (h) Wherever the term "State Civil Defense" appears, it shall be replaced by "Memphis and Shelby County Emergency ManagementAgency"
. (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 "Sections 8-5(11) through (21)".


### 2

### Section 4. titled Open Burning: That the following shall be adopted as Title 8, Chapter 

### 5, Section 8-5(2) and shall be (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 roofing materials, and/or asbestos containing materials is expressly prohibited, and such materials shall not be lawful in any open burning conducted under the provisions ofSection 8-5(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 becreated 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 offiremen or for research in f1re protection orprevention. However, routine demolition ofstructures 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 cef!ification must be delivered to the Pollution Control Section ofthe Memphis-Shelby County Health Department (Department) at least ten (10) working days priorto commencing the burn: (i} The open burning is being conducted solely for 

### fire training purposes. (ii) All vinyl siding, carpet, vinyl flooring, asphalt roofing materials, and any other materials expresslyprohibited in subsection 8-5(2)(a), have been removed. {iii} All regulated asbestos containing materials have been removed in accordance with Section 8-5(111) [Reference 1200-3-ll-.02(2)(d)3.(x)]. · (iv) A traffic hazard will notbe caused by the air contaminants generatedby the fire training. (v) A public nuisance

### will not be created bythe open burning. (3) Smokeless flares or safety flares for the combustion of waste gases provided other applicable paragraphs ofthis section are met. (4) Fires used for the reduction ofleaves on the premises on which they fall by the person in control of the premises. (5) Fire used for carrying out recognized agricultural procedures necessazy for the production or harvesting ofcrops or for the control ofdiseases or pests, in accordance with practices acceptableto 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 ifall ofthe following conditions are met when an air curtain destructor is used: (I) A request is filed with the Health Officer giving the reason why no method except open burning can be employedto dispose ofthe material involved, the amount and kind 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 (10) working days priorto commencing the change in theburn. (2) The person applying for the permit certifies, by written statement, compliance with following distance requirements, ata minimum: (i) The open burning site must be at least five hundred (500) feet from any Federal and from any Statehighway; and (ii) The open burning sitemustbe at least one thousand (1,000) feet from any school, national or state park, national reservation, national or state forest, wildlife area, and/orresidence not on the same property as the aircurtain destructor; and (iii) The open burning site must

### be at least one-half(112) mile from any airport, nursing home or hospital. 

### 3(3) The plume from !he air curtain destructor must meet the visible emission standards specified in Section 8-5(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 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 #I or#2 grade fuel oils. (5) No fire shall be ignited while any air pollution emergency episode is in effect in the area ofthe bum. No fire shall be ignited during any exceedance ofthe National Ambient Air Quality Standard for ozone, oxides ofnitrogen, carbon monoxide, orparticulate matter. Pern1ittee is required to contact the Department's Computerized Local Air Index Reporting system (CLAIR) recorded line at (901) 544- 7489 or544-7490 before igniting a fire to determine ifit is a Burning Day oraNo-Burning Day. (6) Approval is received from the Health Officer in writing. (7) Permission is secured from the fire department in thejurisdiction involved. (8) The burning will be done between the hours of9:00 am and 4:00pm oras 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 ofhigh velocity forced draft air through a manifold head into a bum chamber with vertical walls in such a manner as to maintain a curtain of air over the surface of the burn chamber and a recirculating motion ofair under the curtain. The use ofan air curtain destructor is considered controlled open burning. (2) "Air Pollution Emergency Episode" is defined as air pollution alerts, warnings, or emergencies declared by the Health Officer during adverse air dispersion conditions that may result in harm to public heath or welfare. (3) "Natural Disaster" is defined as any event commonly referred to as an "Act ofGod" and includes but is not limited to the following weather related or naturally occurring categories of events: tornadoes, hail and wind storms, snow or ice storms, flooding, and earthquakes. (4) "Open Burning" is the burning ofany maner under such conditions that products ofcombustion are emitted directly into the open atmosphere without passing directly through a stack. (5) "Person" is any individual, partnership, co-partnership, firm, company, corporation, association, joint stock company, trust, estate, political subdivision, an agency, authority, commission, or department ofthe United States government, or ofthe State ofTennessee government; or any other legal entity, or its legal representative, agent, or assigns. (e) Burning after natural disasters. (I) Open burning of materials resulting from a natural disaster, ·and when conducted in conformity 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 Section pertaining to structural and household materials may be waived if the persons seeking to open burn 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 ofburning, iflawful, is encouraged. (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 Depa11ment may request that alternate sites be identified to minimize impact to air quality. The alternative use ofchippers and grinders in lieu ofburning is encouraged. (iii) A traffic hazard shall notbe caused by the aircontaminants generated by the fire. 

### 4(iv) No fire shall be ignited while any air pollution emergency episode is in effect in the area ofthe bum. No fire shall be ignited during any excecdance 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 (90I) 544-7489 or 544-7490 before igniting a fire to determine if it is a BurningDay oraNo-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 person to cease or limit open burning ifemissions from d1e fires are deemed by the Health Officer or his designee tojeopardize public health or welfare, create a public nuisance or safety hazard, create a potential safety hazard, or interfere with the attainment ormaintenance ofthe air quality standards
. (3) Any exception to the open burning prohibition granted by this Section does not relieve any person ofthe responsibility to obtain a petmit required by any other agency, or ofcomplying with other applicable requirements, ordinances, orrestrictions
. [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 ofany forest, grasslands or woodlands without first securing a permit from the State forester in unincorporated portions ofShelby County.]
Section 5. That the following shall be adopted as Title 8, Chapter 5, Section 8-5(3) and shall be titled Scyrrnbilit)' ofPorts ofArticles: The provisions ofthis Air Pollution Control Code are hereby declared to be sever able, and ifany sections, provisions, clauses, orparts be held unconstitutional or void, then the remainder ofthis Air Pollution Control Code shall conti nue in full force and effect, it being the legislative intent that this Air Pollution Control Code would have been adopted even if such unconstitutional orvoid matter had not been included therein
. Section

### 6. That the following shall be adopted as Title 8, Chapter 

### 5, Section 8-5(4) and shall be titled Epforcemcnt- violationsofChapter- Nolice; Citation; Injnprtiyc 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 sluill 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 corrected within the time
so specified, or the violation stopped, orreasonable 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 courtofcompetent jurisdiction for injunctive reliefto enforce the regulations or orders pursuanthereto
.
Section 7. That the following shall be adopted as Title 8, Chapter 

### 5, Section 8-5(5) and shall be titled Enforcement Penalties ... Mjsdemeanor, Civil, and Nonrnmpljanre: (a) Failure to comply with any ofthe provisions ofthe Town ofArlington, Tennessee-Air Pollution Control Code shall constitute a violation thereofand shall subjectthe person orpersons responsibletherefore to any and all of the penalties provided by law
. (b) TI1e 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: (I) Violates or fails to comply with any provision ofthe Town ofArlington, Tennessee--Air Pollution Control Code, any board oradministrative orderorany permitcondition; (2) Makes any false material statement, representation, orcertification in any record, report, plan orother documentrequired by permitto be eitherfiled ormaintained; (3) Falsities, tampers with, renders inaccurate orfails to install anymonitoring device ormethod required to be maintained orfollowed;or (4) Fails to pay a fcc 

### 5application, authorized in writing, by the Health Officer on behalfofthe local air pollut1on control program operating under a certificate of exemption pursuant to T.C.A. §68-20I-ll5, for a violation within its jurisdiction. (c) Willful and knowing violation ofany provision ofthe·Town ofArlington, Tennessee--Air Pollution Control Code is decllll'ed to be a misdemeanor, and each day ofviolation shall constitute a separate offense. Conviction ofa misdemeanor is punishable with the fine notto exceed ten thousanddollars ($10,000) perday per violation
or with imprisonment not greaterthan 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 withjurisdiction and authority to determine whether or not any provision ofthe Town ofArlington, 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 Civil Penalties and Appeals



### ct (I) When the Health Officer discovers that any provision of the Town of Arlington, 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 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 ofthe Town ofArlington, Tennessee--Air Pollution Control Code or any standard adopted pursuant thereto in a permit, shall be subject to a civil penalty ofup to twenty-five thousand dollars ($25,000) per day for each day ofviolation. Any person against whom an assessment in excess often thousand doliars ($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. §68-201-1 16. The Technical Secretary shall render an initial determination, and that initial determination may be appealed to the Tennessee Air Pollution Control Board pursuant to this section. Each day such violation continues constitutes a separate punishable offense, and such person shall also be liable for any damages to the municipality resultingtherefrom. (b) Any civil penalty or damages shall be assessed in the following manner.

(c) I. The Health Officer on behalfofthe Memphis-Shelby County Health Department operating under a certificate ofexemption pursuant to T.C.A. §68-201-1 15 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 ofthe assessment, setting forth the grounds and reasons for such person's objections and requesting a hearing on the matter; 

### and 3. Ifa 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. In assessing such civil penalty, the factors specified in T.C.A. §68-201-106 and Title 42 U.S.C. §7413 and §7420 may be considered. Damages to the state or to the Town of Arlington may include any expenses incurred in investigating the enforcing of this section; in removing, correcting, or tenninating the effects of air pollution; and also compensation for any expense, loss or destruction ofplant or animal life or any other actual damages orclean-up expenses caused by the pollution orby the violation. The plea offinancial 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 Town of Arlington, Tennessee--AirPollution Control Code. 

### 6(d) The issuance ofan order or assessment ofcivil penalty by the Memphis-Shelby County Heallh Department operating under a certificate of exemption as provided for in this section is intended to provide additional and cumulative remedies to prevent, abate and control air pollution in Tennessee. Nothing herein shall be construed to preempt, supersede, abridge or otherwise alter any rights, action or remedies of the Technical Secretary, Tennessee Air Pollution Control Board or Commissioner of the Tennessee Department ofEnvironment and Conservation. (e)

Section 8. I. Whenever any order or assessment under this section has become final, a notarized copy ofthe order or assessment may be tiled in the office ofthe clerk ofthe chancery court ofShelby County ifthe final order or assessment is from the Memphis-Shelby County Health Department. 

### 2. When tiled in accordance with clause (e)1., a final order or assessment shall be considered as a judgment by consent of the parties on the same tenns and conditions as those recited therein
. Suchjudgment shall be promptly entered by the court. Except as otherwise provided in this section, the procedure for entry of the judgment and the effect thereof shall be the same as provided in Title 26, Chapter 6, Tennessee Code Annotated. Within forty-five (45) days after entry of a judgment under clause (e)2., any citizen ofthe Town ofArlington shall have the right to intervene on the ground that the penalties or remedies provided are inadequate or are based on erroneous findings offacts
. Upon receipt of a timely motion to intervene, the court shall determine whether it is duplicitous or frivolous, and shall notify the movant and the parties ofits determination. Ifthe motion is determined not to be duplicitous or frivolous, all parties shall be considered to have sought review ofthe final order or assessment, and the court shall proceed in accordance with T.C.A. §4-5- 322. lfnotimely motion to intervene is filed, orifany such motion is determined to be duplicitous or frivolous, thejudgment shall become final forty-five (45) 

### days after the date ofentry. 4. A final judgment under this subparagraph has the same effect, is subject to the same procedures, and may be enforced or satisfied in the same manner, as any otherjudgmentofa court ofrecord ofthis state.
That the following shall be adopted as Title 8, Chapter 5, Section 8-5(6) and shall be titled Enforcement- variances: (a) Any person who owns or is in control ofany plant, building, structure, establishment, process orequi pment 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 rules or regulations governing the quality, nature, duration or extent of discharge of air contaminants
. The application for a variance shall include infonnation and data sufficient for the Board to make the findings required below
. The hearing held hereunder shall be conducted in accordance with the rules ofevidence as set forth in subsection 8-5(8)(f) of the Town ofArlington, 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. §68-201-115ifit finds that: The emissions proposed to occur as a result 'Ofa variance would not endanger or tend to endanger human health, safety, or welfare, and would not cause or tend to cause propertydamage; 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 ofexpected 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 ofthe applicant, other owners ofproperty likely to be affected by the discharges, and others who may be affected by granting ordenying a request forvariance. (cfi' Any variance or renewal thereofshall l>e granted within the requirements ofsubsection (a) for time periods and under conditions consistent with the reasons therefore, and with the following limitations: I. 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 va'riance shall be permitted only until the necessary means for prevention, abatement, or control become known and available, and the variance shall be subjectto the taking ofany substitute oralternate measures that the Board may prescribe. 

### 7

### 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 extent or cost, must be spread over·a considerable period oftime, it shall be 

### for a period not to exceed such reasonable 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 ofproofthatsuch timetable 

### is being met. 3. Any variance orrenewal granted shall be for atime period not to exceed one (I)

### year. (d) Any variance granted pursuant to this section may be renewed by the Air Pollution Control Hearing Board on terms and conditions and for periods which would be 

### appropriate on initial granting ofthe variance following the same procedures required for issuance ofthe 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 finds that renewal isjustified
. No renewal shall be granted except on applicati on therefore
. Any such application shall be made at least sixty (60) days prior to the expiration ofthe variance
. Immediately upon a receipt of an application for renewal, the Board shall give public notice of such application in accordance wi th rules and regulations ofthe Board. (e) A variance or renewal shall not be a ri ght 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 variance orrenewal ofa variance by the Board may obtainjudicial review thereofonly in a courtofcompetentjurisdiction. (t) 

### Nothing in this section and no variance or renewal granted pursuant hereto shall be construed to prevent or limit the application of the emergency provisions and procedures of Sections 8-5(7) and 8-5(1 

### 15) [Reference I200-3
-15] to any person orhis propeftY. 

### Section 9. That the following shall be adopted as Title 8, Chapter 5, Section 8-5(7) and shall be titled Enforcement· Emergency Powers orHealth Officer· 

### (a) Any otherprovisions ofthe law notwithstanding, ifthe Health Officer fmds 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 laterthan twenty-four(24) hours thereafter, for ahearing to be held before theAir Pollution Control Hearing Board
.Such hearing shall be 

### held in confom1ity with the provisions ofSection 8-5(8), insofar as applicable. Not more than twenty-four (24) hours after the commencement ofsuch hearing, and without adjournment thereof, the Air Pollution Control Hearing Board shall affim1, modify or set aside the order ofthe Health Officer
. (b) In the absence ofageneralized condition ofa i rpollution ofthe type referred to in subsection (a) ofthis section, but ifthe Health Officer finds that emissions from the operation ofone or more air contami nant sources is causing imminent danger to human health or safety, he may order the person responsible for the operation in question to reduce or discontinue operations immediately, without regard to the provisions ofthis Chapter. In such event, the requirements for hearing and affirmance, modification or setting aside oforders set forth in 

### subsection (a) ofthi ssection shall apply
. 

### Section 10. That the following shall be adopted as Title 8, Chapter 5, 

### Section 8·5(8) and shall be titled Ajr ponutjon Control Hearing Board ·Created; Membership; Term or OfOcc; 

### .!nrisdirlinn; Hearings; Appe.al.s: 

### (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 (I) and (2) below. No member ofthe Board shall hold any elective office orreceive any governmental salary except as a member ofthe faculty or staffofa school in the Tennessee education system. Otherwise, all members shall serve

. without compensation. Any member ofthe Board who has any conflict ofinterest or potential conflict of interestshall make adequatedisclosure ofitand abstain from matters related to it. (I) 

### Eight (8) members ofthe Board are to be 

### appointedjointly by the Mayor ofthe City ofMemphis and the Mayor ofShelby County and confirmed by both the Memphis City

### Council and the Shelby County Board of Commissioners. These eight members shall consist of the following: One professional engineer knowledgeable in the field ofairpollution 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 may have no more than two representatives. (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 

### 8

### Arlington, Bartlett, Collierville, Germantown, Lakeland, and Millington and is to be a citizen of one ofthese communities. (b) The terms ofthe members shall be four years except that ofthe initially appointed members, ofwhich 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 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 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 ofits hearings and other official actions. All hearings shall be held before not less than amajorityofthe Board. (d) TI1e Board is hereby vested with the followingjurisdiction and authority: (1) 

### Grant, deny orrevoke variance applications. (2) 

### To decide appeals from any decisions, rulings, or determinations ofthe 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 act within 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 astay ofthe decision, ruling, requirement, rule, regulation ororder in question until the Board has taken final action on the appeal, except when the Health Director has acted under Section 8-5(7), 

### "Emergency Order" or except when an appeal has been filed pursuant to Section 8- 5(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 thereofby mail to the interested parties
. (f) 

### Hearings before the Board shall be conducted in the following manner: (I) Notice ofany and all hearings shall be 

### given at least fifteen (IS) days prior to the scheduled date of the hearing by public advertisement in a newspaper of general circulation in Shelby County, Tennessee givingthe date, time, place and Pl!rpose ofthe hearing; and (2} The chaim1an ofthe Board shall act as the hearing examiner to conduct such hearing; and (3) Any person seeking a variance or any party who has filed a written notice ofappeal pursuant to Section 8-5(8) 

### or Section 8-5(109) 

### [Referenc;e 1200-3-9-.05], 

### may appear in person or by agent or attorney and present evidence, both written or oral, relevant to the questions and issues involved and may examine and cross examine witnesses. (4) All testimony shall be under oath and recorded. The Board is authorized to have all testimony transcribed and a transcript of such testimony, if transcribed, shall be made available to the respondent or any party to the hearing upon payment ofthe normal fee, which shall not exceed the cost oftranscribing such testimony. (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 final determination as it shall deem appropriate not later than sixty (60) 

### days afterthe 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 final order or determination within sixty (60) days after the final argument ofsuch hearing, the respondent shall be entitled to treat for all purposes such failure to 

### act as aiiREiiAg favor:able t'

### the respondent. (7) 

### TI1e burden ofproofshall be on the Health Director or his duly authorized representative where appeal has been sought pursuant to Section 8-5(8) or Section 8-5(I09). 

### The burden ofproofis on the applicant where a variance has been sought pursuant to Section 8-5(6), 

### in accordance with T.C.A. §68-201-1IB(k). 

### 9(8) 

### Any person aggrieved by any final order or detennination of the Board hereunder shall have judicial review thereofby writ ofcertiorari pursuant to T

### C
. A. §27-9-1 OJ 

### etseq. Nojudicial review shall be available until and after all administrative remedies have been exhausted. 

### Section ll. That the following shall be adopted as Title 8, Chapter 5, 

### Section 8-5(9) and shall be titled Nujsancc Abatement: A. When dust, fumes, gases,mist, vapors, orany combination thereofescape from a building orequipment in such
a manner and amount as to cause anuisance orto violate any regulation, the Health Officermay orderthat 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 ordestruction ofair contan1inants before discharge to the open air
. B. No person shall cause, suffer, allow, or penni! any air contaminant source to be operated without employing suitable measures for the control ofthe emission ofobjectionable odors
.Suitable measures shall include pennit limitations, wet scrubbers, incinerators, orsuch otherdevices as maybe 

### approved by the Health Officer
. 

### Section 12. titled Fugitiye Dust: That the following shall be adopted as Title 8, Chapter 

### 5, Section 8-5(10) and shall be

No person shall cause, suffer, allow, or pem1it any materials to be handled, transported, or stored; or a building, its appurtenances, or aroad 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: (I) Use, where possible, waterorchemicals for control ofdust in the demolition ofexisting buildings orstructures, construction operations, the grading ofroads orthe clearing ofland; (2) Application ofasphalt, oil, water, or suitable chemicals on material stockpiles, 11nd other surfaces which can create airborne dusts; (3) 

### Installation and use ofhoods, fans, and fabric filters to enclose and vent the handling of dusty materials. Adequatecontainmentmethods shall be 

### employed during sandblasting or othersimilar operations. (4) Covering, at all times when in motion, open bodied trucks transporting materials likely to become airborne; (5) Conduct ofagricultural practices such as tilling ofland, application offertilizers, etc. in such manner as to not create anuisance to others residing in the area. (6) The paving ofroadways and their maintenance in aclean condition
. (7) The prompt removal ofearth or other material from paved street which earth or other material has been transported thereto by trucking orearth moving equipment orerosion by water. 

### Section 13. That the following shall be 

### adopted as Title 8, 

### Chapter 5, 

### Section 8-5(11) 

### and shall be titled Permits apd 

### Fees- Applicahj!jt,y and Enforcement Authority: (I) The provisions ofthis section on Permit Fees shall apply to any person required to make application on orafter July I, I992, to the Memphis-Shelby County Health Department for issuance, re-issuance ormodification ofa pennit in accordance with this Chapterand AirPollution Control Code, and shall be 

### subjectto the fee schedule set out in Section 8-5(12). 

### TI1e provisions ofthis Chapter on Emissions Fees shall apply to any person holding or obtaining a valid air pollution pem1it from the Memphis and Shelby County Health Department on or after July I, I992, and shall be 

### subjectto the fees setout in Section 8-5(20). (2) The Memphis-Shelby County Health Department (hereinafter referred to as the Department) is designated to carry out and enforce the provisions ofthis Air Pollution Control Code and to promulgate any regulations consistentwith it as may be required for properadministration ofthe fee system created herein
.
0 

### Section 14. That the following shall be adopted as Title 8, Chapter 5, Section 8-5(12) and shall be titled Permits and Fees- Permit FeeSchedule· Fees for
.pennits are hereinafter set out as follows, and shall applyto any

### "person as defined in this Chapter. (I) Construction Pennits


### 10

### a. Any person making application to the Memphis-Shelby County Health Depa1tment for aconstruction pem1it shall pay an initial filing fee oftwo hundred dollars ($200.00) per permit unit. This filing fee shall not be refundable ifthe permit is denied or ifthe application is withdrawn, nor shall itbe applied to any subsequent application. b. In addition to the fees in (l)a. above, the largest ofthe following fees, ifapplicable, shall be paid: I. 

### Prevention ofsignificant deterioration (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. New Source performance standard (NSPS) source review, perpermitunit...... $500 5. National Emission Standard for Hazardous Air Pollutant (NESHAP) source review, per permitunit...... $500 (2) Inspection/Operating Permit
a. Any person making application to the Memphis-Shelby County Health Department for an inspection/operating permit shall pay the larger of the applicable fees in accordance with the following schedule: Asbestos demolition/renovation removal, pernotice...... $1DO 

### 2. AirCurtain destructor, perpermitunit...... $1DO 

### NSPS Source, perpem1itunit...... $100 4. NESHAP source, per permitunit...... $1DO 

### 5. Any permit unitwith actual emissions of1 DO 

### tons or more ayear ofany single pollutant...... $150 6. Any pem1it unit with actual emissions of50 tons or more a year, but less than 100 tons per year ofany single pollutant...... $100 7. Any permit unit with actual emissions of25 tons or more per year, but less than 50 tons per year ofasingle pollutant..... $75 8. Any permit unit with actual emissions ofless than 25 tons peryear ofa single pollutant...... $50 9. Any permit issued as the result of a permit by rule or annual notification and general standards application to aparticularbusiness orbusiness group...... $100 I0. Any source issued apermitpursuantto local rules implementing Title 40, Code ofFederal Regulations, Section 70 (Major Source Permits)...... $150.00 b. No portion ofthe inspection/operating fee shall be refundable in the event the source discontinues operation orservice during thepermitted period. (3) Modification ofa Permit
a. Any person making application to the Memphis-Shelby County Health Department for the modification ofa permit shall pay a fee for each permit unit being modified, except that no fee is required for modification ofapermitto correctclerical, typographical, orcalculations errors. This fee shall be set as follows: I. 

### Ifthe modification is anticipated to result in an increase in all pollutants Jess than I0tons per year...... $100 2. Ifthe modification is anticipated to result in an increase in all pollutants more than 10 tons peryear, but Jess 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) StackSampling 

### 11

### a. Ifa source is required to demonstrate compliance by stack sampling its emissions, it shall pay the following addi tional fees: Any testing requiring US/EPA methods I through4only, perpermitunit
...... $I00 2
. Particulate emissions testingrequiring US/EPA Method 5, perpermit unit...... $300 3
. Any other pollution testing by Methods other than US/EPA Method 5, (excepting those subject to subparagraph I. 

### immediately above), perpermit unit
......$500 b. Any retest required to demonstrate compliance shall 

### be subject to the tee schedule as staled in the subparts a.I. 

### through a.3., immediat ely above. 

### Section 15. That the following shall be adopted as Tille 8, Chapter 5, Section 8-5(13) and shall be titled Permits and Fees Emissions Fee CorStatjonncy Sources: (I) 

### EMISSIONS FEE A fee shall be collected annually !Tom each stationary a i r pollution sou rce which has mor e than one ton of actual emissions annually ofa regulated pollutant as defined herei n, called the "Emissions Fee", w hich shall equal the amountdetem1ined by the r e quir ements setforth as follows: Twenty-nine Dollars and Sixty-five Cents ($29.65 1) 

### per ton ofemi ssions emitted from the source beginning with calendaryear 1995, not including fugitive emissions and actual excess emi ssions that are the result ofprocess malfunctions and facility start-up and shutdown detem1i ned by the Health Department to 

### be in compliance with the Air Pollution Code Sections that excuse these emissions from enforcement ofeach regulated pollutant as defined in Section 502 (b)(3)(B)(ii) ofthe Federal Clean AirAmendments of 1990. b. Ifno adjustment in the emi ssions fee rate established for any calendar year after I992 i s made by the County Commission and the Arli ngton Board ofMayor and Aldem1en; the fee shall be increased by the percenta ge, if any, by which !he Consumer Price Index for the most recent calendar year preceding the unadjusted yearexceeds the ConsumerPrice Index for the calendaryeartwo years prior to the unadjusted year, unless the Shelby County Commission adopts an emissions fee rate that excludes a Consumer Pri ce Index adjustment
. This rate amount shall then reflect a one-year Consumer Price Index Adjus011ent. 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 month period ending on August 31 ofeach calendar year, and the revision of the Consumer Price Index which is 

### most consistent with the ConsumerPrice Index for I989 shall be used
. c. The fee collected shall be adjusted 

### by resolution ofthe Board ofShelby County Commissioners and the Arlington Board ofMayor and Aldermen from time to time consistent w i th the need to cover the costs authorized by the Air Pollution Control Code and in accordance with d1e procedures in Section 8-5(20). For purposes ofthis Air Pollution Control Code a "stationary air pollution source" shall be thatgroup ofairpollution sources located within acontiguous area and undercommon control. (2) J\1AXIMUM AMOUNT SUBJECTTO EMISSIONS FEE Each stationary airpollution source shall be assessed the Emissions Fee on no more than four thousand (4,000) tons peryearofeach regulated pollutant it emirs. (3) EXEMPTION FOR UNITS SUBJECT TO SECTION 404 PROVISIONS OF THE CLEAN AIR AMENDMENTS OF 1990 This is the effective emissions fee rate (after adjustment for carryover overage) approved by the Town of Arlington. APPROVED ADOPTED EFFECTIVE APPLICABLE RATE 

### IN RATE TO 

# s 9
.00 1992 $ 9.00 1991 EMISSIONS $18
.00 I993 $18.00
. 1992 EMISSIONS $19
.00 1994 $17.10 1993 EMISSIONS $29 65 

### 1995 $29.65 1994 EMISSIONS 

### $29.65 I995 

### EMISSfOJ<IS $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 

### 12

### 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 l Sulfur Dioxide Requirements"
. 

### Section 16. That the following shall be 

### adopted as Title 8, 

### Chapter 5, 

### Section 8-5(14) 

### and shall be titled Permits and Fees- Payment orFees; (I} Any person acquiring a permit shall be subject to the following payment ofpermit fees and the following procedure shall be used in paymentthereof:
a. Initial tiling fees for construction pem1its mustbe submitted with the initial pem1it applications. b. Additional fees related to construction pem1its including those related to public notice are due within thirty (30) days ofreceipt ofbilling bythe Department

c. Fees related to stacktesting are due within thirty (30) days ofreceipt ofbillingbythe Department. d. Inspection/Operating Fees are assessed annually on the anniversary date ofthe issuance ofthe permit where applicable. I. Fees for asbestos removal must be submitted with the written notice ofintentto remove. 2. Fees for aircurtain destructors must be submitted within ten (I0) days ofreceipt ofpermit

e. Fees related to modification ofapem1itshall

**~e** 

### submittedwith the permit application. 

### f. Fees related to public notice necessary for the regulation ofa source shall be due within thirty (30) days ofreceipt ofbilling by the Department. (2) Ifthe emissions fees assessed to a stationary air pollution source are less than frve 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 submitted by January 31 

### ofthe year two years aftert11eemissions occun· ed
. 

### Section 17. That the following shall be adopted as Title 8, Chapter 5, 

### Section 8-5( 15) and shall be titled Permits and Fees- Allowable Ilscs for Emissions Fcc: The Department shall collect an annual emissions fee from those entities within the Town ofArlington which operate stationary air pollutant sources required to make application on or afterJuly I, 1992, 

### to the Memphis-Shelby County Health Department for issuance, re-issuance or modification ofapem1it in accordance with the Town ofArlington, Tennessee-AirPollution Control Code, and shall be subject to the fee schedule set out in Section 8-5(12)
.This fee shall be used for: I} Reviewing and acting upon any application for a permit or pem1itmodification under the Town ofArlington, Tennessee-Air Pollution Control Code as amended; 2) Implementing and enforcing the tetms and conditions of any permit issued under the Town ofArlington, Tennessee-Air Pollution Control Code, provided, however, such cost shall not include any court cost or other costs associated with anyjudicial enforcementaction; 3) Emissions and ambient monitoring and inspection ofsource operated monitoring programs; 4) Preparing generally applicable regulations orguidance; 5) Modeling, analyses and demonstrations; 6) Preparing inventories andtracking emissions
. 7) Development ofand suppon for the small business stationary source technical and environmental compliance assis.tanceprogram as it applies to part70 sources. 

## e 8) Information management activities to support and track permit applications, compliance certifications and related data enlry. The emission and annual Operating/Inspection fees collected from major stationary air pollution sources as defined herein, shall be used exclusively for and be 

### sufficientto 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 provisi ons as adopted locally in the Town ofArlington, Tennessee-Air Pollution Control Code. The owner or operator 

### 13of any stationary source shall also pay any cost of expense associated with public notices or notifications required pursuantto the Town ofArlington, Tennessee--Air Pollution Control Code orthe Federal Clean AirAct. 

### Section 18. That the following shall be adopted as Title 8, Chapter 5, Section 8-5(16) and shall be titled Permjts and Fees- Bcpnrtjog Rcqnjrcmcnts: (a) Except as provi ded below, each pem1itted stationary air pollution source must submit to the Depa11ment an annual repon that establishes the amount of actual emissions of each regulated pollutant, including carbon monoxide, for that source. This repon will be for the emissions ofthat source thatoccurred 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 infonnation on the emissions 'data submitted when the Department dctennines, the data previously provided is inadequate to establish the actual type or amount ofemissions from the source subject to fees. (b) Not including air taxies as they are defined in the Clean Air Act Amendments of 1990 and t h e amendments thereto, ifthe source emits fewer than twenty five (25) tons ofactual emissions ofpollutant during a year, i t may at its option, use as the actual emissions figure,its pennitted pollutant levels where available and known
.If the source is a "major source" under the air taxies provisi ons ofthe Clean Air Act Amendments of 1990 it too must calculate its actual emission ofregulated pollutants
. Failure to provide, on a ti mely basis, any additional infom1ation requested shall be considered failure to pay the fees
. 

### Section 19. That the following shall be adopted as Title 8, Chapter 

### 5, Section 8-5( 17) and shall be 

### titled 

### Permits and Fees- Small Business 

### \\faivcr: The Director ofthe Department, in his discretion but consistent with Section 507 (f) ofthe Clean Air Act Amendments ofJ990, may, upon written peti tion setting forth in detail thejustification therefore, reduce or waive for up to three (3) years, any emissions fee required under this Chapter to take into account the financial resources of small business stationary air pollution sources as defined under the federal act or regulations promulgated pursuant thereto
.A decision to deny the waiver may be appealed to the Local Air Pollution Control Boardbythe party requestingthe waiverand will be heard under the same procedures as any other decision that 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 i nan arbitrary fashion
. Such action will have no effect on prior years emissions fees and will only apply to the collection offuture emissions fees. 

### Section 20. That the following shall be adopted as Title 8, Chapter 

### 5, Section 8-5(18) and shall be titled Permits and Fees Surplus Funds Carry Forward: Any surplus i nemissions fee funds shall be carried forward from year to yearfor these stated purposes only. If, however, in any year after 1993, this carry forward surplus exceeds on February I5th thirty five percent (35 %) ofthe previous twelve (12) months fee, a ten percent (10 %)perton credit on the established emissions fee amount shall 

### be given to all stationary sources in the next emissions fee payment. 

### Section 21. That the following shall be adopted as Title 8, Chapter 

### 5 , Section 8-5(19) and shall be titled Permits and Fees- Pennlty Provisions: Failure to pay the fees set forth in this Air Pollution Control Code shall be a violation ofthe Town ofArlington, Tennessee-Air Pollution Control Code and can result in the assessment ofpenalties and injunction against the stationary air pollution source. In addition to any fees owed, amaximum penalty equal to fifty percent 

### (SO%) ofthe fees owed may be assessed for late payment. Interest in the amount equal to the maximum allowed under State Law shall also be charged for all fees paid more than thirty (30) days late
. When an emissions fee amount is contested, only the contested portion can be withheld. Any uncontested fee amount must be paid by the due date for payment. Due process for contested amounts is provided by appeal under the administrative and judicial review provisions of the Town of Arlington, Tennessee--AirPollution Control Code for appeal ofdecisions ofthe Health Officer. 

### Section 22. That the following shall be adopted as Title 8, Chapter 

### 5, Section 8-5(20) and shall be titled permits and Fees Annual Review offee Structure and Financial Need: TI1e Memphis-Shelby County Air Pollution Control Board shall annually review the fee structure established for the Jo&ll air pollution control program and recommend to the Shelby County Commission any change in rate ormake-up of the fee it detennines, afterpubli chearing, is necessary to meet the financial requirements ofthe Memphis-Shelby County Health Depamnent Air Pollution Control Program to fulfill the activities allowed to be funded by these fees
. Such review shall include an estimate ofother funds available to the program including surplus or carry forward funds as well as changes in state or federal laws that could effect the program. TI1e recommendation shall be provided to the commission no later than April I ofeach year. The county commission shall not. however, 

### be required to adopt this recommendation, nor to change fees on any predetennined schedule
. Ifthe Shelby County Commission adopts a change


### 14in the rate or makeup ofthe fee, that adoption shall be provided to the Arlington Board ofMayor and Aldermen for adoption priorto collection ofchanged emission fees by the Memphis-Shelby County Health Department. 

### Section 23. titled Severance: That the following shall be adopted as Title 8, Chapter 5, Section 8-5(21) and shall be
The provisions of this ordinance are hereby declared to be severable. Should any of these sections, provisions, sentences, clauses, phrases, or parts be held unconstitutional or void, the remaining portions shall continue in full force and effect. 

### Section 24. That the following shall be adopted as Title 8, Chapter 5, Section 8-5(22) and shall be titled Regn)atjon ofPartjcnlate Matter from lncinerntnrs: (a) No person shall cause, suffer, allow or pem1it 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 con·ected to 12 per cent carbon dioxide by volume excluding the contribution ofauxiliary fuel. (b) No person shall cause, suffer, allow or pem1it the emissions !Tom 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 offlue gas at standard conditions corrected to 12 per cent carbon dioxide by volume excluding the contribution ofauxiliary fuel. (c) No person shall cause, suffer, allow or pennit the emissions ofparticles ofunburned waste or ash from any incinerator which are individually large enough to be visible while suspended to the atmosphere. (d) No person shall construct, install, use or cause to be used any incinerator which will result in odors being detectable by sense ofsmell in any area ofhuman use 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 serviqg 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 furnace volume or less used solely for the disposal ofinfective dressings and other similarmaterial 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 oftwenty percent {20%). 

### Section 25. titled Right ofEntcy: That the following shall be adopted as Title 8, Chapter 

### 5, Section 8-5(23) and shall be
For the purpose ofcarrying out the requirements ofthe Town ofArlington, Tennessee-Air Pollution Control Code, the Health Officer and his authorized representatives, including engineers, assistants, environmentalists and other employees, shall be permitted at all reasonable times to enter into any manufacturing plants, business buildings or other buildings, and all lots, grounds and premises, in order 

### to thoroughly examine any items in relation to public health and airpollution thereon and therein. 

### Section 26. That Rules and Regulations ofTennessee Chapters' 1200-3-2, titled Definitions; 1200-3-3, titled Ambient Air Quality Regulations; 1200-3-5, titled Visible Emissions; 1200-3-6, titled Nonpmcess Emission Standards; 1200-3-7, titled Process Emissions Standards; 1200-3-9, titled Constmctinn and Operating Peunits; Chapter 1200-3-10, titled Required Sampling, Recording and Reporting; 1200-3-11, titled Hazardous Air Contaminants; 1200-3- 12, titled Mclhods ofSampling and Analysis; 1200-3-14, titled Control ofSulphur Dioxide Emissions; Chapter 1200-3- 15, titled Emergency Episode Plan· Chapter 1200-3-16, titled New Source Perfonnance Standards; 1200-3-18, titled Volatile Organic Compounds; 1200-3-20, titled Iimits on Emissions due to Malfimctinns Startups and Shutdoums; 12--3-21, titled General Alternate Emission Standards; 1200-3-22, titled I cad Emission Standards; 1200-3-24, titled Qaod 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. §68-201-101 through §68-201-118, as effective on December 31, 2000; Chapter 1200-3-34, titled Copfonnity, as effective on November 14, 2001; and, the New Source Performance Standards (with the exception ofSubparts B, C, Cb, Cc, Cd, Ce, AAA) ofthe Code ofFederal Regulations, Title 40, Part 60 (40 CFR 60) (Revised as ofJuly I, 2002), and Appendices A, Band Fof 40 CFR 60 (Revised as ofJuly I, 200I), are incorporated herein by reference as ifset out in their entirety and shall be 

### 15

### adopted and approved as part ofthe Town ofArlington, Te!Ulcssce--AirPollution Control Code, thereby amending the Town ofArlington, Tennessee-AirPollution Control Code
. Section nomenclature is identified in accordance with the following table. Arlington Code State Federal 

### 1!1omeoclatua: Bcgnlatiaos Begnl

### atioDS D.tl.c 8-5(102) 1200-3-2 

### ..........................

# ___ Definitions 8-5(103) 1200-3-3 

# ---- --------- AmbientAir Quality Regulations 8-5(105) 1200-3-5 

# ------- Visible Emissions

.8-5(106) 1200-3-6 

# ------ Nonprocess Emission Standards 8-5(107) 1200-3-7 ProcessEmissions Standards 8-5(109) 1200-3-9 Construction andOperating Permits 8-5(110) 1200-3-10 

# ---- Required Sampling, Recording andReporting 8-5(11l) 1200-3-11 

# ------ HazardousAirContaminants 8-5(112) 1200-3-12 

# ------ Methods.ofSampling andAnalysis 8-5(114) 1200-3-14 

# -------·· Control ofSulfurDioxide Emissions 8-5(115) 1200-3-15 

# ------ EmergencyEpisode Plan 8-5(116) 1200-3-16 40CFR60 New Source Perfonnance Standards ISdefined lboYO 

### 8-5(118) 1200-3-18 

# ----- Volatile Organic Compounds 8-5(120) 1200-3-20 

# -----..

## -· Limits onEmissions due to 

### Malfunctions, Startups & 

### Shutdowns 8-5(121) 1200-3-21 

# ---- GeneralAlternate EmissionStandards 8-5(122) 1200-3-22 

# ----- Lead EmissionStandards 8-5(124) 1200-3-24 

# ----- Good EngineeringPractice StackHeightRegulations 8-5(125) 1200-3-25 

# ---- Standards for Infectious WasteIncinerators 8-5(130) 1200-3-30 

# ---- AcidPrecipitation Standard 8-5(131) 1200-3-31 

# ------ National Emission Standards for Hazardous Air Pollutants for Source Categories 8-5(132) 1200-3-32 PreventionofAccidentalReleases 8-5(134) 1200-3-34 Conformity 

### Section 27. That the Town ofArlington, Tennessee-Air Pollution <;:ontrol Code, Section 8-5(102), Pefioitians, be amended by adding at the end ofthe section the following definitions for "Health Officer" and "Odor" that read as follows: Health Officer is the HealthOfficerfor Memphis and ShelbyCounty
. Odor is a sensation ofsmell perceived as aresult ofolfactory stimulation
.An odor is deemed objectionable, and therefore a nuisance, when one third (1/3) or more of a sample of persons exposed to it believe it to be objectionable in usual places ofoccupancy. The sample size is to be at least twenty-five (25) persons, orwhen fewer than twenty-five (25) are exposed, one half(l/2) must believe it to be 

### objectionable. 

### Section 28. 11lat the Town ofArlington, Tennessee-Air Pollution Control Code, Section 8-5(109}, Reference 1200-3-9, Caostructjop Aod Operating Permits, be amended by deleting in its entirety item 1200-3-9- .02(1l)(b)l4
.(ii)(XXVII) and substituting in lieu thereof a new item 1200-3-9-.02(ll)(b)l4.(ii)(XXVII) so that it reads as follows: (XXVll)Any other stationary source category, which as ofAugust 7, 1980 is being regulated undersection I11 or 

### I12 ofthe Act; 

### Section 29. That the Town ofArlington, Tennessee-Air Pollution Control Code, Section 8-5(109), Reference 1200-3-9, Canstrm:tian Aod Operating Permits, be amended by replacing the phrase "T
.C
.A
. Section 68-201-108" in the last sentence ofparagraph 1200-3-9-.05(5) with the phrase "Town ofArlington, Tennessee-Air Pollution Control Code Section 8-5(8)" so thatthe paragraph reads as follows: (5) In 

### any case where a condition is placed on apermit, the imposition ofthat permit condition may be appealed by filing a petition for reconsideration of the permit 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 Secretarywithin thirty (30) days afterthe mailing date ofthepermit. Ifthe Technical Secretary is considering denying the petition he shall schedule aconference with the petitioner to discuss the matters under appeal 

### w:ithin forty-five (45) days ofhis receipt ofthe petition. Ifthe Technical Secretary's resultant decision on the matters underappeal aggrieves the petitioner,the petitioner may request a hearing pursuant to Town ofArlington, Tennessee-Air Pollution Control Code Section 8-5(8)
. 

### 16

### Section 30. That the Town ofArlington, Tennessee-Air Pollution Control Code, Section 8-5(109), Reference 1200-3-9, Constrncfjon Apd OpcraUne Permits, be amended by replacing the phrase "T.C.A. Section 4-5-301 et seq." inparagraph 1200-3-9-.05(6) with the phrase "Town ofArlington, Tennessee-AirPollutionControl Code Section 8-5(8)" so that the paragraphreads as follows: (6) All applicableprovisions ofTown ofArlington, Tennessee--Air Pollution Control Code Section 8- 5(8), oncontested cases shall apply to the hearing before the Board on such appeals. 

### Section 31. That the Town ofArlington, Tennessee--Air Pollution Control Code Section 8-5(118), Reference 1200-3-18-.79, voJati1e Organic: Compounds, be amended by adding language to part !200-3-18- .79(l)(e)2. so that itreads as follows: 2. Sources subject to s01uce-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. SEVERABILITY. The provisions of 

### this ordinance are hereby declared to be severable
. Should any ofthese sections, provisions, sentences, clauses, phrases, words, or parts be held unconstitutional
orvoid, the remainingportions shall continue in full force and effect 

### Section 33. BE IT FURTHER ORDAINED THAT one (I) copy ofthe Town ofArlington, Tennessee-AirPollution Control Code shall be available for public inspection in the office ofthe city clerk
. 

### Section 34. BE ITFURTHERORDAINED THATexcept

### as amended by this Ordinance, the Town ofArlington, Tennessee-AirPollution Control Code shall remain in full force and effect as previously adopted as to any violation that occurred prior 

### to the effective date ofthis ordinance. 

### Section 35. BE ITFURTHERORDAINED THATthis ordinance shall take effect from and afterits passage onthird and final reading. PASSED FIRST

### READING
_ __. • 

## .....,?._--=3'---0_3 _ _ PASSED SECOND

### READING

### _....:.tf_-_7:......-....;o:......:;.? __ _ PASSED THIRD REJ..DING 

# N(f'T
**APPu(!fi~**

' 'NOTE: R.VI.ES t OOR!'ORAi!i[)ll¥ REFERENCE HEREIN HAVE BEEN 1'1 CDM t.fiSS.ION
. AS
**R~UI!U!D** BYT.C.A
.
**~~ 2D**  **l**S
.



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