O~INANCE NO 2002-'/!lJJ 

AN ORDINANCE TO AMEND CHAPTER 16, ARTICLE ll, CODE 

OF ORDINANCES, CITY OF MEMPIDS: SO AS TO RETAIN 

THE SAME ANNUAL EMISSION FEE AMOUNT FOR 

CALENDAR YEAR 2001; AND, BY PROVIDING FOR 

REVISIONS FOR PENALTIES FOR NONCOMPLIANCE; 

VARIANCES; OPEN BURNING; VOLATILE ORGANIC 

COl\IIPOUNDS; HEARINGS; TO ADD A NEW RULE 

AUTHORIZING RIGHT OF ENTRY; A NEW RULE FOR 

EMERGENCY EPISODES; A NEW RULE FOR THE 

CONFORMITY OF MOBll,E SOURCE EMISSIONS WITH AIR 

QUALITY PLANS; AND HOUSEKEEPING REVISIONS. 

'dAN 31 2003 

WHEREAS, it is the declared public policy of the City of Memphis to maintain purity of the air 

resources of the community consistent with the protection of normal health, general welfare and physical property of 

the people, maximum employment and the full industrial development of the state and to seek the accomplishment of 

these objectives through the prevention, abatement and control of air pollution by all practical and economically 

feasible methods. It is also the intent of the City of Memphis to qualify for receipt of federal funds available for air 

pollution control progranlS and to that end, this ordinance shall be construed to give the authority to so qualify and 

maintain such qualification; and 

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

WHEREAS, the operation of a local air pollution control program by the Memphis and Shelby County 

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

County Quru1erly Court, ru1d as amended, has served to protect the air quality in Shelby Coimty and efficiently meet the 

needs of those regulated by air pollution control laws; and 

WHEREAS, ill order to mairitaill the Certificate of Exemption from State ofTennessee (State) supervision 

granted by the Tennessee Air Pollution Control Board, it is necessary to adopt requirements no less stringent than State 

standards; and 

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

operate a major source operating permit progran1 to establish a fee structure sufficient to fund the direct and indirect 

costs of such a program; and 

WHEREAS, the City of Memphis has previously established a fee system to collect and administer 

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

County; and 

WHEREAS, the City of Memphis wishes to retain the same annul!,] $29.65 per ton emission fee without 

Consumer Price Index adjustment for calendar year 2001; and 

WHEREAS, Teunessee Code Annotated§ 68-201-11 5(a) provides that any municipality or county may 

adopt an ordinance or resolution which incorporates by reference any federal or state regulations when snch 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 ill the office of the county clerk for public use, inspection ruld examillation for a 

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

WHEREAS, the Memphis and Shelby County Health Department has caused to be published ill a 

newspaper having general circulation in Memphis and Shelby County, Tennessee, notice of the availability for public 

use, inspection and examillation at the office of the Shelby County Clerk of three (3) copies of federal and State 

regulations to be illcorporated by reference for a period of thirty (30) days before adoption of the ordinance or resolution 

incorporating regulations by reference and notice that the date of the Second Reading of this ordinance scheduled for 

June 17, 2002, was the date of public hearing on adoption of such ordinru1ce; and 

WHEREAS, tl1e City of Memphis has enacted air pollution control regulations not less strillgent than 

s~ards adopted by the state pursuant to Chapter 68-201, Part 1; of the Tennessee Code Annotated; and 

WHEREAS, such ordinance or resolution incotporating regulations by reference shall become effective 

only after publication in a newspaper having a general circulation ill t11e county; and 

WHEREAS, maintaining up to· date technical. standards promulgated by the Teru1essee Department of 

EnvironnlCnt and Conservation (Teru1essee) for the control of air pollution prevents the need for state control of City of 

Memphis air pollution sources subject to these controls, specifically those provisions found in the Rules and Regulations 

ofTemlCssee Chapter 1200-3-2, titled Definitions; Chapter 1200·3-3, titled Ambient Air Quality Regulations; Chapter 

1200-3-5, titled Vis•ble Emissions; Chapter 1200-3-6, titled Nonprocess Emission Standards; Chapter 1200-3-7, titled 

Process Emissions Standards; Chapter 1200-3-9, titled Constnrction and Operating Pennits; Chapter 1200-3-10, titled 
Required Sampling Remrding and Reporting; Chapter 1200-3-11, titled Haz.ardm" Air Contaminants; Chapter 1200-3-

12, titled Methods of Sampling and Analysis; Chapter 1200-3-14, titled Control of Sulfisr Dioxide Emissions; Chapter 

1200-3-15, titled Emergency Episode Plan; Chapter 1200-3-16, titled New Source Performance Sl!mdardR; Chapter 

1200-3-18, titled Volatile Organic Compounds; Chapter 1200-3-20, titled I.imits on Emissions due to Malthnctions, 

Startups and ShutdoWJJs; Chapter 1200-3-21, titled General Alternate Emission Standards; Chapter 1200-3-22, titled 

l.ead Emission Standards; Chapter 1200-3-24, titled Goad Engineering Practices Stack Height Regulations; Chapter 

1200-3-25, titled Standards for Infections Waste Incincrntnrs; Chapter 1200-3-30, titled Acid Precipitation Standard; 

Chapter 1200-3-31, titled National Emission Standards for Hazardous Air Pollutants for Sanrce Categories; Chapter 

1200-3-32, titled Prevention of Accidental Releases; Chapter 1200-3-34, titled ConfnOJJitj£; and the New Source 

Perfomlllnce Standards ('with the exception of Subparts B, C, Cb, Cc, Cd, Ce, AAA) and Appendices A, B and F of the 

Code of Federal Regulations (CFR}, Title 40, Part 60 (Revised as of July 1, 2001) except for the authorities therein 

retained by the Administrator and not transferred to a State. 

SECTION l. BE IT ORDAINED BY THE COUNCIL OF THE CITY OF MEMPHIS, That Chapter 16, 

Article II, Code of Ordinances, City of Memphis be, and tl1e same hereby is, amended as follows: 

1. Amend Section 16-48. "WORDS AND PHRASES SUBSTITUTED IN STATE REGULATIONS 

ADOPTED BY REFERENCE" by adding the phrase "except in Section 16-48(S)(e)(2)(a) for the purposes 

of Tennessee Code Annotated §68-201-116(b)(l}" to the end ofparagraph 16-48(l)(c) following the words 

"Health Officer" so that as amended the sentence reads as follows: 

(1} (c) Wherever the terms Teclmical Secretary of the Tennessee Air Pollution Control Board, 

Technical Secretary, or Secretary appear, they shall be replaced by Health Officer except 

in Section 16-48(S)(e)(2)(a) and (b) for the purposes of Tennessee Code Almotated §68-

201-116(b)(l). 

2. Amend Section 16-50. "OPEN BURNING", by deleting it in its entirety and replacing it with the following 

lat1guage: 

(a) No person shall cause, suffer, allow or permit open burning of refuse, garbage, trade waste, trees, 

limbs, brush, or materials from salvage operations. The open burning of tires and otl1er rubber 

products, vinyl shingles and siding, other plastics, asphalt shingles and ot11er asphalt roofing 

nlllterials, and/or asbestos containing materials is expressly prohibited, and such materials shall not 

be lawful in any open burning conducted under the provisions of Section 16-50. 

(b) Open burning as listed below may be conducted without pennit subject to fire department approval 

and provided further tllllt no public nuisance is or will be created by t11e open burning. 

( 1) Fires used for the cooking of food or for ceremonial, recreational or comfort-heating 

ptU'poses including barbecues and outdoor ftreplaces. This exception does not include 

connnercial food preparation facilities and their operation. 

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

prevention. However, routine demolition of structw·es via supervised open burning by 

responsible ftre control persons will not be considered ftre training. Additionally, the 

person responsible for such burning, unless conducted at a recoguized ftre-training 

academy, must certify compliance with the following requirements by written statement. 

The certification must be delivered to the Pollution Control Section of the MemphisShelby County Healtll Department (Department) at least ten (10) working days prior to 

commencing the bum: 

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

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

materials expressly prohibited in Subsection 16-50( a), have been removed. 

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

Section 16-81, Reference 1200-3-ll-.02(2)(d)3.(x). 

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

training. 

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

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

applicable subsections of this section are met. 

(4) Reserved. 

(5) Fire used for carrying out recognized agricultural procedures necessaJy for tile production or 

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

acceptable to the Department. 

(6) Fires for the buming of bodies of dead aninmls, including poultry, where no other safe 

and/or practical disposal method exists. 

(c) Exceptions to subsection (a) nmy be permitted for vegetation if all of the following conditions are 

met when an air curtain destructor is used: 

(1) A request is filed with the Health Officer giving the reason why no method except open 

burning can be employed to dispose of the material involved, the amount and kind of 

material to be burned, the exact location where the burning will take place, and the dates 

when the open burning will be done. All changes in types of, or increase in quantities of, 

materials burned must be preceded by notification. The notification must be delivered to 

the Department at least ten (10) working days prior to commencing the change in the 

burn. 

(2) The person applying for the pem1it certifies, by written statement, compliance with 

following distance requirements, at a minimum: 

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

from any State highway; and 

(ii) The open burning site must be at least one thousand {1,000) feet from any school, 

national or state park, national reservation, national or state forest, wildlife area, 

and/or residence not on the same property as the air cut"tain desuuctor; and 

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

home or hospital. 

(3) The plume from the air curtain destructor must meet the visible en1ission standards specified 

in Section 16-83, Reference 1200-3-5-.01(1); however, for certain materials the Department 

may allow one start-up period in excess of the standard, per day, not to exceed 20 minutes in 

24 hours. 

(4) All material to be burned must be dry and in other respects be in a state to sustain good 

combustion. Open burning must be conducted when ambient conditions are such that good 

dispersion of combustion products will result. Prin1ing materials used to facilitate such 

burning slmll be limited to #1 or #2 grade fuel oils. 

(S) No fJre shall be ignited while any air pollution emergency episode is in effect in the area of 

the bum. No fire shall be ignited during any exceedance of the Nati01m1 Ambient Air Quality 

Standard for ozone, oxides of nitrogen, carbon monoxide, or particulate matter. Permittee is 

required to contact the Department's Computerized Local Air Index Reporting system 

(CLAIR) recorded line at (901) 544-7489 or 544-7490 before igniting a fire to detem1ine if 

it is a Bwni.ng Day or a No-Burning Day. 

(6) Approval is received from the Health Officer in WL"iting. 

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

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

the health officer. 

This approval will not relieve the person responsible for such bun1ing from the consequences of 

any damages, injuries, or claims resulting from such burning. 

(d) Definitions. 

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

of high velocity forced draft air through a manifold head into a burn chamber with vertical 

walls in such a manner as to maintain a curtain of air over the surface of the burn chanlher 

and a recirculating motion of air under the curtain. The use of an air curtain destructor is 

considered controlled open bwning. 

(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 defmed as any event commonly referred to as an "Act of God" and 

includes but is not limited to the following weather related or naturally occurring 

categories of events: tornadoes, hail and wind storms, snow or ice storms, flooding, and 

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earthquakes. 

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

combustion are emitted directly into the open atmosphere without passing directly 

through a stack. 

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

association, joint stock company, trust, estate, political subdivision, an agency, authority, 

commission, or department of the United States goverrunent, or of the State of Tennessee 

governn1ent; 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 

confomuty 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 pel'Sonnel may be requested 

in determining qualification with this criteria. The provisions of this Section 

pertaining to structural and household materials may be waived if the persons 

seeking to open 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 onsite burial of waste in lieu of burning, if lawful, is encouraged. 

(ii) If a governmental collective bum site for disposing of structural and household 

materials and vegetation damaged by a natural disaster is planned, the person 

responsible for such burning must notify the Department of the proposed 

location. The notification must be delivered to the Department at least three (3) 

days prior to collllllencing the burn. The Department may request that alternate 

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

chippers and grinders in lieu of burning is encouraged. 

(iii) A traffic hazard will not be caused by the air contanlinants generated by the fire. 

(iv) No fire shall be ignited wlule any air pollution emergency episode is in effect in 

the area of the burn. No fire shall be ignited during any cxceedance of the National 

Ambient Air Quality Standard for ozone, oxides of nitrogen, carbon monoxide, or 

particulate matter. Contact the Department's Computerized Local Air Index 

Reporting system (CLAIR) recorded line at (901) 544-7489 or 544-7490 before 

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

(v) Open burning conducted under this exception is only allowed where no other 

safe and/or practical means of disposal is available. 

(2) The Health Officer reserves the right to require a person to cease or limit open burning if 

emissions from the fires arc deemed by the Health Officer or !lis designee to jeopardize 

public health or welfare, create a public nuisance or safety hazard, create a potential 

safety hazard, or interfere with the attainolent or maintenance of the air quality standards. 

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

any person of tl1c 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-U-306, which prohibits open air fiiCs between October 

15 and May lS within five hundred (500) feet of any forest, grasslands or woodlands 

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

Shelby County.) 

3. Amend Section 16-57. "ENFORCEMENT PENALTIES - MISDEMEANOR, CIVIL, AND 

o NONCOMPUANCE", by deleting it in its entirety, renaming the Section as "PENALTIES FOR 

NONCOMPUANCE", and by adding the following language: 

(a) Failure to comply with any of the provisions of the City of Memphis Air Pollution Control Code shall 

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

all of the penalties provided by law. 

(b) The Mempllis-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: 

4 
(1) Violates or fails to comply with any provision of the City of Memphis Air Pollution Control 

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

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

plan or other docwuent required by pennit to be either filed or maintained; 

(3) Falsifies, tampers with, renders illaccurate or fails to install any monitoring device or method 

required to be maintained or followed; or 

{4) Fails to pay a fee 

commits a Class C misdemeanor pursuant to the Tennessee Code Annotated with the fme not to 

exceed ten thousand dollars ($10,000) per day per violation. For the purpose of this section, each day 

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

No wan11nt, presentment or indictment arising under Subsection 16-57(5)(b) shall be issued except 

upon application, authorized in writing, by the Health Officer on behalf of the local air pollution 

control program operating under a certificate of exemption pursuant to T.CA. §68-201-115, for a 

violation within its jurisdiction. 

(c) Willful and knowing violation of any provision of the City of Memphis Air Pollution Control Code 

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

· Conviction of a misdemeanor is punishable with the fmc not to exceed ten thousand dollars ($1 0,000) 

per day per violation or with imprisonment not greater than thirty (30) days, or both. 

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

the Health Officer has and is vested with jurisdiction and authority to detennine whether or not any 

provision of the City of Memphis 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 

fmding that a public nuisance exists, the Health Officer has authority to abate any such public 

nuisance in the manner provided by the general law relating to the abatement of public nuisances. 

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

(I) When the Health Officer discovers that any provision of the City of Memphis Air 

Pollution Control Code has been violated, the Health Officer may issue an order for 

correction to the responsible person, and this order shall be complied with within the time 

limit specified in the order. Such order shall be served by personal service or sent by 

certified mail, return receipt requested. The recipient of such an order may appeal in the 

same manner as with an assessment of damages or civil penalty under paragraph (2). 

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

fails to comply with any provision of the City of Memphis Air Pollution Control 

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

civil penalty of up to twenty-five thousand dollars ($25,000) per day for each 

day of violation. Any person against whom an assessment in excess of ten 

thousand dollars ($1 0,000) for each violation has been issued by a local 

pollution control program pursuant to this section may petition the Technical 

Secretary for de novo review of the assessment under the provisions of T. C.A. 

§68-20/-/ 16. The Technical Secretary shall render an initial detennination, and 

that initial detennination may be appealed to the Tennessee Air Pollution 

Control Board pursuant to this section. Each day such violation continues 

constitutes a separate pw1ishable offense, and such person shall also be liable for 

any damages to the municipality resulting therefrom. 

(h) Any civil penalty or damages shall be assessed in the following manner: 

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

Department operating under a certificate of exemption pursuant to 

T.C.A. §68-201-115 may issue an assessment against any person 

responsible for the violation or damages. Such person shall receive 

notice of such assessment by certified mail, return receipt requested; 

2. Any person against whom an assessment has been issued may appeal 

the assessment by filing a petition for review with the Health Officer, or 

with the Technical Secretary of an assessment in excess of S 10,000 for 

each violation, within thirty (30) days after receipt of the assessment, 

setting forth the grounds and reasons for such person's objections and 

requesting a hearing on the matter; and 

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

days after the date the assessment is served, the violator shall be 

5 
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. §68-201-106 and 

Title 42 U.S.C. §7413 and §7420 may be considered. Damages to the state or to 

the City of Memphis may include any expenses incurred in investigating the 

enforcing of this section; in removing, correcting, or terminating the effects of 

air pollution; and also compensation for any expense, loss or destruction of plant 

or animal life or any other actual damages or clean-up expenses caused by the 

pollution or by the violation. The plea of financial inability to prevent, abate or 

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

liability for violations of the provisions of the City of Memphis Air Pollution 

Control Code. 

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

County Health Department operating under a certificate of exemption as 

provided for in this section is intended to provide additional and cumulative 

remedies to prevent, abate and control air pollution in Tennessee. Nothing herein 

shall be construed to preempt, supersede, abridge or otherwise alter any rights, 

action or remedies of the Technical Secretary, Tennessee Air Pollution Control 

Board or Commissioner of the Tennessee Department of Environment and 

Conservation. 

(e) 

2. 

3. 

4. 

Whenever any order or assessment under this section has become final, 

a notarized copy of the order or assessment may be filed in the office of 

the clerk of the chancery court of Shelby County if the final order or 

assessment is from the Memphis-Shelby County Health Department. 

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

shall be considered as a judgment by consent of the parties on the same 

terms and conditions as those recited therein. Such judgment shall be 

promptly entered by 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, Tetmessee Code 

Annotated. 

Within forty-five (45) days after entry of a judgment under clause (e)2., 

any citizen of City of Memphis shall have the right to intervene on the 

ground that the penalties or remedies provided are inadequate or are 

based on erroneous fincliogs of facts. Upon receipt of a timely motion to 

intervene, the court shall determine whether it is duplicitous or 

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

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

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

final order or assessment, and the court shall proceed in accordance 

with T.C.A. §4-5-322.1fno timely motion to intervene is filed, or if any 

such motion is determined to be duplicitous or frivolous, the judgment 

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

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

the same procedures, and may be enforced or satisfied in the same 

manner, as any other judgment of a court of record of this state. 

4. Amend Section16-58. "ENFORCEMENT-VARIANCES", by deleting it in its entirety and replacing it with 

tl1e following language: 

(a) Al1y person who owns or is in control of any plant, building, structure, establislm1ent, process or 

equipment including a group of persons who own or control like processes or like equipment may 

apply to the Air Pollution Control Hearing Board, hereinafter referred to as "the Board", for a 

variance from rules or regulations governing the quality, nature, duration or extent of discharge of 

air contaminants. The application for a variance shall include information and data sufficient for 

the Board to make the findings required below. The hearing held hereunder shall be conducted in 

accordance with the rules of evidence as set forth in subsection 16-71(£) of the City of Memphis 

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. §68-201-1 15 if it 

fmds that: 

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

endanger human health, safety, or welfare, and would not cause or tend to cause property 

damage; and 

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

serious hardship without equal or greater benefits to the publicor a variance is needed 

6 
only Wltil a rule adopted by the Tennessee Air Pollution Control Board becomes State 

effective. If economic hardship is claimed, a description of expected monetary losses shall 

be included. 

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

relative interests of the applicant, other owners of property likely to be affected by the discharges, 

and others who may be affected by granting or denying a request for variance. 

(c) Any variance or renewal thereof shall be granted within the requirements of subsection (a) for time 

periods and Wlder conditions consistent with the reasons therefore, and with the following 

limitations: 

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

available for the adequate prevention, abatement, or control 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 of 

any substitute or alternate measures that the Board may prescribe. 

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

requirements from which variance is sought will necessitate the taking of measures which, 

because of their extent or cost, must be spread over a considerable period of time, it shall 

be for a period not to exceed such reasonable time as, in view of the Board, is requisite 

for the taking of necessary measures. A variance granted on the grolUld specified herein 

shall contain a timetable for the taking of action in an expeditious manner and shall be 

conditioned on adherence to such timetable and submittal of proof that such tirneable is 

being met 

3. Any variance or renewal granted shall be for a time period not to exceed one (1) year. 

(d) Al1y variance granted pursuant to this section may be renewed by the Air Pollution Control 

Hearing Board on terms and conditions and for periods which would be appropriate on initial 

granting of the variance following the same procedures required for issuance of the initial variance. 

If complaint is made to the Board on account of the variance, no renewal thereof shall be granted, 

w1less, follov.ing public hearing on the complaint, the Board fmds that renewal is justified. No 

renewal shall be granted except on application therefore. Any such application shall be made at 

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

application for renewal, the Board shall give public notice of such application in accordance with 

rules and regulations of the Board. 

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

discretion of the Board. However, any applicant adversely affected by the denial or the terms and 

conditions of the granting of an application for a variance or renewal of a variance by the Board 

may obtain judicial review thereof only in a court of competent jurisdiction. 

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

prevent or limit the application of the emergency provisions and procedures of Sections 16-59 and 

16-60 (Reference 1200-3-15) to any person or his property. 

5. Add New Section16-61. "RIGHT OF ENTRY" which reads as follows: 

For the pwpose of carrying out the requirements of the City of Memphis Air Pollution Control Code, the 

Health Officer and his authorized representatives, including engineers, assistants, environn1entalists and other 

employees, shall be permitted at all reasonable tin1es to enter into any manufacturing plants, business buildings 

or other buildings, and all lots, grounds and premises, in order to thoroughly examine any items in relation to 

public health and air pollution thereon and U1erein. 

6. Amend Section16·71. "AIR PDT II WON ffiNTROI HEARING BOARD- CREATED· MEMBERSHIP; 

TERM OF OFfTCE· UIRTSDfiTIDN; HEARINGS· APPEATS'', by deleting paragraphs (e) and (f) in their 

entirety and replacing them with the following paragraphs (e) and (f): 

(e) Ally person taking exception to and who is uniquely affected by any decision, ruling, requirement, 

1ule, regulation, or order of the Health Director or by his fail w-e to act within a reasonable amount 

of time may take an appeal to the Board as established by this section. Such appeals shall be made 

within fifteen (15) days after receiving notice of such decision, ruling, requirement, rule, 

regulation, or order or failure to act by filing a written notice of appeal directly to the Board 

specifying the ground thereof and the relief requested. Such an appeal shall act as a stay of the 

decision, ruling, requirement, rnle, regulation or order in question until the Board has taken final 

action on the appeal, except when the Health Director has acted under Section 16-59, "Emergency 

Order." The Board, not more than thirty (30) days after the date of filing an appeal, shall set a date 

for the hearing not more than sixty ( 60) days after the date of filing of the appeal and shall give 

notice thereof by mail to the interested parties. 

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(f) Hearings before the Board shall be conducted in the following nuumer: 

(1) Notice of any and all hearings shall be given at least fifteen (15) days prior to the 

scheduled date of the hearing by public advertisement in a newspaper of general 

circulation in Shelby County, Tennessee giving the date, time, place and purpose of the 

hearing; and 

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

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

pw-suant to Section 16-71 or Section 16-77 [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 testin1ony shall be under oath and recorded. The Board is authorized to have all 

testimony transcribed and a transcript of such testimony, if transcribed, shall be made 

available to the respondent or any party to the hearing upon payment of the normal fee, 

which shall not exceed the cost of transcribing such testimony. 

(5) After due consideration of the written and oral statements, the testimony and argunlCnts 

submitted at the hearing upon such complaint, or, upon default in appearance of the 

respondent on the return date specified in the formal notice of complaint, the Board shall 

issue and enter such final order or make such final determination as it shall deem 

appropriate not later than sixty ( 60) days after the hearing date, and shall immediately 

notify the respondent thereat; in writing, by certified mail. Such order or determination 

shall be approved by at least a majority of members to which the Board is entitled. 

(6) Upon failure of the Board to enter a final order or determination within sixty (60) days 

after the final argument of such hearing, the respondent shall be entitled to treat for all 

purposes such failure to act as a fmding favorable to the respondent. 

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

where appeal has been sought pursuant to Section 16-71 or Section 16-77. The burden of 

proof is on the applicant where a variance has been sought pursuant to Section 16-58, in 

accordance with T.C.A. §68-201-/ 18(k). 

(8) Any person aggrieved by any fmal order or deternlination of the Board hereunder shall 

have judicial review thereof by writ of certiorari pursuant to T. C.A. §27-9-/ OJ et seq. No 

judicial review shall be available until and after all administrative remedies have been 

exhausted. 

7. Amend Section 16-95. "PERMITS AND FEES- EMISSIONS FEE FOR STATIONARY SOURCES" by 

replacing the word "has" with the word "emits" in the first sentence of the first paragraph of the section and 

located between the words "which" and "more" so that as an11:nded the sentence reads as follows: 

(1) EMISSIONS FEE 

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

ton of actual emissions annually of a regulated pollutant as defmed herein, called the "emissions fee", 

which shall equal the amount determined by the requirements set forth as follows: 

8. Amend Section 16-95. "PERMITS AND FEES- EMISSIONS FEE FOR STATIONARY SOURCES" by 

replacing the phrase "1999 calendar year emissions and for 2000" in paragraph a. with the phrase "1999, 

2000, and 2001" so that paragraph a. reads as follows: 

a. Twenty-nine Dollars and Sixty-five Cents ($29.65) per ton of actual emissions for 1999, 2000, and 

2001 calendar year enlissions from the source, not including fugitive emissions and actual excess 

emissions that are the result of process malfunctions and facility start-up and shutdown determined by 

the Health Departn1eut to be in compliance with the Air Pollution Code Sections that excuse these 

emissions from enforcement of each regulated pollutant as defined in Section 502 (b )(3XB)(ii) of the 

Federal Clean Air Amendments of 1990. 

9. 0 Amend Section 16-95. "PERMITS AND FEES- EMISSIONS FEE FOR STATIONARY SOURCES" by 

replacing paragraph b. so that the paragraph b. reads as follows: 

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

County Commission and the Memphis City Council, the fee shall be increased by the percentage, if 

any, by which the Consumer Price Index for the most recent calendar year preceding the unadjnsted 

year exceeds the Consumer Price Index for the calendar year two years prior to the unadjusted year, 

unless the Shelby County Commission adopts an emissions fee rate that excludes a Consun1er Price 

Index adjustment This rate amount shall then reflect a one-year Consumer Price Index Adjnstme11l 

For purposes of this Chapter and Air Pollution Control Code, the Consumer Price Index is the average 

8 
of the Consumer Price Index for all urban consumers published by the Department of Labor, as of the 

close of the twelve month period ending on August 31 of each calendar year, and the revision of the 

Conswner Price Index which is most consistent with the Consumer Price h1dex for 1989 shall be 

used. 

10. Amend Section 16-97, "ALLOW ABLE USES FOR EMISSIONS FEE", by replacing the first sentence in the 

Section with the following sentence that reads as follows: 

The Department shall collect au annual emissions fee from those entities within the City of Memphis which 

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

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

accordance with the City of Memphis Air Pollution Control Code, and shall be subject to the fee' schedule 

set out in Section 14.5-37, Appendix B. 

11. Amend Section 16-97, "ALLOWABLE USES FOR EMISSIONS FEE", by replacing paragraphs 1), 2), 

and the final unnumbered paragraph of the Section so that they read as follows: 

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

Memphis Air Pollution Control Code as amended; 

2) Implementing and enforcing the terms and conditions of any permit issued under the City of Memphis 

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

costs associated with any judicial enforcement action; 

The emission and annual Operating/Inspection fees collected from major stationary air pollution sow·ces as 

defined herein, shall be used exclusively for and be sufficient to pay, the direct and indirect costs of the major 

stationary source operating pennitprogram allowable under the Federal Clean Air Act and under regulations in 

suppo1t of those federal provisions as adopted locally in the City of Memphis Air Pollution Control Code. The 

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

notifications required pul'Suant to the City of Memphis Air Pollutio11 Control Code or the Federal Clean Air 

Act. 

12. That Rules and Regulations of Tennessee Chapters' 1200-3-2, titled Definitions; 1200-3-3, titled Amhil:nt 

Air Qnaljty 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 Cnnstmction and Operating Pennits; Chapter 

1200-3-10, titled Required Sampling Recording apd Reporting; 1200-3-11, titled I:fazardpps Air 

Contaminants; 1200-3-12, titled Methods of Sampling and Analysis; 1200-3-14, titled Control of Sulphur 

Dioxide Emissions; Chapter 1200-3-15, titled Emergency Episode Plan; 1200-3-16, titled New Source 

PerfolllJance Standards; 1200-3-18, titled VnJatjle Organic Compounds; 1200-3-20, titled I imits on Emissions 

dne to Ma!fimctions, Startups and Shutdowns; 1200-3-21, titled General A!temate Emission Standards; 1200-

3-22, titled I .ead Emission Standards; 1200-3-24, titled Good Engineering Practices Stack Height R egnlatipns; 

1200-3-25, titled Standards for Infectious Waste Incinerators; 1200-3-30, titled Acid Precipitation Standard; 

1200-3-31, titled Na"tiona! Emission Standards for Hazardous Air Pollutants for Source Categories; and, 1200-

3-32, titled Prevention of Accidental Releases; T.C.A. §68-201-101 tlwugh §68-201-1 18, as effective on 

December 31, 2000; Chapter 1200-3-34, titled ConfolllJity, as effective on November 14, 2001; and, the New 

Source Perfonnance Standards (with the exception of Subparts B, C, Cb, Cc, Cd, Ce, AAA) and Appendices 

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

incorporated herein by reference as if set out in their entirety and shall be adopted and approved as part of the 

City of Memphis Air Pollution Control Code, thereby amending the City of Memphis Air Pollution Control 

Code. 

13. That Rules and Regulations of Tennessee Chapter' 1200-3-15, titled Emergency Episode Plan, as effective 

on December 31, 2000; Chapter 1200-3-34, titled ConfnlllJity, as effective on November 14, 2001; T.C.A. §68-

20/-101 through §68-201-1 18, as effective on December 31, 2000; and, the New Source Performance 

Standards (with the exception of Subparts B, C, Cb, Cc, Cd, Ce, AAA) and Appendices A, Band F of the Code 

of Federal Regulations (CFR), Title 40, Part 60 (Revised as of July 1, 2001), are inco1porated herein by 

reference as if set out in their entirety and shall be adopted and approved as plllt of the City of Memphis Air 

Pollution Control Code, thereby amending the City of Memphis Air Pollution Control Code. Section 

no1nenclature for tllose state and federal regulations new to the City of Memphis Air Pollution Control Code 

are identified in accordance with the following table: 

0 Memphis 

Code State Federal 

IS:onJendatnJ:e Begnlntians Begnlalicos Ii1JJl 

16-60 1200-3-15 Emergency Episode Plan 

16-76 1200-3-16 40CFR60as New Source Performance Standards 

defined above 

16-91.5 1200-3-34 Conformity 

14. Amend Section 16-77, Reference 1200-3-9, CONSTRUCTION AND OPERATING PERMITS, 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(1l)(b)l4.(ii)(XXVII) so that it reads as follows: 

9 
(XXVII) Any other stationary source category, which as of August 7, 1980 is being regulated under section 

111 or 112 of the Act 

IS. Amend Section 16-77, Reference 1200-3-9, CONSTRUCTION AND OPERATING PERMITS, 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 Memphis Code Section 16-71" so that the paragraph reads as follows: 

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

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

reconsideration of permit conditions shall specify which conditions and portions of conditions are 

objected to and specifying in detail the objections. The petition of appeal must be delivered to the 

Technical Secretary within thirty (30) days after the mailing date of the pennit 

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

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

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

petitioner may request a hearing pursuant to City of Memphis Code Section 16-71. 

16. Amend Section 16-77, Reference 1200-3-9, CONSTRUCTION AND OPERATING PERMITS, by 

replacing the phrase ''T.C.A. Section 4-5-301 et seq." in paragraph 1200-3-9-.05(6) with the plu·ase "City of 

Memphis Code Section 16-71" so that the paragraph reads as follows: 

(6) All applicable provisions of City of Memphis Code Section 16-71, on contested cases shall apply to 

the heuing before the Board on such appeals. 

Amend Section 16-80, Reference 1200-3-18-.79, VOLATILE ORGANIC COMPOUNDS, by adding 

language to part 1200-3-18-.79(1)(e)2. so that it reads as follows: 

2. Sources subject to source-specific standards approved in lieu of standards in Rules .11 through .77 of 

this chapter and sources subject to a National Emission Standard for Hazardous Air Pollutants (also 

called a MACT standard) that applies to all volatile organic compound emissions at the source; and 

SECTION2. SEVERABILITY. The provisions of this ordinance are hereby declared to be severable. 

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

rema.ll1ing portions shall continue in full force and effect 

SECTION3. BE IT FURTiiER ORDAINED THAT except as amended by this Ordinance, the City of 

Memphis Air Pollution Control Code shall remain in full force and effect as previously adopted. 

SECTION4. BE IT FURTHER ORDAINED THAT one (1) copy of the ordinance hereby adopted 

shall be available for public inspection in the office of the Clerk of the City of Memphis. 

10 
SECTION 5. BE IT FURTHER ORDAINED THAT this ordinance shall take effect from and after the 

date it shall have be.:n passed by the Council, signed by d1e Chairman of the ColWcil, certified and delivered to the 

Office oftbe Mayor in writing by the Comptroller, and become e!Iective as otherwise providec.l by law. 

ATI"EST: 

Rebecca :Kissinger, Comptroller. 

1 NOTE: RULES INCORPORATED llY REFERENCE BEREIN HAVE DEEN f'ILED IN 1liE OFFICE Of' THE CLGRK OF 11!E COUNTY 

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

THE cy~eGprNG ORDrNAN. CE 

# · R PASSED 

!- d-.<s~ Q ~ 

0 Date Signed: 

11