# O~INANCE NO 2002-'/!lJJ

AN ORDINANCETO AMEND CHAPTER 16,ARTICLEll,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 QUALITYPLANS; 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 ofthe community consistentwith the protection ofnormal health, general welfare and physicalproperty of the people, maximum employment and the full industrial developmentofthe 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 ofthe City ofMemphis to qualify for receipt offederal 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 ofairquality is the mostefficientmeans 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 establishedin the Shelby County Air Code, adopted onJune 30, 1969 by the Shelby County Quru1erly Court, ru1d as amended, has served to protect the air quality in Shelby Coimty and efficiently meetthe needs ofthose regulatedby airpollution control laws; and 

### WHEREAS, ill order to mairitaill the Certificate ofExemption from State ofTennessee (State) supervision granted by the Tennessee AirPollution 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 ofsuch aprogram; 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 ofShelby County; and 

### WHEREAS, the City ofMemphis wishes to retain the same annul!,] $29.65 per ton emission fee without ConsumerPrice Index adjustmentfor calendaryear 2001; and 

### WHEREAS, Teunessee 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 snchregulations

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 ofthe county clerk for public use, inspection ruld examillation for a periodofthirty (30) days before adoption ofthe ordinance orresolution 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 ofthe availability for public use, inspection and examillation at the office of the Shelby County Clerk ofthree (3) copies of federal and State regulations to be illcorporatedby reference for aperiod ofthirty (30) days before adoption ofthe ordinance orresolution incorporating regulations by reference and notice that the date ofthe Second Reading ofthis ordinance scheduled for June 17, 2002, was the date ofpublic hearing on adoption ofsuchordinru1ce; and 

### WHEREAS, tl1e City ofMemphis has enacted air pollution control regulations not less strillgent than

**s~ards** adoptedby the statepursuantto Chapter68-201, Part 1; ofthe 

### Tennessee CodeAnnotated; and 

### WHEREAS, such ordinance or resolution incotporating regulations by reference shall become effective only afterpublicationin anewspaperhaving ageneral circulation illt11e county; and 

### WHEREAS, maintaining up to· date technical. standards promulgated by the Teru1essee Department of EnvironnlCnt and Conservation (Teru1essee) for the control ofairpollutionprevents the need for state control ofCity of Memphis airpollution sources subject to these controls, specifically thoseprovisions found in theRules andRegulations 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, titledRequired Sampling Remrding and Reporting; Chapter 1200-3-11, titled Haz.ardm" Air Contaminants; Chapter 1200-3- 12, titled Methods ofSampling and Analysis; Chapter 1200-3-14, titled Control ofSulfisr 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 ofSubparts 

### B, C, 

### Cb, Cc, 

### Cd, Ce, 

### AAA) and Appendices A, B andF ofthe Code ofFederal Regulations (CFR}, Title 40, Part 60 (Revised as ofJuly 1, 2001) except for the authorities therein retainedby the Administratorand nottransferred to aState.

SECTION l. BE IT ORDAINED BY THE 

### COUNCIL OFTHE CITY OFMEMPHIS, ThatChapter 16, Article 

### II, Code ofOrdinances, City ofMemphis be, and tl1e same herebyis, 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 ofTennessee 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 ofthe 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 ofTennessee 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 ofrefuse, 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 expresslyprohibited, and suchmaterials shall not be lawful in any open burning conductedunderthe provisions ofSection 16-50. (b) Openburning as listedbelow may be conducted without pennit subject to fire department approval and provided further tlllltno 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 andtheir operation. (2) Fires set for the training and instruction offiremen 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 openburning is being conducted solely for fire trainingpurposes. (ii) All vinyl siding, clllpet, vinyl flooring, asphalt roofing materials, and any other materials expresslyprohibitedin Subsection 16-50(a), have beenremoved. (iii) All regulated asbestos containing materials have beenremoved 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) Apublic nuisance will notbe createdbythe openburning. (3) Smokeless flares or safety flares for the combustion of waste gases provided other applicable subsections ofthis section are met. (4) Reserved. (5) Fire used for carrying outrecognized agricultural procedures necessaJy for tile production or 

### 2harvesting of crops or for the control of diseases or pests, in accordance with practices acceptable to the Department. (6) Fires for the buming ofbodies of dead aninmls, including poultry, where no other safe and/orpractical disposalmethod exists. (c) Exceptions to subsection (a) nmy be permitted for vegetation ifall ofthe following conditions are met when an air curtain destructor is used: (1) Arequestis filed with the Health Officergiving the reason why no method exceptopen burning canbe employed to dispose ofthe material involved, the amount and kind of material to be burned, the exact locationwhere the burning willtake place, andthe dates when the openburning will be done. All changes in types of, or increase in quantities of, materials burnedmustbe precededbynotification. The notification mustbe 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, ataminimum: (i) Theopenburning site mustbe atleastfive hundred (500) feetfrom any Federal and from any Statehighway; 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 aircut"taindesuuctor; and (iii) The openburning site mustbe at least one-half(1/2) mile from any airport, nursing home orhospital. (3) The plume from the air curtain destructormustmeetthe 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 periodin excess ofthe standard, perday, not to exceed20 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 slmllbe limitedto #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 shallbe ignited during any exceedance oftheNati01m1 AmbientAir Quality Standard for ozone, oxides ofnitrogen, carbon monoxide, orparticulate 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 aNo-Burning Day. (6) Approval is receivedfromthe Health Officer inWL"iting. (7) Permission is secured from the flre department in thejurisdictioninvolved. (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, orclaims resulting from suchburning. (d) Definitions. (1) "AirCurtain Destructor" is aportable or stationary combustion device that directs aplane ofhigh velocityforced draft air through a manifoldhead into aburn chamberwith vertical walls in such a manner as to maintain a curtain ofair over the surface ofthe burnchanlher and arecirculating motion ofair under the curtain. The use ofan air curtain destructor is considered controlled openbwning. (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 harmto public heath or welfare. (3) ''Natural Disaster" is defmed 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 ofevents: tornadoes, hail and wind storms, snow or ice storms, flooding, and


### 3earthquakes. (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 ofthe United States goverrunent, or ofthe State ofTennessee 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 ofstructural and household materials and vegetation are allowed only when those structures or materials are destroyed or severely damaged by natural disaster. Inputfrom Emergency Managementpel'Sonnel may be requested in determining qualification with this criteria. The provisions of 

### this Section pertaining to structural and household materials may be waived ifthe 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 ofchippers and grinders, landfilling, or onsite 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 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 ofburning is encouraged. (iii) A traffic hazard will notbe causedby the air contanlinants generated by the fire. (iv) No fire shall be ignited wlule any airpollution emergency episode is in effect in the area ofthe burn. No fire shall be ignited during any cxceedance ofthe National Ambient Air Quality Standard for ozone, oxides ofnitrogen, 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 afire to determine ifitis aBurning Dayor aNo-Burning Day. (v) Open burning conducted under this exception is only allowed where no other safe and/orpractical means ofdisposal is available. (2) The Health Officer reserves the right to require aperson 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 ofthe air quality standards. (3) Any exception to the open burning prohibition granted by 

### this Section does not relieve any person oftl1c 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", andby adding the following language: (a) Failure to comply with any ofthe provisions ofthe City ofMemphis AirPollutionControl Code shall constitute a violation thereofand shall subject the person orpersons responsible therefore to any and all ofthe penalties providedby law. (b) The Mempllis-Shelby County Health Department in conjunction with the local Air Pollution Control Board shallhave authority, at their option, to institute and litigate proceedings for violations as setout therein. Any person who knowingly:



### 4(1) Violates or fails to comply with any provision ofthe City ofMemphis AirPollutionControl Code, anyboardoradministrative order oranypennitcondition; (2) Makes any false material statement, representation, or certification in any record, report, planorother docwuentrequired bypennitto be eitherfiled ormaintained; (3) Falsifies, tampers with, renders illaccurate orfails to install any monitoring device ormethod required to be maintainedorfollowed; or {4) Fails to pay a fee
commits a Class C misdemeanor pursuant to the Tennessee Code Annotated with the fme not to exceedten thousand dollars ($10,000) per day per violation. Forthe purpose ofthis section, each day ofcontinuedviolationconstitutes 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 ofthe local air pollution control program operating under a certificate of exemption pursuant 

### to 

### T.CA. §68-201-115, for a violationwithinitsjurisdiction. (c) Willful and knowing violation ofany provision ofthe City ofMemphis Air Pollution Control Code is declared to be a misdemeanor, and each day of violation shall constitute a separate offense.

·Conviction ofa misdemeanor is punishable with the fmc not to exceed ten thousand dollars ($10,000) perdayperviolation or with imprisonment not greater than thirty (30) days, orboth. (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 authorityto detennine whether ornot any provision ofthe City ofMemphis 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 mannerprovided by the general law relating to the abatement ofpublic nuisances. (e) Orders andAssessments ofDamages and Civil Penalties andAppeals (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 ordershall 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 ofdamages or civil penalty underparagraph (2). (2) (a) In addition to the criminal penalties in this section, any person who violates or fails to comply with any provision ofthe City ofMemphis 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 of violation. Any person against whom an assessment in excess of ten thousand dollars ($10,000) for each violation has been issued by a local pollution control program pursuant to this section may petition the Technical Secretary for de novo review ofthe assessment under the provisions of 

### T.C.A. §68-20/-/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 suchperson 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 ofsuchassessmentbycertified mail, returnreceiptrequested;
2. Any person against whom an assessment has been issued may appeal the assessmentbyfiling a petition for review with the Health Officer, or with the Technical Secretary ofan assessment in excess ofS10,000 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 ftled within thirty (30) days after the date the assessment is served, the violator shall be 

### 5deemed to have consentedto 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 ofthis section; in removing, correcting, or terminating the effects of air pollution; and also compensation for any expense, loss or destruction ofplant
or animal life or any other actual damages or clean-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 City ofMemphis Air Pollution Control Code. {d) The issuance ofan order or assessment ofcivil 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 andcontrol airpollution inTennessee. Nothing herein shall be construed to preempt, supersede, abridge or otherwise alter any rights, action or remedies ofthe 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 ofthe order or assessment maybe filed in the office of the clerk of the chancery court ofShelby County if the final order or assessmentis from the Memphis-Shelby County HealthDepartment.
When filed in accordance with clause (e)l., a final order or assessment shall be considered as ajudgmentby consent ofthe parties onthe same terms 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, Tetmessee Code Annotated. Within forty-five (45) days after entry ofajudgment under clause (e)2., any citizen ofCity ofMemphis shall have the right to intervene on the ground that the penalties or remedies provided are inadequate or are based on erroneous fincliogs offacts. Uponreceiptofa 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 motionto intervene 

### is filed, or ifany such motion is determined to be duplicitous or frivolous, thejudgment shall become fmal forty-five (45) days afterthe date ofentry.
A finaljudgmentunder this subsection 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.

4. Amend Section16-58. "ENFORCEMENT-VARIANCES", by deleting it

### in its entirety andreplacing it with tl1e following language: (a) Al1y person who owns or is in control ofany plant, building, structure, establislm1ent, process or equipment including a group ofpersons who own orcontrol 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 ofdischarge 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 ofevidence as setforth insubsection 16-71(£) of the City ofMemphis Air Pollution Control Code. The Board may grant such variance, but only after public hearing on due notice and subject to the Certificate ofExemption issued pursuant to 

### T.C.A. §68-201-115 ifit fmds that:
1. 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 ortend to cause property damage; and
2. Compliance with the rules or regulations from which variance is sought would produce serious hardship without equal or greater benefits to the publicor a variance is needed 

### 6only Wltil a rule adopted by the Tennessee Air Pollution Control Board becomes State effective. Ifeconomichardship 

### is claimed, a description ofexpectedmonetarylosses shall be included. (b) No variance shall be granted or denied pursuant to this section Wltil the Board has considered the relative interests ofthe applicant, other owners ofproperty likely to be affectedby the discharges, and others who may be affected by granting or denying arequest for variance. (c) Any variance or renewalthereofshallbe granted withinthe requirements ofsubsection (a) for time periods and Wlder conditions consistent with the reasons therefore, and with the following limitations: 

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

### the adequate prevention, abatement, or control ofthe air pollution involved, the variance shall be permitted only until the necessary means for prevention, abatement,
or control become known and available, and the variance shall be subject to the taking of any substitute or alternate measures thatthe Board mayprescribe.
2. Ifthe variance 

### is granted on the ground that compliance with the particularrequirement or requirements from which variance is sought will necessitate the taking ofmeasures which, because oftheir extent or cost, mustbe spreadover 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 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 ofproofthat such tirneable is being met 

### 3. Anyvariance 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 ofthe variance following the sameprocedures required for issuance ofthe initialvariance. Ifcomplaint is made to the Board on account ofthe variance, no renewal thereofshall 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 ofsuch application in accordance with rules andregulations ofthe Board. (e) A variance of renewal shall not be a right of the applicant or holder thereof, but shall be in the discretion ofthe Board. However, any applicant adversely affected bythe denial or the terms and conditions ofthe granting ofan application for a variance or renewal ofa variance by the Board may obtainjudicial review thereofonly in a court ofcompetentjurisdiction. (f) Nothing in this section and no variance or renewal granted pursuant hereto shall be construed to prevent or limit the application ofthe emergency provisions and procedures ofSections 16-59 and 16-60 (Reference 1200-3-15) to any person orhis property.
5. Add New Section16-61. "RIGHTOFENTRY" whichreads as follows:
For the pwpose ofcarrying out the requirements of the City ofMemphis Air Pollution Control Code, the Health Officer and his authorized representatives, including engineers, assistants, environn1entalists and other employees, shallbe permitted atall reasonable tin1es to enter into any manufacturingplants, business buildings

or otherbuildings, and all lots, grounds and premises, in order to thoroughly examine any items in relation to publichealth and airpollutionthereonand 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 andreplacing themwith the following paragraphs (e) and (f): (e) Ally person taking exceptionto and who is uniquely affected by any decision, ruling, requirement, 1ule, regulation, or order ofthe Health Director orbyhis failw-e to act within areasonable amount oftime may take an appeal to the Board as established by this section. Such appeals shallbe 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 reliefrequested. Such an appeal shall act as a stay ofthe decision, ruling, requirement, rnle, regulation or order in question until the Board has taken final action onthe appeal, except when the Health Directorhas acted under Section 16-59, "Emergency Order." The Board, not more than thirty (30) days after the date offiling an appeal, shall set a date for the hearing not more than sixty (60) days after the date offiling ofthe appeal and shall give notice thereofbymail to the interestedparties.



### 7(f) Hearings before the Board shall be conductedin 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 ofthe hearing; and (2) The chairman ofthe Boardshall 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, iftranscribed, shall be made available to the respondent or any party to the hearing upon payment ofthe normal fee, which shall notexceedthe cost oftranscribing suchtestimony. (5) After due consideration ofthe 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 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 after the hearing date, and shall immediately notify the respondent thereat; in writing, by certified mail. Such order or determination shallbe approved by atleast amajority 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 a fmding favorable to the respondent. (7) The burden ofproofshall be on the Health Director or his duly authorized representative where appeal has been soughtpursuant to Section 16-71 or Section 16-77. The burden of proofis on the applicant where a variance has been soughtpursuant to Section 16-58, in accordance with T.C.A. §68-201-/18(k). (8) Any person aggrieved by any fmal order or deternlination ofthe Board hereunder shall havejudicial review thereofby writ ofcertiorari pursuant to T. C.A. §27-9-/OJ etseq. 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 ofthe first paragraph ofthe section and locatedbetweenthe words "which" and "more" so thatas an11:nded the sentence reads as follows: (1) EMISSIONS FEE Afee shallbe collected annually from each stationary airpollution source which emits more than one ton ofactual emissions annually ofaregulatedpollutantas defmedherein, called the "emissions fee", which shall equal the amountdeterminedby the requirements setforth 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 thatparagraph a. reads as follows:

a. Twenty-nine Dollars and Sixty-five Cents ($29.65) per ton ofactual emissions for 1999, 2000, and 2001 calendar year enlissions from the source, not including fugitive emissions and actual excess emissions that are the result ofprocess malfunctions and facility start-up and shutdown determinedby the Health Departn1eut to be in compliance with the Air Pollution Code Sections that excuse these emissions from enforcementofeachregulatedpollutant as defined in Section 502 (b)(3XB)(ii) ofthe Federal CleanAirAmendments of1990.
9. 0 Amend Section 16-95. "PERMITS AND FEES- EMISSIONS FEE FOR STATIONARY SOURCES" by replacingparagraphb. so thattheparagraphb. reads as follows:
b. Ifno 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 yearpreceding 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 Forpurposes ofthis ChapterandAirPollutionControl Code, the ConsumerPrice Index is the average 

### 8ofthe ConsumerPrice Index for all urban consumers published by the DepartmentofLabor, as ofthe close ofthe twelve month period ending on August 31 ofeach calendar year, and the revision ofthe Conswner Price Index which is most consistent with the Consumer Price h1dex for 1989 shall be used. 10. Amend Section 16-97, "ALLOWABLE USES FOR EMISSIONS FEE", by replacing the first sentence in the Section with the following sentence thatreads as follows: The Department shall collect au annual emissions fee from those entities within the City ofMemphis 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 ofMemphis Air Pollution Control Code, and shall be subject to the fee' schedule setout 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 unnumberedparagraphofthe 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 AirPollutionControl Code as amended; 2) Implementing andenforcing the terms and conditions ofany permit issued underthe City ofMemphis 

### Air Pollution Control Code, provided, however, such cost shall not include any court cost or other costs associated with anyjudicial enforcementaction;
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 ofthe major stationary source operatingpennitprogramallowable underthe Federal CleanAirAct and underregulations in suppo1t ofthose federal provisions as adopted locally in the City ofMemphis 

### AirPollution Control Code. The
owner or operator ofany stationary source shall also pay any costofexpense associated withpublic notices or notifications required pul'Suant to the City ofMemphis 

### Air Pollutio11 Control Code or the Federal Clean Air Act. 12. That Rules and Regulations ofTennessee 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 HeightRegnlatipns; 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 AirPollutants for Source Categories; and, 1200- 3-32, titled Prevention of Accidental Releases; T.C.A. §68-201-101 tlwugh §68-201-118, as effective on December 31, 2000; Chapter 1200-3-34, titled ConfolllJity, as effective onNovember 14, 2001; and, the New Source Perfonnance Standards (with the exception ofSubparts 

### B, C, Cb, 

### Cc, Cd, Ce, 

### AAA) and Appendices A, B and F ofthe Code ofFederal Regulations (CFR), Title 40, Part 60 (Revised 

### as ofJuly 1, 2001) , are incorporated herein by reference as ifset out in theirentirety and shall be adopted and approved as part ofthe City ofMemphis Air Pollution Control Code, thereby amending the City ofMemphis Air Pollution Control Code. 13. That Rules and Regulations ofTennessee Chapter' 1200-3-15, titled Emergency Episode Plan, as effective
on December 31, 2000; Chapter 1200-3-34, titled ConfnlllJity, as effective onNovember 14, 2001; T.C.A. §68- 20/-101 through §68-201-118, as effective on December 31, 2000; and, the New Source Performance Standards (withthe exception ofSubparts B, C, Cb, 

### Cc, Cd, Ce, 

### AAA) andAppendices A, BandFofthe Code ofFederal Regulations (CFR), Title 40, Part 60 (Revised as of July 1, 2001), are inco1porated herein by reference as ifset out in their entirety and shall be adopted and approved as plllt ofthe City ofMemphis 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 ofMemphis 

### 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 thereofa 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 ofAugust 7, 1980 is being regulated under section 111 or 112 ofthe 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 ofparagraph 1200-3-9-.05(5) with the phrase "City ofMemphis Code Section 16-71" so that the paragraphreads as follows: (5) In any case where a condition is 

### placed on a permit, the imposition ofthat pennit 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 Secretary within thirty 

### (30) days afterthemailing date ofthe pennit Ifthe Technical Secretary is considering denying the petition he shall schedule a conference with the petitioner to discuss the matters under appeal within 

### forty-five (45) days ofhis 

### receipt ofthe petition. Ifthe Technical Secretary's resultant decision on the matters under appeal aggrieves the petitioner, the petitionermay request ahearing pursuantto City ofMemphis 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) withthe plu·ase "City of Memphis Code Section 16-71" so thatthe paragraphreads as follows: (6) All applicable provisions ofCity ofMemphis Code Section 16-71, on contested cases shall apply to the heuingbefore 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 ofstandards in Rules .11 through .77 of this 

### chapter and sources subject to aNational Emission Standard for Hazardous Air 

### Pollutants (also called aMACT standard) that applies to all volatile organic compound emissions atthe source; and SECTION2. SEVERABILITY. The provisions of this 

### ordinance are hereby declared to be severable. Should any ofthese sections, provisions, sentences, clauses, phrases, words, orparts be held unconstitutional orvoid, the rema.ll1ingportions shall continue in

### full force andeffect

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

### AirPollution 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 ofthe Clerk ofthe City ofMemphis.



### 10SECTION 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 ofthe ColWcil, certified and delivered 

### to the Office oftbeMayorinwritingby the Comptroller, and become e!Iective as otherwise providec.lby law.

ATI"EST: Rebecca :Kissinger, Comptroller.

1NOTE: RULES INCORPORATED llY REFERENCE BEREIN HAVEDEEN f'ILED IN 1liEOFFICE Of' THE CLGRKOF 11!ECOUNTY COMMISSION AS RUQUIRED BY T.C.A. §68-201-115.



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## DateSigned:

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