Memphis |
Code of Ordinances |
Title 9. HEALTH AND SAFETY |
Chapter 9-12. AIR POLLUTION CONTROL |
Article 3. AIR POLLUTION CONTROL BOARD |
§ 9-12-12. Created—Membership—Terms of office—Jurisdiction—Hearing—Appeals.
A.
There is created the Memphis and Shelby County air pollution control board, hereinafter referred to as "the board" to be composed of nine members to be appointed as described in subsections (A)(1) and (2) of this section. No member of the board shall hold any elective office or receive any governmental salary except as a member of the faculty or staff of a school in the state education system. Otherwise, all members shall serve without compensation. Any member of the board who has any conflict of interest or potential conflict of interest shall make adequate disclosure of it and abstain from matters related to it.
1.
Eight members of the board are to be appointed jointly by the mayor of the city and the mayor of Shelby County and confirmed by both the city council and the Shelby County board of commissioners. These eight members shall consist of the following: one professional engineer knowledgeable in the field of air pollution control, one physician licensed to practice in Tennessee, one attorney licensed to practice law in the state, one member of academia, a representative of industry at large, and such other citizen members as may be appointed, except that industry may have no more than two representatives.
2.
One member of the board is to be appointed by the executive committee of the Memphis Area Association of Governments. This member is to be representative of the municipalities of Arlington, Bartlett, Collierville, Germantown, Lakeland, and Millington and is to be a citizen of one of these communities.
B.
The terms of the members shall be four years except that of the initially appointed members, of which three shall serve for four years, two shall serve for three years, two shall serve for two years and two shall serve for one year as designated at the time of appointment. Whenever a vacancy occurs, the vacancy shall be filled for the unexpired term in the same manner as the original appointment. Should the term of any board member expire without a replacement member being appointed, the existing member shall continue to hold the board membership until such appointment or reappointment occurs.
C.
The board shall select annually a chairperson from among its members. The board shall hold at least four regular meetings each year and such additional meetings as the chairperson deems necessary. All hearings conducted by the board shall be open to the public. The health officer shall act as secretary to the board and shall keep records of its hearings and other official actions. All hearings shall be held before not less than a majority of the board.
D.
The board is vested with the following jurisdiction and authority:
1.
Grant, deny or revoke variance applications;
2.
Grant, deny or revoke confidentiality protected status after a contested hearing pursuant to section 9-12-14, Reference 1200-3-9.02(11)(d)1.(iii) or issue confidentiality protection orders to prevent public dissemination of secret formulae, processes or methods used in any manufacturing operation carried on by any person (or under such person's direction) required to furnish the department information required by the department in the discharge of its duties. Any person who petitions the department or the Memphis and Shelby County air pollution control board for a confidentiality protection order shall include in the petition information sufficient for the board to make the finding that the information for which the confidentiality protected status is sought is eligible for such status under section 9-12-14, Reference 1200-3-9 and subsection (D)(2) of this section. The composition and quantity of air contaminants emitted from the source; the applicable requirements for the source and its compliance status with each applicable requirement; and the business name, address, and location of the source shall not be considered confidential. For the purpose of ensuring compliance, if a confidentiality protection order is granted, the protected information may be disseminated to the Tennessee Department of Environment and Conservation and/or to the Environmental Protection Agency, upon written request of an authorized representative of such agency;
3.
To decide appeals from any decisions, rulings, or determinations of the health officer or his or her designated representative under this chapter;
4.
To hear appeals arising from the failure of the health officer or his or her designated representative to act within a reasonable period on complaints under this chapter.
E.
Any person taking exception to and who is uniquely affected by any decision, ruling, requirement, rule, regulation, or order of the health officer or by his or her failure to act within a reasonable amount of time may take an appeal to the board as established by this section. Such appeals shall be made within 15 days after receiving notice of such decision, ruling, requirement, rule, regulation, or order or failure to act by filing a written notice of appeal directly to the board specifying the ground thereof and the relief requested. Such an appeal shall act as a stay of the decision, ruling, requirement, rule, regulation or order in question until the board has taken final action on the appeal, except when the health officer has acted under section 9-12-9, emergency order or except when an appeal has been filed pursuant to section 9-12-14, Reference 1200-3-9-.05(8). The board, not more than 30 days after the date of filing an appeal, shall set a date for the hearing not more than 60 days after the date of filing of the appeal and shall give notice thereof by mail to the interested parties.
F.
Hearings before the board shall be conducted in the following manner:
1.
Notice of any and all hearings shall be given at least 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.
2.
The chairperson of the board shall act as the hearing examiner to conduct such hearing.
3.
Any person seeking a variance or any party who has filed a written notice of appeal pursuant to this section or section 9-12-14 [Reference 1200-3-9-.05], may appear in person or by agent or attorney and present evidence, both written or oral, relevant to the questions and issues involved and may examine and cross examine witnesses.
4.
All testimony shall be under oath and recorded. The board is authorized to have all testimony transcribed and a transcript of such testimony, if transcribed, shall be made available to the respondent or any party to the hearing upon payment of the normal fee, which shall not exceed the cost of transcribing such testimony.
5.
After due consideration of the written and oral statements, the testimony and arguments submitted at the hearing upon such complaint, or, upon default in appearance of the respondent on the return date specified in the formal notice of complaint, the board shall issue and enter such final order or make such final determination as it shall deem appropriate not later than 60 days after the hearing date, and shall immediately notify the respondent thereof, in writing, by certified mail. Such order or determination shall be approved by at least a majority of members to which the board is entitled.
6.
Upon failure of the board to enter a final order or determination within 60 days after the final argument of such hearing, the respondent shall be entitled to treat for all purposes such failure to act as a finding favorable to the respondent.
7.
The burden of proof shall be on the health officer or his or her duly authorized representative where appeal has been sought pursuant to this section or section 9-12-14. The burden of proof is on the applicant where a variance has been sought pursuant to section 9-12-8, in accordance with T.C.A. § 68-201-118(k).
8.
Any person aggrieved by any final order or determination of the board hereunder, including the health officer, shall have judicial review thereof by common law writ of certiorari. No judicial review shall be available until and after all administrative remedies have been exhausted.
(Code 1967, § 13-35; Code 1985, § 16-71; Ord. No. 1265, § 1, 4-25-1972; Ord. No. 3230, § 1(5), 8-3-1982; Ord. No. 4320, § 6, 5-2-1995; Ord. No. 4867, § 1, 6-19-2001; Ord. No. 4981, § 6, 12-17-2002; Ord. No. 5041, § 1(2—5), 2004)