(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 (1) and (2) below. 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 Tennessee 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 of Memphis and the Mayor of Shelby County and confirmed by both the Memphis City Council and the Shelby County Board of Commissioners. These eight members shall consist of the following: one professional engineer knowledgeable in the field of air pollution control, one physician licensed to practice in Tennessee, one attorney licensed to practice law in Tennessee, one member of academia, a representative of industry at large and such other citizen members as may be appointed, 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 a representative for the municipalities of Arlington, Bartlett, Collierville, German Town, 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 Chair from among its members. The Board shall hold at least four regular meetings each year and such additional meetings as the Chair deems necessary. All hearings conducted by the Board shall be open to the public. The Health Director shall act as Secretary to the Board and shall keep records of its hearings and other official actions. All hearings shall be held before and 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) To decide appeals from any decisions, rulings or determinations of the Health Director or his or her designated representative under this Air Pollution Control Code;
(3) To hear appeals arising from the failure of the Health Director or his or her designated representative to act within a reasonable period on complaints under this Air Pollution Control Code.
(E) Any person seeking a variance from the provisions of this Air Pollution Control Code or any person taking exception to and who is uniquely affected by any decision, ruling, requirement, rule, regulation or order of the Health Director 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 Director has acted under § 96.06. 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 Memphis, 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 is uniquely affected by the action of the Health Director or by his or her failure to act may appear in person or by agent or attorney and present evidence both written or oral pertinent 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. The 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 in such hearing shall be on the Health Director or his or her duly authorized representative.
(8) Any person aggrieved by any final order or determination of the Board hereunder 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.
(Ord. 2002-01, passed 2-11-02)