Tennessee § 68-201-115 - Local pollution control programs — Exemption from state supervision — Applicability of part to air contaminant sources burning wood waste — Open burning of wood waste.

§ 68-201-115. Local pollution control programs — Exemption from state supervision — Applicability of part to air contaminant sources burning wood waste — Open burning of wood waste.

Any municipality or county in this state may enact, by ordinance or resolution respectively, air pollution control regulations not less stringent than the standards adopted for the state pursuant to this part, or any such municipality or county may also adopt or repeal an ordinance or resolution which incorporates by reference any or all of the regulations of the board, or any federal regulations including any changes in such regulations, when such regulations are properly identified as to date and source. Copies of air pollution regulations shall be made available to any interested party, and the city or municipality may charge reasonable compensatory fees for providing such copies. At least three (3) copies of such regulations that are incorporated by reference shall be filed in the office of the county clerk and there kept for public use, inspection and examination. The filing requirements shall not be deemed to be complied with, unless the required copies of such regulations are filed with the clerk for a period of thirty (30) days before the adoption of the ordinance or resolution which incorporated such regulations by reference. No ordinance or resolution incorporating regulations by reference shall be effective until published in a newspaper having a general circulation in the municipality or county. Before such ordinances or resolutions enacting air pollution control regulations becomes effective, such municipality or county must apply for and receive from the board a certificate of exemption by the following procedure: Any political subdivision desiring to be exempted from this part may file a petition for certificate of exemption with the technical secretary. The technical secretary shall promptly investigate such petition and make recommendation to the board as to its disposition; Upon receiving the recommendation of the technical secretary, the board may, if such recommendation is for the granting of the petition, do so without hearing. If the recommendation of the technical secretary is against the granting of the petition or the board, in its discretion, concludes that a hearing would be advisable, then a hearing shall be held not later than sixty (60) days after receipt of recommendation of the technical secretary by the board; The certificate of exemption shall be granted if the board determines that: The municipality or county has enacted provisions for the control of air pollution not less stringent than this part; The enactments referenced in subdivision (b)(3)(A) are being, or will be, adequately enforced; and The granting of the certificate will not interfere with the state's goal of maintaining the purity of the air resources of the state; The board may grant a certificate of exemption, in whole or in part, may prescribe a time schedule for various parts of an exemption to become effective, and may make a certificate of exemption conditional or provisional as is deemed appropriate; In granting any certificate of exemption, there is reserved to the state the right to initiate proceedings to enforce any applicable resolution, ordinance or regulation of the municipality or county should it fail to obtain compliance with the resolution, ordinance or regulation. Such proceedings shall be the same as for enforcement of any duly promulgated rule or regulation of the board; In granting any certificate of exemption, the exemption is to be strictly construed as limited to the language of the exemption. No power or authority that is not expressly stated in the certificate of exemption may be implied. The municipality or county may further petition the board for such power or authority; and The department shall frequently determine whether or not any exempted municipality or county meets the terms of the exemption granted and continues to comply with this section. If a determination is made that the municipality or county does not meet the terms of the exemption granted or does not comply with this section, the department shall so notify the board, and the board, upon reasonable notice to the municipality, may suspend the exemption in whole or in part until such time as the municipality or county complies with the state standards. All new certificates of exemption shall be for a fixed term not to exceed two (2) years. This part does not apply to emissions from any air contaminant source, as defined in this part, which burns wood waste solely for the disposition of such wood waste; provided, however, that open burning of wood waste within two hundred feet (200') of an occupied building by any person other than an occupant of the building shall only be conducted as follows: At least one (1) person shall be constantly present at the burning during the entire time of the burn; Each burn shall not exceed forty-eight (48) hours in duration; Burning shall not occur more than twice in any thirty-day period; and If the burning occurs within one hundred feet (100') of an occupied building, it may only occur if an adult occupant of the building gives written authorization for the burn to occur and has not rescinded the authorization in writing. Provided further, however, that, if a local government has enacted or enacts more stringent requirements concerning such open burning of wood waste, those provisions shall control over the requirements of this subsection (c). Local government actions taken in accordance with this section shall be conducted in accordance with the Major Energy Project Act of 1981, compiled in title 13, chapter 18, when the action includes a major energy project, as defined in § 13-18-102. If a municipality or county has received a certificate of exemption pursuant to this section, then the municipality or county shall offer a process to grant waivers from its open burning regulations. Open burning waivers may be approved by the director of the municipal or county air pollution program, if there is no other practical, safe, and lawful method of disposal; provided, that the burning is conducted in a manner to protect public health and the environment. Nothing in this subsection (e) shall be construed as eliminating or limiting the sanctions or obligations imposed by title 39, chapter 14, part 3. No municipality or county shall include land use or zoning requirements in its air pollution control regulations or the municipality's or county's certificate of exemption granting the municipality or county the authority to enact the regulations. No municipality or county shall request that the board include land use or zoning requirements in the state implementation plan submitted to the United States environmental protection agency pursuant to 42 U.S.C. § 7410. Acts 1967, ch. 367, § 15; 1971, ch. 266, § 1; 1971, ch. 365, §§ 1, 2; 1972, ch. 787, § 1; 1973, ch. 325, §§ 4, 6; 1974, ch. 598, § 1; 1975, ch. 359, § 1; 1977, ch. 116, § 1; 1977, ch. 169, § 2; impl. am. Acts 1978, ch. 934, §§ 22, 36; Acts 1979, ch. 299, § 7; 1981, ch. 131, § 29; T.C.A., § 53-3422; Acts 1984, ch. 788, § 12; T.C.A., § 68-25-115 ; Acts 1994, ch. 658, §§ 1-3; 2007, ch. 559, § 1; 2013, ch. 156, § 1; 2017, ch. 284, §§ 1, 2. Code Commission Notes. The former first sentence of subsection (c), concerning the expiration of exemptions already granted on July 1, 1986, was deleted as obsolete by authority of the code commission in 2006. Compiler's Notes. Acts 2009, ch. 196, § 1 provided that the commissioner of environment and conservation is directed to conduct a study concerning the exemption for the open burning of wood waste in § 68-201-115(c)(1) . The study shall include, but not be limited to: (1) The number of complaints received by the department of environment and conservation for the open burning of wood waste of which the department had no regulatory oversight; or (2) Recommendations on regulating the open burning of wood waste. In regard to the recommendations, the commissioner is encouraged to work with the division of forestry of the department of agriculture to consider appropriate coordination with the division's burn permits and include such findings in the study. The commissioner of environment and conservation shall submit a report and report on the findings of this study by January 15, 2010, to the chairs of the conservation and environment committee of the house of representatives and the senate environment conservation and tourism committee. Amendments. The 2013 amendment added (e). The 2017 amendment divided and redesignated former (b)(3) as the present introductory language of (b)(3) and as (b)(3)(A) and (b)(3)(B) by substituting “that: (A) The municipality” for “that the municipality” and substituting “this part; (B) The enactments referenced in subdivision (b)(3)(A) are being” for “this part and that such enactments are being”; added (b)(3)(C); and added (f) and (g). Effective Dates. Acts 2013, ch. 156, § 2. April 16, 2013. Acts 2017, ch. 284, § 4. May 4, 2017. Cross-References. Air contaminant source defined, § 68-201-102 . Attorney General Opinions. Neither T.C.A. § 68-201-115 nor any other provision of the Tennessee Air Quality Act waives sovereign immunity by explicitly making state agencies subject to qualified local air pollution control programs. The Tennessee Air Pollution Control Board does not have the authority to waive the state’s sovereign immunity as that authority is reserved solely to the General Assembly. OAG 10-86, 2010 Tenn. AG LEXIS 92 (7/13/10). Motor vehicle emissions testing fees. OAG 13-50, 2013 Tenn. AG LEXIS 50 (7/1/13). Cited: Adams v. State ex rel. Chattanooga Coke & Chems., 514 S.W.2d 424, 1974 Tenn. LEXIS 454 (Tenn. 1974).