§ 8-12. Air quality control board; appeals and variances.
(a)
Air quality control board; composition and appointment. There is hereby established an air quality control board appointed by the mayor, which shall consist of seven members. At least six members shall be residents of the city. Members shall each serve for a term of three years beginning August 1. The initial board shall consist of current members of the existing board who shall continue to serve until the completion of their current respective terms. Vacancies shall be filled by the mayor.
The board shall appoint one of its members to serve as chairman.
The chief of the air quality section shall act as secretary to the board to administer its affairs and maintain its records, but shall have no vote.
A representative from the city attorney's office shall attend all meetings at which appeals or variances are considered.
(b)
Powers and duties of the board. The board shall have the following powers and duties:
(1)
To review any order or other decision issued by the director to enforce this Code upon its appeal and to sustain, reverse or modify the same;
(2)
To deny or grant variances upon terms and conditions it deems appropriate;
(3)
To continue hearings upon a showing of good cause for a reasonable period of time not to exceed 60 days;
(4)
To grant extensions of time in which to comply with the provisions of this Code for good cause shown;
(5)
To administer oaths and affirmations;
(6)
To issue subpoenas compelling attendance of witnesses and production of evidence;
(7)
To provide advice, guidance and assistance to the air quality program;
(8)
To recommend or review comprehensive plans or suggest revisions of existing plans for the prevention, abatement and control of air pollution;
(9)
To review suggestions or make recommendations for the development of a public information program; and
(10)
To undertake whatever other advisory functions the board may consider appropriate or the director may request.
(c)
Right to appeal.
(1)
Any person adversely affected or otherwise aggrieved by an order or other decision issued by the director to enforce this article shall have the right to appeal that order or decision to the board. Such appeal must be taken within 15 days after the date of receipt of the order or decision appealed by filing with the director a written notice of appeal setting forth the grounds therefor and the specific matters or issues to be considered upon appeal. A fee of $50.00 payable to the city treasurer must accompany the notice of appeal. Upon receipt of a written notice of appeal and the appropriate fee, the director shall promptly transmit the notice and all papers constituting the record upon which the order or decision appealed from was based to the board. All or a portion of this filing fee may be waived by the director for good cause shown.
(2)
Except in emergencies as set out in section 8-17, an appeal to the board stays enforcement of the order or decision being appealed.
(3)
Failure of a person entitled to appeal to do so, or to timely file his/her notice of appeal, shall constitute a waiver of his right to an administrative hearing; and such person shall be estopped to deny the validity of the order or decision which could have been timely appealed.
(4)
An appeal shall be set for a hearing not less than 30 days after the proper filing of the notice of appeal, unless continued by the board.
(5)
Subject to the provisions of section 8-13 hereof, all hearings held by the board shall be open to the public, and all testimony taken shall be under oath and recorded stenographically. The board may require the submission of voluminous, detailed or technical testimony in writing under oath. A transcript of the testimony so recorded shall be made available to any member of the public or to any participant in such hearing upon payment of reasonable charges for transcription thereof.
(6)
All hearings shall be heard before four or more members of the board.
(7)
Any person aggrieved or who would be aggrieved by the emissions from the alleged air contaminant source shall be entitled to appear to testify with respect to such matter, subject to such restrictions and procedures as the board may establish, but shall not be a party to such proceeding. In all appeals from any order issued by the director, the person or persons to whom such order is directed and the director shall be the parties in interest.
(8)
Every order by the board shall be in writing and approved by at least four members. Every order shall state separately the findings of fact and conclusions upon which the board based its decision.
(9)
Upon issuing its order, the board shall notify each party to the proceeding, in writing, by certified mail. In cases in which any party is found to have violated any provisions of this article, the order of the board shall fix a reasonable time for such person or persons to take such measures as may be necessary to prevent subsequent violation.
(d)
Variances.
(1)
Petitions. Any person who owns or is in control of any air contaminant source may submit a petition to the director for a variance from any section of this article governing the quality, nature, duration or extent of discharge of air pollutants from such source. The petition shall be accompanied by a $300.00 fee made payable to the city treasurer and shall include the following information:
a.
The name, address and telephone number of the petitioner or other person authorized to receive service of notice.
b.
The type of business or activity conducted at the site of the air contaminant source and the street address at which it is conducted.
c.
A brief description of the article, machine, equipment or other contrivance or process involved and the emission occurring therefrom.
d.
The signature of the petitioner or some person authorized to sign on the petitioner's behalf. Where the person signing is not the petitioner, the petition shall set forth that person's authority to sign.
e.
The section of this article from which the variance is sought.
f.
Such other information and data with respect to such air contaminant source as may be required by the director of the board.
(2)
Investigation. The director shall promptly investigate such petition and submit it to the board with a recommendation as to the disposition thereof.
(3)
Grounds for variance. The board may grant such variance if it finds that compliance with the regulations from which the variance is sought would produce serious hardship without equal or greater benefits to the public; and
a.
The emissions occurring or proposed to occur would not endanger human health or safety; and/or
b.
Interfere with the attainment or maintenance of ambient air quality standards.
(4)
Notice of hearing. No variance shall be granted or denied until after notice of its filing and the date of the hearing thereon is published in a newspaper of general circulation within the county in which the source is located. Such notice shall be published at least once not more than 20 days, nor less than 15 days, before the hearing date.
(5)
Hearing. A petition for a variance shall be set for a hearing not less than 30 days after the filing of the petition, unless continued by the board.
(6)
Renewal. Variances may be granted for such periods of time and under such terms and conditions as shall be specified by the board. Variances may be renewed by the board upon application made at least 60 days prior to the expiration of the term. Renewal applications shall be considered by the board and shall require the same fee.
(7)
Conditions. Variances may be granted requiring a decrease of the emissions during the variance period and the making of periodic reports on an improvement program and on compliance with specific terms and conditions attached to the variance. A variance may be revoked or modified for failure to comply with the terms thereof or for failure to make a periodic report, if such is required.
(8)
Emergencies. Nothing in this subsection, and no variance or renewal granted pursuant hereto, shall be construed to prevent or limit the application of the emergency provisions and procedures of this article.
(e)
Judicial review of orders of the board. Orders of the board shall, without the necessity for a motion for rehearing, be subject to judicial review pursuant to the provisions of RSMo ch. 536.
(Code of Gen. Ords. 1967, § 18.94; Ord. No. 36539, 4-3-69; Ord. No. 41255, 6-9-72; Ord. No. 56726, 8-2-84; Ord. No. 960782, § A, 8-8-96; Ord. No. 991187, § 1, 9-23-99)