This chapter shall be known and may be cited as the "Alabama Air Pollution Control Act of 1971." (Acts 1971, No. 769, p. 1481, §1.)
For the purposes of this chapter, the following terms shall have the meanings respectively ascribed to them by this section:
(1) AIR POLLUTION. The presence in the outdoor atmosphere of one or more air contaminants in such quantities and duration as are, or tend to be, injurious to human health or welfare, animal or plant life or property or would interfere with the enjoyment of life or property throughout the state and in such territories of the state as shall be affected thereby.
(2) AIR CONTAMINANT. Any solid, liquid or gaseous matter, any odor or any combination thereof, from whatever source.
(3) COMMISSION. The Alabama Department of Environmental Management.
(4) PERSON. Any and all persons, natural or artificial, including, but not limited to, any individual, partnership, association, society, joint stock company, firm, company, corporation, institution, trust, estate, or other legal or other business organization or any governmental entity, and any successor, representative, agent or agency of the foregoing.
(5) EMISSION. A release into the outdoor atmosphere of air contaminants.
(6) DIRECTOR. The Director of the Alabama Department of Environmental Management.
(7) STATE HEALTH OFFICER. The Director of the Alabama Department of Environmental Management.
(8) CHAIRMAN. The Director of the Alabama Department of Environmental Management.
(9) STATE AIR POLLUTION CONTROL COMMISSION. The Alabama Department of Environmental Management.
(10) ENVIRONMENTAL MANAGEMENT COMMISSION. The Environmental Management Commission of the Alabama Department of Environmental Management. (Acts 1971, No. 769, p. 1481, §3; Acts 1982, No. 82-612, p. 1111, §11(g).)
It is hereby declared to be the public policy of this state and the purpose of this chapter to achieve and maintain such levels of air quality as will protect human health and safety and, to the greatest degree practicable, prevent injury to plant and animal life and property, foster the comfort and convenience of the people, promote the social development of this state and facilitate the enjoyment of the natural attractions of this state.
It is also declared that local air pollution control programs are to be provided for to the extent practicable as essential instruments for the securing and maintenance of appropriate levels of air quality.
To these ends, it is the purpose of this chapter to provide for a coordinated statewide program of air pollution prevention, abatement and control; to facilitate cooperation across jurisdictional lines in dealing with problems of air pollution not confined within single jurisdictions and to provide a framework within which all values may be balanced in the public interest. (Acts 1971, No. 769, p. 1481, §2.)
EMPLOYEES. The commission may employ and compensate, within appropriations available therefor, consultants and such assistants and employees as may be necessary to carry out the provisions of this chapter and may prescribe their powers and duties. Employees of the commission shall be employed in accordance with the State Merit System. (Acts 1971, No. 769, p. 1481, §4.)
In addition to other powers conferred on it by law, the commission shall have power to:
(1) Hold hearings relating to any aspect of or matter in the administration of this chapter and, in connection therewith, compel the attendance of witnesses and the production of evidence through subpoena, as provided in this chapter;
(2) Issue such orders as may be necessary to effectuate the purposes of this chapter and enforce the same by all appropriate administrative and judicial proceedings;
(3) Require access to records relating to emissions which cause or contribute to air contamination;
(4) Secure necessary scientific, technical, administrative and operational services, including laboratory facilities, by contract or otherwise;
(5) Prepare and develop a comprehensive plan or plans for the prevention, abatement and control of air pollution in this state;
(6) Encourage voluntary cooperation by persons and affected groups to achieve the purposes of this chapter;
(7) Encourage and conduct studies, investigations and research relating to air contamination and air pollution and their causes, effects, prevention, abatement and control;
(8) Determine by means of field studies and sampling the degree of air contamination and air pollution in the state and the several parts thereof;
(9) Make a continuing study of the effects of the emission of air contaminants from motor vehicles on the quality of the outdoor atmosphere of this state, and the several parts thereof, and make recommendations to appropriate public and private bodies with respect thereto;
(10) Collect and disseminate information and conduct educational and training programs relating to air contamination and air pollution;
(11) Advise, consult, contract and cooperate with other agencies of the state, local governments, industries, other states, interstate or interlocal agencies, and the federal government and with interested persons or groups;
(12) Consult, upon request, with any person proposing to construct, install or otherwise acquire an air contaminant source or device or system for the control thereof concerning the efficacy of such device or system or the air pollution problem which may be related to the source, device or system. Nothing in any such consultation shall be construed to relieve any person from compliance with this chapter, rules and regulations in force pursuant thereto or any other provision of law;
(13) Accept, receive and administer grants or other funds or gifts from public and private agencies, including the federal government, for the purpose of carrying out any of the functions of this chapter. Such funds received by the commission pursuant to this section shall be deposited in the State Treasury to the account of the commission. In addition to the authority to accept, receive and administer grants or other funds from the federal government, the commission is hereby designated as the State Air Pollution Control Agency for the purposes of the Federal Clean Air Act, as amended;
(14) Provide for the performance by its officers and employees, in the name of the commission, of any act or duty necessary or incidental to the administration of this chapter; and
(15) Provide for the establishment of advisory committees, appointment of the membership of such committees, scope of investigation and other duties of such committees. The period of duration of such committees and the terms of members of such committees shall be established by the commission. No salary or compensation shall be allowed any member of such committees for services thereon. Travel, subsistence and other expenses incurred by members of such committees in the discharge of their official duties as members of such committees, and when approved by the chairman or the director, by direction of the commission shall be paid at the rate allowed other state employees as provided by Article 2 of Chapter 7 of Title 36 of this Code from any funds which are, or may become, available for the purpose of this chapter. (Acts 1971, No. 769, p. 1481, §6.)
The commission may establish such emission control requirements, by rule or regulation, as in its judgment may be necessary to prevent, abate or control air pollution. Such requirements may be for the state as a whole or may vary from area to area, as may be appropriate, to facilitate accomplishment of the purposes of this chapter and in order to take account of varying local conditions. (Acts 1971, No. 769, p. 1481, §10.)
As the state of knowledge and technology relating to the control of emissions from motor vehicles may permit or make appropriate, and in furtherance of the purposes of this chapter, the commission may provide by rules and regulations for the control of emissions from any class or classes of motor vehicles. Such rules and regulations may, in addition, prescribe requirements for the installation and use of equipment designed to reduce or eliminate emissions and for the proper maintenance of such equipment and of such vehicles.
(1) The commission may establish standards and requirements providing for periodic inspections and testing of motor vehicles by the commission to enforce compliance with this section.
(2) The commission may establish reasonable fees for the inspection and testing of motor vehicles and provide by rules and regulations for the payment and collection of such fees.
(3) If, after inspecting and testing any motor vehicle, the commission determines that such motor vehicle complies in every respect with rules, regulations, standards and requirements issued by the commission pursuant to this section, the commission shall attach to such vehicle in a clearly visible location a certificate of inspection and approval.
(c)(1) The commission may suspend or revoke the certificate of inspection and approval of any motor vehicle not equipped with an air pollution control system or mechanism in good working order and adjustment as required by the rules and regulations of the commission. The vehicle shall not thereafter be eligible for such certificate until all parts and equipment constituting operational elements of the motor vehicle have been restored, replaced or repaired and are in good working order.
(2) No motor vehicle shall be issued an official certificate of inspection and approval as required pursuant to this section unless all features or equipment required in or on the motor vehicle for the purpose of controlling emissions therefrom have been inspected in accordance with the standards and testing techniques required by the commission pursuant to subsection (b) of this section and have been found to meet these standards.
(3) No person shall drive or move and no owner shall cause or knowingly permit to be driven or moved on any highway any motor vehicle unless the vehicle is equipped with an air pollution control system or mechanism in good working order and adjustment as required by rules and regulations of the commission.
(4) When, and if, the commission shall establish standards and requirements for periodic inspections and testing of motor vehicles pursuant to subsection (b) of this section, no person shall drive or move and no owner shall cause or knowingly permit to be driven or moved on any highway any motor vehicle unless there is attached to such vehicle by the commission a valid certificate of inspection and approval which has not been suspended or revoked.
(5) Failure to comply with subdivisions (3) and (4) of this subsection shall subject the driver or owner to a penalty as provided in this chapter.
The commission, in its discretion, is hereby authorized to delegate any, or all, of the authority vested in it by this section to any agency or instrumentality of the state now or hereafter authorized to inspect motor vehicles for any purpose.
As used in this section, "motor vehicle" shall mean every self-propelled device in, or upon, or by which any person or property is or may be transported or drawn upon a public highway. (Acts 1971, No. 769, p. 1481, §16.)
The commission may grant individual variances beyond the limitations prescribed in this chapter whenever it is found, upon presentation of adequate proof, that compliance with any rule or regulation, requirement or order of the commission would impose serious hardship without equal or greater benefits to the public and the emissions occurring, or proposed to occur, do not endanger or tend to endanger human health or safety, human comfort and aesthetic values. In granting or denying a variance, the commission shall file and publish a written opinion stating the facts and reasons leading to its decision.
In granting a variance, the commission may impose such conditions as the policies of this chapter may require. If the hardship complained of consists solely of the need for a reasonable delay in which to correct a violation of this chapter or of the commission regulations, the commission shall condition the grant of such variance upon the posting of sufficient performance bond or other security to assure the correction of such violation within the time prescribed.
Any variance granted pursuant to the provisions of this section shall be granted for such period of time, not exceeding one year, as shall be specified by the commission at the time of the grant of such variance and upon the condition that the person who receives such variance shall make such periodic progress reports as the commission shall specify. Such variance may be extended from year to year by affirmative action of the commission, but only if satisfactory progress has been shown.
Any person seeking a variance shall do so by filing a petition for variance with the commission, which shall promptly give notice of such petition in a newspaper of general circulation in the county in which the installation or property for which variance sought is located. The director shall promptly investigate such petition, consider the views of persons who might be adversely affected by the grant of a variance and make a recommendation to the commission as to the disposition of the petition. If the commission, in its discretion, concludes that a hearing would be advisable, or if any person files a written objection to the grant of such variance within 21 days, then a hearing shall be held, under the rules prescribed in subsection (b) of Section 22-28-15, and the burden of proof shall be on the petitioner.
If the commission fails to take final action upon a variance request within 90 days after the filing of the petition, the petitioner may deem the request denied under this chapter.
A variance or renewal shall not be a right of the applicant or holder thereof but shall be in the discretion of the commission; however, any person adversely affected by a variance or renewal granted by the commission may obtain judicial review by filing notice of appeal with the register or clerk of the circuit court in the county where the pollution source is located within 20 days from the action of the commission thereon. The case shall be heard by the court under the same rules and with the same requirements as a petition for injunction would be heard. On appeal, the circuit court shall grant said variance unless it finds the operation of the air contamination source in the manner allowed in the variance would amount to a private or public nuisance or unless it finds that the commission acted arbitrarily and capriciously. (Acts 1971, No. 769, p. 1481, §12.)
The commission, pursuant to procedures prescribed in Section 22-28-15, may adopt regulations to promote the purposes of this chapter. Without limiting the generality of this authority, such regulations may among other things prescribe:
(1) Ambient air quality standards specifying the maximum permissible short-term and long-term concentrations of various air contaminants in the atmosphere;
(2) Emission standards specifying the maximum amounts or concentrations of air contaminants that may be discharged into the atmosphere;
(3) Standards and conditions regarding the sale, offer or use of any fuel or other article determined to constitute an air pollution hazard or which could constitute an air pollution hazard;
(4) Alert and abatement standards relative to air pollution episodes or emergencies constituting an acute danger to health or to the environment;
(5) Requirements and procedures for the inspection of any equipment, facility, vehicle, vessel or aircraft that may cause or contribute to air pollution;
(6) Requirements for making reports containing information as may be required by the commission concerning location, size and height of contaminant outlets, processes employed, fuels used and the nature and time periods or duration of emissions and such other information as is relevant to air pollution; and
(7) Effective and application dates; however, unless otherwise specified by the commission, all rules, regulations, standards, requirements, procedures, orders, resolutions, prohibitions, amendments thereto or repeal thereof shall become effective and applicable upon adoption by the commission. (Acts 1971, No. 769, p. 1481, §5.)
No substantive regulations shall be adopted, amended or repealed until after a public hearing. At least 20 days prior to the scheduled date of the hearing, the commission shall give notice of such hearing by public advertisement in a newspaper of general circulation in the area of the state concerned of the date, time, place and purpose of such hearing and make available to any person upon request copies of the proposed regulations, together with summaries of the reasons supporting their adoption.
Repealed by Acts 1982, No. 82-612, p. 1111, §14(a)(1).
After such hearing, the commission may revise the proposed regulations before adoption in response to testimony made at the hearing without conducting a further hearing on the revisions.
Any such regulations may make different provisions, as required by circumstances, for different contaminant sources and for different geographical areas; may apply to sources outside this state causing, contributing to or threatening environmental damage in Alabama and may make special provision for alert and abatement standards and procedures respecting occurrences or emergencies of pollution or on other short-term conditions constituting an acute danger to health or to the environment. In promulgating regulations under this chapter, the commission shall take into account the purpose of the chapter.
Nothing in this section shall be construed to require a hearing prior to the issuance of an emergency order pursuant to Section 22-28-21. (Acts 1971, No. 769, p. 1481, §13; Acts 1982, No. 82-612, p. 1111, §14(a)(1).)
The commission, by regulation, shall prohibit the construction, installation, modification or use of any equipment, device or other article which it finds may cause or contribute to air pollution or which is intended primarily to prevent or control the emission of air pollutants unless a permit therefor has been obtained from the director.
The commission may require that applications for such permits shall be accompanied by plans, specifications and such other information as it deems necessary.
The commission shall provide for the issuance, suspension, revocation and renewal of any permits which it may require pursuant to this section.
No person shall construct, install, modify or use any equipment, device or other article designated by regulations capable of causing, or contributing to, air pollution or designated to prevent air pollution without a permit from the director or in violation of any conditions imposed by such permits. (Acts 1971, No. 769, p. 1481, §18.)
The commission may require that notice be given to the director prior to the undertaking of the construction, installation or establishment of particular types or classes of new air contamination sources specified in its rules and regulations. Within 15 days of its receipt of such notice, the director may require, as a condition precedent to the construction, installation or establishment of the air contaminant source or sources covered thereby, the submission of plans, specifications and such other information as it deems necessary in order to determine whether the proposed construction, installation or establishment will be in accord with applicable rules and regulations in force pursuant to this chapter. If, within 60 days of the receipt of plans, specifications or other information required pursuant to this section, the director determines that the proposed construction, installation or establishment will not be in accord with the requirements of this chapter or applicable rules and regulations, he shall issue an order prohibiting the construction, installation or establishment of the air contaminant source or sources. Failure of such an order to issue within the time prescribed in this section shall be deemed a determination that the construction, installation or establishment may proceed, provided that it is in accordance with the plans, specifications or other information, if any, required to be submitted.
In addition to any other remedies available on account of the issuance of an order prohibiting construction, installation or establishment, and prior to invoking any such remedies, the person or persons aggrieved thereby shall, upon request in accordance with rules of the commission, be entitled to a hearing on the order. Following such hearing, the order may be affirmed, modified or withdrawn.
For the purposes of this chapter, addition to, or enlargement or replacement of an air contaminant source, or any major alteration therein, shall be construed as construction, installation or establishment of a new air contaminant source.
Any features, machines and devices constituting parts of, or called for by, plans, specifications or other information submitted pursuant to subsection (a) of this section shall be maintained in good working order.
Nothing in this section shall be construed to authorize the commission to require the use of machinery, devices or equipment from a particular supplier or produced by a particular manufacturer if the required performance standards may be met by machinery, devices or equipment otherwise available.
The absence or failure to issue a rule, regulation or order pursuant to this section shall not relieve any person from compliance with any emission control requirements or with any other provision of law.
The commission, by rule or regulation, may prescribe and provide for the payment and collection of reasonable fees for the review of plans and specifications required to be submitted pursuant to this section. All such fees, when collected, shall be deposited in the State Treasury to the account of the Division of Air Pollution Control of the State Department of Health. (Acts 1971, No. 769, p. 1481, §8.)
The commission may require the owner or operator of any air contaminant source to establish and maintain such records, make such reports, install, use and maintain such monitoring equipment or methods, sample such emissions in accordance with such methods, at such locations, intervals and procedures as the commission shall prescribe, and provide such other information as the commission reasonably may require. (Acts 1971, No. 769, p. 1481, §7.)
Any duly authorized officer, employee or representative of the department may enter and inspect any property, premises or place on, or at, which an air contaminant source is located or is being constructed, installed or established, at any reasonable time, for the purpose of ascertaining the state of compliance with this chapter and rules and regulations in force pursuant thereto. No person shall refuse entry or access to any authorized representative of the department who requests entry for purposes of inspection, and who presents appropriate credentials, nor shall any person obstruct, hamper or interfere with any such inspection. If requested, the owner or operator of the premises shall receive a report setting forth all facts found which relate to compliance status.
The department may conduct tests and take samples of air contaminants, fuel, process material or other material which affects, or may affect, emission of air contaminants from any source. Upon request of the department, the person responsible for the source to be tested shall provide necessary holes in stacks or ducts and such other safe and proper sampling and testing facilities, exclusive of instruments and sensing devices as may be necessary for proper determination of the emission of air contaminants. If an authorized employee of the department during the course of an inspection obtains a sample of air contaminant, fuel, process material or other material, he shall give the owner or operator of the equipment or fuel facility a receipt for the sample obtained. (Acts 1971, No. 769, p. 1481, §9.)
Any records, reports or information obtained under this chapter shall be available to the public; except, that upon a showing satisfactory to the commission by any person that records, reports or information, or particular part thereof, other than emission data, to which the commission has access if made public would divulge production or sales figures or methods, processes or production unique to such person or would otherwise tend to affect adversely the competitive position of such person by revealing trade secrets, the commission shall consider such record, report or information, or particular portion thereof, confidential in the administration of this chapter.
Nothing in this section shall be construed to prevent disclosure of such report, record or information to federal, state or local representatives as necessary for purposes of administration of any federal, state or local air pollution control laws or when relevant in any proceeding under this chapter. (Acts 1971, No. 769, p. 1481, §14.)
Any other provisions of law to the contrary notwithstanding, if the director finds that a generalized condition of air pollution exists and that it creates an emergency requiring immediate action to protect human health or safety, the director shall order persons causing or contributing to the air pollution to reduce or discontinue immediately the emission of air contaminants, and such order shall fix a place and time, not later than 24 hours thereafter, for a hearing to be held before the Environmental Management Commission. Not more than 24 hours after the commencement of such hearing, and without adjournment thereof, the Environmental Management Commission shall affirm, modify or set aside the order of the director.
In the absence of a generalized condition of air pollution of the type referred to in subsection (a) of this section, but if the director finds that emissions from the operation of one or more air contaminants sources is causing imminent danger to human health or safety, he may order the person or persons responsible for the operation or operations in question to reduce or discontinue emissions immediately, without regard to the provisions of Section 22-28-19. In such event, the requirements for hearing and affirmance, modification or setting aside of orders set forth in subsection (a) of this section shall apply.
Nothing in this section shall be construed to limit any power which the Governor or any other officer may have to declare an emergency and act on the basis of such declaration, if such power is conferred by statute or constitutional provision or inheres in the office.
In addition to, and without in any way limiting the foregoing, if the State Health Officer, determines, at any time, that air pollution in any county, locality, place or other area in the state constitutes an emergency risk to health of those present within said area of the state and that the resources of the commission are not sufficient to abate said air pollution, such determination shall be communicated in writing, with the factual findings on which such determination is based, to the Governor; the State Health Officer may delegate in writing to any employee of the commission the power to make such determination and deliver the same to the Governor in the absence of the State Health Officer from the state. Upon being so advised, the Governor shall, by proclamation, declare, as to all or any part of said area mentioned in the aforesaid determination, that an air pollution emergency exists, and, upon making such declaration, the Governor shall have the following powers which he may exercise, in whole or in part, by the issuance of an order or orders:
(1) To prohibit, restrict or condition motor vehicle travel of every kind, including trucks and buses, in the area;
(2) To prohibit, restrict or condition the operation of retail, commercial, manufacturing, industrial or similar activity in the area;
(3) To prohibit, restrict or condition operation of incinerators in the area;
(4) To prohibit, restrict or condition the burning or other consumption of any type of fuel in the area;
(5) To prohibit, restrict or condition the burning of any materials whatsoever in the area; and
(6) To prohibit, restrict or condition any, and all, other activity in the area which contributes or may contribute to the air pollution emergency.
The declaration by proclamation of the Governor of an air pollution emergency, and any order issued by the Governor pursuant to such declaration, shall be given maximum publicity throughout the state.
Any gubernatorial order may be amended or modified by further gubernatorial orders. Said order or orders shall not require any judicial or other order or confirmation of any type in order to become immediately effective as the legal obligation of all persons, firms, corporations and other entities within the state. Said order shall remain in effect for the duration of the time set forth in same, and if no time limit is specified in said order, same shall remain in effect until the Governor declares by further proclamation that the emergency has terminated.
The aforesaid orders of the Governor shall be enforced by the state and county departments of health, the state and local police, commission personnel, the Alabama National Guard, if same is authorized in the Governor's order, and such other persons or agencies as may be designated by the Governor. Those enforcing any Governor's order shall require no further authority or warrant in executing same than the issuance of the order itself. Those authorized to enforce said orders may use such reasonable force as is required in the enforcement thereof and may take such reasonable steps as are required to assure compliance therewith, including, but without limiting the generality of the foregoing, the following:
(1) Entering any property or establishment whatsoever, commercial, industrial or residential, believed, on reasonable cause, to be violating said order, excepting single or double family homes or any dwelling unit within a multiple-dwelling unit larger than a double family home, and, if a request does not produce compliance, causing compliance with said order;
(2) Stopping, detouring, rerouting and prohibiting motor vehicle travel and traffic;
(3) Disconnecting incinerator or other types of combustion facilities;
(4) Terminating all burning activities;
(5) Closing down or restricting the use of any business, commercial, retail, manufacturing, industrial or other establishment. Where any person authorized to enforce such an order believes, on reasonable cause, that same is being violated in a single or double family residence or within the dwelling portion of a larger multiple-dwelling unit, said residence, or dwelling portion thereof, may be entered only upon obtaining a search warrant from any magistrate having power to issue same.
Any person, firm or corporation or other entity aggrieved by any gubernatorial order, upon application to the State Health Officer, shall be granted a public hearing on the question of whether or not the continuance of any such order, in whole or in part, is unreasonable in the light of the then prevailing conditions of air pollution, the contribution to the same of any particular activity and the purposes of this chapter. Said public hearing shall be conducted as quickly as possible by said State Health Officer or his delegate who shall give public notice of same. The State Health Officer or his delegate shall have the power to compel attendance, testimony and the production of documents by the use of subpoena powers. The number of witnesses and the extent of testimony shall be within his control. If the State Health Officer, upon conclusion of such hearing, determines that any such order should be terminated or modified in any way whatsoever, he shall report such findings and recommendations to the Governor for such action as he deems appropriate. (Acts 1971, No. 769, p. 1481, §11; Acts 1982, No. 82-612, p. 1111, §11(g).)
INJUNCTIONS.
Any person who knowingly violates or fails or refuses to obey or comply with this chapter, or any rule or regulation adopted thereunder, or knowingly submits any false information under this chapter, or any rule or regulation thereunder, including knowingly making a false material statement, representation, or certification, or knowingly rendering inaccurate a monitoring device or method, upon conviction, shall be punished by a fine not to exceed ten thousand dollars ($10,000) for the violation and an additional penalty not to exceed ten thousand dollars ($10,000) for each day thereafter during which the violation continues and may also be sentenced to hard labor for the county for not more than one year.
Any local air pollution control program operating pursuant to subsection (b) of Section 22-28-23 may enforce violations of the local air pollution control program and its rules and regulations in the same manner described in subsection (a) of this section.
Any duly designated employee of the commission, including any hearing officer, may administer oath to witnesses and may conduct hearings or investigations, and any such duly designated employee of the commission may sign and issue subpoenas requiring persons to appear before him or her or the commission to give testimony and requiring the production of any papers, books, accounts, payrolls, documents, or records. The commission, through its designated officers, shall have the power to serve subpoenas upon any person by sending a copy of the subpoena through the United States mail, postage prepaid, registered or certified, with return receipt attached, and the service shall be complete when the registered or certified mail is delivered to the person and the receipt is returned to the commission or its designated employee, signed by the person being subpoenaed. Obedience to a subpoena issued by the commission or any person authorized and designated by the commission to issue a subpoena may be enforced by application to any judge of the circuit court of the county in which the subpoena was issued or to the judge of any circuit court in which the person subpoenaed resides in the same manner as is provided by law for the grand jury of a county to enforce its subpoenas and with the same penalty as provided for the failure of any person failing or refusing to comply with a subpoena. (Acts 1971, No. 769, p. 1481, §17; Acts 1982, No. 82-612, p. 1111, §14(a)(1); Acts 1986, No. 86-542, p. 1053, §6; Acts 1996, No. 96-516, p. 660, §1.)
Except as provided in this section, it is the intention of this chapter to occupy by preemption the field of air pollution control within all areas of the State of Alabama. However, nothing in this section shall be construed to limit or abrogate any private remedies now available to any person for the alleviation, abatement, control, correction, or prevention of air pollution or restitution for damage resulting therefrom.
Subject to the provisions of this section, each municipal governing body which had municipal ordinances in effect on, or before, July 1, 1969, which pertain to air pollution control and which provide for the creation and establishment of an air pollution control board and each county board of health shall have the authority to establish, and thereafter administer, within their jurisdictions, a local air pollution control program which:
(1) Provides, subject to subsection (d) of this section, by ordinance, regulation, or resolution, for requirements for the control or prevention of air pollution consistent with, or more strict than, those imposed by this chapter or the rules, regulations, and standards promulgated by the commission under this chapter;
(2) Provides for the enforcement of such requirement by appropriate administrative and judicial process, including a process for the administrative assessment of penalties substantially equivalent to that provided in subdivision (18) of Section 22-22A-5, provided however, that no person subject to the jurisdiction of the municipal or county program shall be subject to the administrative assessment of penalties by the municipal or county program if the department has issued an order that assesses a penalty or if the department or Attorney General has commenced a civil action to recover a penalty for the same violation pursuant to subdivision (18) of Section 22-22A-5. Each municipal governing body and each county board of health establishing a program under this section may advertise and adopt all rules and regulations in accordance with the same procedure provided in this chapter for the adoption of rules, regulations, and standards by the commission, and all judicial remedies provided by this chapter and Chapter 22A of this title shall be available and enforceable by the municipal governing body and by the county board of health; and
(3) Provides for administrative organization, staff, financial, and other resources necessary to effectively and efficiently carry out its program. The county commission of each county and the council or other governing body of each municipal governing body within the jurisdiction of a local air pollution control program established by a county board of health may appropriate such sums as they may determine necessary and desirable for the establishment, administration, and enforcement of the program.
No county board of health shall have the authority to exercise air pollution control jurisdiction within the bounds of any incorporated municipality or the police jurisdiction thereof having an air pollution control program as authorized. Provided further, however, that no municipal governing body having an air pollution control program as authorized shall have the authority to exercise air pollution control jurisdiction over any agricultural and farming operations conducted within the corporate limits or police jurisdiction of the municipality.
Any municipal governing body and each county board of health may adopt and enforce any ordinance, regulation, or resolution requiring the control or prevention of air pollution as follows:
(1) Where any ordinance, regulation, or resolution is identical in substance to requirements for the control or prevention of air pollution imposed by this chapter, or the rules, regulations, and standards promulgated by the commission under this chapter, then the ordinance, regulation, or resolution may be adopted and enforced without further approval of the commission.
(2) Where any ordinance, regulation, or resolution provides for the control or prevention of air pollution regarding classes or types of sources or classes or types of air contaminants for which the commission has not promulgated rules, regulations, or standards applicable to such sources of air contaminants within the area of jurisdiction of the local air pollution control program of the municipal governing body or county board of health, then the ordinance, regulation, or resolution may be adopted and enforced without further approval of the commission.
(3) Where any ordinance, regulation, or resolution is adopted which provides for requirements for the control or prevention of air pollution for particular classes or types of sources or classes or types of air contaminants, which requirements are more strict than those imposed by this chapter, or the rules, regulations, and standards promulgated by the commission under this chapter, which are applicable within the area of jurisdiction of the local air pollution control program of the municipal governing body or county board of health, then the ordinance, regulation, or resolution may not be enforced unless the commission finds within 60 days of the adoption that the ordinance, regulation, or resolution is compatible with the purposes of this chapter and with any comprehensive plan adopted by the commission pursuant to Section 22-28-10.
(4) Each municipal governing body or county board of health shall notify the commission of the adoption of any ordinance, regulation, or resolution requiring the control or prevention of air pollution and provide to the commission a certified copy of the ordinance, regulation, or resolution within 15 days of adoption.
(1) If the commission has reason to believe that a local air pollution control program established pursuant to subsection (b) of this section is inadequate to prevent and control air pollution in the jurisdiction to which the program relates or that the program is being administered in a manner inconsistent with the requirements of this chapter, the commission shall, on due notice, conduct a hearing on the matter; and
(2) If, after such hearing, the commission finds that the program is inadequate to prevent and control air pollution in the jurisdiction to which the program relates, that the program is not accomplishing the purposes of this chapter, that the program is not adhering to the requirements of subsection (f) of this section or that the program is being administered in a manner inconsistent with requirements of this chapter, the commission may preempt the local enforcement authority of that program.
(1) Each municipal governing body or county board of health which has established and administers a local air pollution control program pursuant to this section shall submit to the commission a detailed report of its activities during the previous year. The annual report shall be submitted as of October 1, of each year. The reports shall include, but not be limited to, information regarding: a. Ordinances and resolutions adopted or under consideration requiring control or prevention of air pollution and administrative procedures followed in the adoption; b. Administrative organization; c. Staff, financial, and other resources; d. Enforcement activities; e. Emission inventories; f. Air quality monitoring systems and data; g. Progress and problems related to administration of the local air pollution control programs; and h. Any other information which the commission may reasonably require.
(2) The commission may also require special interim reports by the municipal governing body or county board of health regarding activities of its local air pollution control program.
Any municipal governing body and any county board of health establishing a program under this section may, upon receipt of authorization from the commission, issue permits for the construction, installation, modification, or use of categories of equipment, devices, or articles specifically included in that authorization, provided however, that the commission may require the municipal governing body or county board of health to notify the commission of any permit proposed to be issued. Such permits shall be in lieu of those required by Section 22-28-16. The commission may enforce, suspend, or revoke any permit issued by a municipal governing body or county board of health pursuant to this subsection. Criteria for granting authorization and for suspension or revocation of that authorization, or permits issued pursuant to that authorization, whether in whole or in part, shall be established by the commission by regulation. No fee charged by a local air pollution control program shall exceed the fee charged by the commission for emissions and/or the review of plans and specifications for the same category of permit, except any county or municipality having a population of 55,000 or less according to the most recent federal census, which counties or cities may charge a higher fee.
Nothing in this section shall be construed to prohibit the commission from enforcing any provision of this chapter or any rule or regulation issued thereunder, nor to supersede or oust the jurisdiction of the commission in any matter. (Acts 1971, No. 769, p. 1481, §15; Acts 1980, No. 80-439, p. 666; Acts 1986, No. 86-542, p. 1053, §7; Act 2000-798, p. 1896, §1.)