§ 22-28-21 — Air Pollution Emergencies

(a) 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.
(b) 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.
(c) 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.
(d) 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.
(e) 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.
(f) 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.
(g) 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.
(h) 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.

Legislative History

(Acts 1971, No. 769, p. 1481, §11; Acts 1982, No. 82-612, p. 1111, §11(g).)