§ 22-28-23 — Local Air Pollution Control Programs

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

Legislative History

(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.)