CHAPTER 497

An Act to create the State Air Pollution Control Board; provide for the
appointment of members and prescribe their qualifications and com
pensation; authorize the employment of a staff and technical assist-
ants; prescribe the powers and duties of the Board; permit the crea,
tion ‘of local air pollution control districts and local air pollution con
trol committees in such districts and prescribe their powers ana
duties; provide for enforcement of rules, regulations and orders of
the Board, and appeals therefrom, and prescribe punishment for fatl-
ure to comply with same; and designate when local air pollution ordt-
mances are superseded by such rules, regulations and orders.

[H 520]
Approved April 4, 1966

Be it enacted by the General Assembly of Virginia:

§ 1. The following words, for the purposes of this act, shall have
the following meanings:

(a) “Board” means the State Air Pollution Control Board, sometimes
hereinafter referred to as “Board” or “State Board”’.

(b) “Air pollution’? means the presence in the outdoor atmosphere of
one or more substances put there by man or man-made devices in concen-
tration sufficient to cause an unreasonable interference with human, plant
or animal life or the reasonable use of property.

(c) “Owner” means the State, a county, sanitary district, municipal-
ity, a public or private institution, corporation, association, firm, or com-
pany organized or existing under the laws of this or any other state or
country, person or individual, or group of persons or individuals, acting
individually or as a group.

§ 2. There is hereby created in the Executive Department of the
State the State Air Pollution Control Board to be composed of five mem-
bers to be appointed by the Governor and subject to confirmation by the
General Assembly. The first appointments shall be made as follows: two
for a term of four years; two for a term of three years; and one for a term
of two years; successors to the first appointees hereunder shall be
appointed for terms of four years each. Vacancies other than by expira-
tion of term shall be filled by the Governor by appointment for the un-
expired term.

§ 3. The members of the Board shall have the following qualifica-
tions: they shall be citizens of the State; they shall be selected from the
State at large for merit without regard to political affiliation; the Governor
in his appointments shall select persons for their ability and all appoint-
ments shall be of such nature as to aid the work of the Board to inspire
the highest degree of cooperation and confidence. No officer, employee or
representative of any industry, county, city or town which may become
sudject to the rules and regulations of the Board shall be appointed to the

oard.

§ 4. All members of the Board shall serve without compensation but
shall receive twenty dollars per day for attendance at meetings and their
actual expenses incurred in attending meetings of the Board and in the
performance of any duties as members or by direction of the Board.

§ 5. The Board shall elect its own chairman and employ such techni-
cal assistants and staff as it deems necessary to carry out its functions, and
is authorized to employ an executive secretary who shall serve as executive
officer and devote his whole time to the performance of his duties, and he
shall have such administrative powers as are conferred upon him by the
Board. The Board may call upon any State department or agency for
technical assistance. All departments and agencies of the State shall, upon
request, assist the Board in the performance of its duties.

§ 6. The Board shall meet at least once every three months. Special
meetings may be held at any time or place to be determined by the Board
upon the call of the Chairman or upon written request of any two members.
All members shall be duly notified of the time and place of any regular or
special meeting at least five days in advance of such meeting. Three mem-
bers of the Board shall constitute a quorum for the transaction of business.

The Board shall keep a complete and accurate record of the
proceedings at all its meetings, a copy of which shall be kept on file in the
office of the executive secretary and open for public inspection. Any rules,
regulations or other requirements adopted by the Board to have general
effect in part or all of the State shall be filed with the Secretary of the
Commonwealth, at least thirty days before they are to take effect.

§ 8. The Board shall make, or cause to be made, such inspections,
conduct such investigations and do such other things as are reasonably
necessary to carry out the provisions of this act, within the limits of the
appropriations, study grants, funds, or personnel which are, or become,
available from any source for the purposes of this act.

§ 9. (a) The Board at all times shall have the power to control
and regulate its internal affairs; initiate and supervise research programs
for the purpose of determining the causes, effects and hazards of air pollu-
tion; initiate and supervise State-wide programs of air pollution control
education; cooperate with and receive money from the federal government
or any county or municipal government, and receive money from any other
source, whether public or private; develop a comprehensive program for
the study, abatement and control of all sources of air pollution in the State;
advise, consult and cooperate with agencies of the United States, and all
agencies of the State, political subdivisions, private industries and any
other affected groups in furtherance of the purposes of this act.

(b) The Board, after having made an intensive and comprehensive
study of air pollution in the various areas of the State, its causes, preven-
tion, control and abatement, shall have the power to formulate, adopt and
promulgate, amend and repeal rules and regulations abating, controlling
and prohibiting air pollution throughout the State or in such areas of the
State as shall be affected thereby; provided, however, that no such rule
or regulation and no such amendment or repeal shall be adopted, nor shall
any order be entered, except after public hearing to be held after thirty
days prior notice thereof by public advertisement of the date, time and
place of such hearing, at which opportunity to be heard by the Board with
respect thereto shall be given to the public; and provided, further, that no
such rule or regulation and no such amendment or repeal, or no such
order, shall be or become effective until sixty days after the adoption or
entry thereof as aforesaid.

(c) After any rule or regulation has been adopted by the Board pur-
suant to subsection (b) of this section, it may in its discretion grant local
variances therefrom, if it finds after a thorough investigation and hearing
that local conditions warrant. In the event local variances are permitted,
the Board shall issue an order to this effect, after a hearing held in the
locality, which order shall be subject to revocation or amendment at any
time if the Board after hearing determines such amendment or revocation
is warranted.

__ (d) After the Board shall have adopted the rules or regulations pro-
vided for in subsection (b) of this section, it shall have the power to:
Initiate and receive complaints as to air pollution; hold hearings and enter
orders diminishing or abating the causes of air pollution and the enforce-
ment of its rules or regulations; institute legal proceedings, including suits
for injunctions for the enforcement of its orders, rules and regulations and
the abatement and control of air pollution and for the enforcement of pen-
alties, all in accordance with this act.

(e) The Board, in making rules and regulations and issuing orders,
and the courts in enforcing the provisions of this act, shall take into con-
sideration all of the facts and circumstances bearing upon the reasonable-
ness of the activity involved and the regulations proposed to control it,
including:

(1) The character and degree of injury to, or interference with safety,
health or the reasonable use of property which is caused or threatened to
be caused;

(2) The social and economic value of the activity involved ;

(3) The suitability or unsuitability of such activity to the area in
which it is located; and

4) The practicability, both scientific and economic, of reducing or
eliminating the discharge resulting from such activity.

(f) In all cases the Board and the courts shall exercise a wide discre-
tion in weighing the equities involved and the advantages and disadvant-
ages to the residents of the area involved and to any lawful business, oc-
cupation or activity involved resulting from requiring compliance with the
specific requirements of any order, rule or regulation.

(g) Expressly excluded from this act are all aspects of employer-em-
ployee relationships.

§ 10. (a) The Board may create, within any area of the State, local
air pollution control districts comprising a city or county or a part or parts
of each, or two or more cities or counties, or any combination or parts
thereof. Such local districts may be established by the Board on its own
motion or upon request of the governing body or bodies of the area in-
volved.

(b) In each district there shall be a local air pollution control commit-
tee, the members of which shall be appointed by the State Board from
lists of recommended nominees submitted by the respective governing
bodies of each locality, all or a portion of which are included in the district.
The number of members on each such committee shall be in the discretion
of the State Board. When a district includes two or more localities or por-
tions thereof, the State Board shall apportion the membership of the com-
mittee among the localities, provided that each locality shall have at least
one representative on such committee. The members shall not be com-
pensated or reimbursed for expenses out of State funds. Such localities
may provide for the payment of compensation and reimbursement of ex-
penses to the members, the portion of such payment to be borne by each
locality to be prescribed by agreement, and may appropriate funds therefor.

(c) When such local committee is created, all local ordinances, rules
and regulations relating to air pollution, insofar as they affect the area
included within such district, shall be superseded by the rules and regula-
tions of the State Board. The powers and duties of the local committee
shall be those delegated to it by the State Board, provided that such com-
mittee may initiate studies and make recommendations to the Board.

(d) The governing body of any locality, wholly or partially included
within any such district, may appropriate funds for use by the local com-
mittee in air pollution control and studies.

§ 11. The Board is authorized to name technically qualified citizens
to a State Advisory Committee on Air Pollution.

§ 12. Every owner which the Board has reason to believe is causing,
or may be about to cause an air pollution problem shall on request of the
Board furnish such plans, specifications and information as may be re-
quired by the Board in the discharge of its duties under this act. Any
information as to secret processes, formulae or methods of manufacture or
production shall not be disclosed in public hearing before the Board, and
1 be kept confidential. If samples are taken for analysis, a duplicate
he analytical report shall be furnished promptly to the person from
m such sample is requested.

§ 18. Whenever it is necessary for the purposes of this act, the Board
ny member, agent or employee when duly authorized by the Board may
easonable times enter any establishment or upon any property, public
rivate, for the purpose of obtaining information or conducting surveys
nvestigations.

§ 14. Any owner violating, failing, neglecting or refusing to obey

rule, regulation or order of the Board may be compelled to obey the
e and comply therewith by injunction, mandamus or other appropriate

y.

§ 15. Any party aggrieved by any rule, regulation, order or require-
ts issued by the Board under this act may secure a review of the rea-
ibleness of, necessity for, or legality of any such rule, regulation, order
equirement in the manner set out in the following sections.

§ 16. Such party may, at any time prior to the effective date of the
, regulation or order or requirement complained of, first file with the
rd a petition asking for a rehearing on such rule, regulation or order
equirement and setting forth specifically and in full detail wherein he
iders the rule, regulation or order or requirement unreasonable, un-
ssary or illegal, his reasons and grounds therefor, and the qualifications
hanges, if any, that he desires.

§ 17. If the issues raised by any such petition have, in the opinion
he Board, theretofore been adequately considered and properly deter-
ed, the Board may determine the same by confirming, without hearing,
previous rule, regulation or order or requirement. If it appears to the
sfaction of the Board that no sufficient reason exists for taking testi-
y or further testimony the Board may reconsider and redetermine the
inal cause without setting a time and place for any further hearing.
, appears to the Board that a hearing or rehearing is necessary to de-
1ine the issues raised or any one of such issues, the Board sha) order
aring or rehearing thereon and hear such additional evidence as may
ffered on either side and consider and determine the issue or issues
ed by such petition. In either event the Board may take such action as
eems proper. Ten days notice of the time and place of such hearing
ehearing, if any be ordered, shall be given the applicant and to such
ry persons and in such manner as the Board may order. A petition for
aring or rehearing shall be deemed to have been denied by the Board,
ss it shall have been acted upon within thirty days after the date of
g. The filing of the petition for a hearing or rehearing shall operate to
end the rule, regulation or order or requirement complained of until
Fits of such rule, regulation or order or requirement has been finally
idicated.

§ 18. Any owner aggrieved by any rule, regulation, order or require-
t, shall have the right to apply to the Circuit Court of the city of
ymond, in term or in vacation. Such application shall be by petition
th shall be filed in the clerk’s office of such court within the following
cribed time: within sixty days after the date of the rule, regulation,
r or requirement complained of, provided no application for rehear-
has been made; within thirty days after an application for rehearing
enied, if such application had been filed; within thirty days after the
lition of the decision of the Board, if any application for rehearing
led, and the matter reconsidered or redetermined by the Board either
. or without a rehearing. The filing of the petition with the court
1 be deemed to commence the proceeding in such court.

Within fifteen days after such petition is so filed, the petitioner shall
e on the executive secretary or on any member of the Board a copy
of the petition and a notice in writing that petitioner will on a date stated
in the notice, not less than fifteen days nor more than thirty days after
the date of the filing of the petition, move the Circuit Court of the city
of Richmond or the judge thereof to grant the prayer of the petition. The
Board shall be named as a party defendant to such petition. The filing
of such application shall operate to suspend the requirement, rule, regula-
tion or order complained of, until the validity of such rule, regulation or
order or requirement shall have been finally adjudicated, The judge shall
hear the proceeding de novo, shall thereupon determine all matters of
law and fact without a jury and render his decision approving, setting
aside or modifying the rule, regulation or order or requirement com-
plained of.

§ 19. The Commonwealth or any party aggrieved by any such
final decision of the judge shall have, regardless of the amount involved,
the right to apply for an appeal to the Supreme Court of Appeals. The
procedure shall be the same as that provided by law concerning appeals
and supersedeas.

It shall be the duty of the Attorney General to represent the Board
or designate some member of his staff to represent it.

§ 20. Any owner violating any provision of this act or failing,
neglecting, or refusing to comply with any order of the Board, or a court,
lawfully issued as herein provided, shall, upon conviction be liable to a
fine of not less than fifty dollars nor more than five hundred dollars for
each violation within the discretion of the court, and each day of con-
tinued violation after conviction shall constitute a separate offense and
may subject the system, business, or establishment causing pollution
in violation of this act to abatement as a nuisance.

§ 21. Until such time as the authority of any governing body
of a locality to adopt ordinances relating to air pollution has been
superseded as provided in § 10 hereof

_ (a) existing local ordinances adopted prior to the effective date of
this act shall continue in force; provided that in the event of a conflict
between a rule, regulation, order or requirement of the Board and a
provision or provisions of a local ordinance, the rule, regulation, order, or
requirement or requirements of the Board shall govern; and

(b) the governing body of any locality proposing to adopt an ordi-
nance, or an amendment to an existing ordinance, relating to air pollution
after the effective date of this act shall first obtain the approval of the
State Board as to the provisions of such ordinance or amendment. :