N.Y. Environmental Conservation Law § 21-1501: Mid-Atlantic states air pollution control compact

* § 21-1501. Mid-Atlantic states air pollution control compact.

The mid-Atlantic states air pollution control compact as first entered

into pursuant to chapter 475 of the laws of 1967, as amended by chapter

476 of the laws of 1967, and as amended by chapter 385 of the laws of

1968, and as subject to execution by the governor as provided in said

compact, is hereby continued. The compact is as follows:

WHEREAS, the signatory parties recognize that they have certain

serious problems in common with respect to pollution of the atmosphere

by man-made contaminants; and

WHEREAS, the nature and sources of air pollution are such that the

states' efforts can be effectively supplemented by control measures

applicable to regional airsheds which cut across state boundaries; and

WHEREAS, the signatory parties recognize that the protection and

improvement of the quality of their common atmosphere is vested with

local, state and national interests, for which they have a joint

responsibility; and

WHEREAS, the signatory parties have determined to establish a

federal-interstate agency, with jurisdiction and powers adequate to cope

with interstate air pollution problems;

Now therefore, the states of New Jersey and New York and the United

States of America, and if any of them should join herein, the states of

Delaware, Connecticut and the commonwealth of Pennsylvania,

respectively, hereby solemnly convenant and agree with each other, upon

the enactment of concurring legislation by the congress of the United

States and by the respective state legislatures, having the same effect

as this part as follows:

ARTICLE 1

SHORT TITLE, DEFINITIONS AND FINDINGS

§ 1.1. Short title. This act shall be known and may be cited as the

"Mid-Atlantic States Air Pollution Control Compact".

§ 1.2. Definitions. For the purposes of this compact, and of any

supplemental or concurring legislation enacted pursuant thereto, except

as may be otherwise required by the context:

(a) "Commission" shall mean the commission established by this

compact;

(b) "Region" shall mean the territorial limits of the states which are

or become parties to this compact;

(c) "Compact" shall mean section 21-1501 of this title;

(d) "Federal government" shall mean the government of the United

States of America, and any appropriate branch, department, bureau or

division thereof, as the case may be;

(e) "Signatory party" shall mean a state, commonwealth, or the federal

government, which has become a party to this compact by enactment of

concurring legislation;

(f) "District" shall mean any area established, identified or defined

by the commission in connection with the abatement or control of air

pollution;

(g) "Air contaminant" shall mean dust, fumes, mist, smoke, or other

particulate matter, vapor, gas, odorous substance, or any combination

thereof;

(h) "Air pollution" shall mean the presence in the outdoor atmosphere

of one or more air contaminants in such quantities and duration as is or

tends to be injurious to human health or welfare, animal or plant life,

or property, or would unreasonably interfere with the enjoyment of life

or property;

(i) "Emission" shall mean a release into the outdoor atmosphere of air

contaminants.

§ 1.3. Findings of fact. It is hereby found and declared that:

(a) The tremendous growth of population and industry has resulted in

substantial increases in atmospheric waste and air pollution over the

entire region;

(b) Air pollution does not respect political boundaries, and persons

far removed from its sources and having no responsibility for or control

over its creation endure health hazards, discomfort and inconvenience

and experience property damage and economic loss;

(c) Air pollution is associated with such important respiratory

diseases as lung cancer, emphysema, chronic bronchitis and asthma, and

is a general hazard to the public health and welfare, agricultural

crops, livestock and other property;

(d) It is necessary and desirable to abate existing air pollution and

prevent future air pollution so as to secure and maintain air quality

which is consistent with the public health and welfare, the propagation

and protection of plant and animal life, and the protection of property

and other resources of the region;

(e) In the present state of the art, there are no public facilities

for collection and disposal of atmospheric waste comparable to

facilities to cope with liquid and solid waste, and the effects of

emissions differ greatly among air resource uses and users, under the

various meteorological and geographic conditions, which disregard state

boundaries.

(f) Air pollution can best be controlled and abated at its sources,

and, while such prevention, control and abatement is the primary

obligation of the states, counties or municipalities in which it

originates, the problems of interstate air pollution can be more readily

and effectively solved under a coordinated regionwide agency of the

state and federal governments.

§ 1.4. Existing agencies; construction. It is the purpose of the

signatory parties to preserve and utilize the functions, powers and

duties of existing offices and agencies of government to the extent not

inconsistent with the compact and the commission is authorized and

directed to utilize and employ such offices and agencies for the purpose

of this compact to the fullest extent it finds feasible and

advantageous.

ARTICLE 2

ORGANIZATION AND ADMINISTRATION

§ 2.1. Commission created. There is hereby created the mid-Atlantic

states air pollution control commission as a body politic and corporate,

with perpetual succession as an agency and instrumentality of the

respective signatory parties.

§ 2.2. Commission membership. The commission shall consist of the

governors of the signatory states, ex-officio, and one commissioner to

be appointed by the president of the United States, to serve during the

term of office of the president appointing him and until the appointment

and qualification of his successor.

§ 2.3. Alternates. Each member of the commission shall appoint an

alternate to act in his place and stead, with authority to attend all

meetings of the commission, and with power to vote in the absence of the

member. Unless otherwise provided by law of the signatory party for

which he is appointed, each alternate shall serve during the term of the

member appointing him, subject to removal at the pleasure of the member.

In the event of a vacancy in the office of alternate, it shall be filled

in the same manner as an original appointment for the unexpired term

only. In the event of the temporary absence or disability of an

alternate, the member of the commission may appoint another qualified

person to act as his alternate for the duration of such temporary

absence or disability.

§ 2.4. Compensation. Members of the commission and alternates shall

serve without compensation from the commission but may be reimbursed for

necessary expenses incurred in and incident to the performance of their

duties.

§ 2.5. Voting power. Each member shall be entitled to one vote on all

matters which may come before the commission. No action of the

commission shall be taken at any meeting unless a majority of the

membership shall vote in favor thereof.

§ 2.6. Organization; procedure. The commission shall provide for its

own organization and procedure and shall adopt rules and regulations

governing its meetings and transactions. It shall organize annually by

the election of a chairman and vice-chairman from among its members. It

shall provide by its rules for the appointment by each member in his

discretion of an advisor to serve without compensation, who may attend

all meetings of the commission and its committees.

§ 2.7. Jurisdiction. The commission shall have, exercise and discharge

its functions, powers and duties within the region. It may by contract

or otherwise act jointly, concurrently, or in cooperation with any other

agency or instrumentality of government within or without the region for

the purpose of effectuating the purposes of this compact.

§ 2.8. Retained jurisdiction of signatory parties. (a) Unless

authorized by laws of the signatory states other than this compact, the

commission shall not have power to require licenses or permits for the

construction, establishment, installation, maintenance or operation of

any air pollution source or other equipment, device or facility; to

require commission approval of any of the foregoing; or to confer upon

the commission any other power of licensure.

(b) Nothing in this compact shall be construed to abrogate, impair or

in any way prevent the enactment or application of any state or local

law, code, ordinance, rule or regulation not inconsistent with this

compact, or with any standard, rule or regulation of the commission; and

any such state or local law, code, ordinance, rule or regulation may be

more restrictive than any requirement in effect pursuant to this

compact.

(c) Nothing in this compact shall be construed to affect any aspect of

employer-employee relations, including without limitation, statutes,

rules or regulations governing industrial health and safety.

ARTICLE 3

POWERS AND DUTIES OF THE COMMISSION

§ 3.1. General powers.

The commission shall:

(a) Investigate the causes and sources of air pollution, identify air

contaminants, and provide for research and the compilation and analysis

of information relating thereto;

(b) Establish, after consultation with the appropriate agency of the

signatory parties, standards for air quality and requirements for the

control of emissions of air contaminants to abate existing air pollution

and to prevent future air pollution, subject to the provisions of

article four of this compact;

(c) Provide and administer plans and programs to effectuate such air

quality standards and emission control requirements;

(d) Promote, sponsor and conduct technical, educational and research

programs and projects to identify and evaluate air contaminants and to

develop and apply methods, systems and procedures for the abatement and

prevention of air pollution; and

(e) Enforce or provide for the enforcement of the compact and rules

and regulations lawfully promulgated thereunder;

(f) Furnish technical services, advice and consultation to agencies of

the signatory parties, provided that the costs of such services may be

reimbursable whenever the parties deem appropriate.

§ 3.2. Auxiliary powers. In furtherance of the powers and duties

elsewhere prescribed in this compact, the commission may:

(a) Sue and be sued in a court of competent jurisdiction;

(b) Have a seal and alter the same at pleasure;

(c) Acquire, hold and dispose of real and personal property by gift,

purchase, lease, license or other similar manner for its corporate

purposes and accept grants and comply with the conditions thereof;

(d) Provide for the organization and administration of a commission

staff and retain and employ counsel and private consultants on a

contract basis or otherwise;

(e) Administer and enforce the provisions of this compact;

(f) Make and enforce such rules and regulations as the commission may

deem necessary to effectuate the purposes of this compact or to prevent

the circumvention or evasion thereof;

(g) By its members and its properly designated officers, agents and

employees, administer oaths and issue subpoenas throughout the region to

compel the attendance of witnesses and the giving of testimony and the

production of other evidence;

(h) Have for its members and its properly designated officers, agents

and employees, full and free access, ingress and egress to and from all

property, premises and places in the region, for the purpose of making

inspection or enforcing the provisions of this compact, where there is

reasonable cause to believe there is a violation of this compact or of

any rule or regulation lawfully made thereunder; and no person shall

obstruct or in any way interfere with any such member, officer, employee

or agent in the making of such inspection, or in the enforcement of the

provisions of this compact or in the performance of any other power or

duty under this compact; and

(i) Cooperate with and receive from any department, division, bureau,

board, commission, or agency of any or all of the signatory parties, or

of any county or municipality thereof, such assistance and data as will

enable it properly to carry out its powers and duties hereunder, and may

authorize and request any such department, division, bureau, board,

commission or agency, with the consent thereof, to execute such of its

functions and powers as the public interest may require.

ARTICLE 4

AIR QUALITY STANDARDS AND EMISSION CONTROL REQUIREMENTS

§ 4.1. Generally. The commission shall have jurisdiction to abate

existing air pollution and to prevent and control future air pollution

in the region, and to this and it shall:

(a) Prepare and develop standards of air quality and emission control

requirements for the region as required to protect the public health and

welfare and prevent air pollution which would unreasonably impair the

beneficial use of the air of the region. To this end, it shall encourage

and conduct studies, investigations and research relating to air

pollution and its causes, prevention, control and abatement.

(b) For the purpose of such standards, the commission may establish

and delineate districts and airsheds, seasonal requirements, and

classifications of air contaminants by type and source, for general or

selective application of such standards and emission controls.

(c) Prior to the adoption of standards or emission control

requirements, the commission shall hold public hearings upon due notice

of the proposed standards, and all interested persons shall be given an

opportunity to be heard at such hearing. After such notice and hearing,

the commission may adopt and from time to time amend and repeal

standards in the form of rules and regulations to prevent or control

future air pollution and to abate existing air pollution, and to require

the installation of such measures, systems and procedures for the

abatement or prevention of air pollution as may be required to protect

the public health, safety, property rights, and general welfare. Any

such rule or regulation, amendment or repeal thereof shall take effect

not less than sixty (60) days after its adoption by the commission and

filing as required by law.

§ 4.2. Monitoring; warnings; emergencies. The commission shall: (a)

Provide for a uniform, comprehensive and integrated system for

monitoring atmospheric waste in the region, the measurement and

forecasting of air pollution, and the identification of significant

meteorological, geographical, and ecological factors within the region,

its districts or airsheds;

(b) Establish and administer warning and alert procedures and systems

with respect to impending and existing conditions of sewer and

immediately dangerous air pollution;

(c) Upon authorization by any one of the signatory states, exercise

emergency powers within those portions of the region lying within the

authorizing state to require the reduction or cessation of emissions of

air contaminants, and to require the taking or refining from any other

measure as may be necessary in the public interest to alleviate or abate

the immediate danger.

§ 4.3. Enforcement. (a) The commission may, after such notice and

hearing as may be required by due process of law, issue an order or

orders to any person or public or private corporation, or other entity,

to cease and desist from any emissions which it determines to be in

violation of such rules and regulations as it shall have adopted for the

prevention and abatement of air pollution. Any such order or orders may

prescribe a schedule, including a reasonable time for the construction

and installation of any necessary systems, methods and procedures, on or

before which the emission of air contaminants shall be wholly or

partially discontinued, modified or treated, or otherwise required to

conform to the standards established by the commission. Any court of

competent jurisdiction shall have jurisdiction to enforce by injunction

in a summary manner against any person, public or private corporation,

or other entity, any and all provisions of this article or of any such

order. The commission may bring an action in its own name in any such

court of competent jurisdiction to compel compliance with any provisions

of this compact, or of any rule, regulation or order issued pursuant

thereto, according to the practice and procedure of the court.

(b) In the case of air pollution not within an interstate district or

airshed as established by the commission, the commission shall give

priority to enforcement proceedings by other agencies of the signatory

parties; provided, however, that the provisions of this subdivision may

not be asserted as a defense in any action or proceeding brought by the

commission.

§ 4.4. Hearings; subpoenas. (a) The commission shall establish by

appropriate regulation the procedure to be followed in the conduct of

its hearings. Neither the commission nor any person designated by it to

conduct a hearing shall be bound by common law or statutory rules of

evidence or by technical or formal rules of procedure in the conduct of

such hearings.

(b) The commission, or such member or officer of the commission as may

be designated by the commission for that purpose shall have the power to

issue subpoenas effective throughout the region to compel the attendance

of witnesses and the giving of testimony or production of other

evidence, and to administer oaths in connection with any such hearing.

It shall be the duty of the commission or of such member or officer of

the commission as it may designate to issue subpoenas at the request of

and on behalf of any part to a hearing before the commission. Subpoenas

issued by the commission shall be enforced by any court of competent

jurisdiction of the signatory parties, according to the practice and

procedure of the court applicable to subpoenas issued in proceedings

pending before it.

§ 4.5. Penal sanction. Any person, association, or corporation who

violates or attempts or conspires to violate any provision of this

compact or any rule, regulation or order of the commission duly made,

promulgated or issued pursuant to the compact, in addition to any other

remedy, penalty or consequence provided by law, shall be punishable as

may be provided by statute of any of the signatory parties within which

the offense is committed; provided that in the absence of such provision

any such person, association or corporation, shall be liable to a

penalty of not less than fifty dollars and not more than one thousand

dollars, for each such offense to be fixed by the court, which the

commission may recover in its own name in any court of competent

jurisdiction, and in a summary proceeding where available under the

practice and procedure of such court. For the purposes of this section

in the event of a continuing offense, each day of such violation,

attempt or conspiracy shall constitute a separate offense.

§ 4.6. Judiciary review. Any order or determination of the commission

under this article shall be subject to judicial review in any court of

competent jurisdiction as provided by the law of a signatory party.

ARTICLE 5

PERSONNEL AND PROCEDURES GENERALLY

§ 5.1. Powers of the commissioners. The commissioners, subject to the

provisions of this compact, shall:

(a) Serve as the governing body of the commission, and exercise and

discharge its powers and duties except as otherwise provided by or

pursuant to this compact;

(b) Determine the character of and the necessity for its obligations

and expenditures and the manner in which they shall be incurred, allowed

and paid subject to any provisions of law specifically applicable to

agencies or instrumentalities created by compact;

(c) Provide for the internal organization and administration of the

commission;

(d) Appoint or provide for the appointment of the principal officers

of the commission and delegate to and allocate among them administrative

functions, powers and duties;

(e) Create and abolish such offices, employments and positions as it

deems necessary for the purposes of the compact, and subject to the

provisions of this article, fix and provide for the qualification,

appointment, removal, term, tenure, compensation, pension and retirement

rights of its officers and employees;

(f) Let and execute contracts to carry out the powers of the

commission.

§ 5.2. Regulations; enforcement. The commission may:

(a) Make and enforce reasonable rules and regulations in the form of

an air pollution code or otherwise, for the effectuation, application

and enforcement of this compact; provided that any rule or regulation,

other than one which deals solely with the internal management of the

commission, shall be adopted only after public hearing and shall not be

effective unless and until filed in accordance with the law of the

respective signatory parties applicable to administrative rules and

regulations generally; provided further, that a certified copy of any

such rule or regulation, attested as true and correct by the commission,

shall be presumptive evidence of the regular making, adoption, filing

and publication thereof; and

(b) Designate any officer, agent or employee of the commission to be

an investigator, and such person shall be vested with the powers of a

peace officer of the state in which he is duly assigned to perform his

duties.

§ 5.3. Confidential information. Any records or other information

furnished to or obtained by the commission in the exercise of its

powers, functions and duties from any private person, corporation or

other entity which records or information, as certified by the owner or

operator, relate to production or sales figures, or to secret processes

or production, or which if made known to others would tend to affect

adversely the competitive position of such owner or operator, shall be

retained solely for the use of the commission and its employees, in the

administration and enforcement of this compact, and for the use of air

pollution control agencies of the signatory parties in the

administration and enforcement of state or federal law, and shall not be

published or disclosed for any other purpose by any officer or employee

of the commission or any other person without the written consent of

such owner or operator.

§ 5.4. Officers generally. (a) The officers of the commission shall

consist of an executive director and such additional officers, deputies

and assistants as the commission may determine. The executive director

shall be appointed and may be removed by the affirmative vote of a

majority of the full membership of the commission. All other officers

and employees shall be appointed in such manner and under such rules of

procedure as the commission may determine.

(b) In the appointment and promotion of officers and employees for the

commission, no political, racial, religious or residency test or

qualification shall be permitted or given consideration, but all such

appointments and promotions shall be solely on the basis of merit and

fitness. Any officer or employee of the commission who is found by the

commission to be guilty of a violation of this section shall be removed

from office by the commission.

§ 5.5. Meetings; records. (a) All meetings of the commission shall be

open to the public.

(b) The minutes of the commission shall be a public record open to

inspection and copying at its offices during regular business hours,

subject to the law relating to public records of the signatory states in

which such minutes are located.

§ 5.6. Prohibited activities. (a) No commissioner, officer or employee

shall:

1) be financially interested, either directly or indirectly, in any

contract, sale, purchase, lease or transfer of real or personal property

to which the commission is a party;

2) solicit or accept money or any other thing of value in addition to

the compensation or expenses paid him by the commission for services

performed within the scope of his official duties;

3) offer money or any thing of value for or in consideration of

obtaining an appointment, promotion or privilege in his employment with

the commission.

(b) Any officer or employee who shall wilfully violate any of the

provisions of this section shall forfeit his office or employment.

(c) Any contract or agreement knowingly made in contravention of this

section shall be void.

(d) Officers and employees of the commission shall be subject in

addition to the provisions of this section to such criminal and civil

sanctions for misconduct in office as may be imposed by federal law and

the law of the signatory state in which such misconduct occurs.

§ 5.7. Audit. The commission shall provide for an annual independent

audit of its accounts and financial transactions by a certified public

accountant, and for the publication of the report of such audit.

§ 5.8. Tort liability. The commission shall be responsible for claims

arising out of the negligent acts or omissions of its officers, agents

and employees only to the extent and subject to the procedures

prescribed by law generally with respect to officers, agents and

employees of the government of the United States.

ARTICLE 6

GENERAL PROVISIONS

§ 6.1. Commission budget. The commission shall annually adopt a

current expense budget for each fiscal year, and shall apportion the

amount required to balance the expenditures therein, less estimated

revenues from all sources, to the signatory parties in accordance with

such equitable cost-sharing formulae as the members of the commission

may adopt by unanimous vote. Following the adoption of its annual

budget, the commission shall transmit certified copies of the budget to

the budget officer of the respective signatory parties at such time and

in such manner as may be required under their respective budgetary

procedures. The signatory parties covenant and agree to include the

amount so apportioned for the support of the commission's current

expense budget in their respective budgets next to be adopted, subject

to such review and approval as may be required by their respective

budgetary processes. Such amounts shall be due and payable to the

commission in equal quarterly installments during the commission's

fiscal year.

§ 6.2. Cooperation. Each signatory party pledges faithful cooperation

in the control of air pollution in the region and consistent with such

object to enact (or if enacted, to keep in force and where necessary to

amend) laws which will:

(a) Enable it to secure and maintain standards of air quality at least

equal to those prescribed by the commission;

(b) Accomplish effectively the objectives of this compact, and enable

its officers, departments, boards and agents satisfactorily to

accomplish the obligations and duties assumed by the party under the

terms hereof; and

(c) Enable it to provide technical and administrative services to the

commission upon request, within the limits of available appropriations,

and to cooperate generally with the commission for the purposes of this

compact, provided that the cost of such services may be reimbursable

whenever the parties deem appropriate.

§ 6.3. Withdrawal from compact. (a) A signatory party may withdraw

from this compact by enacting a statute repealing the same, but no such

withdrawal shall become effective until two (2) years after the chief

executive of the withdrawing party has given notice of the withdrawal to

the commission and to each commissioner.

(b) No withdrawal shall affect any obligation of a signatory party or

any person therein accruing prior to the effective date of the

withdrawal, nor any abatement order of the commission issued prior to

such effective date nor shall any proceeding initiated for the

enforcement thereof be invalidated or otherwise affected thereby. The

jurisdiction of all appropriate courts and agencies for the enforcement

of any such order shall continue, notwithstanding the fact that the

effective date of the withdrawal may have passed.

§ 6.5. Amendments and supplements. Amendments and supplements to this

compact to implement the purposes thereof may be adopted by legislative

action of any of the signatory parties concurred in by all of the

others.

§ 6.6. Construction and severability. The provisions of this compact

and of agreements thereunder shall be severable and if any phrase,

clause, sentence or provision of this compact of such agreement is

declared to be unconstitutional or the applicability thereof to any

signatory party, agency or person is held invalid, the constitutionality

of the remainder of such compact or such agreement and the applicability

thereof to any other signatory party, agency, person or circumstance

shall not be affected thereby. It is the legislative intent that the

provisions of such compact be reasonably and liberally construed.

§ 6.7. Effective date; execution. (a) This compact shall become

binding and effective thirty days after the enactment of concurring

legislation by the federal government and the state of New Jersey. The

compact shall be signed and sealed in six duplicate original copies by

the respective chief executives of the signatory parties. One such copy

shall be filed with each of the signatory parties in accordance with the

laws of the party in which the filing is made, and the remaining copies

shall be filed and retained in the archives of the commission upon its

organization.

(b) Thereafter, the compact shall become binding and effective

separately as to each of the states of Connecticut and Delaware and the

commonwealth of Pennsylvania thirty (30) days after enactment of

concurring legislation by such states or commonwealth.

* NB Denied Congressional consent; preempted by enactment of federal Air

Quality Act of 1967 (81 stat. 485)