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The 193rd General Court of the Commonwealth of Massachusetts

Section 2B: Air pollution emergencies

Section 2B. If the commissioner of environmental protection, in this section called the commissioner determines that the condition or impending condition of the atmosphere in the commonwealth or in any part thereof constitutes a present or reasonably imminent danger to health, he may, with the approval of the governor, declare an air pollution emergency and cause the fact to be made known to the public.

The department of environmental protection, in this section called the department, after public hearing held in accordance with section two of chapter thirty A, may, and with the approval of the governor, establish, and from time to time revise, an air pollution emergency plan to protect the public health during periods of such declared emergencies. Said plan may include the imposition, during such periods, of controls and restrictions upon the use of certain fuels and fuel-burning installations, the practices of incineration and open burning, and the movement of specific types of motor vehicles, and said plan may include such other provisions as the department deems necessary to protect the public health during such emergency period.

During an air pollution emergency the commissioner may, with the approval of the governor, take whatever action is necessary to maintain and protect the public health, including but not limited to the implementing of the air pollution emergency plan, and prohibiting, restricting and conditioning emissions of dangerous or potentially dangerous air contaminants from whatever source derived, and requiring the evacuation of the public from, or restricting public entry into, designated areas. The commissioner shall clearly specify the geographical area to which such action shall apply.

If conditions which warrant the declaration of an air pollution emergency change or are so modified that they no longer constitute an actual or reasonably imminent danger to the public health, the commissioner shall, with the approval of the governor, declare the air pollution emergency terminated, and shall cause this fact to be made known to the public.

Any orders promulgated by the commissioner pursuant to this section, hereinafter called emergency orders, shall be enforced by personnel of the department of public health and by the state and local police. A court, judge or justice authorized to issue warrants in criminal cases may, upon complaint on oath by a person authorized to enforce emergency orders under this section that he believes that such an order is being violated in a particular property, premise or place, if satisfied that there is reasonable cause for such belief, issue a warrant identifying such property, premises or place and commanding such person to search such premises for further evidence of such violation. Information relating to trade secrets, secret processes or methods of manufacture or production shall be confidential and shall not be disclosed or received during the course of any such investigation; nor shall such information be used or disclosed in any public hearing under this section. Such enforcement personnel are further empowered to order any person having control of an air contamination source to stop and abate violation of any emergency order. Whoever knowingly fails within a reasonable time to comply with any such order to stop or abate giving due consideration to the practicability and to the physical and economic feasibility of compliance with such order shall be punished by a fine of not less than twenty dollars nor more than ten thousand dollars. For the purpose of this paragraph, each day or part thereof of violation of any such order to stop or abate, whether such violation be continuous or intermittent, shall be construed as a separate and succeeding offense. The superior court, on petition of any person authorized by this section to enforce emergency orders, shall have jurisdiction in equity to enforce compliance with such emergency orders.

Any aggrieved person may appeal to the commissioner or his designee for relief from the continuance of an order. If the commissioner or his designee finds that the continuance of any order in whole or in part is unreasonable or unnecessary in light of the then prevailing conditions of air pollution, he may terminate or modify any such order.

If such an appeal is disapproved by the commissioner or his designee, the aggrieved person shall, upon his request, be granted a public hearing on the question of relief from unreasonable restrictions and the continuance of such order by the commissioner. Such public hearing shall not be subject to the provisions of chapter thirty A but shall be held as soon as may be by said commissioner, who shall give notice of the same. If the commissioner, upon conclusion of said hearing, determines that any such order should be terminated, or modified in any way whatever, he shall enter such further order as he deems appropriate.

All powers granted to the commissioner by this section shall be in addition to and not in limitation of any powers granted him by any other provision of law.

''Air contaminant'', as used in this section, includes, but is not limited to, dust, fly ash, fume, gas, mist, odor, smoke, vapor, pollen, microorganisms, radioactive material, ionizing radiation, any combination thereof, or any decay or reaction product thereof.