§ 143-215.108. Control of sources of air pollution; permits required. - North Carolina Statutes

§ 143‑215.108.  Control of sources of airpollution; permits required.

(a)        Except as provided in subsections (a1) and (a2) of thissection, no person shall do any of the following things or carry out any of thefollowing activities that contravene or will be likely to contravene standardsestablished pursuant to G.S. 143‑215.107 or set out in G.S. 143‑215.107Dunless that person has obtained a permit for the activity from the Commissionand has complied with any conditions of the permit:

(1)        Establish or operate any air contaminant source, except asprovided in G.S. 143‑215.108A.

(2)        Build, erect, use, or operate any equipment that may resultin the emission of an air contaminant or that is likely to cause air pollution,except as provided in G.S. 143‑215.108A.

(3)        Alter or change the construction or method of operation ofany equipment or process from which air contaminants are or may be emitted.

(4)        Repealed by Session Laws 2003‑428, s. 1, effectiveAugust 19, 2003.

(a1)      The Commission may by rule establish procedures that meet therequirements of section 502(b)(10) of Title V (42 U.S.C. § 7661a(b)(10)) and 40Code of Federal Regulations § 70.4(b) (12) (1 July 1993 Edition) to allow apermittee to make changes within a permitted facility without requiring a revisionof the permit.

(a2)      The Commission may adopt rules that provide for a minormodification of a permit. At a minimum, rules that provide for a minormodification of a permit shall meet the requirements of 40 Code of FederalRegulations § 70.7(e)(2) (1 July 1993 Edition). If the Commission adopts rulesthat provide for a minor modification of a permit, a permittee shall not make achange in the permitted facility while the application for the minormodification is under review unless the change is authorized under the rulesadopted by the Commission.

(b)        The Commission shall act upon all applications for permitsso as to effectuate the purposes of this Article by reducing existing airpollution and preventing, so far as reasonably possible, any increasedpollution of the air from any additional or enlarged sources.

(c)        The Commission shall have the power:

(1)        To grant and renew a permit with any conditions attachedthat the Commission believes necessary to achieve the purposes of this Articleor the requirements of the Clean Air Act and implementing regulations adoptedby the United States Environmental Protection Agency;

(2)        To grant and renew any temporary permit for such period oftime as the Commission shall specify even though the action allowed by suchpermit may result in pollution or increase pollution where conditions make suchtemporary permit essential;

(3)        To terminate, modify, or revoke and reissue any permit uponnot less than 60 days' written notice to any person affected;

(3a)      To suspend any permit pursuant to the provisions of G.S. 150B‑3(c);

(4)        To require all applications for permits and renewals to bein writing and to prescribe the form of such applications;

(5)        To request such information from an applicant and to conductsuch inquiry or investigation as it may deem necessary and to require thesubmission of plans and specifications prior to acting on any application for apermit;

(5a)      To require that an applicant satisfy the Department that theapplicant, or any parent, subsidiary, or other affiliate of the applicant orparent:

a.         Is financially qualified to carry out the activity for whicha permit is required under subsection (a); and

b.         Has substantially complied with the air quality and emissioncontrol standards applicable to any activity in which the applicant haspreviously engaged, and has been in substantial compliance with federal andstate laws, regulations, and rules for the protection of the environment.

As used in this subdivision, the words"affiliate," "parent," and "subsidiary" have thesame meaning as in 17 Code of Federal Regulations 240.12b‑2 (1 April 1990Edition);

(6)        To adopt rules, as it deems necessary, establishing the formof applications and permits and procedures for the granting or denial ofpermits and renewals pursuant to this section; and all permits, renewals anddenials shall be in writing;

(7)        To prohibit any stationary source within the State fromemitting any air pollutant in amounts that will prevent attainment ormaintenance by any other state of any national ambient air quality standard orthat will interfere with measures required to be included in the applicableimplementation plan for any other state to prevent deterioration of air qualityor protect visibility; and

(8)        To designate certain classes of activities for which ageneral permit may be issued, after considering the environmental impact of anactivity, the frequency of the activity, the need for individual permitoversight, and the need for public review and comment on individual permits.

(d)       (1)        TheCommission may conduct any inquiry or investigation it considers necessarybefore acting on an application and may require an applicant to submit plans,specifications, and other information the Commission considers necessary toevaluate the application. A permit application may not be deemed completeunless it is accompanied by a copy of the request for determination as providedin subsection (f) of this section that bears a date of receipt entered by theclerk of the local government and until the 15‑day period for issuance ofa determination has elapsed.

(2)        The Commission shall adopt rules specifying the times withinwhich it must act upon applications for permits required by Title V and otherpermits required by this section. The times specified shall be extended for theperiod during which the Commission is prohibited from issuing a permit undersubdivisions (3) and (4) of this subsection. The Commission shall inform apermit applicant as to whether or not the application is complete within thetime specified in the rules for action on the application. If the Commissionfails to act on an application for a permit required by Title V or this sectionwithin the time period specified, the failure to act on the applicationconstitutes a final agency decision to deny the permit. A permit applicant,permittee, or other person aggrieved, as defined in G.S. 150B‑2, may seekjudicial review of a failure to act on the application as provided in G.S. 143‑215.5and Article 4 of Chapter 150B of the General Statutes. Notwithstanding theprovisions of G.S. 150B‑51, upon review of a failure to act on anapplication for a permit required by Title V or this section, a court mayeither: (i) affirm the denial of the permit or (ii) remand the application tothe Commission for action upon the application within a specified time.

(3)        If the Administrator of the United States EnvironmentalProtection Agency validly objects to the issuance of a permit required by TitleV within 45 days after the Administrator receives the proposed permit and therequired portions of the permit application, the Commission shall not issue thepermit until the Commission revises the proposed permit to meet all objectionsnoted by the Administrator or otherwise satisfies all objections consistentwith Title V and implementing regulations adopted by the United StatesEnvironmental Protection Agency.

(4)        If the Administrator of the United States EnvironmentalProtection Agency validly objects to the issuance of a permit required by TitleV after the expiration of the 45‑day review period specified insubdivision (3) of this subsection as a result of a petition filed pursuant tosection 505(b)(2) of Title V (42 U.S.C. § 7661d(b)(2)) and prior to theissuance of the permit by the Commission, the Commission shall not issue thepermit until the Commission revises the proposed permit to meet all objectionsnoted by the Administrator or otherwise satisfies all objections consistentwith Title V and implementing regulations adopted by the United States EnvironmentalProtection Agency.

(d1)      No permit issued pursuant to this section shall be issued orrenewed for a term exceeding five years.

(e)        A permit applicant or permittee who is dissatisfied with adecision of the Commission may commence a contested case by filing a petitionunder G.S. 150B‑23 within 30 days after the Commission notifies theapplicant or permittee of its decision. If the permit applicant or permitteedoes not file a petition within the required time, the Commission's decision onthe application is final and is not subject to review.

(f)         An applicant for a permit under this section for a newfacility or for the expansion of a facility permitted under this section shallrequest each local government having jurisdiction over any part of the land onwhich the facility and its appurtenances are to be located to issue adetermination as to whether the local government has in effect a zoning orsubdivision ordinance applicable to the facility and whether the proposedfacility or expansion would be consistent with the ordinance. The request tothe local government shall be accompanied by a copy of the draft permitapplication and shall be delivered to the clerk of the local governmentpersonally or by certified mail. The determination shall be verified orsupported by affidavit signed by the official designated by the localgovernment to make the determination and, if the local government states thatthe facility is inconsistent with a zoning or subdivision ordinance, shallinclude a copy of the ordinance and the specific reasons for the determinationof inconsistency. A copy of any such determination shall be provided to theapplicant when it is submitted to the Commission. The Commission shall not actupon an application for a permit under this section until it has received adetermination from each local government requested to make a determination bythe applicant. If a local government determines that the new facility or theexpansion of an existing facility is inconsistent with a zoning or subdivisionordinance, and unless the local government makes a subsequent determination ofconsistency with all ordinances cited in the determination or the proposedfacility is determined by a court of competent jurisdiction to be consistentwith the cited ordinances, the Commission shall attach as a condition of thepermit a requirement that the applicant, prior to construction or operation ofthe facility under the permit, comply with all lawfully adopted localordinances, including those cited in the determination, that apply to thefacility at the time of construction or operation of the facility. If a localgovernment fails to submit a determination to the Commission as provided bythis subsection within 15 days after receipt of the request, the Commission mayproceed to consider the permit application without regard to local zoning andsubdivision ordinances. This subsection shall not be construed to affect thevalidity of any lawfully adopted franchise, local zoning, subdivision, or land‑useplanning ordinance or to affect the responsibility of any person to comply withany lawfully adopted franchise, local zoning, subdivision, or land‑useplanning ordinance. This subsection shall not be construed to limit anyopportunity a local government may have to comment on a permit applicationunder any other law or rule. This subsection shall not apply to any facilitywith respect to which local ordinances are subject to review under either G.S.104E‑6.2 or G.S. 130A‑293.

(g)        Any person who is required to hold a permit under thissection shall submit to the Department a written description of his current andprojected plans to reduce the emission of air contaminants under such permit bysource reduction or recycling. The written description shall accompany the paymentof the annual permit fee. The written description shall also accompany anyapplication for a new permit, or for modification of an existing permit, underthis section. The written description required by this subsection shall not beconsidered part of a permit application and shall not serve as the basis forthe denial of a permit or permit modification.

(h)        Expedited Review of Applications Certified by a ProfessionalEngineer. – The Commission shall adopt rules governing the submittal of permitapplications certified by a professional engineer, including draft permits,that can be sent to public notice and hearing upon receipt and subjected totechnical review by personnel within the Department. These rules shall specify,at a minimum, any forms to be used; a checklist for applicants that lists allitems of information required to prepare a complete permit application; theform of the certification required on the application by a professionalengineer; and the information that must be included in the draft permit. TheDepartment shall process an application that is certified by a professionalengineer as provided in subdivisions (1) through (7) of this subsection.

(1)        Initiation of Review. Upon receipt of an applicationcertified by a professional engineer in accordance with this subsection and therules adopted pursuant to this subsection, the Department shall determinewhether the application is complete as provided in subdivision (2) of thissubsection. Within 30 days after the date on which an application is determinedto be complete, the Department shall:

a.         Publish any required notices, using the draft permitincluded with the application;

b.         Schedule any required public meetings or hearings on theapplication and permit; and

c.         Initiate any and all technical review of the application ina manner to ensure substantial completion of the technical review by the timeof any public hearing on the application, or if there is no hearing, by theclose of the notice period.

(2)        Completeness Review. Within 10 working days of receipt ofthe permit application certified by a professional engineer under thissubsection, the Department shall determine whether the application is completefor purposes of this subsection. The Department shall determine whether the permitapplication certified by a professional engineer is complete by comparing theinformation provided in the application with the checklist contained in therules adopted by the Commission pursuant to this subsection.

a.         If the application is not complete, the Department shallpromptly notify the applicant in writing of all deficiencies of theapplication, specifying the items that need to be included, modified, orsupplemented in order to make the application complete, and the 10‑daytime period is suspended after this request for further information. If theapplicant submits the requested information within the time specified, the 10‑daytime period shall begin again on the day the additional information wassubmitted. If the additional information is not submitted within the timeperiods specified, the Department shall return the application to theapplicant, and the applicant may treat the return of the application as adenial of the application or may resubmit the application at a later time.

b.         If the Department fails to notify the applicant that anapplication is not complete within the time period set forth in thissubsection, the application shall be deemed to be complete.

(3)        Time for Permit Decision. For any application found to becomplete under subdivision (2) of this subsection, the Department shall issue apermit decision within 30 days of the last day of any public hearing on theapplication, or if there is no hearing, within 30 days of the close of thenotice period.

(4)        Rights if Permit Decision Not Made in Timely Fashion. If theDepartment fails to issue a permit decision within the time periods specifiedin subdivision (3) of this subsection, the applicant may:

a.         Take no action, thereby consenting to the continued reviewof the application; or

b.         Treat the failure to issue a permit decision as a denial ofthe application and appeal the denial as provided in subdivision (2) ofsubsection (d) of this section.

(5)        Power to Halt Review. At any time after the permitapplication certified by a professional engineer has been determined to becomplete under subdivision (2) of this subsection, the Department mayimmediately terminate review of that application, including technical reviewand any hearings or meetings scheduled on the application, upon a determinationof one of the following:

a.         The permit application is not in substantial compliance withthe applicable rules; or

b.         The applicant failed to pay all permit application fees.

(6)        Rights if Review Halted. If the Department terminates reviewof an application under subdivision (5) of this subsection, the applicant maytake any of the following actions:

a.         Revise and resubmit the application; or

b.         Treat the action as a denial of the application and appealthe denial under Article 3 of Chapter 150B of the General Statutes.

(7)        Option; No Additional Fee. The submittal of a permitapplication certified by a professional engineer to be considered under thissubsection shall be an option and shall not be required of any applicant. TheDepartment shall not impose any additional fees for the receipt or processingof a permit application certified by a professional engineer.

(i)         Rules for Review of Applications Other Than Those Certifiedby a Professional Engineer. – The Commission shall adopt rules governing thetimes of review for all permit applications submitted pursuant to this sectionother than those certified by a professional engineer pursuant to subsection(h) of this section. Those rules shall specify maximum times for, among otherthings, the following actions in reviewing the permit applications covered bythis subsection:

(1)        Determining that the permit application is complete;

(2)        Requesting additional information to determine completeness;

(3)        Determining that additional information is needed to conducta technical review of the application;

(4)        Completing all technical review of the permit application;

(5)        Holding and completing all public meetings and hearingsrequired for the application;

(6)        Completing the record from reviewing and acting on theapplication; and

(7)        Taking final action on the permit, including granting ordenying the application. (1973, c. 821, s. 6; c.1262, s. 23; 1979, c. 545, ss. 2, 3; 1987, c. 461, s. 2; c. 827, ss. 154, 206;1989, c. 168, s. 30; c. 492; 1989 (Reg. Sess., 1990), c. 1037, s. 2; 1991, c.552, s. 5; c. 629, s. 1; c. 761, s. 27(a)‑(c); 1993, c. 400, s. 8; 1995,c. 484, s. 2; 1995 (Reg. Sess., 1996), c. 728, s. 1; 2002‑4, s. 2; 2003‑340,s. 1.8(b); 2003‑428, ss. 1, 2.)