§ 143-215.108A. Control of sources of air pollution; construction of new facilities; alteration or expansion of existing facilities. - North Carolina Statutes

§ 143‑215.108A.  Control of sources of airpollution; construction of new facilities; alteration or expansion of existingfacilities.

(a)        New Facilities. – A person may not, without obtaining apermit under G.S. 143‑215.108, construct or operate an air contaminantsource, equipment, or associated air cleaning device at a site or facilitywhere, at the time of the construction, there is no other air contaminantsource, equipment, or associated air cleaning device for which a permit isrequired under G.S. 143‑215.108. A person may, however, undertake thefollowing activities prior to obtaining a permit if the person complies withthe requirements of this section:

(1)        Clearing and grading.

(2)        Construction of access roads, driveways, and parking lots.

(3)        Construction and installation of underground pipe work,including water, sewer, electric, and telecommunications utilities.

(4)        Construction of ancillary structures, including fences andoffice buildings, that are not a necessary component of an air contaminantsource, equipment, or associated air cleaning device for which a permit isrequired under G.S. 143‑215.108.

(b)        Permitted Facilities. – A person who holds a permit underG.S. 143‑215.108 may apply to the Commission for a modification of thepermit to allow the person to alter or expand the physical arrangement oroperation of an air contaminant source, equipment, or associated air cleaningdevice in a manner that alters the emission of air contaminants. The permitteemay not operate the altered, expanded, or additional air contaminant source,equipment, or associated air cleaning device in a manner that alters theemission of any air contaminant without obtaining a permit modification underG.S. 143‑215.108. A permittee may, however, alter or expand the physicalarrangement or operation of an air contaminant source, equipment, or associatedair cleaning device at a facility permitted under G.S. 143‑215.108 if thepermittee complies with the requirements of this section. At least 15 daysprior to commencing alteration or expansion under this subsection, thepermittee shall give notice by publication and shall submit to the Commission anotice of the permittee's intent to alter or expand the physical arrangement oroperation of an air contaminant source, equipment, or associated air cleaningdevice. Notice by publication shall be in a newspaper having generalcirculation in the county or counties where the facility is to be located;shall be at the permittee's own expense; shall include a statement that writtencomment may be submitted to the Commission, that the Commission will considerany comment that it receives, and the Commission's address for submission ofwritten comment; and shall include all the information required by subdivisions(1) through (6) of this subsection. The permittee shall submit a proof ofpublication of the notice to the Commission within 15 days of the date ofpublication. The notice of intent to the Commission shall include all of thefollowing:

(1)        The name and location of the facility and the name andaddress of the permittee.

(2)        The permit number of each permit issued under G.S. 143‑215.108for the facility.

(3)        The nature of the air contaminant sources and equipmentassociated with the proposed modification of the permit.

(4)        An estimate of total regulated air contaminant emissionsassociated with the proposed modification of the permit.

(5)        The air cleaning devices that are to be employed to addresseach of the air contaminant sources associated with the modification of thepermit.

(6)        The schedule for alteration or expansion of the facilityassociated with the proposed modification of the permit.

(7)        An acknowledgment by the permittee that the air contaminantsources, equipment, and associated air cleaning devices may not be operated ina manner that alters the emission of any air contaminant until the permitteehas obtained a modified permit under G.S. 143‑215.108.

(8)        An acknowledgment by the permittee that any alteration orexpansion of the physical arrangement or operation of an air contaminantsource, equipment, or associated air cleaning device prior to the modificationof a permit under G.S. 143‑215.108 is undertaken at the permittee's ownrisk and with the knowledge that the permittee may be denied a modification ofthe permit under G.S. 143‑215.108 without regard to the permittee'sfinancial investment or alteration or expansion of the facility.

(9)        A certification under oath that all of the informationcontained in the notice of intent is complete and accurate to the best of thepermittee's knowledge and ability, executed by the permittee or, if thepermittee is a corporation, by the appropriate officers of the corporation.

(c)        Review and Determination by the Commission. –

(1)        Upon receipt of a complete notice of intent required undersubsection (b) of this section, the Commission shall determine whether:

a.         The permittee is and has been in substantial compliance withother permits issued the permittee.

b.         The facility will be altered or expanded so that it will beused for either the same or a similar use as the use already permitted.

c.         The alteration or expansion will not result in adisproportionate increase in the size of the facility already permitted.

d.         The alteration or expansion will result in the same orsubstantially similar emissions as that of the facility already permitted.

e.         The alteration or expansion will not have a significanteffect on air quality.

f.          The Commission is likely to issue the permit modification.

(2)        Within 15 days after the Commission receives a completenotice of intent required under subsection (b) of this section, the Commissionshall notify the permittee of its determination as to whether each of theconditions set out in subdivision (1) of this subsection has or has not beenmet. If the Commission finds that all of the conditions have been met, thenotice shall state that the alteration or expansion of the physical arrangementor operation of an air contaminant source, equipment, or associated aircleaning device may begin. If the Commission finds that one or more of theconditions has not been met, the notice shall state that the alteration orexpansion of the physical arrangement or operation of an air contaminantsource, equipment, or associated air cleaning device may not begin.

(d)        Order to Cease Construction, Alteration, or Expansion. – Ifat any time during the construction, alteration, or expansion of the physicalarrangement or operation of an air contaminant source, equipment, or associatedair cleaning device, the Commission determines that the permittee will notqualify for a permit or permit modification under G.S. 143‑215.108, theCommission may order that the construction, alteration, or expansion ceaseuntil the Commission makes a decision on the application for a permit or permitmodification. If the Commission orders that construction, alteration, orexpansion cease, then construction, alteration, or expansion may resume only ifthe Commission either makes a subsequent determination that the circumstancesthat resulted in the order to cease construction, alteration, or expansion havebeen adequately addressed or if the Commission issues a permit or permitmodification under G.S. 143‑215.108 that authorizes construction,alteration, or expansion to resume.

(e)        Evaluation of Permit Applications; Administrative andJudicial Review of Permit Decisions. – The Commission shall evaluate anapplication for a permit or permit modification under G.S. 143‑215.108and make its decision on the same basis as if the construction, alteration, or expansionallowed under this section had not occurred. The Commission shall consider anywritten comment that it receives in response to a notice by publication givenpursuant to subsection (b) of this section. No evidence regarding any contractentered into, financial investment made, construction, alteration, or expansionundertaken, or economic loss incurred by any person or permittee who proceedsunder this section without first obtaining a permit under G.S. 143‑215.108is admissible in any contested case or judicial proceeding involving any permitrequired under G.S. 143‑215.108. No evidence as to any determination ororder by the Commission pursuant to subsection (c) or (d) of this section shallbe admissible in any contested case or judicial proceeding related to anypermit required under G.S. 143‑215.108.

(f)         State, Commission, and Employees Not Liable. – Everyperson, permittee, and owner of a facility who proceeds under this sectionshall hold the State, the Commission, and the officials, agents, and employeesof the State and the Commission harmless and not liable for any loss resultingfrom any contract entered into, financial investment made, construction,alteration, or expansion undertaken, or economic loss incurred by any person,permittee, or owner of any facility pursuant to this section.

(g)        Local Zoning Ordinances Not Affected. – This section shallnot be construed to affect the validity of any lawfully adopted franchise,local zoning, subdivision, or land‑use planning ordinance or to affectthe responsibility of any person to comply with any lawfully adopted franchise,local zoning, subdivision, or land‑use planning ordinance.

(h)        Compliance With Other State Laws Not Affected. – Thissection does not relieve any person of the obligation to comply with any otherrequirement of State law, including any requirement to obtain any other permitor approval prior to undertaking any activity associated with preparation ofthe site or the alteration or expansion of the physical arrangement or operationof an air contaminant source, equipment, or associated air cleaning device at afacility for which a permit is required under G.S. 143‑215.108.

(i)         Federal Air Quality Programs Not Affected. – This sectiondoes not relieve any person from any preconstruction or constructionprohibition imposed by any federal requirement, federal delegation, federallyapproved requirement in any State Implementation Plan, or federally approvedrequirement under the Title V permitting program, as determined solely by the Commissionor by a local air pollution control program certified by the Commission asprovided in G.S. 143‑215.112. This section does not apply to anyconstruction, alteration, or expansion that is subject to requirements forprevention of significant deterioration or federal nonattainment new sourcereview, as determined solely by the Commission or by a local air pollutioncontrol program certified by the Commission as provided in G.S. 143‑215.112.This section does not apply if it is inconsistent with any federal requirement,federal delegation, federally approved requirement in any State ImplementationPlan, or federally approved requirement under the Title V permitting program,as determined solely by the Commission or by a local air pollution control programcertified by the Commission as provided in G.S. 143‑215.112.

(j)         Fee. – A permittee who submits a notice of intent undersubsection (b) of this section shall pay a fee of two hundred dollars ($200.00)for each notice of intent submitted to cover a portion of the administrativecosts of implementing this section. (2003‑428, s.3.)