GENERAL ASSEMBLY OF NORTH CAROLINA

SESSION 1989

H	1 

HOUSE BILL 1124

Short Title:  Air Quality Permits/Special Orders.	(Public)
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Sponsors: Representative B. Ethridge.
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Referred to:  Basic Resources.
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April 10, 1989

A BILL TO BE ENTITLED
AN ACT TO REQUIRE THAT PUBLIC NOTICE BE GIVEN OF AN APPLICATION FOR AN AIR QUALITY PERMIT AND OF DRAFT SPECIAL ORDERS BY CONSENT AND TO PROVIDE FOR A PUBLIC MEETING CONCERNING THE ISSUANCE OF SUCH A PERMIT AND DRAFT ORDERS IF THE ENVIRONMENTAL MANAGEMENT COMMISSION DETERMINES THAT THERE IS A SIGNIFICANT INTEREST IN HOLDING SUCH A MEETING.
The General Assembly of North Carolina enacts:
Section 1.  G.S. 143-215.108(b) reads as rewritten:
"(b)	The Commission shall act upon all applications for permits so as to effectuate the purpose of this section, by reducing existing air pollution and preventing, so far as reasonably possible, any increased pollution of the air from any additional or enlarged sources.
The Commission shall have the power:
(1)	To grant and renew a permit with such conditions attached as the Commission believes necessary to achieve the purposes of this section;
(2)	To grant and renew any temporary permit for such period of time as the Commission shall specify even though the action allowed by such permit may result in pollution or increase pollution where conditions make such temporary permit essential;
(3)	To modify or revoke any permit upon not less than 60 days' written notice to any person affected;
(4)	To require all applications for permits and renewals to be in writing and to prescribe the form of such applications;
(5)	To request such information from an applicant and to conduct such inquiry or investigation as it may deem necessary and to require the submission of plans and specifications prior to acting on any application for a permit;
(5a)	To require that an applicant satisfy the Commission that the applicant, or any parent or subsidiary corporation if the applicant is a corporation:
a.	Is financially qualified to carry out the activity for which a permit is required under subsection (a); and
b.	Has substantially complied with the air quality and emission control standards applicable to any activity in which the applicant has previously engaged, and has been in substantial compliance with federal and state laws, regulations, and rules for the protection of the environment;
(6)	To adopt rules, as it deems necessary, establishing the form  of applications and permits and procedures for the granting or denial of permits and renewals pursuant to this section; and all permits, renewals and denials shall be in writing;
(7)	To prohibit any stationary source within the State from emitting any air pollutant in amounts which will prevent attainment or maintenance by any other state of any national ambient air quality standard, or interference with measures required to be included in the applicable implementation plan for any other state to prevent deterioration of air quality or protect visibility.
The Commission shall act on a permit application as quickly as possible.  The Commission may conduct any inquiry or investigation it considers necessary before acting on an application and may require an applicant to submit plans, specifications, and other information the Commission considers necessary to evaluate the application.  If the Commission fails to act on an application for a permit within 90 days after the applicant submits all information required by the Commission, the application is considered to be approved, unless provided otherwise by this subsection.
Upon receipt of a complete application by the Department for a permit under this subsection, the Department shall give 14 days' notice with an opportunity for written comments prior to any final action granting or denying the permit.  Public notice shall be given by publication of the notice one time in a newspaper having general circulation within the county.
The Department shall refer each application for a permit to its staff for written evaluation and proposed determination with regard to the issuance or denial of the permit.  When the Commission receives a determination from its staff regarding the issuance or denial of a permit or renewal of a permit, the Commission shall give notice of the application and the proposed determination to the proper State, interstate, and federal agencies, to interested persons, and to the public.  The Commission shall also provide any other data it considers appropriate to those notified.  The Commission shall prescribe the form and content of the notice.
The notice shall be given at least 45 days prior to any final action granting or denying the permit.  Public notice shall be given by publication of the notice one time in a newspaper having general circulation within the county.
If any person desires a public meeting on any application for a permit, he shall request one in writing to the Commission within 30 days following date of the notice of application.  The Commission shall consider all such requests for a meeting, and if the Commission determines that there is a significant public interest in holding such a meeting at least 30 days' notice of such meeting shall be given to all persons to whom notice of application was sent and to any other person requesting notice.  At least 30 days prior to the date of meeting, the Commission shall also have a copy of the notice of the meeting published at least one time in a newspaper having general circulation in such county.  The Commission shall prescribe the form and content of the notices.
The Commission shall prescribe the procedures to be followed in such meetings.  If the meeting is not conducted by the Commission, detailed minutes of the meeting shall be kept and shall be submitted, along with any other written comments, exhibits, or documents presented at the meeting, to the Commission for its consideration prior to final action granting or denying the permit.
Not later than 60 days following notice of application or, if a public meeting is held, within 90 days following consideration of the matters and things presented at such meeting, the Commission shall grant or deny any application for issuance of a new permit.  All permits issued by the Commission and all decisions denying application for permit shall be in writing.
A permit applicant or permittee who is dissatisfied with a decision of the commission may commence a contested case by filing a petition under G.S. 150B-23 within 30 days after the Commission notifies the applicant or permittee of its decision.  If the permit applicant or permittee does not file a petition within the required time, the Commission's decision on the application is final and is not subject to review.”
Sec. 2.  G.S. 143-215.110 reads as rewritten:
"§ 143-215.110. Special orders
(a)	Issuance. – The Commission is hereby empowered, after the effective date of standards and classifications adopted pursuant to G.S. 143-215.107, to issue (and from time to time to modify or revoke) a special order or other appropriate instrument, to any person whom it finds responsible for causing or contributing to any pollution of the air within the area for which standards have been established. Such an order or instrument may direct such person to take or refrain from taking such action, or to achieve such results, within a period of time specified by such special order, as the Commission deems necessary and feasible in order to alleviate or eliminate such pollution. The Commission is authorized to enter into draft consent special orders, assurances of voluntary compliance or other similar documents by agreement with the person responsible for pollution of the air, subject to the provisions of subsection (a1) of this section regarding draft orders, and such document, when finalized by the Commission after public review, shall have the same force and effect as a special order of the Commission issued pursuant to hearing.
(a1)	Public notice and review.– Upon entering into a draft consent order, the Department shall give 14 days' notice with an opportunity for written comments prior to any final action regarding the draft consent order.  Public notice shall be given by publication of the notice one time in a newspaper having general circulation within the county.
Then the Commission shall give notice of the draft consent order to the proper State, interstate, and federal agencies, to interested persons, and to the public.  The Commission shall also provide any other data it considers appropriate to those notified.  The Commission shall prescribe the form and content of the notice.  This notice shall be given at least 45 days prior to any final action regarding the draft consent order.  Public notice shall be given by publication of the notice one time in a newspaper having general circulation within the county.
If any person desires a public meeting on any draft consent order he shall request one in writing to the Commission within 30 days following date of the notice of the draft consent order.  The Commission shall consider all such requests for meeting, and if the Commission determines that there is a significant public interest in holding such meeting at least 30 days' notice of such meeting shall be given to all persons to whom notice of the draft consent order was sent and to any other person requesting notice.  At least 30 days prior to the date of meeting, the Commission shall also have a copy of the notice of the meeting published at least one time in a newspaper having general circulation in such county.  The Commission shall prescribe the form and consent of the notices.
The Commission shall prescribe the procedures to be followed in such meetings.  If the meeting is not conducted by the Commission, detailed minutes of the meeting shall be kept and shall be submitted, along with any other written comments, exhibits or documents presented at the meeting, to the Commission for its consideration prior to final action granting or denying the permit.
Not later than 60 days following notice of the draft consent order or, if a public meeting is held, within 90 days following consideration of the matters and things presented at such meeting, the Commission shall finalize the draft consent order.
(b)	Procedure to Contest Certain Orders. – A special order that is issued without the consent of the person affected may be contested by that person by filing a petition for a contested case under G.S. 150B-23 within 30 days after the order is issued.  If the person affected does not file a petition within the required time, the order is final and is not subject to review.
(d)	Effect of Compliance. – Any person who installs an air- cleaning device for purpose of alleviating or eliminating air pollution in compliance with the terms of, or as result of the conditions specified in, a permit issued pursuant to G.S. 143-215.108, or a special order, consent special order, assurance of voluntary compliance or similar document issued pursuant to this section, or a final decision of the Commission or a court, rendered pursuant to either of said sections, shall not be required to take or refrain from any further action nor be required to achieve any further results under the terms of this or any other State law relating to the control of air pollution, for a period to be fixed by the Commission or court as it shall deem fair and reasonable in the light of all the circumstances after the date such special order, consent special order, assurance of voluntary compliance, other document or decision, or the conditions of such permit become finally effective, if:
(1)	The air-cleaning devices result in the elimination or alleviation of air pollution to the extent required by such permit, special order, consent special order, assurance of voluntary compliance, or other document or decision and complies with any other terms thereof; and
(2)	Such person complies with the terms and conditions of such permit, special order, consent special order, assurance of voluntary compliance, other document or decision within the time limit, if any, specified therein or as the same may be extended, and thereafter remains in compliance."
Sec. 3.  G.S. 143-215.2 reads as rewritten:
"§ 143-215.2. Special orders.
(a)	Issuance. – The Commission is hereby empowered, after the effective date of classifications, standards and limitations adopted pursuant to G.S. 143-214.1 or G.S. 143-215, to issue (and from time to time to modify or revoke) a special order, or other appropriate instrument, to any person whom it finds responsible for causing or contributing to any pollution of the waters of the State within the area for which standards have been established. Such an order or instrument may direct such person to take, or refrain from taking such action, or to achieve such results, within a period of time specified by such special order, as the Commission deems necessary and feasible in order to alleviate or eliminate such pollution.  The Commission is authorized to enter into draft consent special orders, assurances of voluntary compliance or other similar documents by agreement with the person responsible for pollution of the water, subject to the provisions of subsection (a1) of this section regarding draft orders, and such document, when finalized by the Commission after public review, shall have the same force and effect as a special order of the Commission issued pursuant to hearing. Provided, however, that the provisions of this section shall not apply to any agricultural operation, such as the use or preparation of any land for the purposes of planting, growing, or harvesting plants, crops, trees or other agricultural products, or raising livestock or poultry.
(a1)	Public Notice and Review.– Upon entering into a draft consent order, the Department shall give 14 days' notice with an opportunity for written comments prior to any final action regarding the draft consent order.  Public notice shall be given by publication of the notice one time in a newspaper having general circulation within the county.
Then the Commission shall give notice of the draft consent order to the proper State, interstate, and federal agencies, to interested persons, and to the public.  The Commission shall also provide any other data it considers appropriate to those notified.  The Commission shall prescribe the form and content of the notice.  The notice shall be given at least 45 days prior to any final action regarding the draft consent order.  Public notice shall be given by publication of the notice one time in a newspaper having general circulation within the county.
If any person desires a public meeting on any draft consent order he shall request one in writing to the Commission within 30 days following date of the notice of the draft consent order.  The Commission shall consider all such requests for meeting, and if the Commission determines that there is a significant public interest in holding such meeting at least 30 days' notice of such meeting shall be given to all persons to whom notice of the draft consent order was sent and to any other person requesting notice.  At least 30 days prior to the date of meeting, the Commission shall also have a copy of the notice of the meeting published at least one time in a newspaper having general circulation in such county.  The Commission shall prescribe the form and consent of the notices.
The Commission shall prescribe the procedures to be followed in such meetings.  If the meeting is not conducted by the Commission, detailed minutes of the meeting shall be kept and shall be submitted, along with any other written comments, exhibits or documents presented at the meeting, to the Commission for its consideration prior to final action granting or denying the permit.
Not later than 60 days following notice of the draft consent order or, if a public meeting is held, within 90 days following consideration of the matters and things presented at such meeting, the Commission shall finalize the draft consent order.
(b)	Procedure to Contest Certain Orders. – A special order that is issued without the consent of the person affected may be contested by that person by filing a petition for a contested case under G.S. 150B-23 within 30 days after the order is issued.  If the person affected does not file a petition within the required time, the order is final and is not subject to review.
(d)	Effect of Compliance. – Any person who installs a treatment works for the purpose of alleviating or eliminating water pollution in compliance with the terms of, or as a result of the conditions specified in, a permit issued pursuant to G.S. 143-215.1, or a special order, consent special order, assurance of voluntary compliance or similar document issued pursuant to this section, or a final decision of the Commission or a court rendered pursuant to either of said sections, shall not be required to take or  refrain from any further action nor be required to achieve any further results under the terms of this or any other State law relating to the control of water pollution, for a period to be fixed by the Commission or court as it shall deem fair and reasonable in the light of all the circumstances after the date when such special order, consent special order, assurance of voluntary compliance, other document, or decision, or the conditions of such permit become finally effective, if:
(1)	The treatment works result in the elimination or alleviation of water pollution to the extent required by such permit, special order, consent special order, assurance of voluntary compliance or other document, or decision and complies with any other terms thereof; and
(2)	Such person complies with the terms and conditions of such permit, special order, consent special order, assurance of voluntary compliance, other document, or decision within the time limit, if any, specified therein or as the same may be extended, and thereafter remains in compliance."
Sec. 4.  This act shall become effective October 1, 1989, and applies to all applications for air quality permits made on or after that date and all draft consent orders entered into on or after that date.