GENERAL ASSEMBLY OF NORTH CAROLINA

SESSION 1991

H	1 

HOUSE BILL 551*

Short Title:  Clean Air Act Implementations.	(Public)
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Sponsors: Representatives DeVane; Bowman, N.J. Crawford, H. Hunter, and Privette.
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Referred to:  Environment.
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April 1, 1991

A BILL TO BE ENTITLED
AN ACT TO IMPLEMENT THE REQUIREMENTS OF THE 1990 AMENDMENTS TO THE FEDERAL CLEAN AIR ACT.
The General Assembly of North Carolina enacts:
Section 1.  G.S. 143-215.111 reads as rewritten:
"§ 143-215.111. General powers of Commission; auxiliary powers.
(a)	In addition to the specific powers prescribed elsewhere in this Article and the applicable general powers prescribed in G.S. 143-215.3, and for the purpose of carrying out its duties, the Commission shall have the power:
(1)	To make a continuing study of the effects of the emission of air contaminants from motor vehicles on the quality of the outdoor atmosphere of the State and the several areas thereof, and make recommendations to the General Assembly and other appropriate public and private bodies for the control of such air contaminants.
(2)	To consult, upon request, with any person proposing to construct, install, or otherwise acquire an air pollution source or air-cleaning device for the control of air contaminants concerning the efficacy of such device, or the air problem which may be related to such source, or device; provided, however, that nothing in any such consultation shall be construed to relieve any person from compliance with this Article and Article 21, rules adopted pursuant thereto, or any other provision of law.
(3)	To encourage local units of government to handle air pollution problems within their respective jurisdictions and on a cooperative basis, and to provide such local units technical and consultative assistance to the maximum extent possible.
(b)	Notwithstanding the provisions of G.S. 143-215.3(a)(1b), the Commission is authorized to adopt and implement a graduated fee schedule sufficient to cover all reasonable direct and indirect costs required for the State to develop and administer a permit program which meets the requirements of Title V of the 1990 amendments to the Clean Air Act (Pub. L. 101-549, 104 Stat. 2635 et seq.), as amended (hereinafter 'Title V').  In adopting and implementing a fee schedule, the Commission shall require that the owner or operator of all air contaminant sources subject to the requirement to obtain a permit under Title V pay an annual fee, or the equivalent over some other period, sufficient to cover costs as provided in Section 502(b)(3)(A) of Title V.  The fee schedule shall be adopted according to the procedures set out in Chapter 150B of the General Statutes.
(c)	The total amount of fees collected under the fee schedule adopted pursuant to subsection (b) of this section shall conform to the requirements of Section 502(b)(3)(B) of Title V.  Notwithstanding the provisions of G.S. 143-215.3(a)(1c), the fees so collected shall be used solely to cover all reasonable direct and indirect costs required to develop and administer the State's permit program.
(d)	The Commission may reduce any permit fee required under this section to take into account the financial resources of small business stationary sources as defined under Title V and regulations promulgated by the United States Environmental Protection Agency."
Sec. 2.  G.S. 143-215.3A(a) reads as rewritten:
"§ 143-215.3A.  Use of application and permit fees.
There is established a separate nonreverting account within the Department of Environment, Health, and Natural Resources.  The account may be used, to the extent appropriated by the General Assembly, to (a)	defray the expenses of any project or program supporting the permitting and compliance activities needed to protect the State's surface water, groundwater, and air quality, and (b) establish additional permanent positions, under the Personnel Act, for water, groundwater, and air quality permitting and compliance activities.  All application fees and permit administration fees collected by the State for permits issued under Articles 21, 21A, 21B, and 38, except those collected under Part 2 of Article 21A and deposited in the Oil or Other Hazardous Substances Pollution Protection Fund, and except as provided in G.S. 143-215.28A and G.S. 143-215.3B shall be credited to the account.  The total monies collected per year from fees for permits under G.S. 143-215.3(a)(1a) , after deducting those monies collected under G.S. 143-215.111(b),  shall not exceed thirty percent (30%) of the total budgets from all sources of environmental permitting and compliance programs within the Department of Environment, Health, and Natural Resources.  The Department shall make an annual report to the General Assembly and its Fiscal Research Division on the cost of the State's environmental permitting programs contained within such Department.  The report shall include, but is not limited to, fees set and established under this Article, fees collected under this Article, revenues received from other sources for environmental permitting and compliance programs, changes made in the fee schedule since the last report, anticipated revenues from all other sources, interest earned and any other information requested by the General Assembly."
Sec. 3.  G.S. 143-215.114A reads as rewritten:
"(a)	A civil penalty of not more than ten thousand dollars ($10,000) may be assessed by the Secretary against any person who:
(1)	Violates any classification, standard or limitation established pursuant to G.S. 143-215.107;
(2) 	Is required but fails to apply for or to secure a permit required by G.S. 143-215.108 or who violates or fails to act in accordance with the terms, conditions, or requirements of such permit;
(3) 	Violates or fails to act in accordance with the terms, conditions, or requirements of any special order or other appropriate document issued pursuant to G.S. 143-215.110;
(4) 	Fails to file, submit, or make available, as the case may be, any documents, data or reports required by this Article or Article 21 of this Chapter;
(5)	Violates a rule of the Commission or a local governing body implementing this Article or Article 21;
(6)	Violates the offenses set out in G.S. 143-215.114B."
Sec. 4.  G.S. 143-215.108 reads as rewritten:
"(a)	After the effective date applicable to any air quality or emission control standards established pursuant to G.S. 143-215.107, no person shall do any of the following things or carry out any of the following activities which contravene or will be likely to contravene such standards until or unless such person shall have applied for and shall have received from the Commission a permit therefor and shall have complied with such conditions, if any, as are prescribed by such permit:
(1)	Establish or operate any air contaminant source;
(2)	Build, erect, use or operate any equipment which may result in the emission of air contaminants or which is likely to cause air pollution;
(3)	Alter or change the construction or method of operation of any equipment or process from which air contaminants are or may be emitted;
(4)	Enter into an irrevocable contract for the construction and installation of any air-cleaning device, or allow or cause such device to be constructed, installed, or operated.
(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 Department that the applicant, or any parent, subsidiary, or other affiliate of the applicant or parent:
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.
	As used in this subdivision, the words 'affiliate,' 'parent,' and 'subsidiary' have the same meaning as in 17 Code of Federal Regulations § 240.12b-2 (1 April 1990 Edition);
(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; and
(8)	To issue general permits for numerous similar air contaminant sources.
(c)	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 the 1990 amendments to the Clean Air Act (Pub. L. 101-549, 104 Stat. 2399 et seq.), as amended, or regulations promulgated by the United States Environmental Protection Agency provide for a longer period for review of the application, in which case the permit shall not be considered to be approved by failure of the Commission to act until such period has expired.  No permit required by Title V of the 1990 amendments to the Clean Air Act (Pub. L. 101-549, 104 Stat. 2635 et seq.), as amended, (hereinafter 'Title V') shall issue prior to any review required by the Administrator of the United States Environmental Protection Agency or if the Administrator objects to its issuance in a timely manner under Title V.
(d)	No permit issued pursuant to this section shall be issued or renewed for a term exceeding five years.
(e)	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.  Any person who participated in the public comment process may intervene in a contested case commenced by a permit applicant or permittee.  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.
(f)	Notwithstanding subsection (e) of this section, any person who participated in the public comment process is entitled to judicial review of the final permit action in accordance with Article 4 of Chapter 150B of the General Statutes.  The record on review shall consist of the agency record which was before the decision maker at the time of the final permit action and shall include the permit application, any written public comments, a transcript of any oral public comments received during the permit application review process, and the official record of the final agency decision if a contested case was commenced.  A person who participated in the public comment process, but did not intervene in a contested case commenced by a permit applicant or permittee is not entitled to judicial review under this subsection.
	(g)	Any person who is required to hold a permit under this section shall submit to the Department a written description of his current and projected plans to reduce the emission of air contaminants under such permit by source reduction or recycling.  The written description shall accompany the payment of the annual permit fee.  The written description shall also accompany any application for a new permit, or for modification of an existing permit, under this section.  The written description required by this subsection shall not be considered part of a permit application and shall not serve as the basis for the denial of a permit or permit modification."
Sec. 5.  G.S. 143B-317 reads as rewritten:
"§ 143B-317. Air Quality Compliance Advisory Panel – creation; powers and duties.
There is hereby created the Air Quality Compliance Advisory Panel of the Department of Environment, Health, and Natural Resources. The Air Quality Compliance Advisory Panel shall have the following functions and duties:
(1)	To advise the Environmental Management Commission in the development of rules, regulations and quality standards for air; 
(2)	To consider and to advise the Commission upon any matter the Commission may refer to it;
(3)	To render advisory opinions concerning the effectiveness of the small business stationary source technical and environmental compliance assistance program, difficulties encountered, and degree and severity of enforcement;
(4)	To make periodic reports to the Administrator of the United States Environmental Protection Agency concerning the compliance of the State Small Business Stationary Source Technical and Environmental Compliance Assistance Program with the requirements of the Paperwork Reduction Act, 44 U.S.C. § 3501 et seq.; the Regulatory Flexibility Act, 5 U.S.C. § 601 et seq.; and the Equal Access to Justice Act, 5 U.S.C. § 504 et seq.; and
(5)	To review information for small business stationary sources to assure such information is understandable by the layperson."
Sec. 6.  G.S. 143B-318 reads as rewritten:
"§ 143B-318. Air Quality Compliance Advisory Panel – members; chairman; selection; removal; compensation; quorum; services.
(a)	The Air Quality Compliance Advisory Panel of the Department of Environment, Health, and Natural Resources shall consist of two members who are not owners or representatives of owners of small business stationary sources, appointed by the Governor to represent the general public; two members appointed by the General Assembly upon the recommendation of the Speaker of the House of Representatives, and who are owners, or who represent owners, of small business stationary sources; two members appointed by the General Assembly upon the recommendation of the President Pro Tempore of the Senate, who are owners, or who represent owners, of small business stationary sources; and one member appointed by the Secretary of the Department of Environment, Health, and Natural Resources.
(b)	The Governor shall designate one member of the Panel to serve as chairman at his pleasure.
(c)	In order to achieve staggered terms, the General Assembly shall initially appoint two members for terms of two years, one each upon recommendation of the Speaker of the House of Representatives and the President Pro Tempore of the Senate, and shall initially appoint two members for terms of three years, one each upon recommendation of the Speaker of the House of Representatives and the President Pro Tempore of the Senate.  At the end of the respective terms of office of the initial members, their successors shall be appointed for terms of four years and until their successors are appointed and qualify. Any appointment to fill a vacancy on the Panel created by the resignation, dismissal, death or disability of a member shall be for the balance of the unexpired term.
(d)	The Governor shall have the power to remove any member of the Panel from office for misfeasance, malfeasance or nonfeasance in accordance with the provisions of G.S. 143B-16.
(e)	The members of the Panel shall receive per diem and necessary travel and subsistence expenses in accordance with the provisions of G.S. 138-5.
(f)	A majority of the Panel shall constitute a quorum for the transaction of their business.
(g)	The Secretary of Environment, Health, and Natural Resources shall designate an agency within the Department of Environment, Health, and Natural Resources to serve as ombudsman for the Small Business Stationary Source Technical and Environmental Compliance Assistance Program established by the Department pursuant to section 507 of the Federal Clean Air Act, as amended.  The Small Business Stationary Source Technical and Environmental Compliance Assistance Program shall serve as the secretariat for the development and dissemination of reports and advisory opinions issued by the Panel.
(h)	All clerical and other services required by the Panel shall be supplied by the Secretary of Environment, Health, and Natural Resources."
Sec. 7.  G.S. 143B-319 reads as rewritten:
"§ 143B-319. Air Quality Compliance Advisory Panel – meetings.
The Panel shall meet at least semiannually and may hold special meetings at any time and place at the call of the chairman or upon the written request of at least three members."
Sec. 8.  G.S. 143-215.107(a) reads as rewritten:
"(a)	Duty to Adopt Plans, Standards, etc. – The Commission is hereby directed and empowered, as rapidly as possible within the limits of funds and facilities available to it, and subject to the procedural requirements of this Article and Article 21:
(1) 	To prepare and develop, after proper study, a comprehensive plan or plans for the prevention, abatement and control of air pollution in the State or in any designated area of the State.
(2) 	To determine by means of field sampling and other studies, including the examination of available data collected by any local, State or federal agency or any person, the degree of air contamination and air pollution in the State and the several areas of the State.
(3) 	To develop and adopt, after proper study, air quality standards applicable to the State as a whole or to any designated area of the State as the Commission deems proper in order to promote the policies and purposes of this Article and Article 21 most effectively.
(4) 	To collect information or to require reporting from classes of sources which, in the judgment of the Environmental Management Commission, may cause or contribute to air pollution. Any person operating or responsible for the operation of air contaminant sources of any class for which the Commission requires reporting shall make reports containing such information as may be required by the Commission concerning location, size, and height of contaminant outlets, processes employed, fuels used, and the nature and time periods or duration of emissions, and such other information as is relevant to air pollution and available or reasonably capable of being assembled.
(5) 	To develop and adopt such emission control standards as in the judgment of the Commission may be necessary to prohibit, abate or control air pollution commensurate with established air quality standards. Such standards may be applied uniformly to the State as a whole or to any area of the State designated by the Commission.
(6) 	To adopt, when necessary and practicable, a program for testing emissions from motor vehicles and to adopt motor vehicle emission standards in compliance with applicable federal regulations.
(7) 	To develop and adopt standards and plans necessary to implement programs for the prevention of significant deterioration and for the attainment of air quality standards in nonattainment areas; provided, that the Commission shall adopt no standard which is not made mandatory upon approved State programs by rules, regulations or published guidelines of the United States Environmental Protection Agency or the Federal Clean Air Act.
(8)	To regulate the use of sulfur dioxide allowances in accordance with Title IV of the 1990 amendments to the Clean Air Act (Pub. L. 101-549, 104 Stat. 2584 et seq.), as amended, and regulations promulgated by the United States Environmental Protection Agency."
Sec. 9.  This act is effective upon ratification.