A BILL TO BE ENTITLED
AN ACT TO PROVIDE THAT ANY PROSPECTIVE APPLICANT FOR AN AIR QUALITY PERMIT FOR A NEW FACILITY MAY COMMENCE CONSTRUCTION PRIOR TO OBTAINING THE AIR QUALITY PERMIT TO OPERATE THAT FACILITY IF THE PROSPECTIVE APPLICANT SUBMITS A NOTICE OF THE CONSTRUCTION AND THAT ANY CURRENT HOLDER OF AN AIR QUALITY PERMIT MAY COMPLETE NEW CONSTRUCTION AT AN EXISTING PERMITTED FACILITY PRIOR TO OBTAINING THE AIR QUALITY PERMIT TO OPERATE THAT FACILITY IF THE PROSPECTIVE APPLICANT SUBMITS A NOTICE OF THE CONSTRUCTION. 
The General Assembly of North Carolina enacts:
SECTION 1.  G.S. 143‑215.108(a), as amended by Section 2 of S.L. 2002‑4, reads as rewritten:
"(a)	Except as provided in subsections (a1) and (a2) of this section, no person shall do any of the following things or carry out any of the following activities that contravene or will be likely to contravene standards established pursuant to G.S. 143‑215.107 or set out in G.S. 143‑215.107D unless that person has obtained a permit from the Commission and has complied with any conditions of the permit:
(1)	Establish or operate any air contaminant source, except as provided in G.S. 143-215.108A.
(2)	Build, erect, use or operate any equipment that may result in 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 of any equipment or process from which air contaminants are or may be emitted.
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SECTION 2.  G.S. 143‑215.108(f) reads as rewritten:
"(f)	An applicant for a permit under this section for a new facility or for the expansion of a facility permitted under this section shall request each local government having jurisdiction over any part of the land on which the facility and its appurtenances are to be located to issue a determination as to whether the local government has in effect a zoning or subdivision ordinance applicable to the facility and whether the proposed facility or expansion would be consistent with the ordinance. The request to the local government shall be accompanied by a copy of the draft permit application and shall be delivered to the clerk of the local government personally or by certified mail. The determination shall be verified or supported by affidavit signed by the official designated by the local government to make the determination and, if the local government states that the facility is inconsistent with a zoning or subdivision ordinance, shall include a copy of the ordinance and the specific reasons for the determination of inconsistency. A copy of any such determination shall be provided to the applicant when it is submitted to the Commission. The Commission shall not act upon an application for a permit under this section until it has received a determination from each local government requested to make a determination by the applicant. If a local government determines that the new facility or the expansion of an existing facility is inconsistent with a zoning or subdivision ordinance, and unless the local government makes a subsequent determination of consistency with all ordinances cited in the determination or the proposed facility is determined by a court of competent jurisdiction to be consistent with the cited ordinances, the Commission shall attach as a condition of the permit a requirement that the applicant, prior to operation of the facility under the permit, comply with all lawfully adopted local ordinances, including those cited in the determination, that apply to the facility at the time of operation of the facility. If a local government fails to submit a determination to the Commission as provided by this subsection within 15 days after receipt of the request, the Commission may proceed to consider the permit application without regard to local zoning and subdivision ordinances. This subsection shall not be construed to affect the validity of any lawfully adopted franchise, local zoning, subdivision, or land‑use planning ordinance or to affect the responsibility of any person to comply with any lawfully adopted franchise, local zoning, subdivision, or land‑use planning ordinance. This subsection shall not be construed to limit any opportunity a local government may have to comment on a permit application under any other law or rule. This subsection shall not apply to any facility with respect to which local ordinances are subject to review under either G.S. 104E‑6.2 or G.S. 130A‑293."
SECTION 3.  Article 21B of Chapter 143 of the General Statutes is amended by adding a new section to read:
"§ 143-215.108A. Control of sources of air pollution; construction of new facilities and the expansion of existing facilities.(a)	New Facilities. – A person may not, without obtaining a permit under G.S. 143‑215.108, construct or operate an air contaminant source, equipment, or associated air-cleaning device at a site or facility where, at the time of the construction, there is no other air contaminant source, equipment, or device for which a permit is required under G.S. 143-215.108. A person may, however, construct any component of the facility that is peripheral to the operation of the air contaminant source, equipment, or associated air-cleaning device if the person complies with the requirements of this section. Peripheral construction includes grading, foundations, and structures not associated with an air contaminant source, equipment, or air-cleaning device. At least 30 days prior to commencing construction under this subsection, the person who owns the facility shall give notice by publication, and shall submit to the Commission a notice, of the person's intent to construct a facility for which a permit will be required under G.S. 143-215.108. Notice by publication shall be in a newspaper having general circulation in the county or counties where the facility is to be located; shall be at the person's own expense; shall include a statement that written comment may be submitted to the Commission, that the Commission will consider any comment that it receives during its review of the application for a permit, and the Commission's address for submission of written comment; and shall include all the information required by subdivisions (1) through (5) of this subsection. The person shall submit a proof of publication of the notice to the Commission within 15 days of the date of publication. The notice to the Commission shall include all of the following:
(1)	The name and location of the proposed facility and the name and address of the person who will apply for a permit under G.S. 143‑215.108.
(2)	The nature of the air contaminant sources and equipment associated with the facility when constructed.
(3)	An estimate of total regulated air contaminant emissions associated with the facility when constructed.
(4)	The air-cleaning devices that are to be employed to address each of the air contaminant sources.
(5)	The construction schedule for the proposed construction.
(6)	An acknowledgment by the person that the actual air contaminant sources, equipment, and associated air-cleaning devices may not be constructed until the person has obtained a permit under G.S. 143‑215.108.
(7)	An acknowledgment by the person that any construction prior to the issuance of a permit under G.S. 143-215.108 is undertaken at the person's own risk and with the knowledge that the person may be denied a permit under G.S. 143‑215.108 without regard to the person's financial investment or construction activities.
(8)	A certification under oath that all of the information contained in the notice is complete and accurate to the best of the person's knowledge and ability, executed by the person or, if the person is a corporation, by the appropriate officers of the corporation.(b)	Permitted Facilities. – A person who holds a permit under G.S. 143-215.108 may apply to the Commission for a modification of the permit to allow the person to alter or expand the physical arrangement or operation of an air contaminant source, equipment, or the associated air-cleaning device in a manner that alters the emission of air contaminants. The permittee may not operate the altered, expanded, or additional air contaminant source, equipment, or associated air-cleaning devices in a manner that alters the emission of any air contaminant without obtaining a permit modification under G.S. 143-215.108. A permittee may, however, construct or modify any component of the facility that is peripheral to the operation of the air contaminant source, equipment, or associated air-cleaning device if the person complies with the requirements of this section. Peripheral construction includes grading, foundations, and structures not associated with an air contaminant source, equipment, or air-cleaning device. At least 30 days prior to commencing construction or modification under this subsection, the permittee shall give notice by publication, and shall submit to the Commission a notice, of the person's intent to construct a facility for which a permit modification will be required under G.S. 143-215.108. Notice by publication shall be in a newspaper having general circulation in the county or counties where the facility is located; shall be at the person's own expense; shall include a statement that written comment may be submitted to the Commission, that the Commission will consider any comment that it receives during its review of the application for a permit modification, and the Commission's address for submission of written comment; and shall include all the information required by subdivisions (1) through (6) of this subsection. The permittee shall submit a proof of publication of the notice to the Commission within 15 days of the date of publication. The notice to the Commission shall include all of the following:
(1)	The name and location of the facility and the name and address of the permittee.
(2)	The permit number of each permit issued under G.S. 143‑215.108 for the facility.
(3)	The nature of the air contaminant sources and equipment associated with the proposed modification of the permit.
(4)	An estimate of total regulated air contaminant emissions associated with the proposed modification of the permit.
(5)	The air-cleaning devices that are to be employed to address each of the air contaminant sources associated with the modification of the permit.
(6)	The construction schedule associated with the proposed modification of the permit.
(7)	An acknowledgment by the permittee that the air contaminant sources, equipment, and associated air-cleaning devices may not be operated in a manner that alters the emission of any air contaminant until the permittee has obtained a modified permit under G.S. 143‑215.108.
(8)	An acknowledgment by the permittee that any construction prior to the modification of a permit under G.S. 143-215.108 is undertaken at the permittee's own risk and with the knowledge that the permittee may be denied a modification of the permit under G.S. 143‑215.108 without regard to the permittee's financial investment or construction activities.
(9)	A certification under oath that all of the information contained in the notice is complete and accurate to the best of the permittee's knowledge and ability, executed by the permittee or, if the permittee is a corporation, by the appropriate officers of the corporation.
(c)	Review and Determination by the Commission. – Upon receipt of the notice to the Commission required under subsection (a) or (b) of this section, the Commission may review the information contained in the notice, investigate the site or facility, and comment on the proposed facility or permit modification. If at any time during construction the Commission determines that there is a significant likelihood that a person or permittee will not qualify for a permit or permit modification under G.S. 143‑215.108, the Commission may request in writing that the person or permittee submit, within 15 days of receipt of the request, specific additional information related to the reasons that give rise to the determination. If, after reviewing any additional information submitted by the person or permittee, the Commission again determines that there is a significant likelihood that a person or permittee will not qualify for a permit or permit modification under G.S. 143‑215.108, the Commission may request that the plans for the construction be altered in order to address the anticipated inability of the person or permittee to qualify for a permit or permit modification or the Commission may order that construction or modification cease. If the Commission orders that construction or modification cease, then construction may resume only if the Commission either makes a subsequent determination that the circumstances that resulted in the determination that resulted in the order to cease construction or modification have been adequately addressed or the Commission issues a permit or permit modification under G.S. 143‑215.108 that authorizes construction to resume. Any order by the Commission that construction cease shall be in writing and shall set forth specific reasons for the determination that the person or permittee will not qualify for a permit.
(d)	Evaluation of Permit Applications; Administrative and Judicial Review of Permit Decisions. – The Commission shall evaluate an application for a permit or permit modification under G.S. 143‑215.108 and make its decision on the same basis as if the construction allowed under this section had not occurred. The Commission shall consider any written comment that it receives in response to a notice by publication given pursuant to subsection (a) or (b) of this section. No evidence regarding any financial investment made, construction activity undertaken, or economic loss incurred by any person or permittee who proceeds under this section without first obtaining a permit under G.S. 143-215.108 is admissible in any contested case or judicial proceeding involving any permit required under G.S. 143-215.108.
(e)	State, Commission, and Employees Not Liable. – Every person, permittee, and owner of a facility who proceeds under this section shall hold the State, the Commission, and the officials, agents, and employees of the State and the Commission harmless and not liable for any loss resulting from any construction or modification undertaken by any person, permittee, or owner of any facility pursuant to this section.
(f)	Local Zoning Ordinances Not Affected. – This section shall not be construed to affect the validity of any lawfully adopted franchise, local zoning, subdivision, or land-use planning ordinance or to affect the responsibility of any person to comply with any lawfully adopted franchise, local zoning, subdivision, or land-use planning ordinance.
(g)	Federal Air Quality Programs Not Affected. – This section does not relieve any person from any preconstruction or construction prohibition imposed by any federal requirement, federal delegation, federally approved requirement in any State Implementation Plan, or federally approved requirement under the Title V permitting program, as determined solely by the Commission or by a local air pollution control program certified by the Commission as provided in G.S. 143-215.112. This section does not apply to any construction or modification that is subject to requirements for prevention of significant deterioration or federal nonattainment new source review, as determined solely by the Commission or by a local air pollution control 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 Implementation Plan, or federally approved requirement under the Title V permitting program, as determined solely by the Commission or by a local air pollution control program certified by the Commission as provided in G.S. 143-215.112.
(h)	Not Applicable to Asphalt Plants. – This section shall not apply to any facility for the manufacture, sale, or distribution of asphalt. No person may construct, modify, or operate any component of any facility for the manufacture, sale, or distribution of asphalt until the person has obtained all permits that will be required for any air contaminant source, equipment, or associated air-cleaning device at the facility.
(i)	Fee. – A person or permittee who submits a notice of construction under subsection (a) or subsection (b) of this section shall pay a fee of two hundred dollars ($200.00) for each notice submitted to cover a portion of the administrative costs of implementing this section."
SECTION 4. This act is effective when it becomes law and applies to construction of any new facility and construction associated with the modification of a permit for an existing facility that commences on or after the date on which this act becomes law.  This act does not apply to any application for a permit or permit modification under G.S. 143‑215.108 that is submitted to the Environmental Management Commission prior to the date on which this act becomes law.