§ 143‑215.112. Local air pollution control programs.
(a) The Commission is authorized and directed to review and havegeneral oversight and supervision over all local air pollution control programsand to this end shall review and certify such programs as being adequate tomeet the requirements of this Article and Article 21 of this Chapter and anyapplicable standards and rules adopted pursuant thereto. The Commission shallcertify any local program which:
(1) Provides by ordinance or local law for requirementscompatible with those imposed by the provisions of this Article and Article 21of this Chapter, and the standards and rules issued pursuant thereto; provided,however, the Commission upon request of a municipality or other local unit maygrant special permission for the governing body of such unit to adopt aparticular class of air contaminant regulations which would result in moreeffective air pollution control than applicable standards or rules promulgatedby the Commission;
(2) Provides for the adequate enforcement of such requirementsby appropriate administrative and judicial process;
(3) Provides for an adequate administrative organization, staff,financial and other resources necessary to effectively and efficiently carryout its programs; and
(4) Is approved by the Commission as adequate to meet therequirements of this Article and any applicable rules pursuant thereto.
(b) No municipality, county, local board or commission or groupof municipalities and counties may establish and administer an air pollutioncontrol program unless such program meets the requirements of this section andis so certified by the Commission.
(c) (1) The governing body of anycounty, municipality, or group of counties and municipalities within adesignated area of the State, as defined in this Article and Article 21,subject to the approval of the Commission, is hereby authorized to establish,administer, and enforce a local air pollution control program for the county,municipality, or designated area of the State which includes but is not limitedto:
a. Development of a comprehensive plan for the control andabatement of new and existing sources of air pollution;
b. Air quality monitoring to determine existing air quality andto define problem areas, as well as to provide background data to show theeffectiveness of a pollution abatement program;
c. An emissions inventory to identify specific sources of aircontamination and the contaminants emitted, together with the quantity ofmaterial discharged into the outdoor atmosphere;
d. Adoption, after notice and public hearing, of air qualityand emission control standards, or adoption by reference, without publichearing, of any applicable rules and standards duly adopted by the Commission;and administration of such rules and standards in accordance with provisions ofthis section.
e. Provisions for the establishment or approval of timeschedules for the control or abatement of existing sources of air pollution andfor the review of plans and specifications and issuance of approval documentscovering the construction and operation of pollution abatement facilities atexisting or new sources;
f. Provision for adequate administrative staff, including anair pollution control officer and technical personnel, and provision for laboratoryand other necessary facilities.
(2) Subject to the approval of the Commission as provided inthis Article and Article 21, the governing body of any county or municipalitymay establish, administer, and enforce an air pollution control program by anyof the following methods:
a. Establishing a program under the administration of the dulyelected governing body of the county or municipality.
b. Appointing an air pollution control board consisting of notless than five nor more than seven members who shall serve for terms of sixyears each and until their successors are appointed and qualified. Two membersshall be appointed for two‑year terms, two shall be appointed for four‑yearterms, and the remaining member or members shall be appointed for six‑yearterms. Where the term "governing body" is referred to in thissection, it shall include the air pollution control board. Such board shallhave all the powers and authorities granted to any local air pollution controlprogram. The board shall elect a chairman and shall meet at least quarterly orupon the call of the chairman or any two members of the board.
c. Appointing an air pollution control board as provided inthis subdivision, and by appropriate written agreement designating the localhealth department or other department of county or municipal government as theadministrative agent for the air pollution control board.
d. Designating, by appropriate written agreement, the localboard of health and the local health department as the air pollution controlboard and agency.
(2a) Any board or body which approves permits or enforcementorders shall have at least a majority of members who represent the publicinterest and do not derive any significant portion of their income from personssubject to permits or enforcement orders under the Clean Air Act and anypotential conflicts of interest by members of such board or body or the head ofan executive agency with similar powers shall be adequately disclosed.
(3) If the Commission finds that the location, character orextent of particular concentrations of population, air contaminant sources, thegeographic, topographic or meteorological considerations, or any combinationsthereof, are such as to make impracticable the maintenance of appropriatelevels of air quality without an area‑wide air pollution control program,the Commission may determine the boundaries within which such program isnecessary and require such area‑wide program as the only acceptablealternative to direct State administration. Subject to the provisions of thissection, each governing body of a county or municipality is hereby authorizedand empowered to establish by contract, joint resolution, or other agreementwith any other governing body of a county or municipality, upon approval by theCommission, an air pollution control region containing any part or all of thegeographical area within the jurisdiction of those boards or governing bodieswhich are parties to such agreement, provided the counties involved in theregion are contiguous or lie in a continuous boundary and comprise the totalarea contained in any region designated by the Commission for an area‑wideprogram. The participating parties are authorized to appoint a regional airpollution control board which shall consist of at least five members who shallserve for terms of six years and until their successors are appointed andqualified. Two members shall be appointed for two‑year terms, two shallbe appointed for four‑year terms and the remaining member or membersshall be appointed for six‑year terms. A participant's representation onthe board shall be in relation to its population to the total population of theregion based on the latest official United States census with each participantin the region having at least one representative; provided, that where theregion is comprised of less than five counties, each participant will beentitled to appoint members in relation to its population to that of the regionso as to provide a board of at least five members. Where the term"governing body" is used, it shall include the governing board of aregion. The regional board is hereby authorized to exercise any and all of thepowers provided in this section. The regional air pollution control board shallelect a chairman and shall meet at least quarterly or upon the call of thechairman or any two members of the board. In lieu of employing its own staff,the regional air pollution control board is authorized, through appropriatewritten agreement, to designate a local health department as its administrativeagent.
(4) Each governing body is authorized to adopt any ordinances,resolutions, rules or regulations which are necessary to establish and maintainan air pollution control program and to prescribe and enforce air quality and emissioncontrol standards, a copy of which must be filed with the Commission and withthe clerk of court of any county affected. Provisions may be made therein forthe registration of air contaminant sources; for the requirement of a permit todo or carry out specified activities relating to the control of air pollution,including procedures for application, issuance, denial and revocation; fornotification of violators or potential violators about requirements orconditions for compliance; for procedures to grant temporary permits orvariances from requirements or standards; for the declaration of an emergencywhen it is found that a generalized condition of air pollution is causingimminent danger to the health or safety of the public and the issuance of anorder to the responsible person or persons to reduce or discontinue immediatelythe emission of air contaminants; for notice and hearing procedures for personsaggrieved by any action or order of any authorized agent; for the establishmentof an advisory council and for other administrative arrangements; and for othermatters necessary to establish and maintain an air pollution control program.
(5) No permit required by section 305(e) of Title III (42 U.S.C.§ 7429(e)) for a solid waste incineration unit combusting municipal waste shallbe issued by a local air pollution control program that is administered by thegoverning body of a unit of local government that is responsible, in whole orin part, for the design, construction, or operation of the unit.
(d) (1) Violation of any ordinances,resolutions, rules or regulations duly adopted by a governing body arepunishable as provided in G.S. 143‑215.114B.
(1a) Each governing body, or its authorized agent, shall have thepower to assess civil penalties under G.S. 143‑215.114A. Any personassessed shall be notified of the assessment by registered or certified mail,and the notice shall specify the reasons for the assessment. If the personassessed fails to pay the amount of the assessment to the governing body or itsauthorized agent within 30 days after receipt of notice, or such longer periodnot to exceed 180 days as the governing body or its authorized agent mayspecify, the governing body may institute a civil action in the superior courtof the county in which the violation occurred, to recover the amount of theassessment. If any action or failure to act for which a penalty may be assessedunder this section is continuous, the governing body or its authorized agentmay assess a penalty not to exceed ten thousand dollars ($10,000) per day forso long as the violation continues. In determining the amount of the penalty,the governing body or its authorized agent shall consider the degree and extentof harm caused by the violation, the cost of rectifying the damage, and theamount of money the violator saved by not having made the necessaryexpenditures to comply with the appropriate pollution control requirements.
(2) Each governing body, or its duly authorized agent, mayinstitute a civil action in the superior court, brought in the name of theagency having jurisdiction, for injunctive relief to restrain any violation orimmediately threatened violation of such ordinances, orders, rules, orregulations and for such other relief as the court shall deem proper. Neitherthe institution of the action nor any of the proceedings thereon shall relieveany party to such proceedings from the penalty prescribed by this Article andArticle 21 for any violation of same.
(d1) (1) The governing body responsiblefor each local air pollution control program shall require that the owner oroperator of all air contaminant sources subject to the requirement to obtain apermit under Title V pay an annual fee, or the equivalent over some otherperiod, sufficient to cover costs as provided in section 502(b)(3)(A) of TitleV (42 U.S.C. § 7661a(b)(3)(A)) and G.S. 143‑215.3(a)(1d). Fees collectedpursuant to this subdivision shall be used solely to cover all reasonabledirect and indirect costs required to develop and administer the Title V permitprogram.
(2) Each governing body is authorized to expend tax funds,nontax funds, or any other funds available to it to finance an air pollutioncontrol program and such expenditures are hereby declared to be for a publicpurpose and a necessary expense.
(d2) (1) Any final administrative decisionrendered in an air pollution control program of such governing body shall besubject to judicial review as provided by Article 4 of Chapter 150B of theGeneral Statutes, and "administrative agency" or "agency"as used therein shall mean and include for this purpose the governing body ofany county or municipality, regional air pollution control governing board, andany agency created by them in connection with an air pollution control program.
(2) A local air pollution control program shall inform a permitapplicant as to whether or not the application is complete within the timespecified in the rules for action on the application. If a local air pollutionprogram fails to act on an application for a permit required by Title V or thisArticle within the time periods specified by the Commission under G.S 143‑215.108(d)(2),the failure to act on the application constitutes a final agency decision todeny the permit. A permit applicant, permittee, or other person aggrieved, asdefined in G.S. 150B‑2, may seek judicial review of a failure to act onthe application as provided in G.S. 143‑215.5 and Article 4 of Chapter150B of the General Statutes. Notwithstanding the provisions of G.S. 150B‑51,upon review of a failure to act on an application for a permit required byTitle V or this Article, a court may either: (i) affirm the denial of thepermit or (ii) remand the application to the local air pollution controlprogram for action upon the application within a specified time.
(e) (1) If the Commission has reason tobelieve that a local air pollution control program certified and in forcepursuant to the provisions of this section is inadequate to abate or controlair pollution in the jurisdiction to which such program relates, or that suchprogram is being administered in a manner inconsistent with the requirement ofthis Article, the Commission shall, upon due notice, conduct a hearing on thematter.
(2) If, after such hearing, the Commission determines that an existinglocal air pollution control program or one which has been certified by theCommission is inadequate to abate or control air pollution in the municipality,county, or municipalities or counties to which such program relates, or thatsuch program is not accomplishing the purposes of this Article, it shall setforth in its findings the corrective measures necessary for continuedcertification and shall specify a reasonable period of time, not to exceed oneyear, in which such measures must be taken if certification is not to berescinded.
(3) If the municipality, county, local board or commission ormunicipalities or counties fail to take such necessary corrective action withinthe time specified, the Commission shall rescind any certification as may havebeen issued for such program and shall administer within such municipality,county, or municipalities or counties all of the regulatory provisions of thisArticle and Article 21. Such air pollution control program shall supersede allmunicipal, county or local laws, regulations, ordinances and requirements inthe affected jurisdiction.
(4) If the Commission finds that the control of a particularclass of air contaminant source because of its complexity or magnitude isbeyond the reasonable capability of the local air pollution control authoritiesor may be more efficiently and economically performed at the State level, itmay assume and retain jurisdiction over that class of air contaminant source.Classification pursuant to this subdivision may be either on the basis of thenature of the sources involved or on the basis of their relationship to thesize of the communities in which they are located.
(5) Any municipality or county in which the Commissionadministers its air pollution control program pursuant to subdivision (3) ofthis subsection may, with the approval of the Commission, establish or resume amunicipal, county, or local air pollution control program which meets therequirements for certification by the Commission.
(6) Repealed by Session Laws 1993, c. 400, s. 10.
(7) Any municipality, county, local board or commission ormunicipalities or counties or designated area of this State for which a localair pollution control program is established or proposed for establishment maymake application for, receive, administer and expend federal grant funds forthe control of air pollution or the development and administration of programsrelated to air pollution control; provided that any such application is firstsubmitted to and approved by the Commission. The Commission shall approve anysuch application if it is consistent with this Article, Article 21 and otherapplicable requirements of law.
(8) Notwithstanding any other provision of this section, if theCommission determines that an air pollution source or combination of sources isoperating in violation of the provisions of this Article and that theappropriate local authorities have not acted to abate such violation, theCommission, upon written notice to the appropriate local governing body, mayact on behalf of the State to require any person causing or contributing to thepollution to cease immediately the emission of air pollutants causing orcontributing to the violation or may require such other action as it shall deemnecessary. (1973, c. 821, s.6; c. 1262, s. 23; c. 1331, s. 3; 1979, c. 545, s. 7; 1987, c. 748, s. 1; c.827, ss. 1, 154, 210; 1989, c. 135, s. 7; 1993, c. 400, s. 10; 1997‑496,s. 6.)
§ 143‑215.112. Local air pollution control programs.
(a) The Commission is authorized and directed to review and havegeneral oversight and supervision over all local air pollution control programsand to this end shall review and certify such programs as being adequate tomeet the requirements of this Article and Article 21 of this Chapter and anyapplicable standards and rules adopted pursuant thereto. The Commission shallcertify any local program which:
(1) Provides by ordinance or local law for requirementscompatible with those imposed by the provisions of this Article and Article 21of this Chapter, and the standards and rules issued pursuant thereto; provided,however, the Commission upon request of a municipality or other local unit maygrant special permission for the governing body of such unit to adopt aparticular class of air contaminant regulations which would result in moreeffective air pollution control than applicable standards or rules promulgatedby the Commission;
(2) Provides for the adequate enforcement of such requirementsby appropriate administrative and judicial process;
(3) Provides for an adequate administrative organization, staff,financial and other resources necessary to effectively and efficiently carryout its programs; and
(4) Is approved by the Commission as adequate to meet therequirements of this Article and any applicable rules pursuant thereto.
(b) No municipality, county, local board or commission or groupof municipalities and counties may establish and administer an air pollutioncontrol program unless such program meets the requirements of this section andis so certified by the Commission.
(c) (1) The governing body of anycounty, municipality, or group of counties and municipalities within adesignated area of the State, as defined in this Article and Article 21,subject to the approval of the Commission, is hereby authorized to establish,administer, and enforce a local air pollution control program for the county,municipality, or designated area of the State which includes but is not limitedto:
a. Development of a comprehensive plan for the control andabatement of new and existing sources of air pollution;
b. Air quality monitoring to determine existing air quality andto define problem areas, as well as to provide background data to show theeffectiveness of a pollution abatement program;
c. An emissions inventory to identify specific sources of aircontamination and the contaminants emitted, together with the quantity ofmaterial discharged into the outdoor atmosphere;
d. Adoption, after notice and public hearing, of air qualityand emission control standards, or adoption by reference, without publichearing, of any applicable rules and standards duly adopted by the Commission;and administration of such rules and standards in accordance with provisions ofthis section.
e. Provisions for the establishment or approval of timeschedules for the control or abatement of existing sources of air pollution andfor the review of plans and specifications and issuance of approval documentscovering the construction and operation of pollution abatement facilities atexisting or new sources;
f. Provision for adequate administrative staff, including anair pollution control officer and technical personnel, and provision for laboratoryand other necessary facilities.
(2) Subject to the approval of the Commission as provided inthis Article and Article 21, the governing body of any county or municipalitymay establish, administer, and enforce an air pollution control program by anyof the following methods:
a. Establishing a program under the administration of the dulyelected governing body of the county or municipality.
b. Appointing an air pollution control board consisting of notless than five nor more than seven members who shall serve for terms of sixyears each and until their successors are appointed and qualified. Two membersshall be appointed for two‑year terms, two shall be appointed for four‑yearterms, and the remaining member or members shall be appointed for six‑yearterms. Where the term "governing body" is referred to in thissection, it shall include the air pollution control board. Such board shallhave all the powers and authorities granted to any local air pollution controlprogram. The board shall elect a chairman and shall meet at least quarterly orupon the call of the chairman or any two members of the board.
c. Appointing an air pollution control board as provided inthis subdivision, and by appropriate written agreement designating the localhealth department or other department of county or municipal government as theadministrative agent for the air pollution control board.
d. Designating, by appropriate written agreement, the localboard of health and the local health department as the air pollution controlboard and agency.
(2a) Any board or body which approves permits or enforcementorders shall have at least a majority of members who represent the publicinterest and do not derive any significant portion of their income from personssubject to permits or enforcement orders under the Clean Air Act and anypotential conflicts of interest by members of such board or body or the head ofan executive agency with similar powers shall be adequately disclosed.
(3) If the Commission finds that the location, character orextent of particular concentrations of population, air contaminant sources, thegeographic, topographic or meteorological considerations, or any combinationsthereof, are such as to make impracticable the maintenance of appropriatelevels of air quality without an area‑wide air pollution control program,the Commission may determine the boundaries within which such program isnecessary and require such area‑wide program as the only acceptablealternative to direct State administration. Subject to the provisions of thissection, each governing body of a county or municipality is hereby authorizedand empowered to establish by contract, joint resolution, or other agreementwith any other governing body of a county or municipality, upon approval by theCommission, an air pollution control region containing any part or all of thegeographical area within the jurisdiction of those boards or governing bodieswhich are parties to such agreement, provided the counties involved in theregion are contiguous or lie in a continuous boundary and comprise the totalarea contained in any region designated by the Commission for an area‑wideprogram. The participating parties are authorized to appoint a regional airpollution control board which shall consist of at least five members who shallserve for terms of six years and until their successors are appointed andqualified. Two members shall be appointed for two‑year terms, two shallbe appointed for four‑year terms and the remaining member or membersshall be appointed for six‑year terms. A participant's representation onthe board shall be in relation to its population to the total population of theregion based on the latest official United States census with each participantin the region having at least one representative; provided, that where theregion is comprised of less than five counties, each participant will beentitled to appoint members in relation to its population to that of the regionso as to provide a board of at least five members. Where the term"governing body" is used, it shall include the governing board of aregion. The regional board is hereby authorized to exercise any and all of thepowers provided in this section. The regional air pollution control board shallelect a chairman and shall meet at least quarterly or upon the call of thechairman or any two members of the board. In lieu of employing its own staff,the regional air pollution control board is authorized, through appropriatewritten agreement, to designate a local health department as its administrativeagent.
(4) Each governing body is authorized to adopt any ordinances,resolutions, rules or regulations which are necessary to establish and maintainan air pollution control program and to prescribe and enforce air quality and emissioncontrol standards, a copy of which must be filed with the Commission and withthe clerk of court of any county affected. Provisions may be made therein forthe registration of air contaminant sources; for the requirement of a permit todo or carry out specified activities relating to the control of air pollution,including procedures for application, issuance, denial and revocation; fornotification of violators or potential violators about requirements orconditions for compliance; for procedures to grant temporary permits orvariances from requirements or standards; for the declaration of an emergencywhen it is found that a generalized condition of air pollution is causingimminent danger to the health or safety of the public and the issuance of anorder to the responsible person or persons to reduce or discontinue immediatelythe emission of air contaminants; for notice and hearing procedures for personsaggrieved by any action or order of any authorized agent; for the establishmentof an advisory council and for other administrative arrangements; and for othermatters necessary to establish and maintain an air pollution control program.
(5) No permit required by section 305(e) of Title III (42 U.S.C.§ 7429(e)) for a solid waste incineration unit combusting municipal waste shallbe issued by a local air pollution control program that is administered by thegoverning body of a unit of local government that is responsible, in whole orin part, for the design, construction, or operation of the unit.
(d) (1) Violation of any ordinances,resolutions, rules or regulations duly adopted by a governing body arepunishable as provided in G.S. 143‑215.114B.
(1a) Each governing body, or its authorized agent, shall have thepower to assess civil penalties under G.S. 143‑215.114A. Any personassessed shall be notified of the assessment by registered or certified mail,and the notice shall specify the reasons for the assessment. If the personassessed fails to pay the amount of the assessment to the governing body or itsauthorized agent within 30 days after receipt of notice, or such longer periodnot to exceed 180 days as the governing body or its authorized agent mayspecify, the governing body may institute a civil action in the superior courtof the county in which the violation occurred, to recover the amount of theassessment. If any action or failure to act for which a penalty may be assessedunder this section is continuous, the governing body or its authorized agentmay assess a penalty not to exceed ten thousand dollars ($10,000) per day forso long as the violation continues. In determining the amount of the penalty,the governing body or its authorized agent shall consider the degree and extentof harm caused by the violation, the cost of rectifying the damage, and theamount of money the violator saved by not having made the necessaryexpenditures to comply with the appropriate pollution control requirements.
(2) Each governing body, or its duly authorized agent, mayinstitute a civil action in the superior court, brought in the name of theagency having jurisdiction, for injunctive relief to restrain any violation orimmediately threatened violation of such ordinances, orders, rules, orregulations and for such other relief as the court shall deem proper. Neitherthe institution of the action nor any of the proceedings thereon shall relieveany party to such proceedings from the penalty prescribed by this Article andArticle 21 for any violation of same.
(d1) (1) The governing body responsiblefor each local air pollution control program shall require that the owner oroperator of all air contaminant sources subject to the requirement to obtain apermit under Title V pay an annual fee, or the equivalent over some otherperiod, sufficient to cover costs as provided in section 502(b)(3)(A) of TitleV (42 U.S.C. § 7661a(b)(3)(A)) and G.S. 143‑215.3(a)(1d). Fees collectedpursuant to this subdivision shall be used solely to cover all reasonabledirect and indirect costs required to develop and administer the Title V permitprogram.
(2) Each governing body is authorized to expend tax funds,nontax funds, or any other funds available to it to finance an air pollutioncontrol program and such expenditures are hereby declared to be for a publicpurpose and a necessary expense.
(d2) (1) Any final administrative decisionrendered in an air pollution control program of such governing body shall besubject to judicial review as provided by Article 4 of Chapter 150B of theGeneral Statutes, and "administrative agency" or "agency"as used therein shall mean and include for this purpose the governing body ofany county or municipality, regional air pollution control governing board, andany agency created by them in connection with an air pollution control program.
(2) A local air pollution control program shall inform a permitapplicant as to whether or not the application is complete within the timespecified in the rules for action on the application. If a local air pollutionprogram fails to act on an application for a permit required by Title V or thisArticle within the time periods specified by the Commission under G.S 143‑215.108(d)(2),the failure to act on the application constitutes a final agency decision todeny the permit. A permit applicant, permittee, or other person aggrieved, asdefined in G.S. 150B‑2, may seek judicial review of a failure to act onthe application as provided in G.S. 143‑215.5 and Article 4 of Chapter150B of the General Statutes. Notwithstanding the provisions of G.S. 150B‑51,upon review of a failure to act on an application for a permit required byTitle V or this Article, a court may either: (i) affirm the denial of thepermit or (ii) remand the application to the local air pollution controlprogram for action upon the application within a specified time.
(e) (1) If the Commission has reason tobelieve that a local air pollution control program certified and in forcepursuant to the provisions of this section is inadequate to abate or controlair pollution in the jurisdiction to which such program relates, or that suchprogram is being administered in a manner inconsistent with the requirement ofthis Article, the Commission shall, upon due notice, conduct a hearing on thematter.
(2) If, after such hearing, the Commission determines that an existinglocal air pollution control program or one which has been certified by theCommission is inadequate to abate or control air pollution in the municipality,county, or municipalities or counties to which such program relates, or thatsuch program is not accomplishing the purposes of this Article, it shall setforth in its findings the corrective measures necessary for continuedcertification and shall specify a reasonable period of time, not to exceed oneyear, in which such measures must be taken if certification is not to berescinded.
(3) If the municipality, county, local board or commission ormunicipalities or counties fail to take such necessary corrective action withinthe time specified, the Commission shall rescind any certification as may havebeen issued for such program and shall administer within such municipality,county, or municipalities or counties all of the regulatory provisions of thisArticle and Article 21. Such air pollution control program shall supersede allmunicipal, county or local laws, regulations, ordinances and requirements inthe affected jurisdiction.
(4) If the Commission finds that the control of a particularclass of air contaminant source because of its complexity or magnitude isbeyond the reasonable capability of the local air pollution control authoritiesor may be more efficiently and economically performed at the State level, itmay assume and retain jurisdiction over that class of air contaminant source.Classification pursuant to this subdivision may be either on the basis of thenature of the sources involved or on the basis of their relationship to thesize of the communities in which they are located.
(5) Any municipality or county in which the Commissionadministers its air pollution control program pursuant to subdivision (3) ofthis subsection may, with the approval of the Commission, establish or resume amunicipal, county, or local air pollution control program which meets therequirements for certification by the Commission.
(6) Repealed by Session Laws 1993, c. 400, s. 10.
(7) Any municipality, county, local board or commission ormunicipalities or counties or designated area of this State for which a localair pollution control program is established or proposed for establishment maymake application for, receive, administer and expend federal grant funds forthe control of air pollution or the development and administration of programsrelated to air pollution control; provided that any such application is firstsubmitted to and approved by the Commission. The Commission shall approve anysuch application if it is consistent with this Article, Article 21 and otherapplicable requirements of law.
(8) Notwithstanding any other provision of this section, if theCommission determines that an air pollution source or combination of sources isoperating in violation of the provisions of this Article and that theappropriate local authorities have not acted to abate such violation, theCommission, upon written notice to the appropriate local governing body, mayact on behalf of the State to require any person causing or contributing to thepollution to cease immediately the emission of air pollutants causing orcontributing to the violation or may require such other action as it shall deemnecessary. (1973, c. 821, s.6; c. 1262, s. 23; c. 1331, s. 3; 1979, c. 545, s. 7; 1987, c. 748, s. 1; c.827, ss. 1, 154, 210; 1989, c. 135, s. 7; 1993, c. 400, s. 10; 1997‑496,s. 6.)
§ 143‑215.112. Local air pollution control programs.
(a) The Commission is authorized and directed to review and havegeneral oversight and supervision over all local air pollution control programsand to this end shall review and certify such programs as being adequate tomeet the requirements of this Article and Article 21 of this Chapter and anyapplicable standards and rules adopted pursuant thereto. The Commission shallcertify any local program which:
(1) Provides by ordinance or local law for requirementscompatible with those imposed by the provisions of this Article and Article 21of this Chapter, and the standards and rules issued pursuant thereto; provided,however, the Commission upon request of a municipality or other local unit maygrant special permission for the governing body of such unit to adopt aparticular class of air contaminant regulations which would result in moreeffective air pollution control than applicable standards or rules promulgatedby the Commission;
(2) Provides for the adequate enforcement of such requirementsby appropriate administrative and judicial process;
(3) Provides for an adequate administrative organization, staff,financial and other resources necessary to effectively and efficiently carryout its programs; and
(4) Is approved by the Commission as adequate to meet therequirements of this Article and any applicable rules pursuant thereto.
(b) No municipality, county, local board or commission or groupof municipalities and counties may establish and administer an air pollutioncontrol program unless such program meets the requirements of this section andis so certified by the Commission.
(c) (1) The governing body of anycounty, municipality, or group of counties and municipalities within adesignated area of the State, as defined in this Article and Article 21,subject to the approval of the Commission, is hereby authorized to establish,administer, and enforce a local air pollution control program for the county,municipality, or designated area of the State which includes but is not limitedto:
a. Development of a comprehensive plan for the control andabatement of new and existing sources of air pollution;
b. Air quality monitoring to determine existing air quality andto define problem areas, as well as to provide background data to show theeffectiveness of a pollution abatement program;
c. An emissions inventory to identify specific sources of aircontamination and the contaminants emitted, together with the quantity ofmaterial discharged into the outdoor atmosphere;
d. Adoption, after notice and public hearing, of air qualityand emission control standards, or adoption by reference, without publichearing, of any applicable rules and standards duly adopted by the Commission;and administration of such rules and standards in accordance with provisions ofthis section.
e. Provisions for the establishment or approval of timeschedules for the control or abatement of existing sources of air pollution andfor the review of plans and specifications and issuance of approval documentscovering the construction and operation of pollution abatement facilities atexisting or new sources;
f. Provision for adequate administrative staff, including anair pollution control officer and technical personnel, and provision for laboratoryand other necessary facilities.
(2) Subject to the approval of the Commission as provided inthis Article and Article 21, the governing body of any county or municipalitymay establish, administer, and enforce an air pollution control program by anyof the following methods:
a. Establishing a program under the administration of the dulyelected governing body of the county or municipality.
b. Appointing an air pollution control board consisting of notless than five nor more than seven members who shall serve for terms of sixyears each and until their successors are appointed and qualified. Two membersshall be appointed for two‑year terms, two shall be appointed for four‑yearterms, and the remaining member or members shall be appointed for six‑yearterms. Where the term "governing body" is referred to in thissection, it shall include the air pollution control board. Such board shallhave all the powers and authorities granted to any local air pollution controlprogram. The board shall elect a chairman and shall meet at least quarterly orupon the call of the chairman or any two members of the board.
c. Appointing an air pollution control board as provided inthis subdivision, and by appropriate written agreement designating the localhealth department or other department of county or municipal government as theadministrative agent for the air pollution control board.
d. Designating, by appropriate written agreement, the localboard of health and the local health department as the air pollution controlboard and agency.
(2a) Any board or body which approves permits or enforcementorders shall have at least a majority of members who represent the publicinterest and do not derive any significant portion of their income from personssubject to permits or enforcement orders under the Clean Air Act and anypotential conflicts of interest by members of such board or body or the head ofan executive agency with similar powers shall be adequately disclosed.
(3) If the Commission finds that the location, character orextent of particular concentrations of population, air contaminant sources, thegeographic, topographic or meteorological considerations, or any combinationsthereof, are such as to make impracticable the maintenance of appropriatelevels of air quality without an area‑wide air pollution control program,the Commission may determine the boundaries within which such program isnecessary and require such area‑wide program as the only acceptablealternative to direct State administration. Subject to the provisions of thissection, each governing body of a county or municipality is hereby authorizedand empowered to establish by contract, joint resolution, or other agreementwith any other governing body of a county or municipality, upon approval by theCommission, an air pollution control region containing any part or all of thegeographical area within the jurisdiction of those boards or governing bodieswhich are parties to such agreement, provided the counties involved in theregion are contiguous or lie in a continuous boundary and comprise the totalarea contained in any region designated by the Commission for an area‑wideprogram. The participating parties are authorized to appoint a regional airpollution control board which shall consist of at least five members who shallserve for terms of six years and until their successors are appointed andqualified. Two members shall be appointed for two‑year terms, two shallbe appointed for four‑year terms and the remaining member or membersshall be appointed for six‑year terms. A participant's representation onthe board shall be in relation to its population to the total population of theregion based on the latest official United States census with each participantin the region having at least one representative; provided, that where theregion is comprised of less than five counties, each participant will beentitled to appoint members in relation to its population to that of the regionso as to provide a board of at least five members. Where the term"governing body" is used, it shall include the governing board of aregion. The regional board is hereby authorized to exercise any and all of thepowers provided in this section. The regional air pollution control board shallelect a chairman and shall meet at least quarterly or upon the call of thechairman or any two members of the board. In lieu of employing its own staff,the regional air pollution control board is authorized, through appropriatewritten agreement, to designate a local health department as its administrativeagent.
(4) Each governing body is authorized to adopt any ordinances,resolutions, rules or regulations which are necessary to establish and maintainan air pollution control program and to prescribe and enforce air quality and emissioncontrol standards, a copy of which must be filed with the Commission and withthe clerk of court of any county affected. Provisions may be made therein forthe registration of air contaminant sources; for the requirement of a permit todo or carry out specified activities relating to the control of air pollution,including procedures for application, issuance, denial and revocation; fornotification of violators or potential violators about requirements orconditions for compliance; for procedures to grant temporary permits orvariances from requirements or standards; for the declaration of an emergencywhen it is found that a generalized condition of air pollution is causingimminent danger to the health or safety of the public and the issuance of anorder to the responsible person or persons to reduce or discontinue immediatelythe emission of air contaminants; for notice and hearing procedures for personsaggrieved by any action or order of any authorized agent; for the establishmentof an advisory council and for other administrative arrangements; and for othermatters necessary to establish and maintain an air pollution control program.
(5) No permit required by section 305(e) of Title III (42 U.S.C.§ 7429(e)) for a solid waste incineration unit combusting municipal waste shallbe issued by a local air pollution control program that is administered by thegoverning body of a unit of local government that is responsible, in whole orin part, for the design, construction, or operation of the unit.
(d) (1) Violation of any ordinances,resolutions, rules or regulations duly adopted by a governing body arepunishable as provided in G.S. 143‑215.114B.
(1a) Each governing body, or its authorized agent, shall have thepower to assess civil penalties under G.S. 143‑215.114A. Any personassessed shall be notified of the assessment by registered or certified mail,and the notice shall specify the reasons for the assessment. If the personassessed fails to pay the amount of the assessment to the governing body or itsauthorized agent within 30 days after receipt of notice, or such longer periodnot to exceed 180 days as the governing body or its authorized agent mayspecify, the governing body may institute a civil action in the superior courtof the county in which the violation occurred, to recover the amount of theassessment. If any action or failure to act for which a penalty may be assessedunder this section is continuous, the governing body or its authorized agentmay assess a penalty not to exceed ten thousand dollars ($10,000) per day forso long as the violation continues. In determining the amount of the penalty,the governing body or its authorized agent shall consider the degree and extentof harm caused by the violation, the cost of rectifying the damage, and theamount of money the violator saved by not having made the necessaryexpenditures to comply with the appropriate pollution control requirements.
(2) Each governing body, or its duly authorized agent, mayinstitute a civil action in the superior court, brought in the name of theagency having jurisdiction, for injunctive relief to restrain any violation orimmediately threatened violation of such ordinances, orders, rules, orregulations and for such other relief as the court shall deem proper. Neitherthe institution of the action nor any of the proceedings thereon shall relieveany party to such proceedings from the penalty prescribed by this Article andArticle 21 for any violation of same.
(d1) (1) The governing body responsiblefor each local air pollution control program shall require that the owner oroperator of all air contaminant sources subject to the requirement to obtain apermit under Title V pay an annual fee, or the equivalent over some otherperiod, sufficient to cover costs as provided in section 502(b)(3)(A) of TitleV (42 U.S.C. § 7661a(b)(3)(A)) and G.S. 143‑215.3(a)(1d). Fees collectedpursuant to this subdivision shall be used solely to cover all reasonabledirect and indirect costs required to develop and administer the Title V permitprogram.
(2) Each governing body is authorized to expend tax funds,nontax funds, or any other funds available to it to finance an air pollutioncontrol program and such expenditures are hereby declared to be for a publicpurpose and a necessary expense.
(d2) (1) Any final administrative decisionrendered in an air pollution control program of such governing body shall besubject to judicial review as provided by Article 4 of Chapter 150B of theGeneral Statutes, and "administrative agency" or "agency"as used therein shall mean and include for this purpose the governing body ofany county or municipality, regional air pollution control governing board, andany agency created by them in connection with an air pollution control program.
(2) A local air pollution control program shall inform a permitapplicant as to whether or not the application is complete within the timespecified in the rules for action on the application. If a local air pollutionprogram fails to act on an application for a permit required by Title V or thisArticle within the time periods specified by the Commission under G.S 143‑215.108(d)(2),the failure to act on the application constitutes a final agency decision todeny the permit. A permit applicant, permittee, or other person aggrieved, asdefined in G.S. 150B‑2, may seek judicial review of a failure to act onthe application as provided in G.S. 143‑215.5 and Article 4 of Chapter150B of the General Statutes. Notwithstanding the provisions of G.S. 150B‑51,upon review of a failure to act on an application for a permit required byTitle V or this Article, a court may either: (i) affirm the denial of thepermit or (ii) remand the application to the local air pollution controlprogram for action upon the application within a specified time.
(e) (1) If the Commission has reason tobelieve that a local air pollution control program certified and in forcepursuant to the provisions of this section is inadequate to abate or controlair pollution in the jurisdiction to which such program relates, or that suchprogram is being administered in a manner inconsistent with the requirement ofthis Article, the Commission shall, upon due notice, conduct a hearing on thematter.
(2) If, after such hearing, the Commission determines that an existinglocal air pollution control program or one which has been certified by theCommission is inadequate to abate or control air pollution in the municipality,county, or municipalities or counties to which such program relates, or thatsuch program is not accomplishing the purposes of this Article, it shall setforth in its findings the corrective measures necessary for continuedcertification and shall specify a reasonable period of time, not to exceed oneyear, in which such measures must be taken if certification is not to berescinded.
(3) If the municipality, county, local board or commission ormunicipalities or counties fail to take such necessary corrective action withinthe time specified, the Commission shall rescind any certification as may havebeen issued for such program and shall administer within such municipality,county, or municipalities or counties all of the regulatory provisions of thisArticle and Article 21. Such air pollution control program shall supersede allmunicipal, county or local laws, regulations, ordinances and requirements inthe affected jurisdiction.
(4) If the Commission finds that the control of a particularclass of air contaminant source because of its complexity or magnitude isbeyond the reasonable capability of the local air pollution control authoritiesor may be more efficiently and economically performed at the State level, itmay assume and retain jurisdiction over that class of air contaminant source.Classification pursuant to this subdivision may be either on the basis of thenature of the sources involved or on the basis of their relationship to thesize of the communities in which they are located.
(5) Any municipality or county in which the Commissionadministers its air pollution control program pursuant to subdivision (3) ofthis subsection may, with the approval of the Commission, establish or resume amunicipal, county, or local air pollution control program which meets therequirements for certification by the Commission.
(6) Repealed by Session Laws 1993, c. 400, s. 10.
(7) Any municipality, county, local board or commission ormunicipalities or counties or designated area of this State for which a localair pollution control program is established or proposed for establishment maymake application for, receive, administer and expend federal grant funds forthe control of air pollution or the development and administration of programsrelated to air pollution control; provided that any such application is firstsubmitted to and approved by the Commission. The Commission shall approve anysuch application if it is consistent with this Article, Article 21 and otherapplicable requirements of law.
(8) Notwithstanding any other provision of this section, if theCommission determines that an air pollution source or combination of sources isoperating in violation of the provisions of this Article and that theappropriate local authorities have not acted to abate such violation, theCommission, upon written notice to the appropriate local governing body, mayact on behalf of the State to require any person causing or contributing to thepollution to cease immediately the emission of air pollutants causing orcontributing to the violation or may require such other action as it shall deemnecessary. (1973, c. 821, s.6; c. 1262, s. 23; c. 1331, s. 3; 1979, c. 545, s. 7; 1987, c. 748, s. 1; c.827, ss. 1, 154, 210; 1989, c. 135, s. 7; 1993, c. 400, s. 10; 1997‑496,s. 6.)
