Appendix M 

Adopted State Measures
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INTRODUCTION 

This Appendix contains the North Carolina rules and legislation that have been adopted that 

impact fine particulate matter pollution. Below is listed the rules and legislations, with a short 

description, and the corresponding page numbers where the measure can be found. 

New Source Review Rules (2D.0530-.0532) ...................................................................................1 

The purpose of the rule is to implement a program for the prevention of significant 

deterioration of air quality. 2D.0530 pertains to sources located in attainment areas of the 

State, 2D.0531 pertains to sources located within a nonattainment area and 2D.0532 

pertains to sources that contribute to nonattainment areas. 

Open Burning (2D.1900) ...............................................................................................................11 

 This section contains the prohibition of open burning on air quality action days. 

Clean Air Interstate Rule (2D.2400) ..............................................................................................22 

 This section contains the requirements in order to meet the US Environmental Protection 

Agency’s Clean Air Interstate Rule. 

Senate Bill 1078 (North Carolina Clean Smokestacks Act) ..........................................................37 

 This legislation requires a annual NOx and sulfur dioxide budget for the two largest 

utility companies in North Carolina, Duke Energy and Progress Energy. 

2009 Compliance Plan for Duke Energy .......................................................................................49 

 This document outlines Duke Energy’s compliance plan to meet the requirements of the 

North Carolina Clean Smokestacks Act. 

2009 Compliance Plan for Progress Energy ..................................................................................63 

 This document outlines Duke Energy’s compliance plan to meet the requirements of the 

North Carolina Clean Smokestacks Act. 

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Adopted State Measures iii 

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15A NCAC 02D .0530 PREVENTION OF SIGNIFICANT DETERIORATION 

(a) The purpose of the Rule is to implement a program for the prevention of significant deterioration of air quality as 

required by 40 CFR 51.166. 

(b) For the purposes of this Rule the definitions contained in 40 CFR 51.166(b) and 40 CFR 51.301 shall apply except 

the definition of "baseline actual emissions." 

(1) "Baseline actual emissions" means the rate of emissions, in tons per year, of a regulated new source 

review (NSR) pollutant, as determined in accordance with Parts (A) through (C) of this Subparagraph: 

(A) For an existing emissions unit, baseline actual emissions means the average rate, in tons per 

year, at which the emissions unit actually emitted the pollutant during any consecutive 24-

month period selected by the owner or operator within the 5-year period immediately 

preceding the date that a complete permit application is received by the Division for a permit 

required under this Rule. The Director shall allow a different time period, not to exceed 10 

years immediately preceding the date that a complete permit application is received by the 

Division, if the owner or operator demonstrates that it is more representative of normal 

source operation. For the purpose of determining baseline actual emissions, the following 

shall apply: 

(i) The average rate shall include fugitive emissions to the extent quantifiable, and 

emissions associated with startups, shutdowns, and malfunctions. 

(ii) The average rate shall be adjusted downward to exclude any non-compliant 

emissions that occurred while the source was operating above any emission 

limitation that was legally enforceable during the consecutive 24-month period. 

(iii) For an existing emission unit (other than an electric utility steam generating unit), 

the average rate shall be adjusted downward to exclude any emissions that would 

have exceeded an emission limitation with which the major stationary source must 

currently comply. However, if the State has taken credit in an attainment 

demonstration or maintenance plan consistent with the requirements of 40 CFR 

51.165(a)(3)(ii)(G) for an emission limitation that is part of a maximum achievable 

control technology standard that the Administrator proposed or promulgated under 

part 63 of the Code of Federal Regulations, the baseline actual emissions shall be 

adjusted to account for such emission reductions. 

(iv) For an electric utility steam generating unit, the average rate shall be adjusted 

downward to reflect any emissions reductions under G. S. 143-215.107D and for 

which cost recovery is sought pursuant to G. S. 62-133.6. 

(v) For a regulated NSR pollutant, when a project involves multiple emissions units, 

only one consecutive 24-month period shall be used to determine the baseline actual 

emissions for all the emissions units being changed. A different consecutive 24-

month period for each regulated NSR pollutant can be used for each regulated NSR 

pollutant. 

(vi) The average rate shall not be based on any consecutive 24-month period for which 

there is inadequate information for determining annual emissions, in tons per year, 

and for adjusting this amount if required by Subparts (ii) and (iii) of this Part. 

(B) For a new emissions unit, the baseline actual emissions for purposes of determining the 

emissions increase that will result from the initial construction and operation of such unit 

shall equal zero; and thereafter, for all other purposes, shall equal the unit's potential to emit. 

(C) For a plantwide applicability limit (PAL) for a stationary source, the baseline actual 

emissions shall be calculated for existing emissions units in accordance with the procedures 

contained in Part (A) of this Subparagraph, and for a new emissions unit in accordance with 

the procedures contained in Part (B) of this Subparagraph. 

(2) In the definition of "net emissions increase," the reasonable period specified in 40 CFR 

51.166(b)(3)(ii) shall be seven years. 

(3) The limitation specified in 40 CFR 51.166(b)(15)(ii) shall not apply. 

(c) All areas of the State shall be classified as Class II except that the following areas are Class I: 

(1) Great Smoky Mountains National Park; 

(2) Joyce Kilmer Slickrock National Wilderness Area; 

(3) Linville Gorge National Wilderness Area; 

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(4) Shining Rock National Wilderness Area; 

(5) Swanquarter National Wilderness Area. 

(d) Redesignations of areas to Class I or II may be submitted as state proposals to the Administrator of the 

Environmental Protection Agency (EPA), if the requirements of 40 CFR 51.166(g)(2) are met. Areas may be proposed to 

be redesignated as Class III, if the requirements of 40 CFR 51.166(g)(3) are met. Redesignations may not, however, be 

proposed which would violate the restrictions of 40 CFR 51.166(e). Lands within the boundaries of Indian Reservations 

may be redesignated only by the appropriate Indian Governing Body. 

(e) In areas designated as Class I, II, or III, increases in pollutant concentration over the baseline concentration shall be 

limited to the values set forth in 40 CFR 51.166(c). However, concentration of the pollutant shall not exceed standards 

set forth in 40 CFR 51.166(d). 

(f) Concentrations attributable to the conditions described in 40 CFR 51.166(f)(1) shall be excluded in determining 

compliance with a maximum allowable increase. However, the exclusions referred to in 40 CFR 51.166(f)(1)(i) or (ii) 

shall be limited to five years as described in 40 CFR 51.166(f)(2). 

(g) Major stationary sources and major modifications shall comply with the requirements contained in 40 CFR 51.166(i) 

and (a)(7) and by extension in 40 CFR 51.166(j) through (o) and (w). The transition provisions allowed by 40 CFR 52.21 

(i)(11)(i) and (ii) and (m)(1)(vii) and (viii) are hereby adopted under this Rule. The minimum requirements described in 

the portions of 40 CFR 51.166 referenced in this Paragraph are hereby adopted as the requirements to be used under this 

Rule, except as otherwise provided in this Rule. Wherever the language of the portions of 40 CFR 51.166 referenced in 

this Paragraph speaks of the "plan," the requirements described therein shall apply to the source to which they pertain, 

except as otherwise provided in this Rule. Whenever the portions of 40 CFR 51.166 referenced in this Paragraph provide 

that the State plan may exempt or not apply certain requirements in certain circumstances, those exemptions and 

provisions of nonapplicability are also hereby adopted under this Rule. However, this provision shall not be interpreted 

so as to limit information that may be requested from the owner or operator by the Director as specified in 40 CFR 

51.166(n)(2). 

(h) New natural gas-fired electrical utility generating units shall install best available control technology for NOX and 

SO2. 

(i) 40 CFR 51.166(w)(10)(iv)(a) is changed to read: "If the emissions level calculated in accordance with Paragraph 

(w)(6) of this Section is equal to or greater than 80 percent of the PAL [plant wide applicability limit] level, the Director 

shall renew the PAL at the same level." 40 CFR 51.166(w)(10)(iv)(b) is not incorporated by reference. 

(j) 15A NCAC 02Q .0102 and .0302 are not applicable to any source to which this Rule applies. The owner or operator 

of the sources to which this Rule applies shall apply for and receive a permit as required in 15A NCAC 02Q .0300 or 

.0500. 

(k) When a particular source or modification becomes a major stationary source or major modification solely by virtue of 

a relaxation in any enforceable limitation which was established after August 7, 1980, on the capacity of the source or 

modification to emit a pollutant, such as a restriction on hours of operation, then the provisions of this Rule shall apply to 

the source or modification as though construction had not yet begun on the source or modification. 

(l) The provisions of 40 CFR 52.21(r)(2) regarding the period of validity of approval to construct are incorporated by 

reference except that the term "Administrator" is replaced with "Director". 

(m) Volatile organic compounds exempted from coverage in 40 CFR 51.100(s) shall also be exempted when calculating 

source applicability and control requirements under this Rule. 

(n) The degree of emission limitation required for control of any air pollutant under this Rule shall not be affected in any 

manner by: 

(1) that amount of a stack height, not in existence before December 31, 1970, that exceeds good 

engineering practice; or 

(2) any other dispersion technique not implemented before then. 

(o) A substitution or modification of a model as provided for in 40 CFR 51.166(l) shall be subject to public comment 

procedures in accordance with the requirements of 40 CFR 51.102. 

(p) Permits may be issued on the basis of innovative control technology as set forth in 40 CFR 51.166(s)(1) if the 

requirements of 40 CFR 51.166(s)(2) have been met, subject to the condition of 40 CFR 51.166(s)(3), and with the 

allowance set forth in 40 CFR 51.166(s)(4). 

(q) If a source to which this Rule applies impacts an area designated Class I by requirements of 40 CFR 51.166(e), 

notice to EPA will be provided as set forth in 40 CFR 51.166(p)(1). If the Federal Land Manager presents a 

demonstration described in 40 CFR 51.166(p)(3) during the public comment period or public hearing to the Director and 

if the Director concurs with this demonstration, the permit application shall be denied. Permits may be issued on the basis 

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that the requirements for variances as set forth in 40 CFR 51.166(p)(4), (p)(5) and (p)(7), or (p)(6) and (p)(7) have been 

satisfied. 

(r) A permit application subject to this Rule shall be processed in accordance with the procedures and requirements of 40 

CFR 51.166(q). Within 30 days of receipt of the application, applicants shall be notified if the application is complete as 

to initial information submitted. Commencement of construction before full prevention of significant deterioration 

approval is obtained constitutes a violation of this Rule. 

(s) Approval of an application with regard to the requirements of this Rule shall not relieve the owner or operator of the 

responsibility to comply fully with applicable provisions of other rules of this Subchapter or Subchapter 02Q of this Title 

and any other requirements under local, state, or federal law. 

(t) When a source or modification subject to this Rule may affect the visibility of a Class I area named in Paragraph (c) 

of this Rule, the following procedures shall apply: 

(1) The Director shall provide written notification to all affected Federal Land Managers within 30 days of 

receiving the permit application or within 30 days of receiving advance notification of an application. 

The notification shall be at least 30 days prior to the publication of notice for public comment on the 

application. The notification shall include a copy of all information relevant to the permit application 

including an analysis provided by the source of the potential impact of the proposed source on 

visibility. 

(2) The Director shall consider any analysis concerning visibility impairment performed by the Federal 

Land Manager if the analysis is received within 30 days of notification. If the Director finds that the 

analysis of the Federal Land Manager fails to demonstrate to his satisfaction that an adverse impact on 

visibility will result in the Class I area, the Director shall provide in the notice of public hearing on the 

application, an explanation of his decision or notice as to where the explanation can be obtained. 

(3) The Director may require monitoring of visibility in or around any Class I area by the proposed new 

source or modification when the visibility impact analysis indicates possible visibility impairment. 

(u) If the owner or operator of a source is using projected actual emissions to avoid applicability of prevention of 

significant deterioration requirements, the owner or operator shall notify the Director of the modification before 

beginning actual construction. The notification shall include: 

(1) a description of the project, 

(2) identification of sources whose emissions could be affected by the project, 

(3) the calculated projected actual emissions and an explanation of how the projected actual emissions 

were calculated, including identification of emissions excluded by 40 CFR 51.166(b)(40)(ii)(c), 

(4) the calculated baseline actual emissions and an explanation of how the baseline actual emissions were 

calculated, and 

(5) any netting calculations if applicable. 

If upon reviewing the notification, the Director finds that the project will cause a prevention of significant deterioration 

evaluation, then the Director shall notify the owner or operator of his findings. The owner or operator shall not make the 

modification until it has received a permit issued pursuant to this Rule. If a permit revision is not required pursuant to this

rule, the owner or operator shall maintain records of annual emissions in tons per year, on a calendar year basis related to 

the modifications for 10 years following resumption of regular operations after the change if the project involves 

increasing the emissions unit's design capacity or its potential to emit the regulated NSR pollutant; otherwise these 

records shall be maintained for five years following resumption of regular operations after the change. The owner or 

operator shall submit a report to the director within 60 days after the end of each year during which these records must be 

generated. The report shall contain the items listed in 40 CFR 51.166(r)(6)(v)(a) through (c). The owner or operator shall 

make the information documented and maintained under this Paragraph available to the Director or the general public 

pursuant to the requirements in 40 CFR 70.4(b)(3)(viii). 

(v) The reference to the Code of Federal Regulations (CFR) in this Rule are incorporated by reference unless a specific 

reference states otherwise. The version of the Code of Federal Regulations incorporated in this Rule is that as of June 13, 

2007 except those provisions noticed as stayed in 69 FR 40274, and does not include any subsequent amendments or 

editions to the referenced material. 

History Note: Authority G.S. 143-215.3(a)(1); 143-215.107(a)(3); 143-215.107(a)(5); 143-215.107(a)(7); 143-

215.108(b); 150B-21.6; 

Eff. June 1, 1981; 

Amended Eff. December 1, 1992; August 1, 1991; 

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Temporary Amendment Eff. March 8, 1994, for a period of 180 days or until the permanent rule is 

effective, whichever is sooner; 

Amended Eff. May 1, 2008; July 28, 2006; July 1, 1997; February 1, 1995; July 1, 1994. 

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15A NCAC 02D .0531 SOURCES IN NONATTAINMENT AREAS 

(a) For the purpose of this Rule the definitions contained in 40 CFR 51.165(a)(1) and 40 CFR 51.301 shall apply except 

the definition of "baseline actual emissions." 

(1) "Baseline actual emissions" means the rate of emissions, in tons per year, of a regulated new source 

review (NSR) pollutant, as determined in accordance with Parts (A) through (C) of this Subparagraph: 

(A) For an existing emissions unit, baseline actual emissions means the average rate, in tons per 

year, at which the emissions unit actually emitted the pollutant during any consecutive 24-

month period selected by the owner or operator within the 5-year period immediately 

preceding the date that a complete permit application is received by the Division for a permit 

required under this Rule. The Director shall allow a different time period, not to exceed 10 

years immediately preceding the date that a complete permit application is received by the 

Division, if the owner or operator demonstrates that it is more representative of normal 

source operation. For the purpose of determining baseline actual emissions, the following 

shall apply: 

(i) The average rate shall include fugitive emissions to the extent quantifiable, and 

emissions associated with startups, shutdowns, and malfunctions. 

(ii) The average rate shall be adjusted downward to exclude any non-compliant 

emissions that occurred while the source was operating above any emission 

limitation that was legally enforceable during the consecutive 24-month period. 

(iii) For an existing emission unit (other than an electric utility steam generating unit), 

the average rate shall be adjusted downward to exclude any emissions that would 

have exceeded an emission limitation with which the major stationary source must 

currently comply. However, if the State has taken credit in an attainment 

demonstration or maintenance plan consistent with the requirements of 40 CFR 

51.165(a)(3)(ii)(G) for an emission limitation that is part of a maximum achievable 

control technology standard that the Administrator proposed or promulgated under 

part 63 of the Code of Federal Regulations, the baseline actual emissions shall be 

adjusted to account for such emission reductions. 

(iv) For an electric utility steam generating unit, the average rate shall be adjusted 

downward to reflect any emissions reductions under G.S. 143-215.107D and for 

which cost recovery is sought pursuant to G.S. 62-133.6. 

(v) For a regulated NSR pollutant, when a project involves multiple emissions units, 

only one consecutive 24-month period shall be used to determine the baseline actual 

emissions for all the emissions units being changed. A different consecutive 24-

month period for each regulated NSR pollutant. 

(vi) The average rate shall not be based on any consecutive 24-month period for which 

there is inadequate information for determining annual emissions, in tons per year, 

and for adjusting this amount if required by Subparts (ii) and (iii) of this Part. 

(B) For a new emissions unit, the baseline actual emissions for purposes of determining the 

emissions increase that will result from the initial construction and operation of such unit 

shall equal zero; and thereafter, for all other purposes, shall equal the unit's potential to emit. 

(C) For a plantwide applicability limit (PAL) for a stationary source, the baseline actual 

emissions shall be calculated for existing emissions units in accordance with the procedures 

contained in Part (A) of this Subparagraph, and for a new emissions unit in accordance with 

the procedures contained in Part (B) of this Subparagraph. 

(2) In the definition of "net emissions increase," the reasonable period specified in 40 CFR 

51.165(a)(1)(vi)(C)(1) shall be seven years. 

(b) Redesignation to Attainment. If any county or part of a county to which this Rule applies is later designated in 40 

CFR 81.334 as attainment for ozone or carbon monoxide, all sources in that county subject to this Rule before the 

redesignation date shall continue to comply with this Rule. 

(c) Applicability. 40 CFR 51.165(a)(2) is incorporated by reference. This Rule applies to the following areas: 

(1) Ozone Nonattainment Areas, to major stationary sources and major modifications of sources of 

volatile organic compounds or nitrogen oxides for which construction commences after the area in 

which the source is located is designated according to Part (A) or (B) of this Subparagraph: 

(A) areas designated in 40 CFR 81.334 as nonattainment for ozone, or 

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(B) any of the following areas and in that area only when the Director notices in the North 

Carolina Register that the area is in violation of the ambient air quality standard for ozone: 

(i) Charlotte/Gastonia, consisting of Mecklenburg and Gaston Counties; with the 

exception allowed under Paragraph (l) of this Rule; 

(ii) Greensboro/Winston-Salem/High Point, consisting of Davidson, Forsyth, and 

Guilford Counties and that part of Davie County bounded by the Yadkin River, 

Dutchmans Creek, North Carolina Highway 801, Fulton Creek and back to Yadkin 

River; or 

(iii) Raleigh/Durham, consisting of Durham and Wake Counties and Dutchville 

Township in Granville County. 

Violations of the ambient air quality standard for ozone shall be determined according to 40 

CFR 50.9. 

(2) Carbon Monoxide Nonattainment Areas. This Rule applies to major stationary sources and major 

modifications of sources of carbon monoxide located in areas designated in 40 CFR 81.334 as 

nonattainment for carbon monoxide and for which construction commences after the area in which the 

source is located is listed in 40 CFR 81.334 as nonattainment for carbon monoxide. 

(d) This Rule is not applicable to: 

(1) complex sources of air pollution regulated only under Section .0800 of this Subchapter and not under 

any other rule in this Subchapter; 

(2) emission of pollutants at the new major stationary source or major modification located in the 

nonattainment area that are pollutants other than the pollutant or pollutants for which the area is 

nonattainment. (A major stationary source or major modification that is major for volatile organic 

compounds or nitrogen oxides is also major for ozone.); 

(3) emission of pollutants for which the source or modification is not major; 

(4) a new source or modification that qualifies for exemption under the provision of 40 CFR 51.165(a)(4); 

or 

(5) emission of compounds listed under 40 CFR 51.100(s) as having been determined to have negligible 

photochemical reactivity except carbon monoxide. 

(e) 15A NCAC 02Q .0102 and .0302 are not applicable to any source to which this Rule applies. The owner or operator 

of the source shall apply for and receive a permit as required in 15A NCAC 02Q .0300 or .0500. 

(f) To issue a permit to a source to which this Rule applies, the Director shall determine that the source meets the 

following requirements: 

(1) The new major stationary source or major modification will emit the nonattainment pollutant at a rate 

no more than the lowest achievable emission rate; 

(2) The owner or operator of the proposed new major stationary source or major modification has 

demonstrated that all major stationary sources in the State that are owned or operated by this person 

(or any entity controlling, controlled by, or under common control with this person) are subject to 

emission limitations and are in compliance, or on a schedule for compliance that is federally 

enforceable or contained in a court decree, with all applicable emission limitations and standards of 

this Subchapter that EPA has authority to approve as elements of the North Carolina State 

Implementation Plan for Air Quality; 

(3) The owner or operator of the proposed new major stationary source or major modification will obtain 

sufficient emission reductions of the nonattainment pollutant from other sources in the nonattainment 

area so that the emissions from the new major source and associated new minor sources will be less 

than the emissions reductions by a ratio of at least 1.00 to 1.15 for volatile organic compounds and 

nitrogen oxides and by a ratio of less than one to one for carbon monoxide. The baseline for this 

emission offset shall be the actual emissions of the source from which offset credit is obtained. 

Emission reductions shall not include any reductions resulting from compliance (or scheduled 

compliance) with applicable rules in effect before the application. The difference between the 

emissions from the new major source and associated new minor sources of carbon monoxide and the 

emission reductions shall be sufficient to represent reasonable further progress toward attaining the 

Ambient Air Quality Standards. The emissions reduction credits shall also conform to the provisions 

of 40 CFR 51.165(a)(3)(ii)(A) through (G) and (J); and 

(4) The North Carolina State Implementation Plan for Air Quality is being carried out for the 

nonattainment area in which the proposed source is located. 

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(g) New natural gas-fired electrical utility generating units shall install lowest achievable emission rate technology for 

NOX and SO2. 

(h) 40 CFR 51.165(f) is incorporated by reference except that 40 CFR 51.165(f)(10)(iv)(A) is changed to read: "If the 

emissions level calculated in accordance with Paragraph (f)(6) of this Section is equal to or greater than 80 percent of the 

PAL level, the Director shall renew the PAL at the same level." 40 CFR 51.165(f)(10)(iv)(B) is not incorporated by 

reference. 

(i) When a particular source or modification becomes a major stationary source or major modification solely by virtue of 

a relaxation in any enforceable limitation established after August 7, 1980, on the capacity of the source or modification 

to emit a pollutant, such as a restriction on hours of operation, then the provisions of this Rule shall apply to the source or

modification as though construction had not yet begun on the source or modification. 

(j) To issue a permit to a source of a nonattainment pollutant, the Director shall determine, in addition to the other 

requirements of this Rule, that an analysis (produced by the permit applicant) of alternative sites, sizes, production 

processes, and environmental control techniques for the source demonstrates that the benefits of the source significantly 

outweigh the environmental and social costs imposed as a result of its location, construction, or modification. 

(k) The provisions of 40 CFR 52.21(r)(2) regarding the period of validity of approval to construct are incorporated by 

reference except that the term "Administrator" is replaced with "Director". 

(l) Approval of an application regarding the requirements of this Rule shall not relieve the owner or operator of the 

responsibility to comply fully with applicable provisions of other rules of this Chapter and any other requirements under 

local, state, or federal law. 

(m) When a source or modification subject to this Rule may affect the visibility of a Class I area named in Paragraph (c) 

of Rule .0530 of this Section, the following procedures shall be followed: 

(1) The owner or operator of the source shall provide an analysis of the impairment to visibility that would 

occur because of the source or modification and general commercial, industrial and other growth 

associated with the source or modification; 

(2) The Director shall provide written notification to all affected Federal Land Managers within 30 days of 

receiving the permit application or within 30 days of receiving advance notification of an application. 

The notification shall be at least 30 days before the publication of the notice for public comment on the 

application. The notification shall include a copy of all information relevant to the permit application 

including an analysis provided by the source of the potential impact of the proposed source on 

visibility; 

(3) The Director shall consider any analysis concerning visibility impairment performed by the Federal 

Land Manager if the analysis is received within 30 days of notification. If the Director finds that the 

analysis of the Federal Land Manager fails to demonstrate to his satisfaction that an adverse impact on 

visibility will result in the Class I area, the Director shall provide in the notice of public hearing on the 

application, an explanation of his decision or notice where the explanation can be obtained; 

(4) The Director shall issue permits only to those sources whose emissions will be consistent with making 

reasonable progress toward the national goal of preventing any future, and remedying any existing, 

impairment of visibility in mandatory Class I areas when the impairment results from manmade air 

pollution. In making the decision to issue a permit, the Director shall consider the cost of compliance, 

the time necessary for compliance, the energy and nonair quality environmental impacts of 

compliance, and the useful life of the source; and 

(5) The Director may require monitoring of visibility in or around any Class I area by the proposed new 

source or modification when the visibility impact analysis indicates possible visibility impairment. 

The requirements of this Paragraph shall not apply to nonprofit health or nonprofit educational institutions. 

(n) Paragraphs (f) and (j) of this Rule shall not apply to a new major stationary source or a major modification of a 

source of volatile organic compounds or nitrogen oxides for which construction commences after the area in which the 

source is located has been designated according to Part (c)(1)(B) of this Rule and before the area is designated in 40 CFR 

81.334 as nonattainment for ozone if the owner or operator of the source demonstrates, using the Urban Airshed Model 

(UAM), that the new source or modification will not contribute to or cause a violation. The model used shall be that 

maintained by the Division. The Division shall run the model only after the permit application has been submitted. The 

permit application shall be incomplete until the modeling analysis is completed. The owner or operator of the source shall 

apply such degree of control and obtain such offsets necessary to demonstrate the new source or modified source will not 

cause or contribute to a violation. 

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(o) If the owner or operator of a source is using projected actual emissions to avoid applicability of nonattainment new 

source review, the owner or operator shall notify the director of the modification before beginning actual construction. 

The notification shall include: 

(1) a description of the project, 

(2) identification of sources whose emissions could be affected by the project, 

(3) the calculated projected actual emissions and an explanation of how the projected actual emissions 

were calculated, including identification of emissions excluded by 40 CFR 51.165(a)(1)(xxviii)(B)(3), 

(4) the calculated baseline actual emissions and an explanation of how the baseline actual emissions were 

calculated, and 

(5) any netting calculations if applicable. 

If upon reviewing the notification, the Director finds that the project will cause a nonattainment new source review 

evaluation, then the Director shall notify the owner or operator of his findings. The owner or operator shall not make the 

modification until it has received a permit issued pursuant to this Rule. If a permit revision is not required pursuant to this

Rule, the owner or operator shall maintain records of annual emissions in tons per year on a calendar year basis related to 

the modifications for 10 years following resumption of regular operations after the change if the project involves 

increasing the emissions unit's design capacity or its potential to emit the regulated NSR pollutant; otherwise these 

records shall be maintained for five years following resumption of regular operations after the change. The owner or 

operator shall submit a report to the director within 60 days after the end of each year during which these records must be 

generated. The report shall contain the items listed in 40 CFR 51.165(a)(6)(v)(A) through (C). The owner or operator 

shall make the information documented and maintained under this Paragraph available to the Director or the general 

public pursuant to the requirements in 40 CFR 70.4(b)(3)(viii). 

(p) The version of the Code of Federal Regulations incorporated in this Rule is that as of June 13, 2007 except those 

provisions noticed as stayed in 69 FR 40274, and does not include any subsequent amendments or editions to the 

referenced material. 

History Note: Authority G.S. 143-215.3(a)(1); 143-215.107(a)(5); 143-215.108(b); 

Eff. June 1, 1981; 

Amended Eff. December 1, 1993; December 1, 1992; 

Temporary Amendment Eff. March 8, 1994 for a period of 180 days or until the permanent rule is 

effective, whichever is sooner; 

Amended Eff. May 1, 2008; May 1, 2005; July 1, 1998; July 1, 1996; July 1, 1995; July 1, 1994. 

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15A NCAC 02D .0532 SOURCES CONTRIBUTING TO AN AMBIENT VIOLATION 

(a) This Rule applies to new major stationary sources and major modifications to which Rule .0531 of this Section does not 

apply and which would contribute to a violation of a national ambient air quality standard but which would not cause a new 

violation. 

(b) For the purpose of this Rule the definitions contained in Section II.A. of Appendix S of 40 CFR Part 51 shall apply. 

(c) The Rule is not applicable to: 

(1) complex sources of air pollution that are regulated only under Section .0800 of this Subchapter and not 

under any other rule of this Subchapter; 

(2) emission of pollutants for which the area in which the new or modified source is located is designated as 

nonattainment; 

(3) emission of pollutants for which the source or modification is not major; 

(4) emission of pollutants other than sulfur dioxide, total suspended particulates, nitrogen oxides, and carbon 

monoxide; 

(5) a new or modified source whose impact will increase not more than: 

(A) 1.0 ug/m3of SO2 on an annual basis, 

(B) 5 ug/m3of SO2 on a 24-hour basis, 

(C) 25 ug/m3of SO2 on a 3-hour basis, 

(D) 1.0 ug/m3of total suspended particulates on an annual basis, 

(E) 5 ug/m3of total suspended particulates on a 24-hour basis, 

(F) 1.0 ug/m3of NO2 on an annual basis, 

(G) 0.5 mg/m3of carbon monoxide on an 8-hour basis, 

(H) 2 mg/m3of carbon monoxide on a one-hour basis, 

(I) 1.0 ug/m3of PM10 on an annual basis, or 

(J) 5 ug/m3of PM10 on a 24-hour basis, 

at any locality that does not meet a national ambient air quality standard; 

(6) sources which are not major unless secondary emissions are included in calculating the potential to emit; 

(7) sources which are exempted by the provision in Section II.F. of Appendix S of 40 CFR Part 51; 

(8) temporary emission sources which will be relocated within two years; and 

(9) emissions resulting from the construction phase of the source. 

(d) 15A NCAC 2Q .0102 and .0302 are not applicable to any source to which this Rule applies. The owner or operator of the 

source shall apply for and receive a permit as required in 15A NCAC 2Q .0300 or .0500. 

(e) To issue a permit to a new or modified source to which this Rule applies, the Director shall determine that the source will 

meet the following conditions: 

(1) The sources will emit the nonattainment pollutant at a rate no more than the lowest achievable emission 

rate. 

(2) The owner or operator of the proposed new or modified source has demonstrated that all major stationary 

sources in the State which are owned or operated by this person (or any entity controlling, controlled by, or 

under common control with this person) are subject to emission limitations and are in compliance, or on a 

schedule for compliance which is federally enforceable or contained in a court decree, with all applicable 

emission limitations and standards of this Subchapter which EPA has authority to approve as elements of 

the North Carolina State Implementation Plan for Air Quality. 

(3) The source will satisfy one of the following conditions: 

(A) The source will comply with Subparagraph (e)(3) of Rule .0531 of this Section when the source is 

evaluated as if it were in the nonattainment area; or 

(B) The source will have an air quality offset, i.e., the applicant will have caused an air quality 

improvement in the locality where the national ambient air quality standard is not met by causing 

reductions in impacts of other sources greater than any additional impact caused by the source for 

which the application is being made. The emissions reductions creating the air quality offset shall 

be placed as a condition in the permit for the source reducing emissions. The requirements of this 

Part may be partially waived if the source is a resource recovery facility burning municipal solid 

waste, the source must switch fuels due to lack of adequate fuel supplies, or the source is required 

to be modified as a result of EPA regulations and no exemption from such regulations is available 

and if: 

(i) the permit applicant demonstrates that it made its best efforts to obtain sufficient air 

quality offsets to comply with this Part; 

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(ii) the applicant has secured all available air quality offsets; and 

(iii) the applicant will continue to seek the necessary air quality offsets and apply them when 

they become available. 

(f) At such time that a particular source or modification becomes a major stationary source or major modification solely by 

virtue of a relaxation in any enforceable limitation established after August 7, 1980, on the capacity of the source or 

modification to emit a pollutant, such as a restriction on hours of operation, then the provisions of this Rule shall apply to the 

source or modification as though construction had not yet begun on the source or modification. 

(g) The version of the Code of Federal Regulations incorporated in this Rule is that as of January 1, 1989, and does not 

include any subsequent amendments or editions to the referenced material. 

History Note: Filed as a Temporary Amendment Eff. March 8, 1994 for a period of 180 days or until the 

permanent rule becomes effective, whichever is sooner; 

Authority G.S. 143-215.3(a)(1); 143-215.107(a)(5); 143-215.108(b); 150B-21.6; 

Eff. June 1, 1981; 

Amended Eff. July 1, 1994; December 1, 1993; December 1, 1992; October 1, 1989. 

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SECTION .1900 - OPEN BURNING 

15A NCAC 02D .1901 OPEN BURNING: PURPOSE: SCOPE 

(a) Open Burning Prohibited. A person shall not cause, allow, or permit open burning of combustible material except as 

allowed by Rule .1903 and Rule .1904 of this Section. 

(b) Purpose. The purpose of this Section is to control air pollution resulting from the open burning of combustible 

materials and to protect the air quality in the immediate area of the open burning. 

(c) Scope. This Section applies to all operations involving open burning. This Section does not authorize any open 

burning which is a crime under G.S. 14-136 through G.S. 14-140.1, or affect the authority of the Division of Forest 

Resources to issue or deny permits for open burning in or adjacent to woodlands as provided in G.S. 113-60.21 through 

G.S. 113-60.31. This Section does not affect the authority of any local government to regulate open burning through its 

fire codes or other ordinances. The issuance of any open burning permit by the Division of Forest Resources or any local 

government does not relieve any person from the necessity of complying with this Section or any other air quality rule. 

History Note: Authority G.S. 143-215.3(a)(1); 143-215.107(a)(5); 

Eff. July 1, 1996; 

Amended Eff. July 1, 2007; June 1, 2004. 

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15A NCAC 02D .1902 DEFINITIONS 

For the purpose of this Section, the following definitions apply: 

(1) "Air Curtain Burner" means a stationary or portable combustion device that directs a plane of high 

velocity forced draft air through a manifold head into a pit or container with vertical walls in such a 

manner as to maintain a curtain of air over the surface of the pit and a recirculating motion of air under 

the curtain. 

(2) "Air Quality Action Day Code 'Orange' or above" means an air quality index greater than 100 as 

defined in 40 CFR Part 58, Appendix G. 

(3) "Air quality forecast area" means for 

(a) Asheville air quality forecast area: Buncombe, Haywood, Henderson, Jackson, Madison, 

Swain, Transylvania, and Yancey Counties; 

(b) Charlotte air quality forecast area: Cabarrus, Gaston, Iredell South of Interstate 40, Lincoln, 

Mecklenburg, Rowan, and Union Counties; 

(c) Hickory air quality forecast area: Alexander, Burke, Caldwell, and Catawba Counties; 

(d) Fayetteville air quality forecast area: Cumberland and Harnett Counties; 

(e) Rocky Mount air quality forecast area: Edgecombe and Nash Counties; 

(f) Triad air quality forecast area: Alamance, Caswell, Davidson, Davie, Forsyth, Guilford, 

Randolph, Rockingham, and Stokes Counties; and 

(g) Triangle air quality forecast area: Chatham, Durham, Franklin, Granville, Johnston, Person, 

Orange, Vance, and Wake Counties. 

(4) "Smoke management plan" means the plan developed following the North Carolina Division of Forest 

Resources' smoke management program and approved by the North Carolina Division of Forest 

Resources. The purpose of the smoke management plan is to manage smoke from prescribed burns of 

public and private forests to minimize the impact of smoke on air quality and visibility. 

(5) "Dangerous materials" means explosives or containers used in the holding or transporting of 

explosives. 

(6) "HHCB" means the Health Hazards Control Branch of the Division of Epidemiology. 

(7) "Initiated" means start or ignite a fire or reignite or rekindle a fire. 

(8) "Land clearing" means the uprooting or clearing of vegetation in connection with construction for 

buildings; right-of-way maintenance; agricultural, residential, commercial, institutional, or industrial 

development; mining activities; or the initial clearing of vegetation to enhance property value; but does 

not include routine maintenance or property clean-up activities. 

(9) "Log" means any limb or trunk whose diameter exceeds six inches. 

(10) "Nonattainment area" means an area identified in 40 CFR 81.334 as nonattainment. 

(11) "Nuisance" means causing physical irritation exacerbating a documented medical condition, visibility 

impairment, or evidence of soot or ash on property or structure other than the property on which the 

burning is done. 

(12) "Occupied structure" means a building in which people may live or work or one intended for housing 

farm or other domestic animals. 

(13) "Off-site" means any area not on the premises of the land-clearing activities. 

(14) "Open burning" means the burning of any matter in such a manner that the products of combustion 

resulting from the burning are emitted directly into the atmosphere without passing through a stack, 

chimney, or a permitted air pollution control device. 

(15) "Operator" as used in .1904(b)(6) and .1904(b)(2)(D) of this Section, means the person in operational 

control over the open burning. 

(16) "Person" as used in 02D .1901(c), means: 

(a) the person in operational control over the open burning; or 

(b) the landowner or person in possession or control of the land when he has directly or 

indirectly allowed the open burning or has benefited from it. 

(17) "Pile" means a quantity of combustible material assembled together in a mass. 

(18) "Public pick-up" means the removal of refuse, yard trimmings, limbs, or other plant material from a 

residence by a governmental agency, private company contracted by a governmental agency or 

municipal service. 

(19) "Public road" means any road that is part of the State highway system; or any road, street, or right-ofway dedicated or maintained for public use. 

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(20) "RACM" means regulated asbestos containing material as defined in 40 CFR 61.142. 

(21) "Refuse" means any garbage, rubbish, or trade waste. 

(22) "Regional Office Supervisor" means the supervisor of personnel of the Division of Air Quality in a 

regional office of the Department of Environment and Natural Resources. 

(23) "Salvageable items" means any product or material that was first discarded or damaged and then all, or 

part, was saved for future use, and include insulated wire, electric motors, and electric transformers. 

(24) "Synthetic material" means man-made material, including tires, asphalt materials such as shingles or 

asphaltic roofing materials, construction materials, packaging for construction materials, wire, 

electrical insulation, and treated or coated wood. 

(25) "Permanent site" means for an air curtain burner, a place where an air curtain burner is operated for 

more than nine months. 

History Note: Authority G.S. 143-212; 143-213; 143-215.3(a)(1); 

Eff. July 1, 1996; 

Amended Eff. July 1, 2007; December 1, 2005; June 1, 2004; July 1, 1998. 

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.15A NCAC 02D .1903 OPEN BURNING WITHOUT AN AIR QUALITY PERMIT 

(a) All open burning is prohibited except open burning allowed under Paragraph (b) of this Rule or Rule .1904 of this 

Section. Except as allowed under Paragraphs (b)(3) through (b)(9) of this Rule, open burning shall not be initiated in an 

air quality forecast area that the Department, or the Forsyth County Environmental Affairs Department for the Triad air 

quality forecast area, has forecasted to be in an Air Quality Action Day Code "Orange" or above during the time period 

covered by that forecast. 

(b) The following types of open burning are permissible without an air quality permit: 

(1) open burning of leaves, tree branches or yard trimmings, excluding logs and stumps, if the following 

conditions are met: 

(A) The material burned originates on the premises of private residences and is burned on those 

premises; 

(B) There are no public pickup services available; 

(C) Non-vegetative materials, such as household garbage, lumber, or any other synthetic 

materials are not burned; 

(D) The burning is initiated no earlier than 8:00 a.m. and no additional combustible material is 

added to the fire between 6:00 p.m. on one day and 8:00 a.m. on the following day; 

(E) The burning does not create a nuisance; and 

(F) Material is not burned when the Division of Forest Resources has banned burning for that 

area. 

(2) open burning for land clearing or right-of-way maintenance if the following conditions are met: 

(A) The wind direction at the time that the burning is initiated and the wind direction as 

forecasted by the National Weather Service at the time that the burning is initiated are away 

from any area, including public roads within 250 feet of the burning as measured from the 

edge of the pavement or other roadway surface, which may be affected by smoke, ash, or 

other air pollutants from the burning; 

(B) The location of the burning is at least 1,000 feet from any dwelling, group of dwellings, or 

commercial or institutional establishment, or other occupied structure not located on the 

property on which the burning is conducted. The regional office supervisor may grant 

exceptions to the setback requirements if: 

(i) a signed, written statement waiving objections to the open burning associated with 

the land clearing operation is obtained and submitted to, and the exception granted 

by, the regional office supervisor before the burning begins from a resident or an 

owner of each dwelling, commercial or institutional establishment, or other 

occupied structure within 1,000 feet of the open burning site. In the case of a lease 

or rental agreement, the lessee or renter shall be the person from whom permission 

shall be gained prior to any burning; or 

(ii) an air curtain burner that complies with Rule .1904 of this Section, is utilized at the 

open burning site. 

Factors that the regional supervisor shall consider in deciding to grant the exception include 

all the persons who need to sign the statement waiving the objection have signed it, the 

location of the burn, and the type, amount, and nature of the combustible substances. The 

regional supervisor shall not grant a waiver if a college, school, licensed day care, hospital, 

licensed rest home, or other similar institution is less than 1000 feet from the proposed burn 

site when such institution is occupied. 

(C) Only land cleared plant growth is burned. Heavy oils, asphaltic materials such as shingles 

and other roofing materials, items containing natural or synthetic rubber, or any materials 

other than plant growth shall not be burned; however, kerosene, distillate oil, or diesel fuel 

may be used to start the fire; 

(D) Initial burning begins only between the hours of 8:00 a.m. and 6:00 p.m., and no combustible 

material is added to the fire between 6:00 p.m. on one day and 8:00 a.m. on the following 

day; 

(E) No fires are initiated or vegetation added to existing fires when the Division of Forest 

Resources has banned burning for that area; and 

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(F) Materials are not carried off-site or transported over public roads for open burning unless the 

materials are carried off-site or transported over public roads to facilities permitted according 

to Rule .1904 of this Section for the operation of an air curtain burner at a permanent site; 

(3) camp fires and fires used solely for outdoor cooking and other recreational purposes, or for ceremonial 

occasions, or for human warmth and comfort and which do not create a nuisance and do not use 

synthetic materials or refuse or salvageable materials for fuel; 

(4) fires purposely set to public or private forest land for forest management practices for which burning is 

acceptable to the Division of Forest Resources and which follows the smoke management plan as 

outlined in the Division of Forest Resources' smoke management program; 

(5) fires purposely set to agricultural lands for disease and pest control and fires set for other agricultural 

or apicultural practices for which burning is currently acceptable to the Department of Agriculture; 

(6) fires purposely set for wildlife management practices for which burning is currently acceptable to the 

Wildlife Resource Commission; 

(7) fires for the disposal of dangerous materials when it is the safest and most practical method of 

disposal; 

(8) fires purposely set by manufacturers of fire extinguishing materials or equipment, testing laboratories, 

or other persons, for the purpose of testing or developing these materials or equipment in accordance 

with a standard qualification program; 

(9) fires purposely set for the instruction and training of fire-fighting personnel at permanent fire-fighting 

training facilities; 

(10) fires purposely set for the instruction and training of fire-fighting personnel when conducted under the 

supervision of or with the cooperation of one or more of the following agencies: 

(A) the Division of Forest Resources; 

(B) the North Carolina Insurance Department; 

(C) North Carolina technical institutes; or 

(D) North Carolina community colleges, including: 

(i) the North Carolina Fire College; or 

(ii) the North Carolina Rescue College; 

(11) fires not described in Subparagraphs (9) or (10) of this Paragraph, purposely set for the instruction and 

training of fire-fighting personnel, provided that: 

(A) The regional office supervisor of the appropriate regional office and the HHCB have been 

notified according to the procedures and deadlines contained in the appropriate regional 

notification form. This form may be obtained by writing the appropriate regional office at the 

address in Rule .1905 of this Section and requesting it, and 

(B) The regional office supervisor has granted permission for the burning. Factors that the 

regional office supervisor shall consider in granting permission for the burning include type, 

amount, and nature of combustible substances. The regional office supervisor shall not grant 

permission for the burning of salvageable items, such as insulated wire and electric motors or 

if the primary purpose of the fire is to dispose of synthetic materials or refuse. The regional 

office supervisor of the appropriate regional office shall not consider previously demolished 

structures as having training value. However, the regional office supervisor of the appropriate 

regional office may allow an exercise involving the burning of motor vehicles burned over a 

period of time by a training unit or by several related training units. Any deviations from the 

dates and times of exercises, including additions, postponements, and deletions, submitted in 

the schedule in the approved plan shall be communicated verbally to the regional office 

supervisor of the appropriate regional office at least one hour before the burn is scheduled; 

and 

(12) fires for the disposal of material generated as a result of a natural disaster, such as tornado, hurricane, 

or flood, if the regional office supervisor grants permission for the burning. The person desiring to do 

the burning shall document and provide written notification to the regional office supervisor of the 

appropriate regional office that there is no other practical method of disposal of the waste. Factors that 

the regional office supervisor shall consider in granting permission for the burning include type, 

amount, location of the burning, and nature of combustible substances. The regional office supervisor 

shall not grant permission for the burning if the primary purpose of the fire is to dispose of synthetic 

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materials or refuse or recovery of salvageable materials. Fires authorized under this Subparagraph 

shall comply with the conditions of Subparagraph (b)(2) of this Rule. 

(c) The authority to conduct open burning under this Section does not exempt or excuse any person from the 

consequences, damages or injuries that may result from this conduct. It does not excuse or exempt any person from 

complying with all applicable laws, ordinances, rules or orders of any other governmental entity having jurisdiction even 

though the open burning is conducted in compliance with this Section. 

History Note: Authority G.S. 143-215.3(a)(1); 143-215.107(a)(5); 

Eff. July 1, 1996; 

Amended Eff. July 1, 2007; December 1, 2005; June 1, 2004; July 1, 1998. 

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15A NCAC 02D .1904 AIR CURTAIN BURNERS 

(a) Air quality permits are required for air curtain burners subject to 40 CFR 60.2245 through 60.2265, 60.2810 through 

60.2870, 60.2970 through 60.2975, or 60.3062 through 60.3069 or located at permanent sites or where materials are 

transported in from another site. Air quality permits are not required for air curtain burners located at temporary land 

clearing or right-of-way maintenance sites for less than nine months unless they are subject to 40 CFR 60.2245 through 

60.2265, 60.2810 through 60.2870, 60.2970 through 60.2975, or 60.3062 through 60.3069. The operation of air curtain 

burners in particulate and ozone nonattainment areas shall cease in any area that has been forecasted by the Department, 

or the Forsyth County Environmental Affairs Department for the Triad air quality forecast area, to be in an Air Quality 

Action Day Code "Orange" or above during the time period covered by that forecast. 

(b) Air curtain burners shall comply with the following conditions and stipulations: 

(1) The wind direction at the time that the burning is initiated and the wind direction as forecasted by the 

National Weather Service during the time of the burning shall be away from any area, including public 

roads within 250 feet of the burning as measured from the edge of the pavement or other roadway 

surface, which may be affected by smoke, ash, or other air pollutants from the burning; 

(2) Only collected land clearing and yard waste materials may be burned. Heavy oils, asphaltic materials, 

items containing natural or synthetic rubber, tires, grass clippings, collected leaves, paper products, 

plastics, general trash, garbage, or any materials containing painted or treated wood materials shall not 

be burned. Leaves still on trees or brush may be burned; 

(3) No fires shall be started or material added to existing fires when the Division of Forest Resources has 

banned burning for that area; 

(4) Burning shall be conducted only between the hours of 8:00 a.m. and 6:00 p.m.; 

(5) The air curtain burner shall not be operated more than the maximum source operating hours-per-day 

and days-per-week. The maximum source operating hours-per-day and days-per-week shall be set to 

protect the ambient air quality standard and prevention of significant deterioration (PSD) increment for 

particulate. The maximum source operating hours-per-day and days-per-week shall be determined 

using the modeling procedures in Rule .1106(b), (c), and (f) of this Subchapter. This Subparagraph 

shall not apply to temporary air curtain burners; 

(6) An air curtain burner with an air quality permit shall have onsite at all times during operation of the 

burner a visible emissions reader certified according to 40 CFR Part 60, Method 9 to read visible 

emissions, and the facility shall test for visible emissions within five days after initial operation and 

within 90 days before permit expiration; 

(7) Air curtain burners shall meet manufacturer's specifications for operation and upkeep to ensure 

complete burning of material charged into the pit. Manufacturer's specifications shall be kept on site 

and be available for inspection by Division staff; 

(8) Except during start-up, visible emissions shall not exceed ten percent opacity when averaged over a 

six-minute period except that one six-minute period with an average opacity of more than ten percent 

but no more than 35 percent shall be allowed for any one-hour period. During start-up, the visible 

emissions shall not exceed 35 percent opacity when averaged over a six-minute period. Start-up shall 

not last for more than 45 minutes, and there shall be no more than one start-up per day. Instead of 

complying with the opacity standards in this Subparagraph, air curtain burners subject to: 

(A) 40 CFR 60.2245 through 60.2265 shall comply with the opacity standards in 40 CFR 

60.2250; 

(B) 40 CFR 60.2810 through 60.2870 shall comply with the opacity standards in 40 CFR 

60.2860; 

(C) 40 CFR 60.2970 through 60.2975 shall comply with the opacity standards in 40 CFR 

60.2971; or 

(D) 40 CFR 60.3062 through 60.3069 shall comply with the opacity standards in 40 CFR 

60.3066; 

(9) The owner or operator of an air curtain burner shall not allow ash to build up in the pit to a depth 

higher than one-third of the depth of the pit or to the point where the ash begins to impede combustion, 

whichever occurs first. The owner or operator of an air curtain burner shall allow the ashes to cool 

and water the ash prior to its removal to prevent the ash from becoming airborne; 

(10) The owner or operator of an air curtain burner shall not load material into the air curtain burner such 

that it will protrude above the air curtain; 

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(11) Only distillate oil, kerosene, diesel fuel, natural gas, or liquefied petroleum gas may be used to start 

the fire; and 

(12) The location of the burning shall be at least 500 feet from any dwelling, group of dwellings, or 

commercial or institutional establishment, or other occupied structure not located on the property on 

which the burning is conducted. The regional office supervisor may grant exceptions to the setback 

requirements if a signed, written statement waiving objections to the air curtain burning is obtained 

from a resident or an owner of each dwelling, commercial or institutional establishment, or other 

occupied structure within 500 feet of the burning site. In case of a lease or rental agreement, the lessee 

or renter, and the property owner shall sign the statement waiving objections to the burning. The 

statement shall be submitted to and approved by the regional office supervisor before initiation of the 

burn. Factors that the regional supervisor shall consider in deciding to grant the exception include: all 

the persons who need to sign the statement waiving the objection have signed it; the location of the 

burn; and the type, amount, and nature of the combustible substances. 

Compliance with this Rule does not relieve any owner or operator of an air curtain burner from the necessity of 

complying with other rules in this Section or any other air quality rules. 

(c) Recordkeeping Requirements. The owner or operator of an air curtain burner at a permanent site shall keep a daily 

log of specific materials burned and amounts of material burned in pounds per hour and tons per year. The logs at a 

permanent air curtain burner site shall be maintained on site for a minimum of two years and shall be available at all 

times for inspection by the Division of Air Quality. The owner or operator of an air curtain burner at a temporary site 

shall keep a log of total number of tons burned per temporary site. Additionally, the owner or operator of air curtain 

burner subject to: 

(1) 40 CFR 60.2245 through 60.2265 shall comply with the monitoring, recordkeeping, and reporting 

requirements in 40 CFR 60.2245 through 60.2265; 

(2) 40 CFR 60.2810 through 60.2870 shall comply with the monitoring, recordkeeping, and reporting 

requirements in 40 CFR 60.2810 through 60.2870; 

(3) 40 CFR 60.2970 through 60.2975 shall comply with the monitoring, recordkeeping, and reporting 

requirements in 40 CFR 60.2970 through 60.2975; or 

(4) 40 CFR 60.3062 through 60.3069 shall comply with comply with the monitoring, recordkeeping, and 

reporting requirements in 40 CFR 60.3062 through 60.3069. 

(d) Title V Considerations. Burners that have the potential to burn 8,100 tons of material or more per year may be 

subject to Section 15A NCAC 2Q .0500, Title V Procedures. 

(e) Prevention of Significant Deterioration Consideration. Burners that burn 16,200 tons per year or more may be subject 

to 15A NCAC 02D .0530, Prevention of Significant Deterioration. 

(f) A person may use a burner using a different technology or method of operation than an air curtain burner as defined 

under Rule .1902 of this Section if he demonstrates to the Director that the burner is at least as effective as an air curtain 

burner in reducing emissions and if the Director approves the use of the burner. The Director shall approve the burner if 

he finds that it is at least as effective as an air curtain burner. This burner shall comply with all the requirements of this

Rule. 

(g) In addition to complying with the requirements of this Rule, an air curtain burner subject to: 

(1) 40 CFR Part 60, Subpart CCCC that commenced construction after November 30, 1999, or that 

commenced reconstruction or modification on or after June 1, 2001, shall also comply with 40 CFR 

60.2245 through 60.2265, or 

(2) 40 CFR Part 60, Subpart EEEE that commenced construction after December 9, 2004, or that 

commenced reconstruction or modification on or after June 16, 2006, shall also comply with 40 CFR 

60.2970 through 60.2975. 

History Note: Authority G.S. 143-215.3(a)(1); 143-215.107(a)(5), (10); 143-215.66; 143-215.108; 40 CFR 60.2865; 

Eff. July 1, 1996; 

Amended Eff. July 1, 2007; December 1, 2005; August 1, 2004. 

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August 21, 2009
15A NCAC 02D .1905 REGIONAL OFFICE LOCATIONS 

Inquiries, requests and plans shall be handled by the appropriate Department of Environment and Natural Resources 

regional offices. They are: 

(1) Asheville Regional Office, 2090 Highway 70, Swannanoa, North Carolina 28778 

(2) Winston-Salem Regional Office, 585 Waughtown Street, Winston-Salem, North Carolina 27107; 

(3) Mooresville Regional Office, 610 East Center Avenue, Suite 301, Mooresville, North Carolina 28115; 

(4) Raleigh Regional Office, 3800 Barrett Drive, Raleigh, North Carolina 27611; 

(5) Fayetteville Regional Office, Systel Building, 225 Green Street, Suite 714, Fayetteville, North 

Carolina 28301; 

(6) Washington Regional Office, 943 Washington Square Mall, Washington, North Carolina 27889; and 

(7) Wilmington Regional Office, 127 Cardinal Drive Extension, Wilmington, North Carolina 28405. 

History Note: Authority G.S. 143-215.3(a)(1); 

Eff. July 1, 1996; 

Amended Eff. December 1, 2005. 

Adopted State Measures 

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 Appendix M 

August 21, 2009
15A NCAC 02D .1906 DELEGATION TO COUNTY GOVERNMENTS 

(a) The governing body of any county or municipality or group of counties or municipalities may establish a partial air 

pollution control program to implement and enforce this Section provided that: 

(1) It has the administrative organization, staff, financial and other resources necessary to carry out such a 

program; 

(2) It has adopted appropriate ordinances, resolutions, and regulations to establish and maintain such a 

program; and 

(3) It has otherwise complied with G.S. 143-215.112 "Local Air Pollution Control Programs." 

(b) The governing body shall submit to the Director documentation demonstrating that the requirements of Paragraph (a) 

of this Rule have been met. Within 90 days after receiving the submittal from the governing body, the Director shall 

review the documentation to determine if the requirements of Paragraph (a) of this Rule have been met and shall present 

his findings to the Commission. If the Commission determines that the air pollution program is adequate, it shall certify 

the local air pollution program to implement and enforce this Section within its area of jurisdiction. 

(c) County and municipal governments shall not have the authority to issue permits for air curtain burners at a permanent 

site as defined in 15A NCAC 02D .1904. 

(d) The three certified local air pollution programs, the Western North Carolina Regional Air Quality Control Agency, 

the Forsyth County Environmental Affairs Department, and Mecklenburg County Air Quality, a Division of Land Use 

and Environmental Services Agency, shall continue to enforce open burning rules as part of their local air pollution 

programs. 

History Note: Authority G.S. 143-215.3(a)(1); 143-215.112; 

Eff. July 1, 1996; 

Amended Eff. December 1, 2005; June 1, 2004. 

Adopted State Measures 

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 Appendix M 

August 21, 2009
15A NCAC 02D .1907 MULTIPLE VIOLATIONS ARISING FROM A SINGLE EPISODE 

(a) Multiple violations arising from a single episode of open burning may result in multiple civil penalties. Factors the 

Director shall consider in determining the number of violations per episode of open burning include: 

(1) the type of material burned, 

(2) the amount of material burned, 

(3) the location of the burn, and 

(4) any other factor relevant to air pollution control or air quality. 

(b) Each pile of land clearing or road maintenance debris that does not comply with the specifications of 15A NCAC 

02D .1903(b)(2) shall constitute a separate violation. 

History Note: Authority G.S. 143-215.3(a)(1); 143-215.107(a)(5); 

Eff. July 1, 2007. 

Adopted State Measures 

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August 21, 2009
SECTION .2400 – CLEAN AIR INTERSTATE RULES 

15A NCAC 02D .2401 PURPOSE AND APPLICABILITY 

(a) Purpose. The purpose of this Section is to implement the federal Clean Air Interstate Rule and thereby reduce the 

interstate transportation of fine particulate matter and ozone. 

(b) Applicability. This Section applies to the following, which are CAIR NOx units, CAIR SO2 units, and CAIR NOx 

Ozone Season units to the extent they are subject to the NOx annual trading program, SO2 trading program, and NOx 

ozone season trading program, respectively, in this Section: 

(1) any stationary, fossil-fuel-fired boiler or stationary, fossil-fuel-fired combustion turbine serving at any 

time, since the later of November 15, 1990 or the start-up of a unit's combustion chamber, a generator 

with nameplate capacity of more than 25 MWe producing electricity for sale, provided that if a 

stationary boiler or stationary combustion turbine that does not meet these requirements begins to 

combust fossil fuel or to serve a generator with nameplate capacity of more than 25 MWe producing 

electricity for sale, the unit shall become subject to this Section under this Subparagraph on the first 

date on which the unit both combusts fossil fuel and serves such generator; 

(2) notwithstanding Subparagraph (b)(1) of this Rule, a unit that meets the requirements in 40 CFR 

96.104(b)(1)(i), (b)(2)(i), or (b)(2)(ii), 96.204(b)(1)(i), (b)(2)(i), or (b)(2)(ii), 96.304(b)(1)(i), (b)(2)(i), 

or (b)(2)(ii), shall not be subject to this Section under this Subparagraph and shall become subject to 

this Section under this Subparagraph as provided in 40 CFR 96.104(b)(1)(ii) or (b)(2)(iii), 

96.204(b)(1)(ii) or (b)(2)(iii), or 96.304(b)(1)(ii) or (b)(2)(iii); 

(3) solely for the purposes of the NOx ozone season trading program, fossil fuel-fired stationary boilers, 

combustion turbines, or combined cycle systems having a maximum design heat input greater than 250 

million Btu per hour except stationary combustion turbines constructed before January 1, 1979, that 

have a federally enforceable permit that restricts: 

(A) its potential emissions of nitrogen oxides to no more than 25 tons between May 1 and 

September 30; 

(B) it to burning only natural gas or oil; and 

(C) its hours of operation as described in 40 CFR 96.4(b)(1)(ii) and (iii); or 

(4) solely for the purposes of the NOx ozone season trading program, fossil-fuel fired stationary boilers, 

combustion turbines, or combined cycle systems serving a generator with a nameplate capacity greater 

than 25 MW electrical and selling any amount of electricity. 

(c) Retired unit exemption. Any unit that is permanently retired and is not an opt-in unit under Rule .2411 of this Section 

shall be exempted from the annual trading program for: 

(1) nitrogen oxides if it complies with the provisions of 40 CFR 96.105, 

(2) sulfur dioxide if it complies with the provisions of 40 CFR 96.205, or 

(3) ozone season nitrogen oxides if it complies with the provisions of 40 CFR 96.305. 

(d) Effect on other authorities. No provision of this Section, any application submitted or any permit issued pursuant to 

Rule .2406 of this Section, or any exemption under 40 CFR 96.105, 96.205, or 96.305 shall be construed as exempting 

any source or facility covered under this Section or the owner or operator or designated representative of any source or 

facility covered under this Section from complying with any other requirements of this Subchapter or Subchapter 15A 

NCAC 02Q or the Clean Air Act. The Environmental Management Commission may specify through rulemaking a 

specific emission limit lower than that established under this Rule for a specific source if compliance with the lower 

emission limit is required to attain or maintain the ambient air quality standard for ozone or fine particulate (PM2.5) or 

any other ambient air quality standard in Section 15A NCAC 02D .0400. 

History Note: Authority G.S. 143-215.3(a); 143-215.107(a)(5), (10); 

Eff. July 1, 2006; 

Amended Eff. May 1, 2008. 

Adopted State Measures 

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August 21, 2009
15A NCAC 02D .2402 DEFINITIONS 

(a) For the purpose of this Section, the definitions in 40 CFR 96.102, 96.202 and 96.302 shall apply except that solely 

for the purposes of units subject to Rule .2401(b)(3), .2401(b)(4), or .2405(a)(2) of this Section, the term "fossil-fuelfired" means: 

(1) sources that began operation before January 1, 1996, where fossil fuel actually combusted either alone 

or in combination with any other fuel, comprised more than 50 percent of the annual heat input on a 

Btu basis during 1995, or, if a source had no heat input in 1995, during the last year of operation of the 

unit before 1995; 

(2) sources that began operation on or after January 1, 1996 and before January 1, 1997, where fossil fuel 

actually combusted either alone or in combination with any other fuel, comprised more than 50 percent 

of the annual heat input on a Btu basis during 1996; or 

(3) sources that began operation on or after January 1, 1997; 

(A) Where fossil fuel actually combusted either alone or in combination with any other fuel, 

comprised more than 50 percent of the annual heat input on a Btu basis during any year as 

determined by the owner or operator of the source and verified by the Director; or 

(B) Where fossil fuel combusted either alone or in combination with any other fuel, is projected 

to comprise more than 50 percent of the annual heat input on a Btu basis during any year, 

provided that the unit shall be "fossil-fuel-fired" as of the date, during such year, on which 

the source begins combusting fossil fuel. 

(b) Notwithstanding the provisions of the definition of "commence commercial operation" in 40 CFR 96.302, for a unit 

under Rules .2401(b)(3), .2401(b)(4) or .2405(a)(2) of this Section, and not serving a generator producing electricity for 

sale, the unit's date of commencement of operation shall also be the unit's date of commencement of commercial 

operation. 

(c) Notwithstanding the provisions of the definition of "commence operation" in 40 CFR 96.302, and solely for the 

purposes of 40 CFR Part 96 Subpart HHHH, for a unit that is not a CAIR NOx Ozone Season unit, under Rules 

.2401(b)(3), .2401(b)(4), or .2405(a)(2) of this Section on the later of November 15, 1990 or the date the unit commenced 

or commences operation as defined in the first provision of this definition in 40 CFR 96.302 and that subsequently 

becomes or became such a CAIR NOx Ozone Season unit, the unit's date for commencement of operation shall be the 

date on which the unit becomes or became a CAIR NOx Ozone Season unit under Rule .2401(b)(3), .2401(b)(4), or 

.2405(a)(2) of this Section. For a unit with a date of commencement of operation as defined in the first sentence of this 

Subparagraph and that subsequently undergoes a physical change (other than replacement of the unit by a unit at the 

same source), such date shall remain the date of commencement of operation of the unit, which shall continue to be 

treated as the same unit. For a unit with a date of commencement of operation as defined in the first sentence of this 

Paragraph and that subsequently is replaced by a unit at the same source (e.g., repowered), such date shall remain the 

replaced unit's date of commencement of operation, and the replacement unit shall be treated as a separate unit with a 

separate date for commencement of operation as defined in this Paragraph. 

(d) For the purposes of this Section, the following definitions apply: 

(1) "Modification" means modification as defined in 15A NCAC 02D .0101. 

(2) "Reconstruction" means the replacement of components of an existing unit that meets the requirements 

of 40 CFR 60.15(b)(1). 

(3) "Replacement" means, solely for the purposes of Rules .2403 and .2405 of this Section, removing an 

existing unit and putting in its place at the same facility a functionally equivalent new unit. 

(e) For the purpose of this Section, the abbreviations and acronyms listed in 40 CFR 96.103, 96.203, 96.303 shall apply. 

History Note: Authority G.S. 143-215.3(a); 143-215.107(a)(5), (10); 

Eff. July 1, 2006; 

Amended Eff. May 1, 2008. 

Adopted State Measures 

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 Appendix M 

August 21, 2009
15A NCAC 02D .2403 NITROGEN OXIDE EMISSIONS 

(a) Allocations. The annual allocations of nitrogen oxide allowances are: 

FACILITY ALLOCATIONS FOR 

2009-2014 

(TONS) 

ALLOCATIONS FOR 

2015 AND LATER 

(TONS) 

Craven County Wood Energy, LP 498 424 

Duke Energy, Belews Creek 10,837 9,220 

Duke Energy, Buck 1,355 1,153 

Duke Energy, Cliffside 2,932 2,495 

Duke Energy, Dan River 792 674 

Duke Energy, G.G. Allen 4,338 3,691 

Duke Energy, Lincoln 230 196 

Duke Energy, Marshall 9,667 8,225 

Duke Energy, Riverbend 1,709 1,454 

Dynegy-Rockingham Power 194 165 

Edgecombe GenCo 807 687 

Elizabethtown Power 86 73 

Lumberton Power 121 103 

Primary Energy, Roxboro 164 140 

Primary Energy, Southport 401 341 

Progress Energy, Asheville 2,103 1,789 

Progress Energy, Blewett 8 7 

Progress Energy, Cape Fear 1,244 1,059 

Progress Energy, Lee 1870 1591 

Progress Energy, L.V. Sutton 2,146 1,826 

Progress Energy, Mark's Creek Richmond Co. 374 318 

Progress Energy, Mayo 4,004 3,407 

Progress Energy, Roxboro 11,578 9,851 

Progress Energy, Weatherspoon 674 573 

PWC-Butler Warner Generation Plant 77 65 

Rosemary Power Station, Halifax 42 36 

Southern Power Company Plant Rowan County 25 22 

Westmoreland Partners, LLC, Roanoke 

Valley Energy Facility 1269 1080 

In the event that EPA determines that Craven County Wood Energy is not subject to the provisions of this Section, its 

allocation shall go to the new source growth pool. 

(b) Compliance. The emissions of nitrogen oxides of a CAIR NOx source shall not exceed the number of allowances that 

it has in its compliance account established and administered under Rule .2408 of this Section. 

(c) Emission measurement requirements. The emissions measurements recorded and reported according to 40 CFR Part 

96 Subpart HH shall be used to determine compliance by each CAIR NOx source with its emissions limitation according 

to 40 CFR 96.106(c) including 96.106(c)(5) and (6). 

(d) Excess emission requirements. The provisions of 40 CFR 96.106(d) shall be used for excess emissions. 

(e) Liability. The owner or operator of any unit or source covered under this Section shall be subject to the provisions of 

40 CFR 96.106(f). 

(f) Modification and reconstruction, replacement, retirement, or change of ownership. The modification or reconstruction 

of a CAIR NOx unit shall not make that CAIR NOx unit a "new" CAIR NOx unit under Rule .2412 of this Section. The 

Adopted State Measures 

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 Appendix M 

August 21, 2009
CAIR NOx unit that is modified or reconstructed shall not change the emission allocation under Paragraph (a) of this 

Rule. If one or more CAIR NOx units at a facility covered under this Rule is replaced, the new CAIR NOx unit shall not 

receive an allocation under Rule .2412 of this Section, nor shall it change the allocation of the facility. If the owner of a 

facility changes, the emission allocations under this Rule and revised emission allocations made under Rule .2413 of this 

Section shall remain with the facility. If a CAIR NOx unit is retired, the owner or operator and the designated 

representatives of the CAIR NOx unit shall follow the procedures in 40 CFR 96.105. The allocations of a retired CAIR 

NOx unit shall remain with the owner or operator of the retired CAIR NOx unit until a reallocation occurs under Rule 

.2413 of this Section when the allocation shall be removed and given to other CAIR NOx units if the retired CAIR NOx 

unit is still retired using the procedure in Rule .2413 of this Section. 

History Note: Authority G.S. 143-215.3(a); 143-215.65; 143-215.66; 143-215.107(a)(5), (10); 

Eff. July 1, 2006; 

Amended Eff. May 1, 2008. 

Adopted State Measures 

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North Carolina Attainment Demonstration 

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 Appendix M 

August 21, 2009
15A NCAC 02D .2404 SULFUR DIOXIDE 

(a) Applicability. This Rule applies only to units that meet the description in Rule .2401(b)(1) or (2) of this Section. 

(b) Allocations. The annual allocation of sulfur dioxide allowances shall be determined by EPA. The allocations for 

CAIR SO2 units are in 40 CFR 73.10. 

(c) Compliance. The emissions of sulfur dioxides of a source described in Paragraph (a) of this Rule shall not exceed the 

number of allowances that it has in its compliance account established and administered under Rule .2408 of this Section. 

(d) Emission measurement requirements. The emissions measurements recorded and reported according to 40 CFR Part 

96 Subpart HHH shall be used to determine compliance by each CAIR SO2 source with its emissions limitation according 

to 40 CFR 96.206(c) including 96.206(c)(5) and (6). 

(e) Excess emission requirements. The provisions of 40 CFR 96.206(d) shall be used for excess emissions. 

(f) Liability. The owner or operator of any unit or source covered under this Section shall be subject to the provisions of 

40 CFR 96.206(f). 

History Note: Authority G.S. 143-215.3(a); 143-215.65; 143-215.66; 143-215.107(a)(5), (10); 

Eff. July 1, 2006; 

Amended Eff. May 1, 2008. 

Adopted State Measures 

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North Carolina Attainment Demonstration 

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 Appendix M 

August 21, 2009
15A NCAC 02D .2405 NITROGEN OXIDE EMISSIONS DURING OZONE SEASON 

(a) Allocations. The ozone season allocations of nitrogen oxide allowances are: 

(1) Facilities that meet the description in Rule .2401(b)(1) or (b)(2) of this Section. 

FACILITY ALLOCATIONS FOR 

2009-2014 

(TONS) 

ALLOCATIONS 

FOR 

2015 AND LATER 

(TONS) 

Craven County Wood Energy, LP 211 179 

Duke Energy, Belews Creek 4,917 4,184 

Duke Energy, Buck 656 558 

Duke Energy, Cliffside 1,350 1,148 

Duke Energy, Dan River 436 371 

Duke Energy, G.G. Allen 2,096 1,784 

Duke Energy, Lincoln 169 144 

Duke Energy, Marshall 4,179 3,556 

Duke Energy, Riverbend 859 731 

Dynegy-Rockingham Power 99 84 

Edgecombe GenCo 331 281 

Elizabethtown Power 51 43 

Lumberton Power 46 39 

Primary Energy, Roxboro 83 71 

Primary Energy, Southport 213 181 

Progress Energy, Asheville 899 765 

Progress Energy, Blewett 7 6 

Progress Energy, Cape Fear 527 448 

Progress Energy, Lee 905 770 

Progress Energy, L.V. Sutton 1,023 871 

Progress Energy, Mark's Creek Richmond Co. 335 285 

Progress Energy, Mayo 1,735 1,476 

Progress Energy, Roxboro 5,069 4,314 

Progress Energy, Weatherspoon 346 295 

PWC-Fayetteville 53 45 

Rosemary Power Station, Halifax 26 22 

Southern Power Company Plant Rowan 

County 25 20 

Westmoreland Partners, LLC, Roanoke Valley 

Energy Facility 511 434 

In the event that EPA determines that Craven County Wood Energy is not subject to the provisions of 

this Section, its allocation shall go to the new source growth pool. 

(2) Facilities that meet the description in Rule .2401(b)(3) or (b)(4) of this Section. 

FACILITY ALLOCATON FOR 

2009-2014 

(TONS) 

ALLOCATIONS 

FOR 

2015 AND LATER 

(TONS) 

Blue Ridge Paper Products 839 839 

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August 21, 2009
FACILITY ALLOCATON FOR 

2009-2014 

(TONS) 

ALLOCATIONS 

FOR 

2015 AND LATER 

(TONS) 

International Paper Corp., Columbus Co. 307 307 

Kapstone Kraft Paper corporation 346 346 

Coastal Carolina Clean Power, LLC 113 113 

UNC-Chapel Hill 241 241 

Weyerhaeuser, New Bern Mill 193 193 

Domtar Paper Co. 404 404 

(b) Ozone season defined. The ozone season is from May 1 through September 30 of each year. 

(c) Change in status. If a unit at a facility named in Subparagraph (a)(2) of this Rule meets the description under 

Subparagraphs (b)(1) or (b)(2) of Rule .2401 of this Section, it shall lose its allocation under Subparagraph (a)(2) of this 

Rule and shall receive an allocation under Rule .2412 of this Section as a new unit until it receives an allocation under 

Rule .2413 of this Section. 

(d) Compliance. The nitrogen oxide ozone season emissions of a CAIR NOx Ozone Season source shall not exceed the 

number of allowances that it has in its compliance account established and administered under Rule .2408 of this Section. 

For purposes of making deductions for excess emissions for the ozone season in 2008 under the NOx SIP Call (Section 

15A NCAC 02D .1400), the Administrator shall deduct allowances allocated under this Rule for the ozone season in 

2009. 

(e) Emission measurement requirements. The emissions measurements recorded and reported according to 40 CFR Part 

96 Subpart HHHH shall be used to determine compliance by each CAIR NOx Ozone Season source with its emissions 

limitation according to 40 CFR 96.306(c) including 96.306(c)(5) and (6). 

(f) Excess emission requirements. The provisions of 40 CFR 96.306(d) shall be used for excess emissions. 

(g) Liability. The owner or operator of any unit or source covered under this Section shall be subject to the provisions of 

40 CFR 96.306(f). 

(h) Modification and reconstruction, replacement, retirement, or change of ownership. The modification or 

reconstruction of a CAIR NOx Ozone Season unit shall not make that CAIR NOx Ozone Season unit a "new" CAIR 

NOx Ozone Season unit under Rule .2412. The CAIR NOx Ozone Season unit that is modified or reconstructed shall not 

change the emission allocation under Paragraph (a) of this Rule. If one or more CAIR NOx Ozone Season units at a 

facility is replaced, the new CAIR NOx Ozone Season unit shall not receive an allocation under Rule .2412 of this 

Section, nor shall it change the allocation of the facility. If the owner of a facility changes, the emission allocations under

this Rule and revised emission allocations made under Rule .2413 of this Section shall remain with the facility. If a CAIR 

NOx Ozone Season unit is retired, the owner or operator, and designated representatives, of the CAIR NOx Ozone 

Season unit shall follow the procedures in 40 CFR 96.305. The allocations of a retired CAIR NOx Ozone Season unit 

shall remain with the owner or operator of the retired CAIR NOx Ozone Season unit until a reallocation occurs under 

Rule .2413 of this Section when the allocation shall be removed and given to other CAIR NOx Ozone Season units if the 

retired CAIR NOx Ozone Season unit is still retired using the procedure in Rule .2413 of this Section. 

History Note: Authority G.S. 143-215.3(a); 143-215.65; 143-215.66; 143-215.107(a)(5), (10); 

Eff. July 1, 2006; 

Amended Eff. May 1, 2008. 

Adopted State Measures 

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North Carolina Attainment Demonstration 

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 Appendix M 

August 21, 2009
15A NCAC 02D .2406 PERMITTING 

(a) The owner or operator of any source covered under this Section shall submit permit applications to comply with the 

requirements of this Section following the procedures and requirements in 15A NCAC 02Q .0500 (Title V permitting 

procedures) and in: 

(1) 40 CFR 96.106(a), 96.121, and 96.122 for each CAIR NOx source; 

(2) 40 CFR 96.206(a), 96.221, and 96.222 for each CAIR SO2 source; and 

(3) 40 CFR 96.306(a), 96.321, and 96.322 for each CAIR NOx Ozone Season source. 

(b) The Director shall review applications submitted under Paragraph (a) of this Rule and issue permits for compliance 

with this Section following the procedures and requirements in 15A NCAC 02Q .0500 (Title V permitting procedures) 

and in: 

(1) 40 CFR 96.106(a), 96.120, 96.123, and 96.124 for each CAIR NOx source; 

(2) 40 CFR 96.206(a), 96.220, 96.223, and 96.224 for each CAIR SO2 source; and 

(3) 40 CFR 96.306(a), 96.320, 96.323, and 96.324 for each CAIR NOx Ozone Season source. 

History Note: Authority G.S. 143-215.3(a); 143-215.107(a)(5), (10); 143-215.108; 

Eff. July 1, 2006. 

Adopted State Measures 

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 Appendix M 

August 21, 2009
15A NCAC 02D .2407 MONITORING, REPORTING, AND RECORDKEEPING 

(a) The owner or operator of a unit covered under this Section shall comply with the monitoring, recordkeeping, and 

reporting requirements in: 

(1) 40 CFR 96.106(b) and (e) and in 40 CFR Part 96, Subpart HH for each CAIR NOx unit; 

(2) 40 CFR 96.206(b) and (e) and in 40 CFR Part 96, Subpart HHH for each CAIR SO2 unit; and 

(3) 40 CFR 96.306(b) and (e) and in 40 CFR Part 96, Subpart HHHH for each CAIR Ozone Season NOx 

unit. 

(b) To approve or disapprove monitors used to show compliance with Rules .2403, .2404, or .2405 of this Section, the 

Division shall follow the procedures in: 

(1) 40 CFR 96.171 for nitrogen oxides, 

(2) 40 CFR 96.271 for sulfur dioxides, and 

(3) 40 CFR 96.371 for ozone season nitrogen oxides. 

History Note: Authority G.S. 143-215.3(a); 143-215.65; 143-215.66; 143-215.107(a)(5), (10); 

Eff. July 1, 2006. 

Adopted State Measures 

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 Appendix M 

August 21, 2009
15A NCAC 02D .2408 TRADING PROGRAM AND BANKING 

(a) EPA to administer. The United States Environmental Protection Agency (EPA) shall administer the allowance 

tracking system according to the procedures in: 

(1) 40 CFR Part 96, Subpart FF and Subpart GG for nitrogen oxides; 

(2) 40 CFR Part 96, Subpart FFF and Subpart GGG for sulfur dioxide; and 

(3) 40 CFR Part 96, Subpart FFFF and Subpart GGGG for ozone season nitrogen oxides. 

(b) Compliance account. The owners and operators of each source covered under this Section shall have a compliance 

account in the EPA administered tracking system that satisfies the requirements of: 

(1) 40 CFR 96.151 for nitrogen oxides, 

(2) 40 CFR 96.251 for sulfur dioxides, and 

(3) 40 CFR 96.351 for ozone season nitrogen oxides. 

(c) General account. Any person may apply to open a general account to hold and transfer allowances by using the 

procedures and meeting the requirements in: 

(1) 40 CFR 96.151(b) for nitrogen oxides and may close that account using the procedures in 40 CFR 

96.157, 

(2) 40 CFR 96.251(b) for sulfur dioxides and may close that account using the procedures in 40 CFR 

96.257, and 

(3) 40 CFR 96.351(b) for ozone season nitrogen oxides and may close that account using the procedures 

in 40 CFR 96.357. 

(d) Allowance transfers. 

(1) Any person who has a compliance or general account established under 40 CFR 96.151 may transfer 

allowances using the procedures in 40 CFR 96.160. 

(2) Any person who has a compliance or general account established under 40 CFR 96.251 may transfer 

allowances using the procedures in 40 CFR 96.260. 

(3) Any person who has a compliance or general account established under 40 CFR 96.351 may transfer 

allowances using the procedures in 40 CFR 96.360. 

(e) Submittal of information. Persons with accounts shall submit information to EPA following the requirements of:

(1) 40 CFR 96.152 for nitrogen oxides, 

(2) 40 CFR 96.252 for sulfur dioxides, and 

(3) 40 CFR 96.352 for ozone season nitrogen oxides. 

(f) Banking. Any person who has a compliance account or a general account may bank allowances for future use or 

transfer under: 

(1) 40 CFR 96.155 for nitrogen oxides, 

(2) 40 CFR 96.255 for sulfur dioxides, and 

(3) 40 CFR 96.355 for ozone season nitrogen oxides. 

(g) Appeal Procedures. The appeal procedures for decisions of the Administrator are set forth in 

(1) 40 CFR 96.108 for nitrogen oxides, 

(2) 40 CFR 96.208 for sulfur dioxides, and 

(3) 40 CFR 96.308 for ozone season nitrogen oxides. 

History Note: Authority G.S. 143-215.3(a); 143-215.107(a)(5), (10); 

Eff. July 1, 2006. 

Adopted State Measures 

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North Carolina Attainment Demonstration 

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 Appendix M 

August 21, 2009
15A NCAC 02D .2409 DESIGNATED REPRESENTATIVE 

(a) Designated representative. The owners and operators of any source covered under this Section shall select a 

designated representative according to 40 CFR 96.110 for each CAIR NOx source, 96.210 for each CAIR SO2 source, 

and 96.310 for each CAIR NOx Ozone Season source. The designated representative shall have the responsibilities and 

duties set out in 40 CFR 96.110 for a CAIR NOx source, 96.210 for a CAIR SO2 source, and 96.310 for a CAIR NOx 

Ozone Season source. 

(b) Alternate designated representative. The owners and operators of any source covered under this Section shall select 

an alternate designated representative according to 40 CFR 96.111 for each CAIR NOx source, 96.211 for each CAIR 

SO2 source, and 96.311 for each CAIR NOx Ozone Season source. The alternate designated representative shall have the 

responsibilities and duties set out in 40 CFR 96.111 for a CAIR NOx source, 96.211 for CAIR SO2 source, and 96.311 

for a CAIR NOx Ozone Season source. 

(c) Changing designated representative and alternate designated representative. The owner or operator of any source 

covered under this Section may change the designated representative or the alternate designated representative using: 

(1) 40 CFR 96.112 for a CAIR NOx source; 

(2) 40 CFR 96.212 for a CAIR SO2 source; and 

(3) 40 CFR 96.312 for a CAIR NOx Ozone Season source. 

(d) A CAIR designated representative or alternative CAIR designated representative may delegate his or her authority to 

make an electronic submission to the Administrator using: 

(1) 40 CFR 96.115 for a CAIR NOx source; 

(2) 40 CFR 96.215 for a CAIR SO2 source; and 

(3) 40 CFR 96.315 for a CAIR NOx Ozone Season source. 

(e) Changes in owners and operators. Whenever the owner or operator of a source or unit covered under this Section 

changes, the following provisions shall be followed: 

(1) 40 CFR 96.112(c) for a CAIR NOx source; 

(2) 40 CFR 96.212(c) for a CAIR SO2 source; and 

(3) 40 CFR 96.312(c) for a CAIR NOx Ozone Season source. 

(f) Certificate of representation. A complete certificate of representation for a CAIR designated representative or an 

alternate CAIR designated representative shall meet the requirements of 40 CFR 96.113 for nitrogen oxides, 40 CFR 

96.213 for sulfur dioxide, and 40 CFR 96.313 for ozone season nitrogen oxides. 

(g) Objections concerning CAIR designated representative. Objections concerning CAIR designated representative shall 

be handled according to the procedures in 40 CFR 96.114 for nitrogen oxides, 40 CFR 96.214 for sulfur dioxide, and 40 

CFR 96.314 for ozone season nitrogen oxides. 

History Note: Authority G.S. 143-215.3(a); 143-215.107(a)(5), (10); 

Eff. July 1, 2006; 

Amended Eff. May 1, 2008. 

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15A NCAC 02D .2410 COMPUTATION OF TIME 

Time periods shall be determined as described in: 

(1) 40 CFR 96.107 for nitrogen oxides; 

(2) 40 CFR 96.207 for sulfur dioxide, and 

(3) 40 CFR 96.307 for ozone season nitrogen oxides. 

History Note: Authority G.S. 143-215.3(a); 143-215.107(a)(5), (10); 

Eff. July 1, 2006. 

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15A NCAC 02D .2411 OPT-IN PROVISIONS 

(a) Opting in. The owners and operators of a unit may opt into: 

(1) the nitrogen oxide trading program by following the procedures in and meeting the requirements of 40 

CFR Part 96 Subpart II, 

(2) the sulfur dioxide trading program by following the procedures in and meeting the requirements of 40 

CFR Part 96 Subpart III, and 

(3) the ozone season nitrogen oxide trading program by following the procedures in and meeting the 

requirements of 40 CFR Part 96 Subpart IIII. 

(b) Permitting. The Director shall permit opt-in units under Paragraph (a) of this Rule according to 15A NCAC 02Q 

.0500; and 

(1) 40 CFR 96.184 and 96.185 for nitrogen oxides and shall allocate allowances according to 40 CFR 

96.188, 

(2) 40 CFR 96.284 and 96.285 for sulfur dioxides and shall allocate allowances according to 40 CFR 

96.288, and 

(3) 40 CFR 96.384 and 96.385 for ozone season nitrogen oxides and shall allocate allowances according 

to 40 CFR 96.388. 

(c) Withdrawing. The owners and operators of an opt-in unit under Paragraph (a) of this Rule may withdraw from the 

trading program according to: 

(1) 40 CFR 96.186 for nitrogen oxides, 

(2) 40 CFR 96.286 for sulfur dioxides, and 

(3) 40 CFR 96.386 for ozone season nitrogen oxides. 

(d) Change in regulatory status. If an opt-in unit becomes: 

(1) a CAIR NOx unit under 40 CFR 96.104, then 40 CFR 96.187 shall apply, 

(2) a CAIR SO2 unit under 40 CFR 96.204, then 40 CFR 96.287 shall apply, or 

(3) a CAIR ozone season NOx unit under 40 CFR 96.304, then 40 CFR 96.387 shall apply. 

History Note: Authority G.S. 143-215.3(a); 143-215.107(a)(5), (10); 143-215.108; 

Eff. July 1, 2006. 

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15A NCAC 02D .2412 NEW UNIT GROWTH 

(a) For nitrogen oxide emissions, the total nitrogen oxide allowances available for allocation in the new unit set-aside for 

each control period in 2009 through 2014 shall be 2638 tons and the total nitrogen oxide allowances available for 

allocation in each control period in 2015 and thereafter shall be 1154 tons. Except for the reference to 40 CFR 96.142(b), 

the procedures in 40 CFR 96.142(c)(2) through (4) shall be used to create allocations for units covered under this Section 

that commenced operations on or after January 1, 2001 and that are not covered in the table in Rule .2403 of this Section. 

(b) For ozone season nitrogen oxides emissions, the total ozone season nitrogen oxide allowances available for 

allocation in the new unit set-aside for each control period in 2009 through 2014 shall be 1234 tons and the total ozone 

season nitrogen oxide allowances available for allocation in each control period in 2015 and thereafter shall be 555 tons. 

Except for the reference to 40 CFR 96.142(b) the procedures in 40 CFR 96.342(c)(2) through (4) shall be used to create 

allocations for units covered under this Section that commenced operations on or after January 1, 2001 and that are not 

listed in the table in Rule .2405 of this Section. 

(c) New unit allowances in Paragraph (a) of this Rule that are not allocated in a given year shall be redistributed to units 

under .2401(b)(1) and (2) according to the provisions of 40 CFR 96.142(d) and 96.342(d) except that the divisor used in 

calculating individual unit allocations: 

(1) for nitrogen oxide allowances shall be 2638 tons for each control period in 2009 through 2014 and 

1154 tons in each control period in 2015 and thereafter, and 

(2) for ozone season nitrogen oxide allowances shall be 1234 tons for each control period in 2009 through 

2014 and 555 tons for each control period in 2015 and thereafter. 

(d) The Director shall report the allocations to new units to EPA in accordance with 40 CFR 51.123(o)(2) and (aa)(2). 

History Note: Authority G.S. 143-215.3(a); 143-215.107(a)(5), (10); 

Eff. July 1, 2006; 

Amended Eff. May 1, 2008. 

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15A NCAC 02D .2413 PERIODIC REVIEW AND REALLOCATIONS 

In 2010 and every five years thereafter, the Environmental Management Commission shall review the emission 

allocations of units covered under Rules .2403 and .2405 of this Section and decide if any revisions are needed. In 

making this decision the Environmental Management Commission shall consider the following: 

(1) the size of the allocation pool for new unit growth under Rule .2412 of this Section; 

(2) the amount of emissions allocations requested by units under Rule .2412 of this Section; 

(3) the amount of emissions allocations available through the respective trading programs under Rule 

.2408 of this Section; 

(4) the impact of reallocation on existing units; 

(5) the impact of reallocations on units covered under Rule .2412 of this Section; 

(6) impact on future growth; and 

(7) other relevant information on the impacts of reallocation. 

Any revisions of allocations shall be consistent with the requirements in 40 CFR 51.123(o)(2)(ii) and (aa)(2)(iii) or 

96.141 and 96.341. 

History Note: Authority G.S. 143-215.3(a); 143-215.107(a)(5), (10); 

Eff. July 1, 2006. 

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August 21, 2009
 

 GENERAL ASSEMBLY OF NORTH CAROLINA 

 SESSION 2001 

 

 

 SESSION LAW 2002-4 

 SENATE BILL 1078 

 

 

AN ACT TO IMPROVE AIR QUALITY IN THE STATE BY IMPOSING 

 LIMITS ON THE EMISSION OF CERTAIN POLLUTANTS FROM CERTAIN 

 FACILITIES THAT BURN COAL TO GENERATE ELECTRICITY AND TO 

 PROVIDE FOR RECOVERY BY ELECTRIC UTILITIES OF THE COSTS OF 

 ACHIEVING COMPLIANCE WITH THOSE LIMITS. 

The General Assembly of North Carolina enacts: 

 

 SECTION 1. Article 21B of Chapter 143 of the 

General Statutes is amended by adding a new section to read: 

"§ 143-215.107D. Emissions of oxides of nitrogen (NOx) and

 sulfur dioxide (SO2) from certain coal-fired generating

 units.

 (a) As used in this section:

 (1) 'Coal-fired generating unit' means a

 coal-fired generating unit, as defined by 40 Code

 of Federal Regulations § 96.2 (1 July 2001

 Edition), that is located in this State and has the

 capacity to generate 25 or more megawatts of

 electricity.

 (2) 'Investor-owned public utility' means

 an investor-owned public utility, as defined in

 G.S. 62-3.

 (b) An investor-owned public utility that owns or

operates coal-fired generating units that collectively emitted

more than 75,000 tons of oxides of nitrogen (NOx) in calendar

year 2000:

 (1) Shall not collectively emit from the

 coal-fired generating units that it owns or

 operates more than 35,000 tons of oxides of

 nitrogen (NOx) in any calendar year beginning 1

 January 2007.

 (2) Shall not collectively emit from the

 coal-fired generating units that it owns or

 operates more than 31,000 tons of oxides of

 nitrogen (NOx) in any calendar year beginning 1

 January 2009.

 (c) An investor-owned public utility that owns or

operates coal-fired generating units that collectively emitted

75,000 tons or less of oxides of nitrogen (NOx) in calendar year

2000 shall not collectively emit from the coal-fired generating

units that it owns or operates more than 25,000 tons of oxides

of nitrogen (NOx) in any calendar year beginning 1 January

2007.

 (d) An investor-owned public utility that owns or

operates coal-fired generating units that collectively emitted

more than 225,000 tons of sulfur dioxide (SO2) in calendar year

2000:

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 (1) Shall not collectively emit from the

 coal-fired generating units that it owns or

 operates more than 150,000 tons of sulfur dioxide

 (SO2) in any calendar year beginning 1 January

 2009.

 (2) Shall not collectively emit from the

 coal-fired generating units that it owns or

 operates more than 80,000 tons of sulfur dioxide

 (SO2) in any calendar year beginning 1 January

 2013.

 (e) An investor-owned public utility that owns or

operates coal-fired generating units that collectively emitted

225,000 tons or less of sulfur dioxide (SO2) in calendar year

2000:

 (1) Shall not collectively emit from the

 coal-fired generating units that it owns or

 operates more than 100,000 tons of sulfur dioxide

 (SO2) in any calendar year beginning 1 January

 2009.

 (2) Shall not collectively emit from the

 coal-fired generating units that it owns or

 operates more than 50,000 tons of sulfur dioxide

 (SO2) in any calendar year beginning 1 January

 2013.

 (f) Each investor-owned public utility to which

this section applies may determine how it will achieve the

collective emissions limitations imposed by this section.

Compliance with the emissions limitations set out in this

section does not alter the obligation of any person to comply

with any other federal or State law, regulation, or rule related

to air quality or visibility. This subsection shall not be

construed to limit the authority of the Commission to impose

specific limitations on the emission of oxides of nitrogen (NOx)

and sulfur dioxide (SO2) from an individual coal-fired

generating unit owned or operated by an investor-owned public

utility.

 (g) A coal-fired generating unit that is

subject to the collective emissions limitations set out in this

section on 1 July 2002 shall remain subject to the collective

emissions limitations whether or not it thereafter continues to

be owned or operated by an investor-owned public utility.

 (h) The Commission shall require that any permit

or modified permit issued for a coal-fired generating unit that

is subject to this section include conditions that provide for

testing, monitoring, record keeping, and reporting adequate to

assure compliance with the requirements of this section.

 (i) The Governor may enter into an agreement with

an investor-owned public utility under which the investor-owned

public utility voluntarily agrees to transfer to the State any

emissions allowances acquired or that may be acquired by the

investor-owned public utility pursuant to 42 U.S.C. §§ 7651-

7651o, as implemented by 40 Code of Federal Regulations §§ 73.1

through 73.90 (1 July 2001 Edition); 42 U.S.C.

7410(a)(2)(D)(i)(I), as implemented by 40 Code of Federal

Regulations § 51.121 (1 July 2001 Edition), related federal

regulations, and the associated State Implementation Plan; 42

U.S.C. § 7426, as implemented by 40 Code of Federal Regulations

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August 21, 2009
§ 52.34 (1 July 2001 Edition) and related federal regulations;

or any similar program established under federal law that result

from compliance with the emissions limitations set out in this

section. An agreement entered into pursuant to this subsection

shall be binding and shall be enforceable by specific

performance. If the Governor enters into an agreement that

provides for the transfer of emissions allowances to the State,

the Governor shall file verified copies of the agreement with

the Attorney General, the Secretary of State, the State

Treasurer, the Secretary of Environment and Natural Resources,

and the Utilities Commission. The State Treasurer shall hold all

emissions allowances that are transferred to the State as

provided in this subsection in trust for the people of this

State and shall sell, trade, transfer, or otherwise dispose of

the emissions allowances only as the General Assembly shall

provide by law.

 (j) An investor-owned public utility that is

subject to the emissions limitations set out in this section

shall submit to the Utilities Commission and to the Department

on or before 1 April of each year a verified statement pursuant

to subsection (i) of G.S. 62-133.6." 

 SECTION 2. G.S. 143-215.108 reads as rewritten: 

"§ 143-215.108. Control of sources of air pollution; permits 

 required. 

 (a)After the effective date applicable to any air

quality or emission control standards established pursuant to

G.S. 143-215.107 and except 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 which contravene or will be likely to contravene 

such standards established pursuant to G.S.

143-215.107 or set out in G.S. 143-215.107D until or

unless such that person 

shall have applied for and shall have received

has obtained from the Commission a permit 

therefor and shall have has complied 

with such conditions, if any, as are prescribed by such

any conditions of this 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. 

 (a1)The Commission may by rule establish procedures that meet 

the requirements of section 502(b)(10) of Title V (42 U.S.C. § 

7661a(b)(10)) and 40 Code of Federal Regulations § 70.4(b)(12) 

(1 July 1993 Edition) to allow a permittee to make changes 

within a permitted facility without requiring a revision of the 

permit. 

 (a2)The Commission may adopt rules that provide for a minor 

modification of a permit. At a minimum, rules that provide for a 

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August 21, 2009
minor modification of a permit shall meet the requirements of 40 

Code of Federal Regulations § 70.7(e)(2) (1 July 1993 Edition). 

If the Commission adopts rules that provide for a minor 

modification of a permit, a permittee shall not make a change in 

the permitted facility while the application for the minor 

modification is under review unless the change is authorized 

under the rules adopted by the Commission. 

 (b) The Commission shall act upon all applications for 

permits so as to effectuate the purpose

purposes of this section,

Article by reducing existing air pollution and 

preventing, so far as reasonably possible, any increased 

pollution of the air from any additional or enlarged sources. 

 (c) The Commission shall have the power: 

 (1) To grant and renew a permit with such

 any conditions attached as

 that the Commission believes 

 necessary to achieve the purposes of this 

 section Article or the 

 requirements of the Clean Air Act and implementing 

 regulations adopted by the United States 

 Environmental Protection Agency; 

 ...." 

 SECTION 3. G.S. 143-215.107(a)(8) reads as 

rewritten: 

 "(8) To develop and adopt standards and plans necessary 

 to implement programs to control acid deposition 

 and to regulate the use of sulfur dioxide (SO2)

 allowances and nitrogen oxides 

 of nitrogen (NOx) emissions in accordance 

 with Title IV and implementing regulations adopted 

 by the United States Environmental Protection 

 Agency." 

 SECTION 4. G.S. 143-215.114A(a) 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;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;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;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 Parts 1 or 7 of Article 

 21 of this Chapter;Chapter.

 (5) Violates a rule of the Commission or a local 

 governing body implementing this Article or Parts 1 

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 or 7 of Article 21;Article

 21.

 (6) Violates the offenses set out in G.S. 143-215.114B. 

 (7) Violates the emissions limitations set

 out in G.S. 143-215.107D." 

 SECTION 5. G.S. 143-215-114A is amended by 

adding a new subsection to read: 

 "(b1)The Secretary may assess a civil penalty of

not more than ten thousand dollars ($10,000) per day for a

violation of the emissions limitations set out in G.S.

143-215.107D as provided in this subsection. If at the end of

any calendar year, an investor-owned public utility has violated

an emissions limitation set out in G.S. 143-215.107D, the

violation shall be considered to be continuous from the day that

the collective emissions first exceeded the emissions limitation

set out in G.S. 143-215.107D through the end of the calendar

year and the Secretary may assess a separate civil penalty for

each day." 

 SECTION 6. G.S. 143-215.114B(f) reads as 

rewritten: 

 "(f)Any person who negligently violates any classification, 

standard or limitation established pursuant to G.S. 143-

215.107; G.S. 143-215.107 or by G.S. 143-215.107D

any term, condition, or requirement of a permit issued 

pursuant to G.S. 143-215.108 or of a special order or other 

appropriate document issued pursuant to G.S. 143-215.110 or any 

rule of the Commission implementing any of the said section, 

shall be guilty of a Class 2 misdemeanor which may include a 

fine not to exceed fifteen thousand dollars ($15,000) per day of 

violation, provided that such fine shall not exceed a cumulative 

total of two hundred thousand dollars ($200,000) for each period 

of 30 days during which a violation continues." 

 SECTION 7. G.S. 143-215.114B(g) reads as 

rewritten: 

 "(g)Any person who knowingly and willfully violates any 

classification, standard, or limitation established in the rules 

of the Commission pursuant to G.S. 143-215.107 or

G.S. 143-215.107; the emissions limitations set out

in G.S. 143-215.107D; any term, condition, or requirement of 

a permit issued pursuant to G.S. 143-215.108

G.S. 143-215.108; or of a special order or other 

appropriate document issued pursuant to G.S. 143-215.110, shall 

be guilty of a Class H felony, which may include a fine not to 

exceed one hundred thousand dollars ($100,000) per day of 

violation, provided that this fine shall not exceed a cumulative 

total of five hundred thousand dollars ($500,000) for each 

period of 30 days during which a violation continues. For the 

purposes of this subsection, the phrase "knowingly and 

willfully" shall mean intentionally and consciously as the 

courts of this State, according to the principles of common law, 

interpret the phrase in the light of reason and experience." 

 SECTION 8. G.S. 143-215.114B(h)(1) reads as 

rewritten: 

 "(1) Any person who knowingly violates any 

 classification, standard, or limitation established 

 in the rules of the Commission pursuant to 

 G.S. 143-215.107 or G.S. 143-

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 215.107; the emissions limitations set out in G.S.

 143-215.107D; any term, condition, or 

 requirement of a permit issued pursuant to 

 G.S. 143-215.108 G.S. 143-

 215.108; or of a special order or other 

 appropriate document issued pursuant to G.S. 

 143-215.110 and who knows at that time that he 

 thereby places another person in imminent danger of 

 death or serious bodily injury shall be guilty of a 

 Class C felony, which may include a fine not to 

 exceed two hundred fifty thousand dollars 

 ($250,000) per day of violation, provided that this 

 fine shall not exceed a cumulative total of one 

 million dollars ($1,000,000) for each period of 30 

 days during which a violation continues." 

 SECTION 9. Article 7 of Chapter 62 of the 

General Statutes is amended by adding a new section to read: 

"§ 62-133.6. Environmental compliance costs recovery.

 (a) As used in this section:

 (1) 'Coal-fired generating unit' means a

 coal-fired generating unit, as defined by 40 Code

 of Federal Regulations § 96.2 (1 July 2001

 Edition), that is located in this State and has the

 capacity to generate 25 or more megawatts of

 electricity.

 (2) 'Environmental compliance costs' means

 only those capital costs incurred by an

 investor-owned public utility to comply with the

 emissions limitations set out in G.S. 143-215.107D

 that exceed the costs required to comply with 42

 U.S.C. § 7410(a)(2)(D)(i)(I), as implemented by 40

 Code of Federal Regulations § 51.121 (1 July 2001

 Edition), related federal regulations, and the

 associated State or Federal Implementation Plan, or

 with 42 U.S.C. § 7426, as implemented by 40 Code of

 Federal Regulations § 52.34 (1 July 2001 Edition)

 and related federal regulations. The term

 'environmental compliance costs' does not

 include:

 a. Costs required to comply with a final

 order or judgment rendered by a state or

 federal court under which an investor-owned

 public utility is found liable for a failure

 to comply with any federal or state law, rule,

 or regulation for the protection of the

 environment or public health.

 b. The net increase in costs, above those

 proposed by the investor-owned public utility

 as part of its plan to achieve compliance with

 the emissions limitations set out in G.S. 143-

 215.107D, that are necessary to comply with a

 settlement agreement, consent decree, or

 similar resolution of litigation arising from

 any alleged failure to comply with any federal

 or state law, rule, or regulation for the

 protection of the environment or public

 health.

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 c. Any criminal or civil fine or penalty,

 including court costs imposed or assessed for

 a violation by an investor-owned public

 utility of any federal or state law, rule, or

 regulation for the protection of the

 environment or public health.

 d. The net increase in costs, above those

 proposed by the investor-owned public utility

 as part of its plan to achieve the emissions

 limitations set out in G.S. 143-215.107D, that

 are necessary to comply with any limitation on

 emissions of oxides of nitrogen (NOx) or

 sulfur dioxide (SO2) that are imposed on an

 individual coal-fired generating unit by the

 Environmental Management Commission or the

 Department of Environment and Natural

 Resources to address any nonattainment of an

 air quality standard in any area of the

 State.

 (3) 'Investor-owned public utility' means

 an investor-owned public utility, as defined in

 G.S. 62-3.

 (b) The investor-owned public utilities shall be

allowed to accelerate the cost recovery of their estimated

environmental compliance costs over a seven-year period,

beginning 1 January 2003 and ending 31 December 2009. For

purposes of this subsection, an investor-owned public utility

subject to the provisions of subsections (b) and (d) of G.S.

143-215.107D shall amortize environmental compliance costs in

the amount of one billion five hundred million dollars

($1,500,000,000) and an investor-owned public utility subject to

the provisions of subsections (c) and (e) of G.S. 143-215.107D

shall amortize environmental compliance costs in the amount of

eight hundred thirteen million dollars ($813,000,000). During

the rate freeze period established in subsection (e) of this

section, the investor-owned public utilities shall, at a

minimum, recover through amortization seventy percent (70%) of

the environmental compliance costs set out in this subsection.

The maximum amount for each investor-owned public utility's

annual accelerated cost recovery during the rate freeze period

shall not exceed one hundred fifty percent (150%) of the annual

levelized environmental compliance costs set out in this

subsection. The amounts to be amortized pursuant to this

subsection are estimates of the environmental compliance costs

that may be adjusted as provided in this section. The General

Assembly makes no judgment as to whether the actual

environmental compliance costs will be greater than, less than,

or equal to these estimated amounts. These estimated amounts do

not define or limit the scope of the expenditures that may be

necessary to comply with the emissions limitations set out in

G.S. 143-215.107D.

 (c) The investor-owned public utilities shall file

their compliance plans, including initial cost estimates, with

the Commission and the Department of Environment and Natural

Resources not later than 10 days after the date on which this

section becomes effective. The Commission shall consult with the

Secretary of Environment and Natural Resources and shall

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August 21, 2009
consider the advice of the Secretary as to whether an investorowned public utility's proposed compliance plan is adequate to

achieve the emissions limitations set out in G.S. 143-

215.107D.

 (d) Subject to the provisions of subsection (f) of

this section, the Commission shall hold a hearing to review the

environmental compliance costs set out in subsection (b) of this

section. The Commission may modify and revise those costs as

necessary to ensure that they are just, reasonable, and prudent

based on the most recent cost information available and

determine the annual cost recovery amounts that each investorowned public utility shall be required to record and recover

during calendar years 2008 and 2009. In making its decisions

pursuant to this subsection, the Commission shall consult with

the Secretary of Environment and Natural Resources to receive

advice as to whether the investor-owned public utility's actual

and proposed modifications and permitting and construction

schedule are adequate to achieve the emissions limitations set

out in G.S. 143-215.107D. The Commission shall issue an order

pursuant to this subsection no later than 31 December 2007.

 (e) Notwithstanding G.S. 62-130(d) and G.S.

62-136(a), the base rates of the investor-owned public utilities

shall remain unchanged from the date on which this section

becomes effective through 31 December 2007. The Commission may,

however, consistent with the public interest:

 (1) Allow adjustments to base rates, or

 deferral of costs or revenues, due to one or more

 of the following conditions occurring during the

 rate freeze period:

 a. Governmental action resulting in

 significant cost reductions or requiring major

 expenditures including, but not limited to,

 the cost of compliance with any law,

 regulation, or rule for the protection of the

 environment or public health, other than

 environmental compliance costs.

 b. Major expenditures to restore or

 replace property damaged or destroyed by force

 majeure.

 c. A severe threat to the financial

 stability of the investor-owned public utility

 resulting from other extraordinary causes

 beyond the reasonable control of the investor-

 owned public utility.

 d. The investor-owned public utility

 persistently earns a return substantially in

 excess of the rate of return established and

 found reasonable by the Commission in the

 investor-owned public utility's last general

 rate case.

 (2) Approve any reduction in a rate or

 rates applicable to a customer or class of

 customers during the rate freeze period, if

 requested to do so by an investor-owned public

 utility that is subject to the emissions

 limitations set out in G.S. 143-215.107D.

 (f) In any general rate case initiated to adjust

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base rates effective on or after 1 January 2008, the investorowned public utility shall be allowed to recover its actual

environmental compliance costs in accordance with Article 7 of

this Chapter less the cumulative amount of accelerated cost

recovery recorded pursuant to subsection (b) of this

section.

 (g) Consistent with the public interest, the

Commission is authorized to approve proposals submitted by an

investor-owned public utility to implement optional,

market-based rates and services, provided the proposal does not

increase base rates during the period of time referred to in

subsection (e) of this section.

 (h) Nothing in this section shall prohibit the

Commission from taking any actions otherwise appropriate to

enforce investor-owned public utility compliance with applicable

statutes or Commission rules or to order any appropriate remedy

for such noncompliance allowed by law.

 (i) An investor-owned public utility that is

subject to the emissions limitations set out in G.S. 143-

215.107D shall submit to the Commission and to the Department of

Environment and Natural Resources on or before 1 April of each

year a verified statement that contains all of the

following:

 (1) A detailed report on the investor-

 owned public utility's plans for meeting the

 emissions limitations set out in G.S. 143-

 215.107D.

 (2) The actual environmental compliance

 costs incurred by the investor-owned public utility

 in the previous calendar year, including a

 description of the construction undertaken and

 completed during that year.

 (3) The amount of the investor-owned

 public utility's environmental compliance costs

 amortized in the previous calendar year.

 (4) An estimate of the investor-owned

 public utility's environmental compliance costs and

 the basis for any revisions of those estimates when

 compared to the estimates submitted during the

 previous year.

 (5) A description of all permits required

 in order to comply with the provisions of G.S. 143-

 215.107D for which the investor-owned public

 utility has applied and the status of those permits

 or permit applications.

 (6) A description of the construction

 related to compliance with the provisions of G.S.

 143-215.107D that is anticipated during the

 following year.

 (7) A description of the applications for

 permits required in order to comply with the

 provisions of G.S. 143-215.107D that are

 anticipated during the following year.

 (8) The results of equipment testing

 related to compliance with G.S. 143-215.107D.

 (9) The number of tons of oxides of

 nitrogen (NOx) and sulfur dioxide (SO2) emitted

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 during the previous calendar year from the coal-

 fired generating units that are subject to the

 emissions limitations set out in G.S. 143-

 215.107D.

 (10) The emissions allowances described in

 G.S. 143-215.107D(i) that are acquired by the

 investor-owned public utility that result from

 compliance with the emissions limitations set out

 in G.S. 143-215.107D.

 (11) Any other information requested by the

 Commission or the Department of Environment and

 Natural Resources.

 (j) The Secretary shall review the information

submitted pursuant to subsection (i) of this section and

determine whether the investor-owned public utility's actual and

proposed modifications and permitting and construction schedule

are adequate to achieve the emissions limitations set out in

G.S. 143-215.107D and shall advise the Commission as to the

Secretary's findings and recommendations.

 (k) Any information, advice, findings,

recommendations, or determinations provided by the Secretary

pursuant to this section shall not constitute a final agency

decision within the meaning of Chapter 150B of the General

Statutes and shall not be subject to review under that

Chapter." 

 SECTION 10. It is the intent of the General 

Assembly that the State use all available resources and means, 

including negotiation, participation in interstate compacts and 

multistate and interagency agreements, petitions pursuant to 42 

U.S.C. § 7426, and litigation to induce other states and 

entities, including the Tennessee Valley Authority, to achieve 

reductions in emissions of oxides of nitrogen (NOx) and sulfur 

dioxide (SO2) comparable to those required by G.S. 143-215.107D, 

as enacted by Section 1 of this act, on a comparable schedule. 

The State shall give particular attention to those states and 

other entities whose emissions negatively impact air quality in 

North Carolina or whose failure to achieve comparable reductions 

would place the economy of North Carolina at a competitive 

disadvantage. 

 SECTION 11. The Environmental Management 

Commission shall study the desirability of requiring and the 

feasibility of obtaining reductions in emissions of oxides of 

nitrogen (NOx) and sulfur dioxide (SO2) beyond those required by 

G.S. 143-215.107D, as enacted by Section 1 of this act. The 

Environmental Management Commission shall consider the 

availability of emissions reduction technologies, increased cost 

to consumers of electric power, reliability of electric power 

supply, actions to reduce emissions of oxides of nitrogen (NOx) 

and sulfur dioxide (SO2) taken by states and other entities 

whose emissions negatively impact air quality in North Carolina 

or whose failure to achieve comparable reductions would place 

the economy of North Carolina at a competitive disadvantage, and 

the effects that these reductions would have on public health, 

the environment, and natural resources, including visibility. 

In its conduct of this study, the Environmental Management 

Commission may consult with the Utilities Commission and the 

Public Staff. The Environmental Management Commission shall 

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report its findings and recommendations to the General Assembly 

and the Environmental Review Commission annually beginning 1 

September 2005. 

 SECTION 12. The General Assembly anticipates 

that measures implemented to achieve the reductions in emissions 

of oxides of nitrogen (NOx) and sulfur dioxide (SO2) required by 

G.S. 143-215.107D, as enacted by Section 1 of this act, will 

also result in significant reductions in the emissions of 

mercury from coal-fired generating units. The Division of Air 

Quality of the Department of Environment and Natural Resources 

shall study issues related to monitoring emissions of mercury 

and the development and implementation of standards and plans to 

implement programs to control emissions of mercury from 

coal-fired generating units. The Division shall evaluate 

available control technologies and shall estimate the benefits 

and costs of alternative strategies to reduce emissions of 

mercury. The Division shall annually report its interim 

findings and recommendations to the Environmental Management 

Commission and the Environmental Review Commission beginning 1 

September 2003. The Division shall report its final findings 

and recommendations to the Environmental Management Commission 

and the Environmental Review Commission no later than 1 

September 2005. The costs of implementing any air quality 

standards and plans to reduce the emission of mercury from 

coal-fired generating units below the standards in effect on the 

date this act becomes effective, except to the extent that the 

emission of mercury is reduced as a result of the reductions in 

the emissions of oxides of nitrogen (NOx) and sulfur dioxide 

(SO2) required to achieve the emissions limitations set out in 

G.S. 143-215.107D, as enacted by Section 1 of this act, shall 

not be recoverable pursuant to G.S. 62-133.6, as enacted by 

Section 9 of this act. 

 SECTION 13. The Division of Air Quality of the 

Department of Environment and Natural Resources shall study 

issues related to the development and implementation of 

standards and plans to implement programs to control emissions 

of carbon dioxide (CO2) from coal-fired generating units and 

other stationary sources of air pollution. The Division shall 

evaluate available control technologies and shall estimate the 

benefits and costs of alternative strategies to reduce emissions 

of carbon dioxide (CO2). The Division shall annually report its 

interim findings and recommendations to the Environmental 

Management Commission and the Environmental Review Commission 

beginning 1 September 2003. The Division shall report its final 

findings and recommendations to the Environmental Management 

Commission and the Environmental Review Commission no later than 

1 September 2005. The costs of implementing any air quality 

standards and plans to reduce the emission of carbon dioxide 

(CO2) from coal-fired generating units below the standards in 

effect on the date this act becomes effective, except to the 

extent that the emission of carbon dioxide (CO2) is reduced as a 

result of the reductions in the emissions of oxides of nitrogen 

(NOx) and sulfur dioxide (SO2) required to achieve the emissions 

limitations set out in G.S. 143-215.107D, as enacted by Section 

1 of this act, shall not be recoverable pursuant to G.S. 

62-133.6, as enacted by Section 9 of this act. 

 SECTION 14. On or before 1 June of each year, 

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the Department of Environment and Natural Resources and the 

Utilities Commission shall report on the implementation of this 

act to the Environmental Review Commission and the Joint 

Legislative Utility Review Committee. The first report required 

by this section shall be submitted no later than 1 June 2003. 

 SECTION 15. If any section or provision of this 

act is declared unconstitutional or invalid by the courts, the 

unconstitutional or invalid section or provision does not affect 

the validity of this act as a whole or any part of this act 

other than the part declared to be unconstitutional or invalid. 

 SECTION 16. This act is effective when it 

becomes law except that G.S. 143-215.107D(i), as enacted by 

Section 1 of this act, is effective retroactively to 1 June 

2002. 

 In the General Assembly read three times and ratified 

this the 19th day of June, 2002. 

 s/ Marc Basnight 

 President Pro Tempore of the 

Senate 

 s/ James B. Black 

 Speaker of the House of 

Representatives 

 s/ Michael F. Easley 

 Governor 

Approved 11:30 a.m. this 20th day of June, 2002 

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