North Carolina Department of Justice
North Carolina Department of Justice
North Carolina Department of Justice
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February 8, 2001

Alan W. Klimek Director North Carolina Division of Air Quality 1641 Mail Service Center Raleigh, NC 27699-1641

Re: Advisory opinion: Timing of permit requirement for air contaminant sources;

G.S. § 143-215.108

Dear Mr. Klimek:

You have asked this office for advice regarding when in the process of constructing an air contaminant source regulated under G.S. § 143-215.108 an air quality permit is needed. I understand that you are seeking this advice in order to guide your response to an inquiry from Citizens Against the Asphalt Plant ("CAAP") made in their January 14 letter to you. In that letter, counsel for CAAP describes a situation in Henderson County involving an asphalt plant being constructed by Tarheel Paving Company ("TPC"). To the extent that this matter involves the interpretation of any sections of title 153A of the General Statutes, those issues have been addressed in letters dated December 18 and January 8 from Ms. Anne Kirby of this office, and this letter is not intended to revisit the interpretation of title 153A.

With regard to sources of air contaminants, such as the asphalt plant under construction by TPC, § 143-215.108(a) provides:

(a) After the effective date applicable to any air quality or emission control standards established pursuant to G.S. 143-215.107 and 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 until or unless such person shall have applied for and shall have received from the Commission a permit therefor and shall have complied with such conditions, if any, as are prescribed by such permit:

(1) Establish or operate any air contaminant source;

(2)
Build, erect, use or operate any equipment which may result in the emission of air contaminants or which is likely to cause air pollution;
(3)
Alter or change the construction or method of operation of any equipment or process from which air contaminants are or may be emitted;

(4) Enter into an irrevocable contract for the construction and installation of any Page 2 Alan Klimek February 8, 2001

air-cleaning device, or allow or cause such device to be constructed, installed, or operated.

Paragraph (a)(2) of § 143-215.108 states that a person may not, without a permit, "[b]uild, erect, use or operate any equipment which may result in the emission of air contaminants or which is likely to cause air pollution ...." The terms "[b]uild, erect, use [and] operate" are not defined by statute and therefore have their ordinary meanings. State v. Wiggins, 272 N.C. 147, 153, 158 S.E.2d 37, 42 (1967), cert. denied, 390 U.S. 1028, 88 S. Ct. 1418, 20 L. Ed. 2d 285 (1968). "Build" means "[t]o form by combining materials or parts." Webster's II New College Dictionary 145 (1999). "Erect" is defined similarly. Id. at 381. Your inquiry raises the question whether these terms refer to the process of building or erecting or the completed act of building or erecting.

The legislature juxtaposed the terms "build" and "erect" with "use" and "operate." If "build" and "erect" were interpreted to refer to the completed act of building, there would be little if any practical difference between those terms and "use" or "operate." "[A] statute should not be interpreted in a manner which would render any of its words superfluous." State v. Coffey, 336

N.C. 412, 417-18, 444 S.E.2d 431-34 (1994). The more logical interpretation is that "build" and "erect" apply to the creation of new sources, and therefore to the entire process of building, whereas "use" and "operate" apply to existing sources.

The EMC's regulations support and confirm this distinction and show the Commission's understanding that permits are required at the commencement of construction, and not only near its completion. "[T]he owner or operator of a new, modified, or existing facility or source shall not begin construction or operation without first obtaining a construction and operation permit ...." 15A NCAC § 2Q.0301 (emphasis added); see also id. § 2Q.0101(b)(1). These regulations use the term "construction" as a surrogate for "build" and "erect." "'Construction' means change in the method of operation or any physical change (including on-site fabrication, erection, installation, replacement, demolition, or modification of a source) that results in a change in emissions or affects the compliance status."1 Id. § 2Q.0103(8).

Thus, a person "shall not begin" "on-site fabrication, erection [or] installation" of a source if that activity "results in a change in emissions or affects the compliance status." Clearly the construction of a new facility results in a "change in emissions" from zero to some amount. Construction also affects compliance status because a person does not need an air permit to own an empty lot but does need a permit to maintain a constructed air contaminant source on that lot.

1 Read literally, the term "results" would require the source to actually emit before the permit requirement is triggered. This clearly is contrary to the statutory prohibition against "use" or "operat[ion]" of a source without a permit, and would require a source to be completely built or erected prior to triggering the permit requirement. The term "results" cannot be read literally. To do so would eviscerate the terms "build" and "erect." Likewise nor can the term "affects" be construed literally.

Page 3 Alan Klimek February 8, 2001

The definition of "construction" in § 2Q.0103 does not differ materially from that in the federal regulations regarding the Prevention of Significant Deterioration ("PSD") program. See 40 CFR § 51.166(b)(8). The State program does not define "begin" but the federal program does, and so reference to that program provides further clarification. Under the PSD program, "[b]egin actual construction means, in general, initiation of physical on-site construction activities ... which are of a permanent nature. Such activities include, but are not limited to, installation of building supports and foundations, laying of underground pipework, and construction of permanent storage structures." 40 CFR § 51.166(b)(11) (italics in original). This definition comports with the intent of § 143-215.108(a)(2), described above, and with the State's regulatory language.

This interpretation of § 143-215.108(a)(2) is also consistent with the Division of Water Quality's ("DWQ") permitting activities under G.S. § 143-215.1. The latter statute requires permits before one may "[c]onstruct or operate any sewer system, treatment works, or disposal system ...." DWQ consistently has required permits before construction commences. Because "build" is a synonym of "construct," § 143-215.108 should be applied similarly and require a permit at the outset of construction.

To summarize: Section 143-215.108(a)(2), as implemented by the EMC, requires that a person secure a permit prior to the actual on-site assembling of materials that will constitute a "source." See 15A NCAC § 2Q.0101(a)(1), .0103(31). This does not necessarily require a permit for activities that precede the emplacement or assembling of materials at the facility site, such as land clearing or grading. Some activities that trigger this permit requirement are described in the PSD regulations.

Sincerely,

J. Allen Jernigan Special Deputy Attorney General

Marc Bernstein Assistant Attorney General

c: Robin W. Smith

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