Approved March 2025 AQC Meeting Minutes

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ENVIRONMENTAL MANAGEMENT COMMISSION
AIR QUALITY COMMITTEE MEETING SUMMARY March 12, 2025 Ground Floor Hearing Room of the Archdale Building 10:15A.M. – 12:20 P.M.

AQC MEMBERS IN ATTENDANCE Chair Charles (Charlie) Carter Mr. Michael Ellison
Ms. Yvonne Bailey Ms. Robin Smith
Mr. Chris Duggan, EMC Vice-Chair Ms. Elizabeth (Jill) Weese

OTHERS IN ATTENDANCE
MEETING BRIEF
During the March 12, 2025, meeting, the Air Quality Committee (AQC) of the Environmental Management
Commission (EMC) heard:
1. Agenda Item III-1: Request for Approval to Proceed to the EMC to Request Approval to Proceed to
Hearing on Proposed Revisions to 15A NCAC 02D .1904, Air Curtain Incinerators, and 15A NCAC
02Q .0810, Air Curtain Burners, and Regulatory Impact Analysis (567) (Anna Delahunt, DAQ)
2. Agenda Item III-2: Agenda Item III-2, Request for Approval to Proceed to the EMC to Request
Approval to Proceed to Public Comment on Agency Determination Reports for Periodic Review of
Rules in 15A NCAC 02D and 02Q (568) (Joelle Burleson, DAQ)
3. Agenda Item V-1: Overview of Exceptional Events Demonstration for Revised PM2.5 NAAQS (Sara
Kreuser, DAQ)
4. Agenda Item V-2: Update on Pre-Permitting Provisions of North Carolina Session Law 2023-134,
Section 12.11, as amended by Session Law 2024-1, Section 4.13
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I. PRELIMINARY MATTERS
Agenda Item I-1, Call to Order and the State Government Ethics Act, N.C.G.S. §138A-15
AQC Chair Carter called the meeting to order and inquired, per General Statute §138A-15, as to whether
any member knows of any known conflict of interest or appearance of conflict with respect to matters before
the EMC’s AQC. None were stated.
Agenda Item I-2, Approval of minutes from the Air Quality Committee meeting on November 13,
2024
AQC Chair Carter requested approval of the November 13, 2024, meeting minutes. Commissioner Smith motioned to approve the minutes and Commissioner Bailey seconded the motion. The motion passed unanimously.
Agenda Item I-3, Approval of minutes from the Air Quality Committee meeting on January 8, 2025
Commissioner Duggan suggested that the attendance be edited to indicate that he is on the Committee. AQC Chair Carter requested approval of the January 8, 2025, meeting minutes with that change. Commissioner Duggan motioned to approve the minutes and Commissioner Bailey seconded the motion. The motion passed unanimously.
II. RULEMAKING CONCEPTS
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III. ACTION ITEMS
Agenda Item III-1: Request for Approval to Proceed to the EMC to Request Approval to Proceed to
Hearing on Proposed Revisions to 15A NCAC 02D .1904, Air Curtain Incinerators, and 15A NCAC
02Q .0810, Air Curtain Burners, and Regulatory Impact Analysis (567) (Anna Delahunt, DAQ)
Anna Delahunt (DAQ): Hi, I am Anna Delahunt with the DAQ and today I'm presenting on revisions to
15A NCAC 02D .1904, Air Curtain Incinerators and 15A NCAC 02Q .0810, Air Curtain Burners.
(Slide 2) Here are some acronyms and abbreviations I'll be using throughout the presentation for you to
reference.
(Slide 3) For some background on Rule 02D .1904, this rule sets conditions for the operation of air curtain
incinerators (ACIs), including applicability, permitting, opacity limitations, performance tests, and
recordkeeping requirements. Currently, the existing rule requires Title V permits for all ACIs, except for
some temporary-use ACIs used in disaster recovery. Also, throughout this presentation I'll be using the
terms “air curtain incinerators,” or ACIs, and air curtain burners interchangeably because they refer to the
same thing. Rule 02D .1904 was previously amended to change all references of air curtain burners to ACIs,
and we are doing the same to Rule 02Q .0810 in this rulemaking. Rule 02D .1904 was originally adopted
and became effective on July 1, 1996, to set requirements for air curtain burners. At that time, burners that
had the potential to burn 15,000 tons of material or more per year were subject to 15A NCAC 02Q .0500,
Title V Procedures.
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(Slide 4) The United States Environmental Protection Agency (EPA) promulgated federal New Source
Performance Standards (NSPS) and Emission Guidelines (EGs) for Commercial and Industrial Solid Waste
Incineration (CISWI) units in 40 CFR Part 60, Subparts CCCC and DDDD, respectively, on December 1,
2000. These federal rules required all CISWI units to obtain and hold Title V permits, and EPA clarified
that CISWI units did include CISWI ACIs. On December 16, 2005, the EPA promulgated federal NSPS
and EGs for Other Solid Waste Incineration (OSWI) units under 40 CFR Part 60, Subparts EEEE and FFFF,
which required all OSWI units (including OSWI ACIs) to obtain and hold Title V permits.
(Slide 5) Under Subparts EEEE and FFFF, certain ACIs are only subject to a small subset of the
requirements, and these are termed “OSWI ACIs” for this analysis. These OSWI ACIs include: ACIs with
a capacity of less than 35 tons per day (tpd) that burn only the materials listed below, which are 100% wood
waste, 100% clean lumber, 100% yard waste, or a 100% mixture of these materials, collected from the
general public and from residential, commercial, institutional, and industrial sources; and ACIs located at
institutional facilities that burn any amount of those same materials, and these materials have to be
generated at that institutional facility.
(Slide 6) This is a chart that breaks down the different types of ACIs that are included under the term “OSWI
ACI” and has the different definitions mentioned before. New OSWI ACIs, as you can see, are subject to
40 CFR Part 60, Subpart EEEE, and existing OSWI ACIs are subject to 40 CFR Part 60, Subpart FFFF.
Something else to note is that the NSPS and EG requirements are nearly identical, so they are incorporated
into this rule together.
(Slide 7) Similarly, the federal CISWI regulations, Subparts CCCC and DDDD, carve out a subset of
requirements for certain ACIs covered under those rules, and these ACIs are termed “CISWI ACIs” for this
analysis. A CISWI ACI is an ACI with a capacity of greater than or equal to 35 tpd that burns only 100%
wood waste, 100% clean lumber, or a 100% mixture of only wood waste, clean lumber, and yard waste.
(Slide 8) This is another chart that breaks down the different parts of the definition of a CISWI ACI.
(Slide 9) Amendments to Rule 02D .1904 effective on August 4, 2004, increased the threshold for facilities
needing a Title V permit from 15,000 tpy to 77,000 tpy. The readoption of 15A NCAC 02D .1904 on
September 1, 2019, updated the rule to align with federal rules for CISWI and OSWI ACIs and required
that all new and existing ACIs obtain a General Title V Operating Permit pursuant to Rule 02Q .0509 for
permanent ACIs or Rule 02Q .0510 for temporary ACIs. On August 31, 2020, EPA performed a five-year
review of the NSPS and EG for OSWI units. Following this review, the EPA proposed changes to the NSPS
and EG for OSWI units, including removal of the Title V requirement for OSWI ACIs.
Chair Carter: Let me stop here and ask a question because I think I'm a little confused on this. Back up to
that previous slide if you would. Now the first bullet point says the threshold for needing a Title V permit
was increased from 15,000 to 77,000 tpy. But the next bullet, unless I'm misreading it, says that it requires
all new and existing ACIs to obtain a Title V permit and doesn't include that threshold.
Anna Delahunt: I think that was a response to a change in the federal rules.
Chair Carter: Why would you need a Title V permit if the threshold has been increased to 77,000 tpy?
Anna Delahunt: The Rulet changed from having a threshold to requiring all ACIs to obtain a Title V permit.
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Commissioner Duggan: The first bullet point was in 2004, and the second was in 2019.
Chair Carter: No, I understand that. So, they went up and then they turned around and said, “No wait a
minute, we're going to eliminate the threshold?”
Mike Abraczinskas (DAQ Director): If I may Mr. Chairman, I think the first bullet is referring to a change
to the state rule that DAQ made in 2004, and then the second bullet is referring to the categorical
requirement for Title V permits that came about in the federal rules later.
Anna Delahunt: Yes.
Chair Carter: Why is EPA apparently requiring a Title V permit for what could be very small units here,
if there is no threshold?
Director Abraczinskas: Part of this story is that they are now removing those requirements, so that is what
we are aiming to change, and that is forthcoming.
Chair Carter: Alright, sorry.
Anna Delahunt: (Slide 10) On April 17, 2024, the EPA finalized the elimination of the Title V permit
requirement for OSWI ACIs. The ACIs cannot be located at Title V major sources or be otherwise subject
to Title V permit requirements, and they must also continue to comply with opacity limitations. The DAQ
is proposing to amend Rule 02D .1904 to remove the Title V permit requirement for OSWI ACIs.
Additionally, the DAQ is proposing clarifying changes to the monitoring, recordkeeping and reporting
provisions based on comments from DAQ staff.
(Slide 11) Something else to note is that on October 10, 2024, the General Assembly of North Carolina
passed House Bill 149, also known as the Disaster Recovery Act of 2024, in response to Hurricane Helene.
Section 10.5.(c) of the Act stated that owners and operators of permanent and temporary ACIs subject to
Subparts EEEE and FFFF shall not be required to obtain a General Title V Operating Permit. This change
applies to OSWI ACIs and is consistent with the EPA’s final action to revise the federal OSWI rules in
April of 2024. Section 10.5.(d) of the Act requires the EMC to amend Rule 02D .1904 to be consistent with
Section 10.5.(c), which will be in effect until the revised permanent rule is effective. Since Section 10.5 of
the Act is already in effect, it is considered part of the baseline, or business-as-usual operations, for the
purposes of this analysis. The costs and savings discussed in this fiscal note are attributable to the Disaster
Recovery Act of 2024 rather than this specific rulemaking.
(Slide 12) Here is a summary of the amendments that we are proposing to Rule 02D .1904. We are revising
applicability language, revising definitions for temporary ACIs and temporary-use ACIs used in disaster
recovery, refining the particulate types for prevention of significant deterioration (PSD) increment, adding
requirements for managing ash, revising permit requirements to be consistent with 40 CFR Part 60, Subparts
EEEE and FFFF, revising opacity limits to distinguish requirements for OSWI and CISWI ACIs and to
make them consistent with Subparts EEEE and FFFF, adding a requirement to notify the DAQ of startup
within 15 days of commencing operation, and adding a requirement to keep daily logs.
Chair Carter: Are we implementing what the General Assembly passed in October or the federal
requirements, or is there a conflict between those two?
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Anna Delahunt: The General Assembly passed the removal of the Title V permit requirement, and the other
parts of the rule needed to be changed to more accurately comply with Subparts EEEE and FFFF, and then
we are also proposing changes requested by other DAQ staff.
Chair Carter: Okay.
Director Abraczinskas: If I may Mr. Chairman, the last bullet on the bottom of Slide 11 indicates that the
provisions of the Disaster Recovery Act are already in effect.
Chair Carter: I saw that, but I wasn't sure whether this rule is going to change that in some way.
EMC Chair Solomon: How do we make it clear in the rule what the statutorily required change is, or
should we? Because back to the Chairman's question, is somebody at the General Assembly going to ask if
we have specifically made that adjustment? It is hard for me to understand what you all are saying. It is
buried in here. How could we specifically pull that out and make that reference, and can we? How can we
identify it easily?
Anna Delahunt: Identify whether the change has been made to the rule?
EMC Chair Solomon: Yes, that the General Assembly required us to make. How do we know we've done
that versus what the Chairman asked, as part of the overall EPA rule? How do we know they are consistent
if you just read the rule?
Commissioner Bailey: I don't know that there is a way to mark the language, but the actual revised rule
will have an addition to the rule history note that will show that the most recent revisions were in response
to that Session Law. It will cite the Session Law in the history note for the changes made in this version of
the rule.
EMC Chair Solomon: I agree with you, Commissioner. I was just jumping out in front now because
somebody will have to also explain this to the Rules Review Commission (RRC) too, and I guess I'm
looking at Counsel to make sure she knows what her footnote is or where this is exactly at so the RRC can
see not to change that language that was required by statute versus EPA. I'm asking the question as you are,
how is that process made easier?
Chair Carter: I think you are both going in the right direction, but I think the history note is fine. I think
the question that the Chairman is asking is if somebody sits down to look at these rules, will the changes
that we have described here as being in effect already because they are in the statute, will they be reflected
in the rule so that if somebody goes and looks at it, they know? That's the question, I think.
Anna Delahunt: Yes, so we are changing the rule language to specify that these OSWI units will no longer
require Title V permits.
Chair Carter: All right.
Director Abraczinskas: There is specific language added to the draft rule on the agenda – “The following
air curtain incinerators shall not be required to obtain a Title V permit” - and then it sub-bullets it out from
there. I think that is the explicit example.
Chair Carter: Pretty much takes care of it.
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Anna Delahunt: (Slide 13) We are also amending Rule 02Q .0810, Air Curtain Burners. The 02Q .0800
rules are termed the “Exclusionary Rules”, and they provide that certain types of facilities can be excluded
from Title V permitting requirements in Rule 02Q .0500 if their actual annual throughput or production rate
remains below the threshold, or exclusionary limit, established in the 02Q .0800 rule applicable to that
industry. The exclusionary limits in each of the 02Q .0800 rules are calculated as the highest throughputs
that a facility could have while keeping emissions below the Title V major source thresholds. These
thresholds include 100 tons per year (tpy) of each criteria pollutant, ten (10) tpy of each individual
hazardous air pollutant (HAP), and 25 tpy of all HAPs combined. As I will explain later, this proposed rule
revision will only be applicable to CISWI ACIs.
(Slide 14) Rule 02Q .0810 was originally adopted and became effective on December 1, 2005, and
exempted facilities with only air curtain burners combusting less than 8,100 tons of land clearing debris per
year from the Title V permit requirement. The 8,100 tpy limit was calculated to correspond to the major
source threshold of 100 tpy of a criteria pollutant using an emission factor of 12.23 grams of particulate
matter (PM) emissions per kilogram of land-clearing debris burned, which is equivalent to 24.46 pounds
(lbs) of PM per ton burned. This emission factor comes from an October 1996 EPA study.
Chair Carter: Let me stop right there just with a quick question. PM is the primary pollutant here and not
carbon monoxide (CO)?
Anna Delahunt: In the past for this given set of emission factors, PM was the highest. It was sort of the
“limiting pollutant,” so of the given criteria pollutants, it had the highest emissions per ton burned and
would reach the 100 tpy threshold first. We are now using updated emission factors, and the limiting
pollutant does change from PM to CO.
Chair Carter: Okay. One other quick thing on the previous slide – you have the statutory thresholds in
here, 100 tpy, 10 tpy, and 25 tpy. Is there any real expectation that you are going to hit either 10 or 25 tpy
for HAPs from these types of units?
Anna Delahunt: That is a great point. The OSWI ACIs do not really burn enough to reach it, so this rule
really is only applicable to CISWI ACIs.
Chair Carter: If they're burning wood and wood waste and so on, where are we getting HAPs?
Anna Delahunt: The limit that really is applicable here is the 100 tpy of each criteria pollutant; these were
just listing the possible source thresholds.
Chair Carter: All right. I was just trying to understand if it was likely that either of those thresholds were
going to be hit, either the 10 or the 25 tpy.
Anna Delahunt: (Slide 15) The DAQ is proposing to modify the exclusionary limit in 15A NCAC 02Q
.0810 to reflect updated emission factors and clarify that it does not supersede the permitting requirements
of Rule 02D .1904.
(Slide 16) The proposed revisions to Rule 02Q .0810 include recalculating the Title V exclusionary limit
that exempts ACIs from Title V permitting requirements in 15A NCAC 02Q .0500, using emission factors
for ACIs published by the San Joaquin Valley Air Pollution Control District in 2017. The limiting pollutant
from these factors is CO, which has an emission factor of 2.6 pounds (lbs) of CO emitted per ton of material
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burned. This factor results in a new exclusionary limit of 76,000 tons of material burned per year. These
ACI emission factors are more representative of current ACIs and are currently used for permitting ACIs
in North Carolina and other states.
(Slide 17) All OSWI ACIs in North Carolina burn less than 35 tpd of only wood waste, clean lumber, yard
waste, or a mixture of these materials, which equals a maximum of 12,775 tons of material per year.
Consequently, Rule 02Q .0810 would only apply to CISWI ACIs, which are still currently required to
maintain a Title V permit. As a result, the proposed revisions to Rule 02Q .0810 would not change the
current permitting requirements for any unit but would serve as a “backstop” in the event that the EPA later
removes the Title V permitting requirement for CISWI ACIs that burn only wood waste, clean lumber, yard
waste, or a mixture of these materials. We anticipate that EPA will do this at some point in the future. To
clarify this point, the rule is proposed to be modified to clarify that it does not supersede the permitting
requirements of Rule 02D .1904.
(Slide 18) Here is a breakdown of the different amendments we are proposing to make to Rule 02Q .0810.
We are replacing all instances of the term “air curtain burner” with “air curtain incinerator” in the title and
text and revising applicability so that all sources at a site utilizing this rule, not just those sources requiring
a permit, are limited to one or more ACIs. We updated the exclusionary limit to incorporate updated
emission factors, revised timelines to be clear throughout the rule, revised the list of permissible materials
to be consistent with 40 CFR Part 60, Subparts EEEE and FFFF, added language to clarify the Rule does
not supersede Rule 02D .1904, and revised requirements to specify that the types of material combusted
must be included in reports.
(Slide 19) The fiscal note for this rulemaking was approved by the Office of State Budget and Management
(OSBM) on March 3, 2025. Since the federal rules and Rule 02D .1904 currently require that all CISWI
ACIs obtain a Title V permit (regardless of annual emissions), the proposed changes to Exclusionary Rule
02Q .0810 would not have any fiscal or environmental impact upon the Rule changes becoming effective.
Since the Disaster Recovery Act of 2024 serves as the baseline for this analysis, the removal of the Title V
permitting requirement for OSWI ACIs does not result in any impacts attributable to the proposed rule
amendments. Nevertheless, the fiscal note still characterizes and quantifies the estimated costs and savings
to industry, local governments, and state government associated with a change in permit requirements.
(Slide 20) Currently in North Carolina, there are 18 facilities with OSWI ACIs that would no longer be
required to obtain a Title V permit. They may still need to obtain a Construction and Operation Permit,
(commonly referred to as a non-Title V permit, State permit, or small permit) issued pursuant to the
provisions of 15A NCAC 02Q .0300 if they do not qualify for one of the exemptions listed in 15A NCAC
02Q .0102. The exemption that would be most applicable in this scenario would be the exemption in one
.0102(d), which states that facilities whose actual emissions of PM, sulfur dioxide (SO2), nitrogen oxides
(NOx), volatile organic compounds, carbon monoxide, HAPs, and toxic air pollutants are each less than five
(5) tpy and whose actual aggregate emissions are less than ten (10) tpy are not required to obtain a small
permit (except for synthetic minor facilities). Based on a review of emissions inventory data from these
facilities over the last three years, only one facility is anticipated to still need a small permit. Although the
remaining 17 OSWI ACI facilities appear to possibly qualify for an exemption, they may still choose to
apply for and obtain a small permit. A facility may want to hold a small permit for a variety of reasons,
such as to allow for growth in future operations that may result in actual emissions greater than the
threshold. Due to this uncertainty, this analysis captures both scenarios, resulting in a range of estimated
costs and savings. We have a scenario where just one (1) facility will have a small permit and a scenario
where all 18 facilities have a small permit.
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(Slide 21) The fiscal impacts to the private sector and local government, which refers to 4 of the 18 facilities
that are owned by local governments, include savings in Title V annual permit fees, but also additional
costs from new small permit fees, savings in labor for activities related to Title V permits, but also additional
labor costs for activities related to new small permits. Fiscal impacts to the State include reduced revenue
from Title V annual permit fees, but additional revenue from new small permit fees, labor savings for
activities related to Title V permits, and additional labor costs for activities related to new small permits.
(Slide 22) This table breaks down the estimated savings for the private sector, local government, and state
government at a 7% discount rate for the scenario where only one facility will have a small permit. You
can see the total net savings for the private sector from 2025 to 2029 is $123,982, the total net savings for
the local government is $36,648, and the total net cost to the state government is $22,586, resulting in an
overall total of $138,044 in savings.
(Slide 23) This shows the scenario where all 18 of the facilities obtain small permits. The net savings to the
private sector is $17,025, the net savings to local governments is $3,041, and the net costs to the state
government is $70,742, resulting in a total net cost of $50,676.
(Slide 24) The Director recommends that the Committee approve the proposed rule amendments to 15A
NCAC 02D .1904 and 15A NCAC 02Q .0810 and the accompanying fiscal note to proceed to the EMC to
request approval to proceed to public comment.
(Slide 25) One more thing to note is that the effective date is different for this rule than some other rules.
Pursuant to Section 10.5.(d) of the Disaster Recovery Act, rules adopted pursuant to this section are not
subject to Part 3 of Article 2A of Chapter 150B of the General Statutes (G.S.) (i.e., RRC review), and shall
become effective as provided in G.S. 150B-21.3(b1), as though ten (10) or more written objections had
been received as provided in G.S. 150B-21.3(b2). The rule will go to the next Legislative Session for review
by the General Assembly. Pursuant to G.S. 150B-21.3(b1), rules that go before the General Assembly will
become effective on the earlier of the thirty‑first legislative day or the day of adjournment of the next regular
session of the General Assembly that begins at least 25 days after the date the RRC approved that rule,
unless a different effective date applies. This only applies to Rule 02D .1904, so Rule 02D .1904 and Rule
02Q .0810 will have two different timelines, as you will see in the next few slides. Since Rule 02D .1904
will not go to the RRC so the first or third option will apply.
(Slide 26) Here's the schedule for Rule 02D .1904, and you can see between this schedule and the schedule
for Rule 02Q .0810, the differences come in the latter stages. Thank you.
Commissioner Ellison: Excuse me, a couple questions. I think on around Slide 5 or 6, you cited an EPA
study.
Anna Delahunt: Yes.
Commissioner Ellison: Was that just an EPA study, or was that some sort of EPA standard or a study that
resulted in a standard? Was this change in emission factor an EPA suggestion, or are you just leveraging
some EPA data?
Anna Delahunt: We are trying to make the emission factor more relevant to how ACIs are today versus
how they were in 1996. The emission factors we are changing to are those currently being used to issue
permits for ACIs.
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Commissioner Ellison: Okay, and then to the San Joaquin Valley air quality factors, why are you using
their criteria?
Anna Delahunt: Those are being used by the Permitting staff at the DAQ and permitting from other states
with more updated emission factors for more modern ACIs.
Commissioner Ellison: Why do you rely on California's air quality districts which are in California? Why
is that the source for your revision.
Anna Delahunt: I think we were trying to be consistent with permitting and to represent what ACIs emit
today versus in the past.
Commissioner Ellison: To be consistent with permitting with in California?
Anna Delahunt: No, in North Carolina. These are the emission factors that the DAQ uses for permitting in
North Carolina.
Commissioner Ellison: They were originally based on the San Joaquin air quality department?
Chair Carter: Let me ask a question here that may help clarify this, which is, it used to be that EPA put
out emission factors. They have quit doing that, right? And that's why we're using other sources? Am I
wrong about that?
Director Abraczinskas: I think this is just a matter of what is the most up-to-date set of emission factors
from testing of these types of units anywhere. Yes, you're absolutely right. The EPA used to have a pretty
good catalog of those back at the time that the 02Q .0810 rule was originally created, and we used that 1996
study that you that you referenced. Now the most up-to-date emission factor from testing is the one that
Ms. Delahunt is referencing in Slide 16 from the San Joaquin Valley Air Pollution Control District.
Commissioner Ellison: But we could use either one.
Director Abraczinskas: We would use whatever one represents the latest, greatest data from testing, based
on real data from testing.
Chair Carter: Has EPA quit updating their emission factors, are they just slow these days, or what has
happened with that system? I haven't followed that.
Director Abraczinskas: I'm not prepared to fully and completely answer that question. I think they are
infrequently updating those emission factors, but they do keep a database of test data for some source
sectors, but in this case, this is the latest available, state-of-the-art emission factors for this type of source.
Commissioner Ellison: Is it more restrictive than the previous set of emissions factors?
Anna Delahunt: It is less restrictive.
Commissioner Weese: Because it is probably more efficient than air curtain incinerators in 1996.
Anna Delahunt: Yes, I think it is trying to represent how air curtain incinerators have improved, so the
threshold is higher. You can burn more.
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Commissioner Ellison: Okay. Thank you.
Director Abraczinskas: You are going from 8,100 tpy under the current rule to 76,000 tpy with this new
emission factor before you get to 100 tpy of emissions of a criteria pollutant.
Commissioner Ellison: One last question. You mentioned that the operators are required to keep a log?
Anna Delahunt: Yes.
Commissioner Ellison: What all goes into that log?
Anna Delahunt: The rule text contains the specifics, but from the top of my head, they need to include what
they are burning and how much they are burning per day.
Commissioner Ellison: Do they make submittals to the Department?
Anna Delahunt: It would be more based on inspections, and that those records are available for reference
at a given time.
Commissioner Ellison: Okay, thank you.
Chair Carter: I just have one last question. Are you seeing a lot more use of these units in the western part
of the state these days? I assume you are, but I'm just curious.
Director Abraczinskas: Yes, certainly that's been a focus with managing disaster debris in Western North
Carolina, and that will be part of our Division's remarks tomorrow in front of the full Commission, to give
an update on that. Certainly, it's these types of units in disaster debris management situations that we would
rather be used than the practice of open burning. Deputy Director Hartsfield will talk a little bit more about
that tomorrow. Thank you.
Chair Carter: Okay. Anybody else? Commissioner Bailey.
Commissioner Bailey: I hate to belabor this, but I got curious about this discussion. Is AP-42 still around
or is it gone because it has now become a database?
Director Abraczinskas: It is still there, but in the hierarchy of where emission factors come from, site-
specific test data is always what we would prefer for individual permitting situations, or emission factors
derived from test data at a similar facility elsewhere - it doesn't matter where - such that we can review that
test. Then you get down the hierarchy to AP-42, which is kind of a last resort when you don't have anything
based on recent test data. It is still a resource.
Commissioner Bailey: You still go to EPA, though, to find the most recent one, right? You're not trying
to search every state database as a state agency, but you're going to go to a central source to find the latest
studies?
Director Abraczinskas: Right, and most often when this comes up is in context of a permitting decision. So,
we get a permit application and the applicant is using a variety of emission factors, and again the hierarchy
is as I explained. If the applicant is using test data from a similar facility in “name a state”, we are going to
ask to see that data in the test report that supports that emission factor.
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Commissioner Bailey: I understand.
Director Abraczinskas: It’s very common in our permitting practices.
Commissioner Bailey: Thank you.
Chair Carter: Any more questions, discussion? If not, I would entertain a motion to approve the
recommendation here to go to the Commission and put this rule and the fiscal note out for public notice
and hearing. Anyone have a motion?
Commissioner Bailey: I might as well get in on every motion today. I so move.
Chair Carter: We appreciate you being so active. And a second?
Commissioner Ellison: Second.
Chair Carter: Second from Commissioner Ellison. All in favor, please say aye. Any opposed? Oh I’m
sorry, abstention. Please note that Commissioner Duggan is abstaining from the vote, but otherwise we
have a unanimous vote and this will go forward to the Commission at the may meeting. Thank you very
much.
Motion: Chair Carter requested a motion to approve the recommendation to go to the EMC and put the
rules and fiscal note out for public notice and hearing. Commissioner Bailey motioned to approve the
recommendation, and Commissioner Ellison seconded the motion. The motion passed unanimously with Commissioner Duggan abstaining.
Agenda Item III-2: Request for Approval to Proceed to the EMC to Request Approval to Proceed to
Public Comment on Agency Determination Reports for Periodic Review of Rules in 15A NCAC 02D
and 02Q (568) (Joelle Burleson, DAQ)
Joelle Burleson (DAQ): Good morning, Commissioners. Thank you for the chance to be before you today.
This is a process that I think you are all very familiar with at this point, so I will try not to belabor too many
points here.
(Slide 2) As Commissioner Carter said, I am Joelle Burleson, and I am with the Planning Section here in
the DAQ. Here we have just a few acronyms for your reference, should they be needed or for the reference
of the public if they happen to be viewing the slides.
(Slide 3) The periodic review of existing rules is required by G.S. 150B-21.3A, and under this requirement
you all have to review, as does every other state agency, all rules every ten years. The rules were last
reviewed by this body in 2015, in terms of the report itself. As you know, you have to establish whether the
rules are necessary or unnecessary, and in the first round of rules review and readoption, rules that were
determined necessary were readopted by the EMC between 2017 and July of 2020.
(Slide 4) The Office of Administrative Hearings (OAH) has arranged this into three basic steps. The agency
- which is you - the EMC's review, where you prepare the initial determination report that classifies the
rules as necessary or unnecessary, hold a minimum of a 60-day public comment period on those
determinations, and then submit the final agency report that includes your responses to comments and the
determinations to the RRC. The second step is for the RRC to review of our reports and comments and then
prepare a few more columns in the spreadsheet that make up the report and submit that to the Joint
Legislative Administrative Procedure Oversight (APO) Committee of the General Assembly. The third and
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final step is the APO Committee's review. They have a 60-day opportunity to review the final determination
report that is forwarded to them from the RRC before it actually becomes effective.
(Slide 5) For your air quality rules, you currently have 314 air quality rules in the North Carolina
Administrative Code (NCAC). They are found in 15A NCAC 02D, which houses the Air Pollution Control
Requirements. There are 225 rules there. In 15A NCAC 02Q, we have our Air Quality Permits Procedures,
where there are 89 rules. These subchapters are interrelated. The rules cross-reference one another
throughout. The majority of the rules in these air quality sections are federally required or approved under
various provisions of the Clean Air Act, for example, some are approved under the Clean Air Act Section
110 State Implementation Plan, or SIP, provisions. Some are approved as part of the Section 111(d)
emission guidelines provisions or under the Title V permitting program, and then other authorities specific
to particular rules. Identification of a rule as federally required does not mean that it cannot be repealed as
part of the readoption process; however, since some of these rules are federally required, that may require
an additional step on the part of DAQ to perhaps do a demonstration of noninterference with maintenance
or attainment of a standard if a NAAQS is involved in that particular rule’s purpose.
(Slide 6) Currently, the existing rules that are included in the report are: 225 rules in Subchapter 02D; and
88 rules in the air quality permits procedures rules (Subchapter 02Q). That's only a total of 313, because
OAH has set a cutoff date of January 1, 2024, for rules that are subject to this round of review. We just
recently had amendments to Rule 02D .0410 approved at the January EMC and subsequently at the February
RRC, and it became effective March 1, 2025 so that effective date is reflected in the report. You have
amendments before you tomorrow that may become effective before we actually take this report out to
public notice, or before the full Commission might approve the reports. Before that happens, we would
want to update those effective dates in the spreadsheets that are before you. I would note there is one rule,
02Q .0529, that was adopted by you in November and became effective January 1, 2025, so it is not included
in the report.
(Slide 7) The reports that are before you classify all of the rules as necessary - the 225 rules in Subchapter
02D and the 88 rules in Subchapter 02Q. A determination of “necessary” means any rule other than an
unnecessary rule, per OAH's definition. A determination of “unnecessary” means a rule that the agency
determines to be obsolete, redundant, or otherwise not needed.
(Slide 8) For our timeline, we're at the very beginning with you all for our reports, and here we have before
you those initial determination reports and a request to proceed to the EMC. We would anticipate, should
you approve these reports today, that we would come to the EMC in May, hold a public comment period
in the May/June/July timeframe, then take the reports and responses to comments back to you in the
September timeframe, submit a final report to OAH and the RRC by their November 20, 2025 deadline in
order to meet the requirement for these rules to be reviewed at the RRC meeting on December 18, and
complete our first phase of this process. In early 2026, we would anticipate the reports having been reviewed
by APO and the final reports actually becoming effective.
(Slide 9) Then we would move on to the next phase of readoption in 2026, where we consult or receive
consultation requests from the RRC and work with them to establish a readoption deadline for all of the
rules. We're now required, unlike the first round, to provide a timeline, which you're familiar with, for
readoption by the EMC, and we have to provide that within the later of: 60 days of receipt of consultation
requests from the RRC; or ten days after the next regularly scheduled EMC meeting after receipt. We would
then follow through the process to see what readoption deadline the RRC finally decides on and establishes
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for us, and then we would be back to you many times after that to complete rulemaking to readopt and
submit the rules to OAH by whatever that final deadline is.
(Slide 10) The request that I have for you today is that the Director recommends approval to proceed to the
EMC to request to proceed to public comment with the Periodic Review of Existing Rules Initial
Determination Reports for 15A NCAC 02D and 02Q.
Chair Carter: I just have one question here because, maybe my memory has gotten real poor here, which
is not unlikely, but I don't remember this additional process through the Joint Legislative APO Committee.
Is that new or different than we've done in the past?
Joelle Burleson: No, sir.
Chair Carter: I thought we did readoption and up or down at RRC and that was it.
Joelle Burleson: No, sir. They also submitted these to the APO last go around. RRC takes that final step,
and they submit the final reports to the Joint Legislative APO Committee. The APO may or may not take
it up actively. They may simply list it as one among many reports, as they did last time that has been
approved, or they may let the timeframe go by and then on the 61st day afterwards, the reports would be in
effect.
Chair Carter: Once the 61st day runs out, it goes forward anyway.
Joelle Burleson: Yes, sir.
Chair Carter: Okay, that's fine. Anyone else have any questions, comments, concerns?
Chair Carter requested a motion to approve the recommendation to go to the EMC to request to proceed
to public comment with a periodic review of existing rules initial determination reports for 15A NCAC 02D
and 02Q. Commissioner Duggan motioned to approve the recommendation, and Commissioner Bailey
seconded the motion. The motion passed unanimously.
IV. MARCH EMC ITEMS
Agenda Item IV-1: Request for Approval of Hearing Officer’s Report and final approval of
Regulatory Impact Analysis for Rule Amendments to Permit Review Timelines and Definitions
Pursuant to Session Law 2023-134, Section 12.11(a)-(c), as amended by Session Law 2024-1, Section
4.13 (564) (Katherine Quinlan, DAQ)
This item was presented at the full EMC meeting on March 13, 2025.
V. INFORMATION ITEMS
Agenda Item V-1: Overview of Exceptional Events Demonstration for Revised PM2.5 NAAQS
(Sara Kreuser, DAQ)
Sara Kreuser (DAQ): Good morning, Commissioners. Thank you for having me. I'm Sara Kreuser, a
meteorologist within DAQ’s Attainment Planning Branch. (Slide 2) Today, we are talking about North
Carolina's Exceptional Events Demonstration, but we can't really do that without briefly touching on why
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we submitted this document. This document is in support of our designation recommendations that we were
required to submit to the EPA following the promulgation of the primary annual PM2.5 NAAQS that was
strengthened from 12.0 down to 9.0 µg/m3. This is just a simple flow chart that shows that those two
documents, the Exceptional Event Demonstration and the designation recommendation, will be taken into
account by the EPA when they promulgate their final area designations for the revised standard.
(Slide 3) We submitted our designation recommendations at the end of last year. That document is linked
here. We recommended that the EPA designate all 100 North Carolina counties as in attainment with the
revised standard, and that's based on the certified monitoring data from 2021 through 2023, which is the
most recent three-year design value period. We also submitted an Exceptional Events Demonstration on
February 6 of this year, which supports that designation recommendation. That link is also on this slide.
That document focuses on two monitors, the Remount monitor in Mecklenburg County and the Lexington
monitor in Davidson County. The document requests exclusion of certain days that were impacted by smoke
from the 2023 Canadian wildfire season. Those two monitors have design values of 9.2 µg/m3, so slightly
above that revised standard. We carefully followed EPA’s Exceptional Events Rule and their supporting
guidance documents, and used a variety of evidence to show that that was the case.
(Slide 4) You may have seen this map presented before, but it shows all of our PM2.5 monitors across the
state. Most of them are green, which means they are below the revised standard. The two that are yellow
are the Remount and Lexington monitors. We do not have any monitors violating the standard outright
without an influence from an exceptional event.
(Slide 5) Now to quickly revisit what happened in 2023, this graph shows the total area burned in Canada
each year from 1983 through 2024. The solid black line on the bottom shows the annual average of 2.5
million hectares (mHA) burned. The small black line in the upper right-hand corner shows 17.3 mHA
burned in 2023, which more than doubled the previous record. (slide 6)Looking back, there are a few
important things to note about this time period that can help us understand how things evolved the way that
they did. This graph is showing the upper atmospheric pattern in early June of 2023. It's showing anomalous
pressure compared to climatology, so there was a strong area of high pressure that set up over Canada,
which is denoted by the red, orange, and yellow area. This was accompanied by an area of low pressure
that set up over the East Coast denoted by the purple and blue area. Persistent high pressure led to hot, dry
conditions and drought, and that contributed to an early start to Canada’s wildfire season. The clockwise
rotation around the high and the counterclockwise rotation around the low funneled cool Canadian air down
over the East Coast. It also funneled a lot of smoke. This is a screenshot from our Ambient Information
Reporter tool which shows not only our current and past air quality data, but also satellite-detected fire and
smoke. You can see how that smoke from up in Canada was funneled in between those atmospheric features
over the East Coast. This is a screenshot from June 7, 2023.
(Slide 7) Switching gears a bit now, we're going to talk about the Demonstration requirements. The EPA
defines an exceptional event as an unusual or naturally occurring event that can affect air quality but is not
reasonably controllable using techniques that tribal, state or local air agencies may implement in order to
obtain and maintain the NAAQS. This is a list of those types of qualifying events.
(Slide 8) The Exceptional Event Rule allows for the exclusion of data influenced by exceptional events
from use in actions with regulatory significance, so we show in the Demonstration that the record-breaking
Canadian wildfire season in 2023 did have regulatory significance for us by impacting the design values at
Remount and Lexington.
(Slide 9) This is a quick summary of our process for analyzing our data and determining the wildfire's
impacts. We retrieved daily average concentration data for both monitors from 2021 to 2023. Again, that's
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the most recent certified design value period. Then we sorted them from highest to lowest and focused on
the top 20 days as a starting point for our analysis. We used archived meteorological data; our air tool,
which shows past air quality data and fire and smoke layers; as well as media reports, if necessary, to assess
what happened on the days with the highest concentration in order to identify which of those days were
influenced by the Canadian wildfires. Once we identified those days, we systematically removed them from
the data set and recalculated a new 2021 to 2023 design value. The big question was, would we be in
attainment if we could exclude those days? The answer was yes.
(Slide 10) We identified 4 multi-day episodes, which included 14 days in total in 2023, that impacted both
monitors and resulted in some of the highest daily average concentrations that were measured during the
three-year design value period. All of those events were in June and July.
(Slide 11) For each event, DAQ is required to provide data and sound reasoning for each exceptional day,
and the EPA reviews the specifics of each day using a tiered weight of evidence approach. The tiering
thresholds are unique to each monitor and each month because they are based on a statistical analysis of the
past five years of data, so 2018 through 2023. In a nutshell, the EPA's tiering tool establishes a common
procedure to determine just how anomalous a day is, as compared to a historical average. This is a
screenshot from their online public-facing tool for the Lexington monitor, I believe. All of the red dots you
see are daily averages that are Tier 1. Those are very anomalous and do not require as much evidence
because of that. The yellow dots are Tier 2 days. Those require a bit more data to tell our story. Then the
Tier 3 days are the blue dots, so that is the majority of the data at that monitor. The hardest point to prove
is that those were exceptional. All of the days that we identified for both monitors were Tier 1 and Tier 2
days.
(Slide 12) Jumping into the components of the Demonstration, first we needed to provide a narrative
conceptual model. That is basically a high-level summary of the wildfire season and the anomalous weather
pattern, which was the steering mechanism for the smoke. For each of our events, we, for example, provided
these pictures that were provided from the National Park service. This is taken from Purchase Knob looking
northeast. On the right is a very smoky day where you can obviously see the haze from July 17, 2023. Then
we compared that to a typical day, on the left side, which is from June 10 of last year.
(Slide 13) The narrative conceptual model is mostly comprised of what we already just talked about. Here
I've included some synced animations to show you the upper atmospheric pattern during one of the events
with the smoke and fire layers on the right side. You can see how the smoke wrapped around that low with
the purple and blue, how it's digging across the eastern United States, and how it kind of pulls that smoke
over. That's the type of thing that we provided in the Demonstration for that section.
(Slide 14) The bulk of the demonstration is the clear, causal relationship and the historical data analysis
portion. Here we provide a detailed description of each event, including satellite imagery of the smoke;
back trajectories, which show where our source air mass was; surface analysis, so showing fronts that come
through, for example; and then, of course, our hourly observations. The critical thing in this section was for
us to show that not only was there smoke aloft, but that it reached the surface and directly impacted our
monitors.
(Slide 15) For the Tier 2 days, we had to provide more data to add to the weight of evidence. For that we
included things like other smoke and aerosol models that are available, visibility reports from airports, as
well as radiosonde soundings, which are from weather balloons to show instances when temperature
inversions set up, which acted to trap the pollution at the surface. That was the case for a few of the days.
(Slide 16) After that, the next requirement was to show that the emissions were not reasonably controllable
or preventable. We utilized this section of the Exceptional Events Rule that states that a state does not have
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to provide case-specific justification if the emissions-generating activity occurs outside of our jurisdictional
boundaries. Since the fires originated in Canada, there was no regulatory action or policy that we could
have implemented to prevent that smoke from crossing international boundaries, so that criterion was met.
(Slide 17) The next one was to show that this was a natural event or a human activity unlikely to recur. We
showed that by using the EPA's definition of a wildfire, which the last part there says a wildfire that
predominantly occurs on wildland is a natural event. Since they were unplanned, mostly lightning-ignited
fires predominantly on wildland, that criteria was met.
(Slide 18) The last requirement is to show that we anticipated these exceptional events. We alerted and
educated the public about how to mitigate any negative health effects from the incoming particle pollution.
In North Carolina, we have a pretty robust communication system set up. We have daily forecast discussions
online that the public can read. We have social media on X and Facebook where we post our forecasts. We
also utilize press releases as well as media interviews to get that information out. We provided this type of
information for each of those days or events that we identified.
(Slide 19) The Exceptional Events Rule also requires a public comment period. We held this from
November 20 through December 20 of last year. We did not receive a request for a public hearing. We did
receive four comments, one from a private citizen, two from business or industry organizations, and one
from an environmental organization. All of those comments and our responses to the comments that dispute
or contradict the factual evidence that we provided are included in an appendix of the final Demonstration.
(Slide 20) This is a table that shows the milestones that we've achieved so far, highlighted in green. Where
we're at right now is we have submitted both our designation recommendation and our Exceptional Events
Demonstration, so we're just waiting to hear back from them on that. It's under review. If the EPA decides
to make any modifications to our recommendations, they will notify us of that. There would be a 30-day
comment period, and then there would be some back-and-forth communication in that case. The EPA will
promulgate their final area designations on February 6, 2026.
(Slide 21) I'll wrap up with just some key takeaways. North Carolina generally has excellent air quality.
We've been in attainment with all of the national standards since 2015, but sometimes events outside of our
control can impact air quality to such an extent that it skews the design value of a monitor. Those 2023
Canadian wildfire smoke intrusions did have a significant regulatory implication for us.
(Slide 22) We've worked closely with the EPA's Region 4 team throughout the whole process, from our
initial notification to let them know that we were planning to submit an Exceptional Events Demonstration,
working through drafts, and working through some of the comment responses, and so we will continue to
do that when we need to. Something important I wanted to point out was that if our Demonstration is
concurred upon by the EPA, the data is not deleted from the record or removed from the database. It is just
flagged in a certain way so that it does not count against us in regulatory decisions regarding attainment.
The last point was just to say that we have recommended statewide attainment for the revised standard,
which is supported by the Exceptional Events Demonstration that we've also submitted. Thank you very
much. I'm happy to take questions.
Commissioner Ellison: You cited that you used media reports at the beginning. Could you elaborate on
that a little bit?
Sara Kreuser: There's a section of the rule that says you have to show that you anticipated this was going
to come, because we're forecasters, so we're looking ahead, and we want to make sure that the public knows
what is about to occur. One of the ways that we do that is by press releases and when we do that, it gets the
attention of the media. Either before or during these events, we would occasionally have reporters from
various news media calling to ask questions - what can we expect here in North Carolina? What are the
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impacts? By including screenshots and some links to some of those media reports, it adds to the weight of
evidence that these were unusual things that occurred.
Commissioner Ellison: From the recent fires around Mrytle Beach, were the air patterns setting up to give
us more smoke or is that not an issue this time?
Sara Kreuser: It doesn't appear to be. I think our monitors were okay. They definitely had some moderate
readings, or code yellow, which is below the daily standard, but that does not appear to be an issue at this
time.
Commissioner Ellison: Okay, last question. What was the level of effort to develop this work for EPA,
approximately?
Sara Kreuser: I believe we started this around September of last year. There's a team of three of us that split
up the bulk of the report. It was definitely a team effort. I would say it took us a couple months to get this
report drafted up, there was some back and forth reviewing, the public comment period, and then addressing
the comments. We submitted this in February. It was really the main focus of our work from probably
September through February.
Commissioner Ellison: I don't mean to put you on the spot too much. Was this a 1,000 man-hour task?
Were you spending 5% of your time on it, or was this a real time sink?
Sara Kreuser: That's a good question. Certainly, none of us were working overtime to get this done. We
could handle this during our normal working hours. It ebbed and flowed as well, but during the beginning
our full attention was on getting this report written, maybe for a couple weeks or so. After that it was mostly
just back and forth, touching up a few sections here and there, adding things, so it tapered off a bit at the
end.
Commissioner Ellison: The reason I'm asking is that it seems all pretty clear cut, right? The woods are
burning in Canada, and we have smoke in the air. It just seems like an awful lot of effort by the Department
to get this EPA report in here to prove that it wasn't our fault. Okay, thank you.
Sara Kreuser: Thank you.
Chair Carter: One question. I'm not sure about the extent up here, but I think I heard over the weekend or
late last week that there were maybe 168 separate fires in South Carolina going on in the last couple weeks.
I don't think it was a comparable number but a large number in North Carolina as well - was it just because
we're dry in both places? What is going on?
Sara Kreuser: I think it's a combination of the fact that we are in a drought, and there is a lot of debris from
Hurricane Helene in North Carolina. We've had a lot of dry, windy weather. It's also prescribed and
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agricultural burning season, so not only are people trying to stay ahead of things by doing prescriptive
burning, there's also small and large wildfires occurring, so it's a combination of all that.
Chair Carter: Are they generally under control now, including up here, or do we know?
Sara Kreuser: I think generally yes, at least the last couple days. There's still prescribed burning happening
because it's just that time of year, but I don't think that currently there's any large wildfires, at least, in North
Carolina.
Chair Carter: Hopefully the prescribed burning being done much more carefully. Anyone else have any
questions for Sara? Alright, thank you.
Agenda Item V-2: Update on Pre-Permitting Provisions of North Carolina Session Law 2023-134,
Section 12.11, as amended by Session Law 2024-1, Section 4.13
Chair Carter: The last item here, at least on the informational side before we get to Director's Remarks, is
an update on the pre-permitting provisions of the Session Law. Now, to take you back at least a couple of
meetings, if you may or may not recall, it came up in November. The Division had sent a letter to EPA
requesting parallel processing for these changes. I think that was sent around September 1st, give or take,
and then at the end of the month, EPA sent back a letter saying, “nope, you can't do that because it could
create emission standard violations and interference with the NAAQS,” both of which I considered silly
because it didn't really correspond to what this statute proposes to change, in particular because the changes
we're talking about here are pre-operational. The statute allows certain construction activities once a
completed permit application has been delivered to the Division, but it does not in any way allow anyone
to initiate operation until they've actually received a permit. On the face of it, this EPA letter was, I thought,
rather silly because it didn't comport with the reality of the situation. Where we find ourselves now is this,
there are two Session Laws involved in here that are listed on the agenda. The second Session Law last fall
directed a July 1, 2025, deadline to get something submitted. We don't have enough time, even if we wanted
to at this point, to conduct a full-blown rulemaking and get that done by July 1, that's quite clear. What the
Department has proposed, and I've discussed with Counsel and so on, is to send EPA a new letter and say,
“look, here's the situation” and lay it out in some detail. The letter is attached to the agenda. I recommend
that you all take a look at it. We know that if nothing else, we've got a change in Administration not only
nationally, but also, surprising to me, we already have a new [EPA] Regional Administrator appointed. I
don't know if that's ever happened in history that our Regional Administrator has gotten appointed quite
this quickly. Ordinarily, that drags on for months, if not even years in some cases, before someone is
appointed after a new Administration comes in. That's very helpful, I think, that we've got new management,
and hopefully we'll get a new and very different response this time. What the letter basically does is request
EPA to sign off on these changes. The idea is, of course, this would become part of the SIP. I will say right
up front I'm not really clear on this letter process for approval and how that in effect modifies the federally-
approved SIP. I've been doing this for a lot of years, and I don't remember ever seeing anything like that as
far as a formal approval or a formal amendment to a SIP. I'm not going to tell you it can't be done and I'm
not going to tell you it has never been done, I just have never seen it, so I am a little skeptical as to where
we are going to actually be at the end of this process. But I think it needs to go forward. We at least need
to get, hopefully, a sign-off from EPA, and we can sort this out. The other aspect of this I wanted to comment
on, too, is that one of the things about these rule changes, or these changes - I'm not going to call them rule
changes at this point since we're not doing rulemaking - but the changes are very prescriptive. They set out
in very great detail exactly what facilities would be allowed to do at their own risk. Keep in mind, they are
not guaranteed they are going to get a permit just because they have an administratively complete
application at the DAQ, so if somebody decides they want to go ahead - they've got a timeline problem,
they’ve got a financing problem, whatever it may be - and do some or all of these authorized construction
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activities, it is completely at their own risk. What I'm coming around to is, one of the things that we don't
do, typically, is if we have something that is this prescriptive in the statute, we don't simply take that statute
and write it into rule. I don't know if there is any prescription on it per se, but I know that has at least been
the practice. At the end of the day, I've got at least these two questions about this whole process, but if we
can get approval and sign-off from EPA here in the near term, the provisos are in the statute, and anyone
who wants to take advantage of them can then go look at the statute and decide whether they want to do
something or not. I think certainly the right step now is to send this letter forward, but I wanted everybody
to take a look at it and see if there are any further questions, thoughts, or comments. I would intend, also,
to take a Committee vote, at least on approval of the letter if we are inclined to do so. Then the question is
going to be for our [EMC] Chairman - whether he thinks this is something that we also should review
tomorrow at the full Commission - add it to the agenda, review it tomorrow, and have an up-or-down at the
full Commission. We are in pretty much unchartered waters here, unless you remember something that I
don't remember with prior Commission actions and certainly something like this with a letter request to
EPA to approve a SIP change.
Commissioner Smith: I would agree with that. I do not know of any previous approach to a SIP amendment
in this fashion. I do not think this would constitute a request for a SIP amendment. There are several layers
to this. One we talked about at the time that this concept rule, which turned out to be a draft rule, was
submitted to EPA, which is that all of the language is in the statute. In fact, there is a prescription against
administrative agencies adopting verbatim, essentially, statutory provisions. We are not allowed to do that
under the Administrative Procedure Act (APA). There is no reason to do that under the APA. In my
understanding of the Session Law, the intent of the Session Law was to have the Department get some
preliminary reaction from EPA to a rule that reflected what was in the statute. Now my feeling at the time
was that we should have sent EPA the statutory language as opposed to doing a rule draft, but whatever.
The intent of the legislation as I understood it was to get some preliminary EPA reaction to the statutory
language and determine how strong EPA’s reaction and objection to that would be. Given that that was the
intent, as I understand it, of the legislation, my feeling at this stage is there is nothing more for the
Department or the EMC to do except to communicate back to the Legislature what EPA’s response was.
Then the Legislature can decide whether they want to change the language they put in the statute or not. I
do not see an action for this Commission to take. We cannot and should not adopt the rule that is verbatim
repetition of the statute. This is not a request for a SIP amendment. The SIP amendment would have to be
based on the statute language, and the whole project, as I understand it, was to get some feedback from
EPA for the Legislature with respect to the effect of the Legislative language. We ought to communicate
that, if it hasn't been communicated already, and let the Legislature decide whether they want to change the
statutory language or not.
Chair Carter: I appreciate you reminding me of this in the APA, but I do not agree with you because the
one thing the letter last September did not do was what you just described - to provide, at least in the text
of the letter itself, the legislative language. That is what this letter will do. Given the change in leadership
at EPA, I do not see any reason why we should not renew our request for hopefully a sign-off by EPA at
this point. I do not see any reason not to do that, and that is what the Department is proposing at this point.
Anyone else have any thoughts, suggestions, concerns?
Commissioner Duggan: Is this letter simply requesting that the EPA amend our SIP to add the statutory
language?
Chair Carter: [to Director Abraczinskas] I am going to have you comment on this. I do not think that is
quite my understanding of it. I will admit there is at least some ambiguity here, but I think at this point we
are at least asking them to sign off on the statute language that they do not have any objection to it. Now,
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as far as the formal process, and I agree with Commissioner Smith on this, I am not sure how you would
actually formally change or formally approve a SIP change by letter, and that is where my big question
mark is in this whole thing. I think that if we can get the folks to re-review it in Atlanta and get a sign off
down there, that is at least what we would be reporting to the folks up the Mall here. Then if they want to
suggest something different, they can do it, I suppose.
Commissioner Smith: I'll just follow up in response to Comissioner Duggan's question. As I read the letter,
it is not actually a request for amendment of the SIP. It says in the last paragraph that there is intent to
submit a final version as an amendment to the SIP. I agree with the Chair. I think the letter seems to be
having another go at EPA to get some reaction, this time using a copy of the statute as opposed to a rule
that repeats the statute, which I think is where we should have started to begin with, but that is another
issue. Then see what EPA has to say about that. But whatever EPA says about that, the SIP is not going to
change until we do a formal request for amendment of the SIP based on that statute language.
Chair Carter: I think you and I are in full agreement there. Although obviously, for the reasons you've
already described, we would not go out with a rule that just recites the language in the statute. That is
prohibited anyway. I suppose maybe the right answer is, assuming that EPA is agreeable to the statutory
provisos here, that perhaps what we would simply do is send them a rule that simply requested them to
approve the changes and cite the Session Law, and that is it. Do not put any language in it. Do not put any
details in it. It simply says approve this as a change to our SIP. Other than that, I do not really see a way to
do this through the normal rulemaking process. Now that reminds me of one other question - you triggered
something else - the one thing that is in that letter that I was scratching my head over a little bit, too, is that
it proposes to go to public notice on this, seek comments, and then send EPA something back after that
process is completed. My thought was - what would we be sending back other than the Session Law? I
guess we could send them a summary of comments, but we can't make any changes based on public
comment, because the statute is the statute. I was not really clear what your intention was with respect to
that part of the letter, if you have any further thoughts on that?
Director Abraczinskas: Sure. Thank you, Mr. Chairman. Just to rewind a moment, and I'll come back to
that, what we have attempted to do here was in response to the questions and concerns that arose during
your November Committee meeting related to the process of the Division preparing and submitting to EPA
for approval a proposed SIP amendment. We took those Committee questions and comments back, and we
worked with additional input from legal counsel, just as the Committee had suggested, and then came up
with this plan of an additional submittal of these pre-permitting Session Law provisions to EPA.
Specifically, the letter contains the Session Law language, so it is cutting and pasting language. It is not
giving them the Session Law or asking them to review and approve the Session Law by reference into the
SIP, but it is taking the text from the Session Law. The letter is initiating a 30-day public process because
in order to properly get a SIP amendment request before EPA, part of that process must include a public
process. This letter is worded as such to inform everyone, including the EPA, that we are going to take this
text that we are cutting and pasting into the letter out for a 30-day public comment. The public comment
period schedule allows for anyone to request a public hearing, allows DAQ to address those comments, and
then submit the final Session Law language in a letter to EPA by the July 2025 deadline as prescribed in
Session Law 2024-1. We are poised to make that happen and follow that process. Then to some of the
earlier points, to find an analogous type of situation where we have submitted something like this before.
We went back and found an example or two. One big one that came to mind was related to the Clean
Smokestacks Act, which was passed into law in 2002 in very important legislation in the history of our air
quality in the state. We requested the EPA include the system-wide caps that were included in that law into
the SIP because they were an important and foundational piece to a lot of the state air plans we were
developing at the time related to attainment of ozone and fine particulate standards. It was important that
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those caps be part of our federally-approved control program in the SIP, so by letter we asked the EPA at
that time to approve those emissions caps. Not the full statute, not by reference, but the specific numbers
that Duke Energy had to comply with system-wide for NOx and SO2. We did that back in 2009, and EPA
ultimately approved that into our SIP at some point after 2009. That was the closest analogy that we could
come up with here. I thought I would just share that for purposes of discussion here today.
Chair Carter: I appreciate that. I'm glad you found that. Let me just ask you one more question about that.
Was that process that they were following there essentially identical to this? You requested that those caps
be included in the SIP. Did they approve that simply based on a letter request, or was there some further
rulemaking process that followed?
Director Abraczinskas: It was somewhat tethered to our attainment demonstration for that time to find what
the fine particle standards were, and so it was our attainment demonstration that had gone through a full
public process that included those system-wide emission caps. That all went through a public process - that
draft SIP or attainment demonstration for particular areas of the state showing how we were going to attain
the fine particle standards back then. All of that went through a public process and ultimately was submitted
together as a package to EPA, and then they approved it into the SIP.
Chair Carter: That was a full-blown rulemaking. It was not?
Director Abraczinskas: No, sir. That was an attainment demonstration for PM2.5 attainment across the state,
and then also the system-wide caps were attached to that SIP amendment request.
Chair Carter: But the attainment demonstration did not go through rulemaking?
Director Abraczinskas: No, sir.
Commissioner Smith: There was also rulemaking; however, related to the Clean Smokestacks Act. I do
not remember if the caps were included in the rule. I have not looked back that at that in a long time, but
there was actually rulemaking to implement the Clean Smokestacks Act as well.
EMC Chair Solomon: This next round of letters, is it purely to comply with the SIP amendment by July
1st? Is that why we are writing the letter? We have already written one letter.
Director Abraczinskas: Yes. We have written one letter that was a parallel processing request prior to going
through a public process. This one will go through a public process, as I explained, and submitted officially
to EPA. We can accomplish all of that prior to July 1st.
EMC Chair Solomon: I think this - if this Committee wants to write the letter, it should probably be -
regardless of who writes it - a joint letter with everybody's endorsement, is what we want to try for. But
eyes wide open to the people that sponsored it, this has a low likelihood of coming back anywhere close to
July 1, right? If that is the case, then I think we owe it to the people at the General Assembly to say, “we
got the letter back, this is not how things are done. We've got to come up with our own language. We've
got to come up with a SIP amendment, which will be a rulemaking process, and sorry we're not going to
make July 1 because we need to start a rulemaking process.” I had rather - if we need a rulemaking, if that's
what this body decides we need - let's get on with the rulemaking and try to get it by the end of this calendar
year and get that to EPA, versus getting the letter to EPA where they're probably going to tell us what we
already know - that you can't just take language out of the General Assembly without a public process. You
all have to decide that for me. I don't know the air world as well as some of you guys know it, but if the
probability is low, then let's not waste everybody's time by writing another letter on a very low probability,
at least without the bill sponsors knowing what the odds are and what we would propose as a counter. That
would be my take. I'll do whatever you guys want as a Committee, but if we decide to take the chance, it
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seems like - under consultation with the EMC or something - that the EMC feel good about this, and the
Department feel good about this.
Commissioner Duggan: Has there been any conversation with the Legislature about revising this arbitrary
deadline?
Chair Carter: Not that I'm aware of, unless somebody at the Department has. I kind of doubt it at this
point. Well, look, we need to finish up.
Commissioner Smith: Was there a report back to the Legislature on the content of the first EPA response?
Because that entire process was intended to provide feedback to the Legislature on the potential for EPA
approval of the language as it stood at that time.
Director Abraczinskas: I am not aware of that circle back occurring.
EMC Chair Solomon: I'm just speaking for me, you decide as the Chair of this Committee, but for me,
from the EMC, it makes the most sense to explain to the sponsors, oversight committee, whoever - these
are the odds, and this is where it sits. I think that conversation needs to be had first before we go off writing
more letters.
Chair Carter: I do not see any reason we couldn't have that in parallel. At least at this point, I'm inclined
to go with the Department’s recommendation on this to go ahead and send the letter. I'm not going to try to
guess the probabilities. As I said, we've got different management down there. They may see it the same,
or they may see it differently. But I think at least it follows the track that Commissioner Smith was talking
about. We lay out exactly what the changes are in the statute that the Legislature adopted and see what kind
of reaction we get back. Now, if we go ahead with the 30-day process, we can get some other input. It
would make sense, of course, at that point, if we're doing this, that the Legislature, or at least the staff over
there, somebody ought to be apprised of the process we are going forward with and make it clear that it is
being done this way as a result of the July 1st deadline in the statute, and that we are trying to meet that
specification they put in last fall. I understand your skepticism, Mr. Chair. Then see what happens. As I
said, maybe the endpoint is just a simple rule at some point to formalize this thing, but at least we will know
either way, if EPA says no again. At that point, we would certainly need to go back to the Legislature tolet
them know and ask them if they really want us to keep fighting this battle and send a rule down there that
is going to get disapproved. That is why I am inclined to go ahead and do this and see where we stand now
with EPA.
EMC Chair Solomon: I was just going to say that I think what the EPA is going to tell us is not just that
we can't use statutory language, but they have told us this on another issue recently – they are not going to
respond to a letter if that is not what they are inclined to do. They want to see the rule, and they will give
their opinion on the rule. By the time we go through this process, we have already lost time where we can
adopt a new rule if we wanted to, or a modified rule. They may shoot it down later, but to think that in a
few months a new Administration is going to have at that lower level a different reading than the first one
did - I just don't think so. Maybe in six months they will be able to react to the rule, but everything is in
flux there too right now. I will go either way guys, but I do not want to waste anybody's time.
Chair Carter: I was just going to suggest that once this letter is sent - if we send it - DAQ can certainly be
in contact with folks down there and just see or get some reading. It may be that between now and the May
meeting, we may decide that maybe we ought to crank up and put a rule together to deal with at the May
meeting to try to expedite, as you have suggested. The other thing is if we get on out for a 30-day comment
period here, we will have some feedback there as well. It seems to me this process is not great. Let me be
honest about this thing, we are in a very strange position, but it seems like from where we stand right now,
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I am inclined to go ahead with the letter. Push forward and see if we can't get this thing squared away as
soon as possible.
Commissioner Bailey: I am interested in having the Legislature get an update on this, and I haven't been
someone who lobbies the Legislature since a long, long time ago. I thought there was an environmental
review committee of the Legislature that reviewed certain environmental issues, and maybe the name has
changed over the years, but I used to attend those meetings on behalf of a client when I worked at a law
firm. Of course, there is the bill's sponsors. I guess I would like to have us reach out to someone, or the
Department reach out to someone and figure out an update, so they know what we are doing. If we do want
an extension of time, usually you would like to give someone some warning ahead of time and give them
some progress reports on what is going on, so they know you have done something. If we do want an
extension from July, then we have already laid the groundwork for it. I do not know who exactly it goes to,
but it seems like there would be some Legislative committee and the bill sponsors.
Chair Carter: Well, I certainly agree with you, particularly on going ahead and contacting, if I did not say
that before. That is certainly one thing we should do however we move forward, assuming we are going to
go forward with the letter, is certainly make the Legislature aware of that. I think you are referring to the
Environmental Review Commission. My best recollection is that I am not sure they meet during the Session.
I think they may only meet between sessions, but I am not sure that is the right group for this anyway. I
think whoever the legislators are that are most involved - there has got to be an environment committee. I
do not follow the Legislature closely myself, but at least the Department has the contacts and a liaison over
there. They can certainly make them aware of what is going on. I think that is well taken, and we certainly
need to give them an update at this point. Whether or not they heard or were fully aware of what happened
back in September or not, we certainly need to apprise them now of exactly where things stand and the, I
guess I'll call them potential difficulties of meeting the July 1 deadline, and then the Department may need
to request a modification of that deadline if it proves necessary.
Director Abraczinskas: Thank you. Just two quick points because I think we understand where we are at
here. Just to speak to the process that we are discussing here today about this letter. EPA is aware. We have
consulted with them on this process. We would not have brought this forward today had we not consulted
with the EPA and understood that this is a viable pathway. And then two, taking this pathway, getting this
letter out, doing the 30-day comment process, and then officially submitting to EPA is something that will
easily meet the deadline, with this pathway, so there are no concerns about meeting July 1, 2025, and what
the Department is instructed to do in the Session Law. I just wanted to share that with you. In fact, I believe
that we will have this entire process complete prior to when we meet again. It is very possible.
Chair Carter: That would be the best.
Director Abraczinskas: That is, from a timing perspective, how I view it at this point. I am prepared to sign
this letter this week initiating that public comment process, and then after that is over, proceeding with the
submittal to EPA, having gone through that proper public process.
Chair Carter: One question. You said that you had consulted EPA on this. I assume you meant a letter
request and approval by them of a SIP change. Did they indicate that was appropriate?
Director Abraczinskas: Process-wise. That is absolutely not speaking anything to the reaction or the merits
or the judgments of whether they approve or disapprove of what we submit, but simply the process.
Chair Carter: The procedure, that is what I’m talking about.
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Director Abraczinskas: We consulted on this and the prior process that we shared with you during your
November meeting - we consulted with them about that process. They are both legitimate pathways to meet
the July 1, 2025, deadline. Yes sir.
EMC Chair Solomon: I just say that is fine. Go with the process if that's what you want to do, but
somebody at the General Assembly had the intent of having this become – it is not the process they were
asking us to do. That sounds bureaucratic, Mike, no offense. They want this result somewhere, so just by
following the process and saying, “I got it in, and they made a ruling on it and it's shot down” - that's not
getting it done. I still think, as Commissioner Smith and others say, that's what needs to be conveyed to the
General Assembly on behalf of the rulemaking body - which is us - or somebody that we will follow the
process. We can check the bureaucratic boxes off, but the odds of winning here are not good still. They
may be there, but somebody over there needs to understand that because there will be an expectation that
we are getting this done. If we do not think this is going to get done, we need to be honest.
Chair Carter: I think we can clearly state to them that there is no guarantee that EPA is going to respond
favorably, but certainly just should report on what process is being followed and what we hope to
accomplish here. You may be hearing from us in May, June, or whenever, that it isn't working out, and we
may have to ask them to do something different. Unless there is more comment or discussion, I'd just like
to take a voice vote on approving the letter to go forward, and we can discuss later whether you want to do
something tomorrow or not.
EMC Chair Solomon: I'm not going to do anything tomorrow.
Chair Carter: Okay.
EMC Chair Solomon: If we are not fully engaging, we are not going to take the whole EMC here. He can
write under consultation with the EMC or he can write nothing about the EMC. It doesn't matter to me, but
we're not going to take this to the full EMC tomorrow.
Chair Carter: Alright. Then I would like to get an indication of the Committee’s position on this and
whether you approve going forward with this letter approach to EPA. Any discussion on that concept?
None? Then I would take a motion to that effect. Well, I guess we're not going to have a motion because
I'm not going to...
Commissioner Duggan: I guess I'll make the motion with the proviso that an update be provided to the
General Assembly as to the process.
Chair Carter: Certainly. I think that is absolutely a necessary part of this.
Commissioner Duggan: And the possible implications of this letter, vis-à-vis the APA.
Chair Carter: Well, I do not think we have an APA problem right now. Since we do not have a rule that
would enshrine that, but certainly informing the General Assembly. I guess I should have included that as
well as a reference to approving the process, including the letter and consultation by the Department with
the Legislature on the process that is being followed here and if they are not aware of it as well, what
occurred back in September when we had a not favorable response from EPA. Alright, well, I have a motion.
Commissioner Bailey, are you going to second?
Commissioner Bailey: I had another question about the letter.
Chair Carter: Oh, well, we are in discussion on the motion then. Go ahead.
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Commissioner Bailey: The first line of the letter says that we are requesting that the statutory language be
included in the SIP. We are requesting a SIP amendment. The end seems like it is really what we are asking,
but I thought the first line would mislead compared to what our conversation is.
Chair Carter: Yeah, we may need to adjust that language slightly, then. Let me look at this a minute here.
Commissioner Smith: Mr. Chairman, I would agree. We certainly need to clarify whether the letter is
asking for an actual SIP amendment or not because it is saying two different things in different parts of the
letter.
Chair Carter: I think that is exactly right.
Commissioner Bailey: Mr. Chairman?
Chair Carter: Yes, ma'am.
Commissioner Bailey: I do agree with the general concept of what we are suggesting, which is sending a
letter and advising the Legislature about this, and doing that together, but I do not agree with how the first
line is written here, for sure.
Chair Carter: Let me make a suggestion then. It is just a slight wording change here that I think would
accomplish it. I absolutely agree with your point because we do seem to be seeing one thing at the front end
and something different at the back end. What if in that first sentence, in the second line, it says “incorporate
into” - what if we simply change that to say “review” and strike the words “incorporate into”, so we simply
ask them to review the statutory changes? I think the rest of it then flows okay from there, and then we tell
them at the end the process we are going to follow.
Commissioner Weese: I have been listening closely to the discussion, and I think I understand generally
what the problem is as Commissioner Bailey was articulating it, but I am uncomfortable going forward and
voting on a document that I have not seen in its final form, and even so, I do feel like there are so many
questions and concerns that this is unfortunately not a good time to go forward with this. That is just my
comment, but I appreciate the thinking that has gone behind this to try to meet the deadline.
Chair Carter: I understand your other points, but as far as the final document, this would be the final
document except for the wording change. I just suggested dropping two words out and putting the word
“review” in. Other than that, unless somebody has something else, that would be the only change - if we
approve this - before Director Abraczinskas signed it.
Director Abraczinskas: If I may?
Chair Carter: Yeah, go ahead.
Director Abraczinskas: Going back to the Session Law language where it is giving the Department of
Environmental Quality instruction by July 1, 2025, it says, “shall prepare and submit to U.S. EPA for
approval by that agency a proposed SIP amendment based on the changes to the air permitting program
provided in this section.” I think we were choosing our words carefully here to make sure the Department
was meeting the Session Law requirements. I think we would want to just carefully consider the friendly
amendments to the first line and make sure that we are still meeting the Session Law requirements with that
change.
Commissioner Duggan: I think with the changes on a “review” and the consultation with the General
Assembly, if we need to go back and comply with the statutory requirement by July 1st, we still have that
time. I think what we are trying to do is get a reaction from the EPA at this point.
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Chair Carter: Right, oh yes. Good question. Are you suggesting that changing those two words to “review”
would be somehow inconsistent with the statutory language?
Director Abraczinskas: I don't know. I think I just want to make sure we are keeping in mind the language
of the Session Law.
Chair Carter: Hang on.
Commissioner Smith: We've got a very squirrely process, which was foisted upon us. We did not invent
this. There are other places in this draft letter that talk about incorporating the statute changes into the SIP,
so it's not just the first paragraph. I had focused initially on the last paragraph, which talks about an intent
to submit it, but there are other places earlier in the letter aside from the first paragraph. Toward the bottom
of page two it talks about, “consistent with the requirements of Session Law 2023-134” etc., “DAQ hereby
requests that EPA incorporate the provisions”, cites the statute, “to be state-effective in accordance with
the statute into the SIP.” I'm now confused again about what the process is and ought to be partly because
I think we skipped a step here when there was no feedback to the General Assembly about EPA’s response
to the draft rule, because I think the intention last year was to get some feedback, which would have been
in time to allow for some adjustment in the state's statute, if necessary, before submitting an actual SIP
amendment. But that didn't happen, apparently, so there has been no feedback. There really isn't going to
be any change legislatively between now and July, so we're sitting here in a position where there has been
no opportunity to make any adjustments in the statutory language, if that might have been constructive. I
think we need to be clear about what the letter is trying to do. Either we are initiating a SIP amendment, or
we are not. I think if we are initiating a SIP amendment, it probably would be better to do that based on a
combination of the statute language and a proposed EMC rule implementing that language, which would
not be the version we sent last summer. It would be something much shorter that would make necessary
changes to our existing rules that would conform to this, but it would not be the entire statute language.
Then, initiate the normal SIP amendment process. My inclination would be not to send the letter as it is
currently drafted, but instead to look at what is the appropriate way of submitting an actual SIP amendment
to EPA based on the statute language and whatever implementing changes need to be made to EMC rules,
and in the meantime, communicating back to the Legislature what the initial EPA response was. Maybe
that response will change, maybe it won't, but I think they should have been provided that information
earlier on because the whole purpose of the submission of the concept rule last year was to get that feedback.
That would be my suggestion, that we punt on the letter, and if the intent is to go forward with a request for
a SIP amendment, start getting the ducks in a row to do that. I do not think this quite gets us there
Commissioner Duggan: I agree with Commissioner Smith on going through the process. My concern is
that, again, as Commissioner Smith says, the state Legislature has had no feedback to this point as to the
effect of the statute and the position that this Commission is in. I am going to withdraw my motion at this
point.
Chair Carter: I think that leaves us in a little bit of an odd position because the Department's intention had
been to send this letter now. I guess the next question is if we're not going to approve them to send this
letter, what is the Committee's - and I think Commissioner Smith has come up with a with a good approach
here…
EMC Chair Solomon: That is the fork in the road. I think the Department could read this literally and send
the letter anyway over us but when the General Assembly asks, “why did you all let them do this?”, we're
going to say, “we didn't let them, they just did it”. I guess that's their prerogative. I think to do it jointly, as
Commissioner Smith suggests and others suggest, is probably the better way. Maybe we charge staff and
maybe you, as Charlie is the chair of the Air Quality Committee, to make the appropriate rounds to the
27
General Assembly and tell them where we are at. The Department can bring this same letter or modified
letter back in May if that is the way we all feel is ready. I would say let's take two months and let this
circulate a little bit, and have some conversations. Mike, we still may be missing July 1, but at least
everybody knows what we're doing and if we approve the letter to go in May 1, it won't be that far delayed
off of July 1. I don't think there's a consequence for EPA not getting back to us by July 1. I do think we
could take two months and rebalance ourselves collectively between the EMC and the Department and get
a mutual path forward. That would be the work I would suggest, but I guess the Department could go the
other way if they wanted to.
Commissioner Smith: Can I suggest a motion?
Chair Carter: Okay.
Commissioner Smith: Which would be two parts. One would be that the EMC leadership communicate to
the General Assembly EPA’s response to submission of the concept rule last summer. I think that is more
appropriate to come from the Commission than DEQ because it actually was a directive to the Commission
to submit a rule to EPA. So, part one is Commission leadership communicate to the appropriate legislative
body or legislators about the EPA response to the initial rule. Part two would be to ask DEQ staff to come
back in May with, first of all, a draft rule that would implement the existing legislation. It won't look like
the concept rule from last summer, it will just be making the necessary changes to conform anything in our
existing rules that is inconsistent. So come back with a draft rule and we can start talking about that with
the understanding that that is a piece that will be part of a potential request for SIP amendment if there is
no change in the legislation.
Chair Carter: I think that that makes sense. My question then is - do we take a position on whether this
letter should go forward or not?
Commissioner Smith: I think just speaking for myself, my feeling would be that the motion is in place of
sending the letter, that we do not send the letter right now. Instead, we have this communication with the
legislature about EPA’s initial response and make sure it is clear that we are unsure what a final EPA
response will be, but here is what they said the first time around, and that we start moving toward what
would be a SIP amendment package based on the legislation as it exists currently and any implementing
rule. Then we will see if the Legislature makes any changes as a result of the feedback they get. But no, not
to send the letter now.
Chair Carter: That is kind of a wordy motion, but we've got it - that's fine. I think Counsel got it, so I think
we're good on that. I am in full agreement with you on this. Do we have a second to the motion?
Commissioner Bailey seconds the motion. Any further discussion, comments, questions?
Commissioner Ellison: Can someone read the motion?
Elly Young (EMC Counsel): Motion two is instead of sending the letter to the EPA, first the EMC will
communicate to the General Assembly EPA’s response to the rule provided last summer and two, we're
asking that DAQ draft rules implementing the legislation to use in a future request to amend the SIP.
Chair Carter: Let me make one suggestion that we request that they come back in May with that rule
language because it shouldn't be that complex since you're just talking about making adjustments to existing
rules and not putting the full text in there. Is that consistent?
Commissioner Smith: Correct, yes.
Chair Carter: Okay.
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Commissioner Ellison: Another way to say that is directing the Division to come back with a draft rule in
May?
Chair Carter: Correct.
Commissioner Ellison: And we're going to tell the legislature of the awkward schedule problem.
Chair Carter: Yep.
Commissioner Ellison: That's where we are, right?
Chair Carter: Correct.
Commissioner Ellison: Okay.
Chair Carter: Any other questions, comments, suggestions? With that, I would ask all in favor, please say
“aye”. Any nos? Alright. Motion passes unanimously. Do you have any further comments you need to make
today, or can we hold until tomorrow since we are kind of tight on time here?
Director Abraczinskas: Nothing further.
Agenda Item V-3: Director’s Remarks (Mike Abraczinskas, DAQ)
None
CLOSING REMARKS AND MEETING ADJOURNMENT
Chair Carter adjourned the meeting.