HomeMy WebLinkAboutApproved May 2025 AQC Meeting Minutes1
ENVIRONMENTAL MANAGEMENT COMMISSION
AIR QUALITY COMMITTEE MEETING SUMMARY May 7, 2025 Ground Floor Hearing Room of the Archdale Building 10:15A.M. – 11:15 A.M.
AQC MEMBERS IN ATTENDANCE
Chair Charles (Charlie) Carter Mr. Michael Ellison
Dr. H. Kim Lyerly, Vice-Chair Ms. Robin Smith
Mr. Chris Duggan, EMC Vice-Chair Ms. Elizabeth (Jill) Weese
OTHERS IN ATTENDANCE
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.
MEETING BRIEF
During the May 7, 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 Rules to Incorporate the Pre-Permitting Construction Activity Provisions of
Session Law 2023-134, Section 12.11(e)-(g) as amended by Session Law 2024-1, Section 4.13 (566)
(Joelle Burleson, DAQ)
2. Agenda Item V-2: Air Quality Permits During Emergencies (Commissioner Bill Yarborough, EMC)
Note: Due to time constraints, Agenda Item V-1: Overview of Recent EPA Actions Relating to Federal Air
Quality Regulations (Mike Abraczinskas, DAQ) was deferred until the July meeting.
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Agenda Item I-2, Approval of minutes from the Air Quality Committee meeting on March 12, 2025
AQC Chair Carter requested approval of the March 12, 2025, meeting minutes. Commissioner Lyerly
stated that he was not marked as present despite being at the meeting. Chair Carter postponed approval of the minutes until the next meeting.
II. RULEMAKING CONCEPTS
None
III. ACTION ITEMS
Agenda Item III-1: Request for Approval to Proceed to the EMC to Request Approval to Proceed to
Hearing on Proposed Rules to Incorporate the Pre-Permitting Construction Activity Provisions of
Session Law 2023-134, Section 12.11(e)-(g) as amended by Session Law 2024-1, Section 4.13 (566)
(Joelle Burleson, DAQ)
Chair Carter: Let’s move to the pre-permitting draft rules. Let me explain a little bit about the situation
on that. We went round and round last time, and we know, as identified by Commissioner Smith, that
we've got a potential issue here because of the detailed specification in the General Statutes and the
prescription in the Administrative Procedure Act from simply adopting language straight out of the General
Statutes into a rule. We know that we have a problem there, so we're trying to figure out exactly how to
deal with that. The staff has put together something that I think is a good shot at it, but we don't know for
sure, is the short answer. Our Counsel is consulting with the staff of the Rules Review Commission (RRC),
which is where this will be an issue. She's trying to get an early review of this language before the July
meetings to see if we can get a sign either way of whether they are going to have a problem with it, or if
they think it can pass muster. What I'd like to do today is simply go ahead and move this language forward.
If anybody has got any questions about it or wants to bring up anything, that's fine - I'm not trying to cut
off any discussion - but I don't expect to do a detailed review and revision today. We'll get a read from the
RRC. If there's a need for some changes in order to get RRC approval, we'll deal with them in July. My
plan, as I said, is to go ahead and approve this draft rule from the Committee and have it available to the
full Commission in July. If the changes are needed from the RRC consultation, we would plan to do that at
the full Commission unless Chair Solomon tells me that's a bad idea. Okay, so I think we're good there.
The one thing I do know is that Commissioner Smith said that she had some questions that she would like
to raise, not about the [rule] language, but I think the RIA.
Commissioner Smith: Yeah, I had a couple of questions about the regulatory impact analysis (RIA).
Chair Carter: Let me do one other thing really quick. I completely forgot, I should have mentioned
Commissioner Bailey will not be with us either today or tomorrow. She is currently in France and enjoying
a vacation. Let’s bring Joelle Burleson on up. You're probably going to be the best one to answer
Commissioner Smith's questions. Go ahead with your presentation, although I don't think it needs to be
very lengthy. I think, as I said, the main thing that I have ready at this point is Commissioner Smith's
questions about the RIA.
Joelle Burleson (DAQ): Okay, I'll try to keep it brief then. Good morning, Commissioners. Thank you. I'm
Joelle Burleson with the Division of Air Quality's (DAQ’s) Planning Section. This is a topic that, as the
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Chair noted, you're already familiar with. I'm here to present to you draft rules to incorporate the pre-
permitting construction provisions of Session Law (S.L.) 2023-134.
(Slide 2) Our second slide here is just a series of acronyms for your reference or the public's reference.
(Slide 3) As you know, back in October of 2023, S.L. 2023-134 went into effect. It modified the air
permitting provisions of General Statute (G.S.) 143-215.108A relative to construction of new facilities and
modifications of existing facilities. North Carolina's air permitting procedures would be modified by
allowing for the construction of sources prior to receipt of an air permit, upon determination that an
administratively complete application has been submitted to the DAQ. The language of the Session Law
also lists several exclusions from the ability to use this particular procedure. In May of 2024, Governor
Cooper signed into effect a technical corrections bill to the State Budget Act, which was designated as
S.L. 2024-1. It included Section 4.13(a), which added two new paragraphs to S.L. 2023-134 as Section
12.11(f) and (g). Those paragraphs established a July 1, 2025, deadline for submittal of a SIP, or State
Implementation Plan, to EPA for approval that reflects these statutory changes, and established the effective
date of the revision to be contingent upon EPA approval of these provisions into the SIP.
(Slide 4) The S.L. included provisions specifying particular activities that could be undertaken prior to
receiving a permit under G.S. 143-215.108A(b)(1)-(4), and they include: clearing and grading; construction
of access roads, driveways, and parking lots; construction and installation of underground pipe work,
including water, sewer, electric, and telecommunications utilities; and construction of ancillary structures,
such as fences and office buildings, that are not a necessary component of an air contaminant source,
equipment, or associated air cleaning device for which a permit is required.
(Slide 5) Related to this, but not part of today's package for rulemaking, was an action you took at your last
meeting in March. That was where you adopted the Section 12.11(c) provisions of S.L. 2023-134 in the
Permit Timelines and Definition rulemaking, and you adopted the term “administratively complete” to
mean that all information required by statute, regulation, and application form has been submitted to the
Department for the purposes of processing a permit application. That definition is incorporated in Rule 02Q
.0303 that was approved by the RRC at its April meeting. For today's rulemaking, the relationship is that
the determination that an application is administratively complete is also the point in the permitting process
at which an applicant can begin construction under today's revisions under the Statute.
(Slide 6) The S.L. excludes sources that are subject to permit limits set pursuant to PSD, or prevention of
significant deterioration, or nonattainment new source review programs, residual risk-based hazardous air
pollutant (HAP) standards set subject to Section 112(f) of the Clean Air Act (CAA), and case-by-case
maximum achievable control technology (MACT) standards issued by the Division pursuant to Section
112(j) of the CAA. We do not expect that many sources will be subject to the exclusions, and thus the
majority of sources would be able to take advantage of this ability to construct upon an administratively
complete permit application being determined.
(Slide 7) As mentioned before, S.L. 2024-1 requires the Department of Environmental Quality (DEQ) to
submit to the Environmental Protection Agency (EPA) a SIP revision for approval as a step to effectuate
these changes. The DAQ is here today to provide these draft rules in order to incorporate the new expanded
allowances into Subchapter 02Q. We would then submit these rule changes to the EPA for incorporation
into the state's SIP in order to enact the provisions. Those provisions, according to S.L. 2024-1, would not
become effective until the first day of a month that is 60 days after the DEQ Secretary certifies to the
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Revisor of Statutes that the EPA has approved the amendment based on these statutory revisions into North
Carolina’s SIP.
(Slide 8) As noted back in March, the EMC’s rule revisions adopting the S.L. permit timeline and definition
provisions reflect the meaning of administratively complete. Based on the statutory requirements, those
amended rules also have an effective date that is contingent upon EPA-approval into the SIP. Rather than
not allowing construction until permit issuance, the proposed pre-permitting construction rule changes
before you today would allow construction to begin at the time the application is determined to be
administratively complete.
(Slide 9) The proposed package before you includes three rules: one new rule proposed for adoption, 15A
NCAC 02Q .0114; and two existing rules that are proposed for amendment, 15A NCAC 02Q .0501 and
.0507, which are essentially amended for cross-referencing the new rule. New Rule 02Q .0114 will
implement the pre-permitting construction provisions. As proposed, it allows the applicant to begin
construction - but not operation - of an air contaminant source, equipment, or associated air cleaning device
before the permit is issued, provided the application is deemed administratively complete. The allowance
does not apply if the source is subject to permit limits established under PSD or Nonattainment New Source
Review, a residual risk-based HAP standard under Section 112(f) of the CAA, or a case-by-case MACT
permit requirement under Section 112(j) of the CAA that are issued by the DAQ.
(Slide 10) Specifically, Rule 02Q .0501 is being amended in Paragraphs (b) and (c) to add the cross-
reference [to new Rule 02Q .0114], and Rule 02Q .0507 is being amended in Paragraph (a) to add a cross-
reference to new Rule 02Q .0114.
(Slide 11) In terms of the RIA, a qualitative approach was taken to describe potential impacts. Because of
the nature of the proposed changes, there's really no definitive financial impact identified, as the variables
are market-dependent and uncertain, and the nature of the types of permit applications we might receive
would be case-by-case and site-specific. It would be difficult to perform any uniform quantitative
assessment. As a result, we characterized the potential impacts to the regulated community, and we
anticipate that this rulemaking will only have potential implications for applicants of new permits and
modifications to permits.
(Slide 12) For construction and modification applications processed under the currently effective permitting
timelines, which are not the ones you adopted in March but what's already on the books that serves as our
baseline, for non-Title V construction and modification projects, an applicant could theoretically, if they
had all their ducks in a row, begin construction as much as 90 processing days earlier than waiting until
permit issuance. For those using the Title V 1-step initial permit process or for significant modifications,
the applicant can potentially opt to begin construction as much as 18 months earlier than waiting until
permit issuance. Then for the Title V 2-step initial applications and significant modifications, an applicant
would theoretically be able to begin construction as much as 90 processing days earlier than waiting for
permit issuance because the first step of this 2-step process is essentially the non-Title V construction
permitting process.
(Slide 13) From our perspective, the most likely benefit resulting from this rulemaking is flexibility for a
private sector applicant to choose to begin to construct upon the application being deemed administratively
complete instead of waiting until the end of the timeline when the permit is issued. This could result in
potential savings in their overall project completion. Applicants would have this flexibility to choose to
construct in parallel with the technical analysis and review of the permit application, and that could result
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in an earlier completion date of their construction phase. Although the pre-permitting construction
provisions do not allow actual operation of the new or modified source any sooner than current
requirements, a project that completes construction earlier could, in theory, begin operation earlier if all
other aspects of the project are in order to allow that. Despite these possible impacts, we do not have an
anticipated quantifiable change in cost or savings to the regulated community.
(Slide 14) To the extent that there are any local governments that might engage in construction of a project,
they would experience the same type of relief that the private sector regulated community would. If a
construction project were to result in additional jobs in an area and faster construction allows that project
to begin operating sooner, then those associated jobs might be available sooner than they otherwise would.
However, we did not quantify costs or benefits to the general public identified to result from this
rulemaking.
It’s important to note that the emission standards and requirements that a facility must meet to receive a
permit from the DAQ do not change as part of this proposal. Section 4.13 of S.L. 2024-1 requires review
and approval of these air permitting procedure changes by the EPA in order for this rulemaking to be fully
implemented, and that ensures that the standards for air quality permitting will be maintained. The permit
review process still must adhere to all requirements for North Carolina’s SIP and federal and state
requirements for facility air pollutant emissions. For these reasons, the quality of the DAQ's review is not
anticipated to be diminished because an applicant opts at his or her own risk to construct prior to final
permit issuance. So as a result, we did not identify any impacts to the environment or public health from
these rule changes. Because the DAQ's permit review process won't change, the RIA anticipates that there
are no impacts to the State from this rulemaking.
(Slide 16) There are several uncertainties associated with the RIA, including when the EPA might approve
the pre-permitting construction provisions of the proposed rules into the North Carolina SIP. That is
somewhat inherent in the language of S.L. 2024-1 that makes the effective date of the provisions contingent
upon EPA approval into the SIP. As a result of that, it's uncertain when the proposed new and amended
rules will actually become effective and be implemented and when any potential benefits or costs might
actually be realized. The RIA was submitted for review by the Office of State Budget and Management and
was approved on April 27 of this year.
(Slide 17) With that, the Director recommends that the Committee approve the proposed adoption of 15A
NCAC 02Q .0114, the proposed amendments to 15A NCAC 02Q .0501 and .0507, and the accompanying
RIA to proceed to the Environmental Management Commission (EMC) to request approval to proceed to
public comment.
(Slide 18) Should the Committee choose to approve that recommendation today, we would be back to
request the EMC to proceed to public comment and hearing in July, hold a public comment period and
hearing through the summer, be back for adoption in November, and then have RRC approval, hopefully,
in December of this year. The SIP submittal would then be made following that approval, likely in January
of 2026, and then when this would actually become effective would lie with when the EPA approves the
actual amendments into the SIP. With that, I'd just like to say thank you to all the various agency staff who
have worked to get this proposal before you today.
Chair Carter: Any questions? I will recognize Commissioner Smith first as she has already indicated she
has some questions.
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Commissioner Smith: One sort of technical question and a couple of questions about the RIA. The
technical question is how easy is it to determine whether a proposed source or a proposed source
modification will meet the emission standards based on simply having a complete application? When you've
done the screening of the application and you've said, “yes, we have a complete application,” how much
distance is there between that decision and being able to fully predict that that source or that source
modification is going to meet the emission standards at the end of the day?
Joelle Burleson: That's a good question, and I think it would vary from application to application given the
nature of its complexity and the sources and the standards involved. I don't know that it’s a timeframe that
can be readily defined, but I'm open to hearing otherwise if any of our DAQ leadership feels that that's
something they are able to define.
Mike Abraczinskas (DAQ Director): I do not have anything to add.
Commissioner Smith: It is a difficult question, and it leads directly to my major question about the RIA,
which is that it does not talk about that question and the uncertainty for the applicant and the public about
moving forward with construction of a source or a source modification without any review other than review
for completeness of the application. You mentioned, and the rules recognize now, that the applicant would
move forward with construction at their own risk. I think that's worth discussing in this RIA because really
the only uncertainty that's mentioned is the uncertainty of EPA's approval or the timing of EPA's approval.
I think there's uncertainty about whether EPA will approve it at all because the first indication we had last
fall was that EPA did not believe this language was consistent with Clean Air Act requirements. I missed
the September meeting, unfortunately, but I assume that inconsistency with overall preconstruction review
requirements may also have been a problem in terms of public notice because in this legislative scheme,
there would be no public notice and opportunity to comment until after construction was well underway.
But in any event, we know that EPA expressed concern that this change would not be consistent with the
Clean Air Act. I think the RIA needs to say something about the uncertainties concerning approval by EPA,
the uncertainty - even if EPA approves it - of the risk of third-party citizen suits, if in fact EPA approves it.
But there is a strong legal argument that, in fact, it's not consistent with the Clean Air Act, and moving
forward under these provisions may well make an applicant vulnerable to a third-party citizen suit. That
whole range of uncertainties and risk, I think, needs to be at least described in the RIA.
Commissioner Ellison: A question for Commissioner Smith because I'm not an expert on the Clean Air
Act, but when does EPA have jurisdiction? Do they have jurisdiction prior to any emissions? They have
jurisdiction over the facility before it goes online, but they don't have jurisdiction over a construction
project.
Commissioner Smith: I think there are EPA rules based on the Clean Air Act itself that describe
circumstances that require pre-construction review of a new source or a source modification. Probably Mr.
Abraczinskas can speak in more detail about that, but that is in the Clean Air Act, it has been in EPA
guidance, and it's reflected in EPA rules, that in certain categories of sources and source modifications, pre-
construction review is required.
Chair Carter: Let me jump in. If you go to the draft rule, you'll see that primarily they're already addressed
in the draft rule for 02Q .0114. The particular categories [of excluded sources] - PSD, MACT, and residual
risk - are already set out. I will partially agree with Commissioner Smith. I think there certainly is a
question here about this, although fundamentally I thought EPA's letter back then answering the Director's
letter requesting parallel processing was way overboard because they claimed at the front end of that letter
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that it could lead to a violation of standards or a violation of the SIP. Well, no, it couldn't, in fact, because
you're only constructing. You're not going to be operating. Those types of violations would occur once you
started operating, and that's not what this rule authorizes. There is some language in the EPA SIP rules that
raises at least a question about the ability to allow somebody to construct. I don't disagree, we're probably
going to have to have some further conversation with EPA at some point. We'll see how they react to this
whole thing at some point, assuming we're going to have a final rule on this. I wouldn't suggest it's a slam
dunk to get it approved to EPA, by any means.
Commissioner Smith: My major point at this stage, setting aside the policy decision the Legislature made,
is that with respect to the RIA, I think we need to at least describe those uncertainties and what those
additional risks may be to an applicant who chooses to move forward. I think there are some potential risks
and costs there, and the RIA just doesn't really discuss that at all.
Chair Carter: Is that something you all can handle, you think? I don't think it has to be long-winded but
at least add some discussion that Commissioner Smith outlined.
Director Abraczinskas: Yes, sir. I think we can noodle on some language to address that concern between
now and the next meeting.
Chair Carter: Yeah, okay. That would be fine.
Commissioner Smith: That's all.
Chair Carter: Any other questions, comments, suggestions? If not, I'd entertain a motion to approve this
rule to go to the Commission in July.
Vice-Chair Lyerly: So moved.
Chair Carter: So moved by Vice-Chair Lyerly. Second? No one is willing to second the motion?
Commissioner Smith: Mr. Chairman, can we get a clarification on the motion? I assume we usually move
the draft rule and the RIA together.
Chair Carter: Correct.
Commissioner Smith: But if we’re going to have changes to the RIA, is it your intention to come back to
the Committee with the changes or move it forward?
Chair Carter: No, it's not because I don't think they're that substantial. You've discussed it and described
it. The Director says they can make some changes. I would take it as an RIA that's going to be revised
somewhat on the way to the full EMC. If something major comes up, we could always pull it back to the
Committee in July, but I don't think that should be necessary.
Commissioner Ellison: That's my question. I would suggest modifying the motion pending the
Committee's approval of the modified RIA.
Chair Carter: If we do that, then either we're going to have to extend the EMC consideration to September
or would have to do a waiver in July. Those are the choices. If the Committee is going to consider it further
because of the RIA, then we won't move it out to the full Commission today. That's what it leaves you with
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- either that defers the rule, and on the normal course it would go [to the full EMC] in September, assuming
that we approved it with the modified RIA, or if we approved it with a modified RIA, we could also have
a motion to suspend the 60-day rule and still go to the full Commission in July. Those are the two choices.
Whatever the Committee wants to do. I'd rather move it, but if you're not comfortable doing it until the RIA
changes are seen, then let's look at it again in July, I guess. Is that where everyone is inclined to go?
Commissioner Ellison: Is the Department generally in favor of this rule?
Chair Carter: At this point, I don't think it's really a question. It's in the Session Law. We don't have a
choice. They don't have a choice. Whether they like it or don't like it, or we like it or don't like it, is pretty
much irrelevant. We've got to take some action one way or another. I suppose we could turn it down flat,
but I think there’s a Session Law invocation that we need to at least move it to the full Commission. I'll
leave that to the [EMC] Chair, who I think has a comment.
EMC Chair Solomon: If Director Abraczinskas and the Department thinks these are more narrative
changes to the RIA and not substantial changes, I think you could be good to approve it today and move it
on over, but I don't want to get caught with a bunch of recalculations and complexity. You all prepared the
RIA and, I think feel good about it, but that's really to give this a little time - because it is a Session Law -
I’ll give it the time to move it forward. I'd like to see it move forward if you all feel good about it. If you
don't feel good about it or there's a lot of uncertainty, let's hold it back and either do a 30-day waiver or wait
until September to approve.
Director Abraczinskas: Yes sir, so if I understood correctly, the request was to beef up the uncertainty
section to cover the points that Commissioner Smith made. We can do that, and it will not change the
outcome or the conclusions in any way. I think these are fair requests, however. There's most certainly
uncertainty there on the points made, and we can better describe that.
EMC Chair Solomon: Are there other points that have been raised? The only one is Commissioner
Smith’s?
Chair Carter: Not that I’ve heard.
EMC Chair Solomon: I do think it's legitimate, but I also think from a standpoint on the RIA, that
uncertainty is probably more with who's going to use it and not use it, because it does create problems for
people to use it or not use it. I don't know how you would correlate that into a cost to the State or to the
private sector that would change the RIA itself. It would be like a warning paragraph for the uncertainties,
not a dollar value that you could calculate.
Commissioner Smith: I think that's correct. I don't think it would change the bottom line of the RIA, but I
think it's important to describe what those uncertainties are. I, personally, would prefer to have the
Committee see the new language, and having seen the new language, I suspect there wouldn't be any
problem with waiving the 60-day provision and taking it up with the full Commission. That obviously is
up to everyone on the Commission, including people who aren't sitting here today, but I suspect that
wouldn't be an enormous issue.
Chair Carter: If the Vice-Chair will withdraw his motion....
Vice-Chair Lyerly: I withdraw my motion.
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Chair Carter: We will hold this to July. Let me make one further comment on this, and I don't know if
this will alleviate anybody's concern. Fairly early when we got into this, probably all the way back to last
fall, I had to ask Director Abraczinskas whether there was anybody really using this language because, as
he described it, I think in a previous meeting, the Session Law language was actually enforced - the original
Session Law. Then it was modified last fall in the Budget Bill and that effectively took it off the books and
required some regulatory action. My question was, when it was enforced and people could have used it
without having a rule in place, was anybody using it? What I recall, the answer was you all had gotten some
questions from people about it and basically said “you need to go talk to your lawyer” but were not aware
of anybody actually using this. I really wanted to make this point - that I don't think this is going to open
some great floodgate, quite honestly, given at least the limited experience that has we've had before now.
Commissioner Duggan: Do we need to make a motion to carry it over?
Chair Carter: No, we'll just leave it. I don’t think. It's not a motion if we're going to defer until next
meeting.
EMC Chair Solomon: Leave an open agenda item for next meeting.
Chair Carter: Yep, that’s fine. Well thank you.
IV. MARCH EMC ITEMS
Agenda Item IV-1: Request for Approval to Proceed to Public Comment and Hearing on Proposed
Revisions to 15A NCAC 02D .1904, Air Curtain Incinerators, and 15A NCAC 02Q .0810, Air Curtain
Burners, and Fiscal Note (567) (Anna Delahunt, DAQ)
This item was presented at the full EMC meeting on May 8, 2025.
Agenda Item IV-1: Request for 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)
This item was presented at the full EMC meeting on May 8, 2025.
V. INFORMATION ITEMS
Agenda Item V-1: Overview of Recent EPA Actions Relating to Federal Air Quality Regulations
(Mike Abraczinskas, DAQ)
Due to time constraints, this information item presentation was deferred to the July AQC meeting.
Agenda Item V-2: Air Quality Permits During Emergencies (Commissioner Bill Yarborough, EMC)
Chair Carter: This is Information Item number two, Air Quality Permits During Emergencies.
Commissioner Bill Yarborough: Thank you for your time. Last meeting I mentioned my situation with
Western North Carolina. For those that do not know, I've been involved with disaster work across the State
and some other states for many decades. I'm an agronomist, a soil scientist, so I have some background
there and some credentials to do that with. My main concern is that we have permits, and then we don't
have permits for emergency situations, and to me that's backwards. I don't understand how we can make
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that happen. What it does, essentially, is put the locals that have the regulatory authority in a very bad
position because they're the ones that have to make that decision. They have mortgages, they have kids in
the schools, they have kids to support. They're not going to sign off on anything unless somebody tells them
to up top, and that's where we are right now. There are two things I'm going to bring up. Fortunately,
Richard Rogers, as a Director, came up with his crew, and then Sushma and John Nicholson came up, and
we had a great discussion with a lot of different permitting agencies about a month ago. I was very
encouraged by that because it became apparent to all of them that we're all operating in silos. Everybody
thinks that somebody else is doing this - this is my piece - but they don't realize that this is an emergency.
There's two things I wanted to ask. I don't know that this group can do it, but it's something that you've got
the smarts here to come up with some ideas. First, I think that when there is a declared emergency,
somebody should be able to have a deemed permit or a general permit for the things that they're talking
about. Those are things that could be very helpful. I'll say that because I do have staff, as a Chair of the Soil
and Water District in my county, I had staff that could go out immediately after a disaster. They could
actually do work that could help people, but because they have no permit, that staff is not. But the local
people can do about anything. Then the second thing - and I'm going to get to what I asked Chair Carter
about - but the second piece of it is that it takes a long time to ever get things together and get money to do
work. Then all of a sudden people look at you and say it's not a disaster anymore. That's about the craziest
system I've ever seen. We say that because it's always federal or something. Well, even FEMA [the Federal
Emergency Management Agency] has five years and - with a signature - an exception that can go longer
than that. This gets to the point - I had been working on getting permits to do work with the Soil and Water
District across Western North Carolina. We have a new, high-tech machine to make biochar. All it is, is
activated charcoal. It's the same thing that you've had in little aquarium filters, or you've had in a Brita.
Anything that's called activated is generally coal-based. What we're talking about with this, and I mentioned
this in the last meeting, is we have 800,000 acres of trees down in Western North Carolina. That's not
counting the debris in the rivers. We have a tremendous amount of opportunity for ridiculous amounts of
fire. What can we do with that? Right now, what's happened with it is, generally speaking, that it's dragged
out, and it's either chipped up, or it's burned in air curtain burners or just on the side of the road or wherever
you can burn it. This new machine comes out of Canada, and there's only 11 of them. We conned this
company that makes it, Tiger Cat, into bringing it. They were going to send one that was purchased to
Florida. I told them it's halfway, so bring it to us and let us try it. Originally, they wanted $1 million up
front. Well, I thought, everybody says there's millions of dollars out here to help you, or billions of dollars.
I can tell you one thing - I haven’t seen it, and the counties haven’t seen it. The first thing that everybody
wants to do, they say we've got money for the feedstock to drag it to you, and we can probably get some
money out here for the finished product, but we're not going to pay for the equipment or the operator. Now
that is a backwards thing, as well. Nothing you all can do about it, but it's just something I can complain
about. The first thing is to make sure you understand I have no conflict of interest. I make no money off of
this. Put that down on your books. That’s for sure. I wish I could figure out how to make some money off
of something besides the volunteer work, but that's alright. This is the piece - somebody told me that I'm
going to have to have a permit for this new machine for air quality. I said, “You have got to be kidding
me.” We've got a new machine, it’s high-tech, making biochar, and it’s something that's completely
different - it's not the air curtain that you see that's blowing smoke up all the time. We're not making ash
that’s going to have to be taken to the landfill. We're making a finished product, that is a high-value product
that's not available in anywhere in the South other than way down in South Georgia. That's what the deal
is.
Is there a way to show that video, if you'll help me with it? I'll show you what the machine is because there's
nothing better than to see something, to help its explanation. This thing is bigger than a tractor-trailer. It
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weighs 83,000 pounds. It can be mobile. This thing can burn anything that has carbon. When I say burn, I
am talking about pyrolysis - it's basically taking it and making it into activated charcoal, a biological piece.
There's an air curtain if you want to look at it that way, but this material is made into that charcoal. Anybody
that's had a Big Green Egg, that's exactly what that is, just in bigger chunks. It’s taken through, it has a
water bath in the bottom, and then it’s actually run and stored out a conveyor belt. You can see it here. This
is revolutionary for us because it's actually mobile. We can take this to places where the debris is. Again,
it's a million bucks. But it's temporary, unless I can find the money, and we're getting closer on that. But
here's the piece I want to ask you. I did talk to Director Abraczinskas, and he was very helpful. He said it's
Title V, and it's part of EPA - that he has no control over having this permit. We don't have to have the
permit until September 1st. That goes back to the second piece. “We're not going to have an emergency after
September 1st.” That's BS. We're going to have an emergency for five to ten years because with 800,000
acres of trees down, there's no way in the world we're going to get anything done. I don't even know if we’ll
have money by September 1st. Again, what I’m asking is - I don't know if the EMC has any role in this -
but I do believe Sushma and John Nicholson both - and Sushma talked to me today - they're working on
some opportunities here to get all the permitting people in together. When there is a declared emergency -
“this is what we're going to do, and this is how things are going to work.” I think that would be very helpful.
But all I'm asking you on this, is if there is something brand-new that we have technologically never seen
before, why in the world am I going to have to pay $12,000 for a permit? I’ve listened to the previous piece
there. They're assuming that we can use this thing at 100% of what Tiger Cat actually says it could put out.
I doubt very seriously we'll ever get to that point. So we're assuming that we’re at the maximum - that's the
reason this permit goes to that 35 tons. I think that's what you said, Mike, that the 35 tons per day - or
whatever it was - I think that was per hour though, wasn't it? 35 tons?
Director Abraczinskas: No, sir. 35 tons per day is the threshold above which the New Source Performance
Standard federal rule kicks in that requires permitting.
Commissioner Yarborough: Now that 35 tons - is that debris or is that particulates? How do you look at
that?
Director Abraczinskas: Yes, sir. That's 35 tons per day of feedstock loaded into the machine.
Commissioner Yarborough: Okay, what's the alternative of not doing this?
Chair Carter: How much do they typically burn during the day - I take it it's more than 35 tons?
Commissioner Yarborough: Yeah, we can do that, and hopefully that is what will happen. On the other
side of it, the particulate and the smoke on this is completely different than anything we've ever done. We're
not completely burning this product. It's turned into charcoal very quickly, almost soon as it's thrown into
this machine with the temperatures that we have. There is hardly any smoke, hardly any particulates, and
that's the purpose of it. We're able to use that carbon source, take it back to the farms and take it back to the
landscapes. Most of the biochar is actually used as activated charcoal in water filtration systems at
municipals.
Chair Carter: Let me just interject here and follow on Director Abraczinskas's comment. It sounds like
we definitely need to figure out a permitting situation. I'm glad to hear that the management at the
Department is working on this. One thought I had - and that's why I was asking about the 35 tons and if that
is typical, more or less, of what you're burning in a day - is one way to avoid the current permitting
requirement would be to stay under 35 tons a day, and then the NSPS is not triggered. That may be
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somewhat limiting on your operation, I understand that, but I just want to throw that out there. The other
thing I want to throw into this too is, we saw the charcoal coming off the conveyor, so we're talking about
activated carbon, right?
Commissioner Yarborough: Sure. Yeah, that's it, that's exactly right.
Chair Carter: Mr. Chair, correct me if I'm wrong, but that's exactly what we need in a lot of places to filter
PFAS [per- and polyfluoroalkyl substances] out of water, correct?
Commissioner Yarborough: Absolutely, that's one of the reasons I'm here.
Chair Carter: We're generating something that's very much needed these days and might even lower the
price, who knows?
Commissioner Yarborough: I'll give you the example of why I've been trying to work on biochar for three
decades. It's never penciled out because pulpwood and other products were already there, and they had an
expense. It really didn't ever pencil out except for something like water quality treatments, and I've used it
in agriculture settings with pesticides and contaminants, obviously. That was coal-based. The pulp mill at
Canton went out, that's a 200-mile radius. We had no place to take pulpwood. The forestry industry's
contracts went completely to zero. We started looking at biochar, having another option for pulpwood,
which would be this. It has no value. This could have actually been able to pencil out very effectively.
Tropical Storm Fred came. Again, we brought up biochar but couldn't get it funded. Now with 29 counties
that have been impacted, we still have no pulp market, so we have no forestry industry. Where we're having
to deal with this, if you're using an air curtain burner that you normally use, you end up with ash that ends
up in the landfill. If we chip it, there's too many chips and too much mulch, so you can't get rid of it, and
it’s ending up in the landfill. This has an opportunity to reduce the landfill waste by 90%. If we can do that,
then even counties will celebrate the fact that their landfills will be able to do it. This technology is going
to be incredibly helpful for a lot of reasons. I'll bring up this, and then I'll finish. I can still remember the
first time I ever saw a hydraulic excavator. It’s a big, huge, clumsy machine, but it was unbelievable what
it could do. Expensive. I thought, “=they need these things, but nobody is going to pay for them.” Now
even a lot of mini farms have one of these mini track hoes. I think this is going to be the future for doing a
lot of different things. If you're a landscaper, you have to actually have a machine - not this size, obviously
- but something sits in that kind of landfill space - we can take newspapers, anything you can think of. But
all I'm asking is - I don't know that I can keep this machine because we're having to pay for it, and that's
been a struggle, but the fact that I've got to find a way to pay $12,000 for a permit on September 1st because
“oh, it's not emergency anymore,” it's just driving me crazy. I appreciate the fact that we have to have
permits, and I'm not trying to get around it. If I was making them at my own company, I would understand
it, but in an emergency, I think we need to look at other things.
EMC Chair Solomon: I've been working with Bill, and Bill's been working with Director Rogers and
Director Vinson and some other folks for six months on this after Helene. The thing that came with me with
all this when Bill started talking and showed me pictures. I said, “Wow, that's Hurricane Helene.” He said
“No, that's Tropical Storm Fred,” several years later. I think everybody at the Department that goes up there
looking at Helene is taken aback by how much is still sitting around several years after Fred. If we keep at
the current pace, Helene's stuff is going to be there, as Bill says, for ten more years, laying around, not
being able to handle it through our landfills and other constructive purposes. I think Bill's really gotten
excited about this because it provides a short-term solution to expedite things. There are a lot of other
permitting things we need to solve as he's talked about, and we've talked about, with the different Directors
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about how we make all of this go faster, because we are not keeping pace with these natural disasters. Our
permitting and our implementation are too clunky right now. I think Tropical Storm Fred and now Helene
are great demonstrations. Bill has lived it on the front line and been frustrated, but his passion now is to
figure out a way to make all of this go a little bit faster and not be held down by bureaucracy or money. To
do the right things, but to make it go faster.
Commissioner Yarborough: Again, I worked my whole career and I understand everybody says they want
to help, but when it really gets down to who the regulatory people are, they're local, and they can't sign off
on anything and risk their careers and risk the issue. It's going to have to come from the top. You can't sit
there and say, “well, I'm going to let the people in Asheville or the local people in Haywood [County] make
that determination.” You can't do that. This is more informational than anything, but I’d sure appreciate
your thoughts and thinking about how we can make this work. I think there are opportunities here. If it's an
emergency - the best example I know is if your house is on fire and you call the fire department, they don't
ask for permission to get on your place. They don't ask for permission to get up on the roof and cut a hole.
They don't ask for an asbestos abatement program and if you have lead paint. They put the thing out. Why
do we have any difference when there's a disaster like a flood? There's going to have to be some exceptions
made, and they need to have them already in place. It doesn’t matter if you're in Brunswick County or
Buncombe County. It's the same thing.
Commissioner Smith: One question for Commissioner Yarborough and then maybe a follow-up for
Director Abraczinskas. Is the primary concern about this equipment the need to go through the permitting
process or is the primary concern the fee associated with the permit, or is it both?
Commissioner Yarborough: Well, it's both. It's the fact that we have to do this. The fee is a tough rub
when I can't get money to do the rest of it, but that's more personal than anything.
Commissioner Smith: The question for Mr. Abraczinskas is: do we know whether this equipment has been
permitted in other states? Do we have sort of a template for understanding what the emissions would be,
what permitting would look like, and how easy that could be made?
Director Abraczinskas: Yes, ma'am. I think there are three very important points here, and I appreciate
Commissioner Yarborough bringing this up because we've had prior conversations about this on the
phone. Recognizing the tremendous amount of vegetative debris caused from Hurricane Helene, our
Division took action last year to pursue a No Action Assurance letter from EPA to waive the federally-
required permitting for these types of devices used for temporary disaster debris management. We recognize
that. We agree with Commissioner Yarborough that this needed to be part of the portfolio and at that time
a permit did not need to be a hurdle for putting them into use in Western North Carolina, so we pursued
that and we have that [No Action Assurance] in place today, since last fall, through September 1st. That was
why September 1st came up earlier because that No Action Assurance waives the federal permitting
requirement until September 1st of this year. Secondly, in the absence of the No Action Assurance, federal
rules - the New Source Performance Standards - apply to a unit like this, with this type of capacity, or
potential. It categorically requires a Title V permit. It's not based on the typical “what your potential to
emit” is - it's categorically required, and that is a federal rule. We would like to see that not be the case -
categorical requirements for Title V permits. We don't think that's necessary. We've thought that for 20
years since Keith Overcash was our director, but those are the federal rules. With that and because of that,
our Division proactively developed a General Permit for these types of units to speed this along. Those
General Permits cost only 10% of the normal Title V permit fee, and so it's not a $12,000 application fee,
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but rather a $1,200 application fee. Those are the types of things we've proactively done to address some
of the concerns that we share in these types of situations.
Commissioner Smith: One quick follow up to that - is the General Permit limited to emergency use, or is
that an ongoing General Permit?
Director Abraczinskas: That is for any air curtain incinerator or air curtain burner-type device that the
General Permit applies. We now have something called AccessDEQ, our Permit Transformation Project,
in place. It's already live for these types of General Permits for our Division. It makes it much easier for an
applicant to apply. What it results in is our staff being able to issue these General Permits for this type of
unit within a couple of days of receiving a complete application. That is the fourth thing on my list that I
forgot, so thank you for that follow-up question. We have positioned ourselves to be able to turn quickly
on an application for these types of units.
Commissioner Smith: That would be available without regard to the September 1st deadline?
Director Abraczinskas: That's correct. That was available before the storm and is available after the No
Action Assurance that we requested that waives the permitting requirement in total until September 1st.
Commissioner Yarborough: But only until September 1st is my point, and that's what I'm asking for. One
is to be able to get a General Permit or deemed permit on a lot of these permitting things, and by qualified
people - I'm not talking about a general contractor or something that just comes up and asks for it. The
second piece of it is that it's an emergency until the money runs out. It's absurd to tell me, “you’re okay
until September 1st.” I don’t even know if I’ll have money. Same thing with the permitting in the river. I
can’t do anything until we get a permit, but I don’t have any money to do anything yet at the Soil and Water
District. The point being is, it's an emergency - do it like FEMA does - it's an emergency until the money
runs out. That's all I'm asking you is to come up with a way to make that happen because just to say “okay,
you're good for 60 days, or you're good until September 1st…”
EMC Chair Solomon: I just want to add that we are working on that, senior management is working on
that at the Department, and other agencies are working on it. We’re trying to get something where this is
clean and neat and simpler than it is now. Even what Mike described is great, but you got to have it down
at the grassroots level where they can understand it and deal with it. There's a lot of other things here we're
talking about, whether it's working in the rivers or whatever. I know Bill wants to make sure that even
though the Governor's emergency declaration ends, we can still treat these things - if they were permitted
at the right time - for longer as we wait for the money to get here. Because if you have to generate new
permits and the game changes, it's really not an emergency anymore.
Commissioner Yarborough: No, I get that question all the time. We're still working on Fred, as he said,
and still don't have anything done on stabilizations on many of our rivers because it took two years to even
get approval to say that we didn’t have to have engineering to drag the debris out. The point being is it's a
disaster. If it's declared, then it should be an emergency until the money runs out. I mean, let's face it, that's
what the critical piece is. That's all I needed to say, and I appreciate your time.
Chair Carter: Let me follow up one quick thing on air curtains. The rules we've got at the Commission
tomorrow, do they have anything to do with that General Permit?
Director Abraczinskas: I'm looking at our staff.
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Chair Carter: Is it included in those rules, or not included, or not affected?
Director Abraczinskas: No, really what's at play here is the federal New Source Performance Standards.
Chair Carter: No, I understand that.
Director Abraczinskas: It is not in our rule package tomorrow, no.
Chair Carter: You still have something you want to ask?
Commissioner Ellison: Unfortunately, like many citizens who have good ideas, government is an
impediment, and this is yet another case of that. I've not been privy to Chairman Solomon’s discussions
with the Department on a single umbrella emergency permitting tool. The other part of this, as far as when
the money runs out - this goes back to Florence and Matthew, where the money still has not been spent and
people still can't get back in their houses - it’s a systemic problem throughout both state and federal
government. I would suggest that Legislative action is probably required at some point just because of the
way the money flows. There was a new story last month that all this money has been secured by the State
Legislature, and it is not being spent because everybody is waiting to find out what FEMA is going to pay
for.
Commissioner Yarborough: That is exactly right.
Commissioner Ellison: This is just not a good way to serve the people of the State. I don't know, but is
there a mechanism whereby the Commission can issue a resolution or some such mechanism to the
Legislature outlining the things we have talked about? Because I know that there are individual legislators
working very hard trying to coordinate with [Washington] D.C. on the FEMA activities, about, “oh, you
can't build your house back where it was because you're in the floodplain, and we're remapping all the
floodplains, and all the people who used to not be in the floodplain, now they're in the floodplain.” There’s
a morass here, and I doubt that the Commission has the authority to address everything. We can expedite
things, and we can work with the Department on permitting efficiencies and the duration of those permits,
but it's going to take more than we can do.
Commissioner Yarborough: Oh yeah, and I understand that. I don't expect that we can solve this. I told
Commissioner Smith that early on, I feel like the preachers don't even get paid a chicken dinner, so I keep
on talking. But when you've been involved in disasters for so long across the state, we do the exact same
thing every time there is a disaster. We have to go through all of this stuff , and then it is years. Is there not
a way that we can say, “we know what we need to do.” We all need to get together to make it work and not
try to be in silos. That is all I am asking. Thank you for the time.
Commissioner Smith: Just to add quickly, having had some history in the past with the Coastal
Management Program, they have long had emergency General Permits that were created for hurricane
response. Now, they have the benefit of not having to respond to EPA. They do have a federal agency -
NOAA [National Oceanic and Atmospheric Administration] is their oversight agency, not EPA. There is
much less direct control of the regulations in that program. That is certainly something that can work. I
think it requires in some cases the Commission and in some cases the Department to go ahead and do that
work, understanding that we've got to get it through that federal oversight process on the EPA side, but
there is no reason we can't do it. It's a perfectly feasible thing to do. It requires some work, and it requires
shepherding it through EPA for approval in those programs that are delegated. I think that is a productive
16
way to go. The Legislature and FEMA - if they still exist - will control the money outflow. That's sort of a
different issue, and it's a big problem. But in terms of permitting, there's no reason we can't do more work
on General Permits, whether it's for air quality or water quality. I'm sure they're already working on that
because that's been a tool we've used for a long time. It's just that you've got that extra layer of federal
oversight you have to build into the process.
Chair Carter: Let's close this off here because we're already over time. I'm going to leave this with EMC
Chair Solomon and also make a suggestion that you might want to have this same presentation and that
slideshow tomorrow in our information session, but I'll leave that with you. That's my suggestion, but it is
entirely up to you. We were going to have another presentation, but we just don't have time today. I'm going
to recommend, if you're particularly interested, Director Abraczinskas’s slideshow here on EPA and federal
air regulatory announcements. We might pick that up in July depending on if there's an interest and if we
have time. But if you're interested, go ahead and take a look at it now, and it probably will have changed
by July anyway.
Director Abraczinskas: That is exactly what I was going to say. If you actually read the words on the slide,
that is about all that we know right now, so it's a little newsy, the presentation that is before you today. I'll
be glad to come back in July because I hope that we will have a lot more information and at that time, we
can fill in some of the white space on what we don't know. If that is okay with you, we can do that
information item in July.
Agenda Item V-3: Director’s Remarks (Mike Abraczinskas, DAQ)
None
CLOSING REMARKS AND MEETING ADJOURNMENT
Chair Carter adjourned the meeting.