SUBCHAPTER 1E ‑ OIL REFINING FACILITY PERMITS

 

section .0100 – general information

 

This Subchapter 1E of Title 15A of the North Carolina Administrative Code (T15A.01E); OIL REFINING FACILITY PERMITS; has been transferred and recodified from Subchapter 1F of Title 15 of the North Carolina Administrative Code (T15.01F), effective November 1, 1989.

 

15A NCAC 01E .0101       PURPOSE

The purpose of this Subchapter is to establish procedures and standards under which permits for the construction and operation of oil refining facilities will be issued or denied.  The permit decision is based on a full and fair discussion and assessment of effects which the refinery will or may have on the environment.

 

History Note:        Authority G.S. 143‑215.101;

Eff. June 16, 1980;

Amended Eff. October 1, 1984.

 

15A NCAC 01E .0102       DEFINITIONS

As used in this Subchapter, unless the context otherwise requires:

(1)           "Act" means the Oil Pollution and Hazardous Substances Control Act, Article 21A, Chapter 143, General Statutes.

(2)           "Director" means the Director of the Division of Environmental Management.

(3)           "Construction" means:

(a)           construction and operation of a new oil refining facility;

(b)           substantial enlargement and operation of an existing oil refining facility; or

(c)           substantial change in the physical separation or chemical reaction process of an existing oil refining facility and operation of such facility.

(4)           "Environment" means man's total physical environment including but not limited to wildlife; freshwater, estuarine or marine fisheries; air quality; water quality; and publicly‑owned parks, forests, or recreation areas.

(5)           "Oil refining facility" means any facility of any kind and related appurtenances located in, on, or under the surface of any land, or water, including submerged lands, which is used or capable of being used for the purpose of refining oil.  The term "related appurtenances" includes pipelines.

(6)           "Publicly owned parks, forests, or recreation areas" means lands, including beaches, shorelines, and submerged lands, and waters:

(a)           which are owned or controlled by a governmental body for purposes of conservation of natural resources, public recreation, or general public use; or

(b)           which the public has a right to use for recreation or as a part of the natural environment.

(7)           "Wildlife" means wild animals and plants.

 

History Note:        Authority G.S. 143‑215.77; 143‑215.101;

Eff. June 16, 1980;

Amended Eff. July 1, 1988; October 1, 1984.

 

15A NCAC 01E .0103       OIL REFINING FACILITY PERMIT REQUIRED

(a)  No person shall construct or operate an oil refining facility unless and until such person applies for and obtains an oil refining facility permit under these Rules.  However, any person who is operating an oil refining facility on the effective date of these Rules and who applies for an oil refining facility permit within 60 days of the effective date of these Rules, unless that time is extended by the Assistant Secretary pursuant to Rule .0013 of this Subchapter, may continue to operate without a permit until a final agency decision to issue or deny the permit is made and until judicial review, if any, of that decision is completed.

(b)  The director shall determine upon request or upon his own initiative whether a proposed enlargement or process change is substantial.  In making that determination, he shall consider relevant factors including, but not limited to:

(1)           the number of employees which the enlargement or process change will add to the facility's permanent work force; and

(2)           the character and volume of the changes which will or may occur in the facility's process, products, by‑products, discharges, and emissions; and

(3)           the change in oil refining capacity which the facility will be designed to handle after its enlargement or process change.

 

History Note:        Authority G.S. 143‑215.100; 143‑215.101; 143B‑10;

Eff. June 16, 1980;

Amended Eff. October 1, 1984.

 

15A NCAC 01E .0104       PERMIT APPLICATION REQUIREMENTS

(a)  An application for a permit shall be in writing and shall be transmitted to the director at the following address:

Director, Division of Environmental Management

North Carolina Department of Environment, Health,

and Natural Resources

P.O. Box 27687

Raleigh, North Carolina  27611

(b)  An application shall be made by and in the names of all persons who will be owners or operators of a proposed oil refining facility or who are owners or operators of an existing facility.

(c)  To apply for an oil refining facility permit, a person or persons shall submit to the director an application which shall contain all of the following 16 elements:

(1)           A cover sheet, which shall not exceed one page and which shall include:

(A)          the title, APPLICATION FOR PERMIT TO CONSTRUCT OR OPERATE AN OIL REFINING FACILITY; and

(B)          a short statement of the activity for which the permit is sought (i.e., construction and operation, operation, enlargement and operation, or process change and operation) and the name and location of the oil refining facility involved; and

(C)          the complete name, address, and telephone number of each applicant; and

(D)          the date of the application; and

(E)           the name, address, and telephone number of the employee or agent of the applicant who can supply further information; and

(F)           an abstract of the assessment of the effects which the construction or operation of the oil refining facility will have on the environ­ment.

(2)           A table of contents.

(3)           A description of each applicant's interest in the ownership or role in the operation of the oil refining facility.

(4)           A description of each applicant's experience in the engineering, design, construction, and operation of oil refining facilities.

(5)           A description of any civil or criminal penalty assessment, any criminal conviction, or any prior or pending civil litigation or administrative proceeding relating to environmental activities or related to the applicant's financial condition.

(A)          which arose out of the construction or operation of an oil refining facility by the applicant or by a person holding a substantial interest in the applicant; and

(B)          which involves alleged violations by the applicant or interest holder of federal or any state's laws concerning the environment.

(6)           A description of each applicant's financial condition.

(7)           A description of the proposed or existing oil refining facility, including but not limited to a description of the following aspects of the facility's operation:

(A)          kind of refining process;

(B)          refining capacity;

(C)          kind, character, and volume of raw materials, and the source(s) of their supply;

(D)          kind, character, and volume of products;

(E)           kind, character, and volume of by‑products;

(F)           kind, character, and volume of effluent discharges to waters or lands of the State;

(G)          kind, character, and volume of emissions to air;

(H)          number of persons in the facility's permanent work force; and

(I)            cost of construction of the facility.

(8)           If construction is involved, a description of the construction process and the applicant's estimate of the timetable for that process.

(9)           Two sets of most current reports, drawings, maps, plans, and specifications concerning the location, construction, and operation of the oil refining facility, in such detail as the Assistant Secretary deems necessary to decide to issue or deny the permit.

(10)         A description of the transfer of oil to and from the oil refining facility, including but not limited to a statement of the amount and kind of vessel traffic which the facility's operation does or will generate.

(11)         Two sets of the most current reports, drawings, maps, plans, specifications, and other information concerning the transfer of oil (including but not limited to vessel characteristics and ownership, vessel navigation to and from the facility, oil loading equipment, and pipelines) in such detail as the Assistant Secretary deems necessary to decide to issue or deny the permit.

(12)         A listing of the effects which interested or affected persons have indicated are of substantial concern to them and which the oil refining facility will or may have on the environment.

(A)          To prepare such a listing, the applicant shall make diligent efforts:

(i)            to inform about the facility those persons whom the facility will or may interest or affect; and

(ii)           to discover their concerns about the effects of the facility and their suggestions for meeting those concerns.

The applicant may coordinate his efforts in this regard with similar efforts required of him by other statutes or regulations, federal or state, so as to reduce duplication of effort.

(B)          In the case of an initial permit application for an oil refining facility which is operating on the effective date of these Rules, this Subparagraph (12) of the application will not be required.

(13)         A list of state and federal environmental quality permits for which the applicant has applied or will apply, the date on which each application was or is expected to be submitted to the appropriate authority, and the current status of each application or permit.

(14)         An analysis of the effects which construction or operation of the facility, including but not limited to the transfer of oil to and from the facility; will or may have on the environment.

(A)          The applicant shall include in such analysis a description of the environment as it exists at the time the application is filed.

(B)          The applicant shall address in such analysis the relationship of people with the specified parts of the natural and physical environ­ment.  Therefore, if the construction or operation of the oil refining facility, including but not limited to the transfer of oil to and from the facility, will or may have a primary effect on the environment, the applicant shall address the secondary effects on public health, safety, and welfare which will or may result from those primary effects.  Those secondary effects shall include but not be limited to social, economic, aesthetic, historic, and cultural effects.

(15)         The applicant's proposals for avoiding or minimizing the adverse effects of the construction and operation of the oil refining facility and the transfer of oil to and from the facility on the environment and proposals for enhancing the quality of the environment.  The applicant's proposals shall include but not be limited to:

(A)          a description of the procedures, methods, means, and equipment, including but not limited to those relating to vessel navigation and design, which the applicant will use to prevent any discharges to the waters or lands of the State; and

(B)          a description of the procedures, methods, means, and equipment by which the applicant will detect and report discharges; and

(C)          a description of the procedures, methods, means, and equipment which the applicant will use in the containment, removal, and cleaning up of discharges and in the restoration of any lands or waters affected by a discharge.

(16)         A list of the names of the persons who were primarily responsible for preparing the application or any part thereof, together with their qualifications, including but not limited to their expertise, experience, and professional disciplines.  Where possible, the persons who were responsible for a particular analysis shall be identified.

(d)  In fulfillment or partial fulfillment of any requirement of Paragraph (c) of this Rule, the applicant may adopt an oil refining facility permit application or portion thereof which any applicant has previously filed.  The adopted application or portion thereof must meet the standards for an adequate and complete application under these Rules.

(e)  The director shall determine the adequacy and completeness of the submitted application.

(f)  The applicant shall supply such other information as the director deems necessary to decide to issue or deny the permit.

 

History Note:        Authority G.S. 143‑215.84; 143‑215.101; 143‑215.102;

Eff. June 16, 1980;

Amended Eff. March 1, 1990; August 1, 1988; October 1, 1984.

 

15A NCAC 01E .0105       PERMIT APPLICATION PROCEDURE

(a)  Upon receipt of an application for an oil refining facility permit, the director shall determine whether the application contains the necessary parts and whether the content and detail of those parts is sufficient to enable him to decide to issue or deny the permit.  If the application is incomplete, the director shall within 30 days of its receipt describe in writing to the applicant how the application is incomplete.  The applicant shall submit such additional information relating to the oil refining facility as the director deems necessary.  If the application is complete, the director shall so advise the applicant in writing within 30 days of its receipt.

(b)  Within 45 days of receiving a complete application, the director shall give notice of the application and of a public hearing to be held pursuant to Rule .0006 of this Subchapter to all of the following state agencies and other persons:

(1)           the North Carolina Coastal Resources Commission;

(2)           the North Carolina Department of Economic and Community Development;

(3)           the North Carolina Commercial and Sports Fisheries Committee;

(4)           the North Carolina Department of Cultural Resources;

(5)           the North Carolina Environmental Management Commission;

(6)           the North Carolina Forestry Council;

(7)           the North Carolina Department of Human Resources;

(8)           the North Carolina Marine Fisheries Commission;

(9)           the North Carolina Parks and Recreation Council;

(10)         the North Carolina Department of Transportation;

(11)         the North Carolina State Ports Authority;

(12)         the North Carolina Wildlife Resources Commission;

(13)         the Boards of County Commissioners for the county in which the oil refining facility is located or is proposed to be located and for contiguous counties;

(14)         the governing body of any incorporated municipality within 50 miles of the oil refining facility;

(15)         any person whose name is on the mailing list required in Rule .0011 of this Subchapter;

(16)         any owner of real property which is contiguous to the site of the oil refining facility; and

(17)         the applicant.

(c)  The notice which (b) of this Rule requires shall contain the following information:

(1)           The title "Notice of Application for Oil Refining Facility Permit," and a statement that the purpose of the notice is to obtain information, views, and arguments to assist the director in assessing the effects of the oil refining facility on the environment.

(2)           The name and address of the applicants and a brief description of the name, character, location, and capacity of the oil refining facility for which the permit is sought.

(3)           A summary of the analysis of effects submitted in the application as Subparagraph (14) of Rule .0004(c) of this Subchapter.

(4)           An invitation to persons who may be interested or affected by the facility to present, in writing or at the public hearing held pursuant to Rule .0006 of this Subchapter, their information, views, and arguments concerning the impacts of the construction and operation of the oil refining facility, including but not limited to the effects of the transfer of oil to and from the facility, on the environment.

(5)           A statement that written information, views, and arguments may be submitted to the director at a specified address at any time until 30 days after the close of the public hearing on the application.

(6)           An announcement of the date, time, and place of the public hearing held pursuant to Rule .0006 of this Subchapter.

(7)           A list of the state agencies which may review and comment on the application, and the date by which the agencies' comments should be submitted to the director.

(8)           The addresses and telephone numbers of two locations, one at the Department's offices in Raleigh and the other at a public location reasonably close to the site or proposed site of the oil refining facility, at which anyone may review the complete application.

(9)           A reference to the particular sections of the North Carolina General Statutes and the North Carolina Administrative Code applicable to the issuance or denial of oil refining facility permits.

(10)         A description of the nature of the hearing and the rules which will govern its conduct.

(11)         The name, address, and telephone number of a department official from whom additional information may be obtained.

(d)  The director shall arrange for the publication of the notice in a regularly published newspaper of general circulation:

(1)           in the county containing the site of the oil refining facility; and

(2)           in contiguous counties; and

(3)           in at least three different parts of the State.  Publication shall occur at least 30 days before the hearing.

 

History Note:        Authority G.S. 143‑215.101;

Eff. June 16, 1980;

Amended Eff. March 1, 1990; July 1, 1988; October 1, 1984.

 

15A NCAC 01E .0106       PUBLIC HEARING ON PERMIT APPLICATION

(a)  The director shall hold a public hearing at which any person will be given a reasonable opportunity to present information, views, and arguments concerning the contents of the application and the effects of the construction and operation of the oil refining facility, including but not limited to the effects of the transfer of oil to and from the facility, on the environment.

(b)  The hearing shall be held between 45 and 60 days after the date of the notice required by Rule .0005(b) of this Subchapter.  If the director deems it necessary, he may arrange for the sending or publication of a second, abbreviated notice shortly before the hearing.

(c)  The state agencies listed in Rule .0005(b) of this Subchapter may comment on the effects which construction or operation of an oil refining facility will or may have on the environment and in so doing should address matters within their jurisdiction, authority, or expertise.  An agency may reply that it has no comment.  Agencies must submit any comments within the time period specified for comment in the notice.

(d)  The hearing shall be held in the county where the oil refining facility for which the applicant seeks a permit is located or is proposed to be located, unless the director finds and directs that, for reasons of public convenience, it should be held elsewhere.

(e)  The hearing shall be informational in nature and shall not be a contested case as defined in G.S. 150A‑2(2).  The director shall hold the hearing or appoint a hearing officer to do so.  The person holding the hearing has the authority to set reasonable guidelines for the hearing, including but not limited to the length of the hearing and the length of time a person may speak.

(f)  The record of the hearing shall be open for written submissions until 30 days after the close of hearing.  Any oral or written information, views, and arguments offered at the hearing and any further written information, views, and arguments submitted within 30 days after the close of the hearing shall be made part of the record of the hearing.

 

History Note:        Authority G.S. 143‑215.101;

Eff. June 16, 1980;

Amended Eff. October 1, 1984.

 

15A NCAC 01E .0107       DECISION TO ISSUE OR DENY PERMIT

(a)  Within 45 days of the last day for submitting information, views, and arguments about the permit application, the director shall issue or deny the oil refining facility permit.

(b)  In deciding to issue or deny the permit, the director shall consider:

(1)           the permit application and supporting documents;

(2)           the information, views, and arguments which have been submitted during the permit process;

(3)           all facts of which judicial notice may be taken; and

(4)           other facts within the specialized knowledge of the Department.

(c)  The director shall base his decision on the effects which the construction or operation of the oil refining facility, including the transfer of oil to and from the facility, will or may have on the environment.  In evaluating those effects, the director shall consider the relationship of people with the specified parts of the natural and physical environment.  This means that, if the construction or operation of the oil refining facility, including the transfer of oil to and from the facility, will or may have a primary effect on the environment, the director shall consider the secondary effects on public health, safety and welfare, including but not limited to social, economic, aesthetic, historic, and cultural effects, which will or may result from those primary effects.

(d)  The director shall deny the permit upon a finding that:

(1)           The construction or operation of the oil refining facility, including but not limited to the transfer of oil to and from the facility, will have substantial adverse effects on wildlife or on freshwater, estuarine, or marine fisheries; or

(2)           The construction or operation of the oil refining facility, including but not limited to the transfer of oil to and from the facility, will violate standards of air or water quality promulgated or administered by the Environmental Management Commission; or

(3)           The construction or operation of the oil refining facility, including but not limited to the transfer of oil to and from the facility, will have a substantial adverse effect on a publicly owned park, forest, or recreation area.

(e)  In the absence of a finding described in (d) of this Rule, the director shall issue the permit.

(1)           The director shall impose on any permit he issues the following terms and conditions:

(A)          The permit shall not be effective until the applicant has obtained the permits required by G.S. 143‑215.1, entitled "Control of sources of water pollution; permits required," and G.S. 143‑215.108, entitled "Control of sources of air pollution; permits required."  When the necessary water and air pollution control permits have been obtained by the applicant, the director upon the applicant's request shall confirm the effective date of the oil refining facility permit.

(B)          The applicant, on February 1 of each year following the year in which the applicant's permit became effective, shall submit to the director a description of the following aspects of the facility's operation as of that date:

(i)            as they are listed in Rule .0004(c)(7) (A), (B), (C), (D), (E), (F), (G), and (H); and

(ii)           transfer of oil to and from the facility, including but not limited to a statement of the amount and kind of vessel traffic which the facility's operation does or will generate.

Further, the applicant, in making this annual report, may adopt an oil refining facility permit application or portion thereof which the applicant has previously filed.  The adopted application or portion thereof must meet the standards for an adequate response to this permit term.  The applicant shall submit additional information about the facility's operation if the director deems it necessary and requests it.

(2)           The director has the authority to impose any additional terms and conditions on the permit which he deems necessary and appropriate to effectuate the purposes of the Act, including but not limited to terms and conditions requiring the installation of such facilities and the employment of such protective measures and operating procedures as he deems reasonable and necessary to prevent, contain, and remove any discharges to the waters or lands of the State, and to restore, restock, and replenish said waters or lands.

 

History Note:        Authority G.S. 143‑215.1; 143‑215.101; 143‑215.108;

Eff. June 16, 1980;

Amended Eff. October 1, 1984.

 

15A NCAC 01E .0108       SUSPENSION: REVOCATION: OR AMENDMENT OF PERMITS

(a)  The director may suspend, revoke, or amend the permittee's oil refining facility permit if:

(1)           a permittee violates any provision of the Act, or any rule, regulation, or order made pursuant to Part 4 of the Act, entitled "Oil Refining Facility Permits," or any provision, term, or condition of the permit; or

(2)           a permittee intentionally misrepresented or failed to disclose material facts which were required to be included in the application.

(b)  The director may, on a continuing basis, amend the permit to impose such terms and conditions thereon as he deems necessary and appropriate to effectuate the purposes of the Act.

(c)  G.S. 150B‑3, entitled "Special Provisions on Licensing," shall apply to any suspension, revocation, or amendment of a permit.

 

History Note:        Authority G.S. 143‑215.101; 150B‑3;

Eff. June 16, 1980;

Amended Eff. July 1, 1988; October 1, 1984.

 

15A NCAC 01E .0109       ADMINISTRATIVE HEARINGS: FINAL DECISION BY SECRETARY

(a)  Any person aggrieved, as that term is defined by G.S. 150B‑2(6), by the director's decision to issue, deny, suspend, revoke, or amend an oil refining facility permit shall have an opportunity for an administrative hearing.

(b)  Procedures for such a hearing shall be as set forth in 15A NCAC 1B .0200, "Hearing Procedures for Contested Cases," and Article 3 of Chapter 150B of the General Statutes.

(c)  The Secretary shall make the final decision concerning the issuance, denial, suspension, revocation, or amendment of a permit in contested cases.

 

History Note:        Authority G.S. 143‑215.101; 150B‑23 through 150B‑37;

Eff. June 16, 1980;

Amended Eff. July 1, 1988; October 1, 1984.

 

15A NCAC 01E .0110       SEVERABILITY

If any provision of this Subchapter or its application to any person or circumstance is held invalid, such invalid provision or application shall not affect the validity of other provisions or applications of this Subchapter; and to this end the provisions of this Subchapter are declared to be severable.

 

History Note:        Authority G.S. 143‑215.101;

Eff. June 16, 1980.

 

15A NCAC 01E .0111       MAILING LIST

The director shall establish and maintain a mailing list of all persons desiring to receive any notices required by this Subchapter, and notices required to be given shall be given to all such persons whose names are on this mailing list.

 

History Note:        Authority G.S. 143‑215.101;

Eff. June 16, 1980;

Amended Eff. October 1, 1984.

 

15A NCAC 01E .0112       FEES

The director may charge a reasonable fee to recover costs incurred in supplying copies of any application or other materials described in this Subchapter.

 

History Note:        Authority G.S. 7A‑308(12); 132‑6; 143‑215.101;

Eff. June 16, 1980;

Amended Eff. October 1, 1984.

 

15A NCAC 01E .0113       EXTENSIONS OF TIME PERIODS

The director may extend any of the time periods prescribed by this Subchapter.  Such an extension shall not exceed 15 days.

 

History Note:        Authority G.S. 143‑215.101;

Eff. June 16, 1980;

Amended Eff. October 1, 1984.

 

15A NCAC 01E .0114       DELEGATIONS

The secretary hereby delegates to the director the authority to issue, deny, suspend, revoke, or amend oil refining facility permits, except that the secretary retains the authority to make the final agency decision in contested cases as applied by 15A NCAC 1B .0200 ‑ Contested Case Procedures.

 

History Note:        Authority G.S. 143‑215.100; 143‑215.101; 143B‑10; 150B‑2(2);

Eff. October 1, 1984.