GENERAL ASSEMBLY OF NORTH CAROLINA

SESSION 1997

H	3 

HOUSE BILL 211*
Committee Substitute Favorable 4/16/97
Senate Agriculture, Environment and Natural Resources Committee Substitute Adopted 7/29/97

Short Title:  Amend Env. Laws/Env. Tech. Corr.	(Public)

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Sponsors:

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Referred to:  

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February 17, 1997

A BILL TO BE ENTITLED
AN ACT TO AMEND VARIOUS ENVIRONMENTAL LAWS TO:  (1) PROVIDE FOR CONTINUING EDUCATION REQUIREMENTS FOR, AND THE EXPIRATION AND RENEWAL OF, CERTIFICATES ISSUED BY THE WATER POLLUTION CONTROL SYSTEM OPERATORS CERTIFICATION COMMISSION; (2) INCLUDE CONSIDERATION OF THE COMPLIANCE HISTORY IN OTHER STATES OF AN APPLICANT FOR A PERMIT UNDER THE COASTAL AREA MANAGEMENT ACT; (3) CLARIFY THE DISTINCTION BETWEEN A PUBLIC HEARING AND A PUBLIC MEETING IN CONNECTION WITH AN APPLICATION FOR A WATER QUALITY PERMIT; (4) ALLOW THE ENVIRONMENTAL MANAGEMENT COMMISSION TO DELEGATE ITS POWERS BY RESOLUTION RATHER THAN BY RULE; (5) CLARIFY THE ASSESSMENT OF CIVIL PENALTIES FOR CONTINUING VIOLATIONS OF AIR QUALITY STANDARDS; (6) REESTABLISH A SCHEDULE OF SIX-YEAR STAGGERED TERMS FOR THE MINING COMMISSION; (7) REESTABLISH A SCHEDULE OF TWO-YEAR STAGGERED TERMS FOR THE NORTH CAROLINA PARKS AND RECREATION AUTHORITY; AND (8) MAKE CLARIFYING, CONFORMING, AND TECHNICAL CHANGES TO VARIOUS LAWS RELATING TO ENVIRONMENT, HEALTH, AND NATURAL RESOURCES, AS RECOMMENDED BY THE ENVIRONMENTAL REVIEW COMMISSION.
The General Assembly of North Carolina enacts:
Section 1.  Part 1 of Article 3 of Chapter 90A is amended by adding a new section to read:
"§ 90A-46.1.  Expiration and renewal of certificates; continuing education requirements.
A certificate issued under this Part expires on 31 December of the year in which it is issued or renewed.  The Commission may establish minimum continuing education requirements that an applicant must meet to renew a certificate.  The Commission shall renew a certificate if the applicant meets the continuing education requirement and pays the required renewal fee, any renewal fee in arrears, and any late application penalty."
Section 2.  G.S. 113A-120(b1), as amended by Section 2 of S.L. 1997-337, reads as rewritten:
"(b1)	In addition to those factors set out in subsection (a) of this section or of G.S. 113A-120.2, and notwithstanding the provisions of subsection (b) of this section, the responsible official or body may deny an application for a permit upon finding that an applicant, or any parent or subsidiary corporation if the applicant is a corporation:
(1)	Is conducting or has conducted any activity causing significant environmental damage for which a major development permit is required under this Article without having previously obtained such permit or has received a notice of violation with respect to any activity governed by this Article and has not complied with the notice within the time specified in the notice;
(2)	Has failed to pay a civil penalty assessed pursuant to this Article, a local ordinance adopted pursuant to this Article, or Article 17 of Chapter 113 of the General Statutes which is due and for which no appeal is pending;
(3)	Has been convicted of a misdemeanor pursuant to G.S. 113A-126, G.S. 113-229(k), or any criminal provision of a local ordinance adopted pursuant to this Article; or
(4)	Has failed to substantially comply with state rules or local ordinances and regulations adopted pursuant to this Article or with other federal and state laws, regulations, and rules for the protection of the environment."
Section 3.  G.S. 143-215.1(c) reads as rewritten:
"(c)	Applications for Permits and Renewals for Facilities Discharging to the Surface Waters. – 
(1)	All applications for permits and for renewal of existing permits for outlets and point sources and for treatment works and disposal systems discharging to the surface waters of the State shall be in writing, and the Commission may prescribe the form of such applications.  All applications shall be filed with the Commission at least 180 days in advance of the date on which it is desired to commence the discharge of wastes or the date on which an existing permit expires, as the case may be.  The Commission shall act on a permit application as quickly as possible.  The Commission may conduct any inquiry or investigation it considers necessary before acting on an application and may require an applicant to submit plans, specifications, and other information the Commission considers necessary to evaluate the application.
(2)	a.	The Department shall refer each application for permit, or renewal of an existing permit, for outlets and point sources and treatment works and disposal systems discharging to the surface waters of the State to its staff for written evaluation and proposed determination with regard to issuance or denial of the permit.  If the Commission concurs in the proposed determination, it shall give notice of intent to issue or deny the permit, along with any other data that the Commission may determine appropriate, to be given to the appropriate State, interstate and federal agencies, to interested persons, and to the public.
a1.	The Commission shall prescribe the form and content of the notice.  Public notice shall be given at least 45 days prior to any proposed final action granting or denying the permit.  Public notice shall be given by publication of the notice one time in a newspaper having general circulation within the county.
b.	Repealed by Session Laws 1987, c. 734.
(3)	If any person desires a public hearing on any application for permit or renewal of an existing permit provided for in this subsection, he shall so request in writing to the Commission within 30 days following date of the notice of intent.  The Commission shall consider all such requests for hearing, and if the Commission determines that there is a significant public interest in holding such hearing, at least 30 days' notice of such hearing shall be given to all persons to whom notice of intent was sent and to any other person requesting notice.  At least 30 days prior to the date of hearing, the Commission shall also cause a copy of the notice thereof to be published at least one time in a newspaper having general circulation in such county.  In any county in which there is more than one newspaper having general circulation in that county, the Commission shall cause a copy of such notice to be published in as many newspapers having general circulation in the county as the Commission in its discretion determines may be necessary to assure that such notice is generally available throughout the county.  The Commission shall prescribe the form and content of the notices.
		The Commission shall prescribe the procedures to be followed in hearings.  If the hearing is not conducted by the Commission, detailed minutes of the hearing shall be kept and shall be submitted, along with any other written comments, exhibits or documents presented at the hearing, to the Commission for its consideration prior to final action granting or denying the permit.
(4)	Not later than 60 days following notice of intent or, if a public hearing is held, within 90 days following consideration of the matters and things presented at such hearing, the Commission shall grant or deny any application for issuance of a new permit or for renewal of an existing permit.  All permits or renewals issued by the Commission and all decisions denying application for permit or renewal shall be in writing.
(5)	No permit issued pursuant to this subsection (c) shall be issued or renewed for a term exceeding five years.
(6)	The Commission shall not act upon an application for a new nonmunicipal domestic wastewater discharge facility until it has received a written statement from each city and county government having jurisdiction over any part of the lands on which the proposed facility and its appurtenances are to be located which states whether the city or county has in effect a zoning or subdivision ordinance and, if such an ordinance is in effect, whether the proposed facility is consistent with the ordinance.  The Commission shall not approve a permit application for any facility which a city or county has determined to be inconsistent with its zoning or subdivision ordinance unless it determines that the approval of such application has statewide significance and is in the best interest of the State.  An applicant for a permit shall request that each city and county government having jurisdiction issue the statement required by this subdivision by mailing by certified mail, return receipt requested, a written request for such statement and a copy of the draft permit application to the clerk of the city or county.  If a local government fails to mail the statement required by this subdivision, as evidenced by a postmark, within 15 days after receiving and signing for the certified mail, the Commission may proceed to consider the permit application notwithstanding this subdivision."
Section 4.  G.S. 143-215.3(a)(4) reads as rewritten:
"(4)	To delegate such of the powers of the Commission as the Commission deems necessary to one or more of its members, to the Secretary or any other qualified employee of the Department. The Commission shall not delegate to persons other than its own members and the designated employees of the Department the power to conduct hearings with respect to the classification of waters, the assignment of classifications, air quality standards, air contaminant source classifications, emission control standards, or the issuance of any special order except in the case of an emergency under subdivision (12) of this subsection for the abatement of existing water or air pollution.  Any employee of the Department to whom a delegation of power is made to conduct a hearing shall report the hearing with its evidence and record to the Commission."
Section 5.  G.S. 143-215.4(b) reads as rewritten:
"(b)	Procedures for Public Input. – 
(1)	The Commission may, on its own motion or when required by federal law, request public comments on or hold public hearings on matters within the scope of its authority under this Article or Articles 21A or 21B of this Chapter. To request public comments on a matter, the Commission shall notify appropriate agencies of the opportunity to submit written comments to the Commission on the matter and shall publish a notice in a newspaper having general circulation in the affected area, stating the matter under consideration by the Commission and informing the public of its opportunity to submit written comments to the Commission on the matter. A public comment period shall extend for at least 30 days after the notice is published.
(2)	To hold a public hearing on a matter, the Commission shall notify, by personal service or certified mail, persons directly affected by the matter under consideration and shall publish a notice in a newspaper having general circulation in the affected area, stating the matter under consideration by the Commission and the time, date, and place of a public hearing to be held on the matter. A public hearing shall be held no sooner than 20 days after the notice is published. The proceedings at a public hearing held under this subsection shall be recorded. Upon payment of a fee established by the Commission, any person may obtain a copy of the record of the public hearing. After a public hearing, the Commission shall accept written comments for the time period prescribed by the Commission.
(3)	This subsection does not apply to rule-making proceedings, contested case hearings, or the issuance of permits required under Title V. The Commission shall establish procedures for public hearings, public notice, and public comment respecting permits required by Title V as provided by G.S. 143-215.111(4).
(4)	The Commission may hold a public meeting on any matter within its scope of authority.  The Commission may hold a public meeting in addition to any public hearing that is required under any provision of law, but a public meeting may not be substituted for any required public hearing.  Except as may be otherwise provided by law, the Commission may determine the procedures for any public meeting it holds."
Section 6.  G.S. 143-215.112(d)(1a) reads as rewritten:
"(1a)	Each governing body, or its authorized agent, shall have the power to assess civil penalties under G.S. 143-215.114A.  Any person assessed shall be notified of the assessment by registered or certified mail, and the notice shall specify the reasons for the assessment.  If the person assessed fails to pay the amount of the assessment to the governing body or its authorized agent within 30 days after receipt of notice, or such longer period not to exceed 180 days as the governing body or its authorized agent may specify, the governing body may institute a civil action in the superior court of the county in which the violation occurred, to recover the amount of the assessment.  If any action or failure to act for which a penalty may be assessed under this section is continuous, the governing body or its authorized agent may assess a penalty not to exceed ten thousand dollars ($10,000) per day for so long as the violation continues.  In determining the amount of the penalty, the governing body or its authorized agent shall consider the degree and extent of harm caused by the violation, the cost of rectifying the damage, and the amount of money the violator saved by not having made the necessary expenditures to comply with the appropriate pollution control requirements."
Section 7.  G.S. 143-215.114A(b) reads as rewritten:
"(b)	If any action or failure to act for which a penalty may be assessed under this section is continuous, the Secretary may assess a penalty not to exceed ten thousand dollars ($10,000) per day for so long as the violation continues."
Section 8.  G.S. 143B-291 reads as rewritten:
"§ 143B-291.  North Carolina Mining Commission – members; selection; removal; compensation; quorum; services.
(a)	Members, Selection. – The North Carolina Mining Commission shall consist of nine members appointed by the Governor under a specified subdivision of this subsection as follows:
(1)	One member who is the chairman of the North Carolina State University Minerals Research Laboratory Advisory Committee, ex officio.  
(2)	One member who is a representative of the mining industry.
(3)	One member who is a representative of the mining industry.
(4)	One member who is a representative of the mining industry.
(5)	One member who is a representative of nongovernmental conservation interests.
(6)	One member who is a representative of nongovernmental conservation interests.
(7)	One member who is a representative of nongovernmental conservation interests.
(8)	One who, at the time of the appointment to the Mining Commission,  is a member of the Environmental Management Commission and knowledgeable in the principles of water and air resources management.
(9)	One who, at the time of the appointment to the Mining Commission,  is a member of the Environmental Management Commission and knowledgeable in the principles of water and air resources management.
 	(b)	Terms. – The term of office of a member of the Commission is six years.  At the expiration of each member's term, the Governor shall replace the member with a new member of like qualifications for a term of six years.  The term of members appointed under subdivisions (2), (5), and (8) of subsection (a) of this section shall expire on 30 June of years that precede by one year those years that are evenly divisible by six.  The term of members appointed under subdivisions (3) and (6) of subsection (a) of this section shall expire on 30 June of years that follow by one year those years that are evenly divisible by six.  The term of members appointed under subdivisions (4), (7), and (9) of subsection (a) of this section shall expire on 30 June of years that follow by three years those years that are evenly divisible by six.  Upon the expiration of a six-year term, a member may continue to serve until a successor is appointed and duly qualified as provided by G.S. 128-7.
(c)	Vacancies. – An appointment to fill a vacancy shall be for the unexpired balance of the term.
(d)	Removal. – The Governor may remove any member of the Commission from office for misfeasance, malfeasance, or nonfeasance in accordance with the provisions of G.S. 143B-13.
(e)	Compensation. – The members of the Commission shall receive per diem and necessary  traveling and subsistence expenses in accordance with the provisions of G.S. 138-5.
(f)	Quorum. – A majority of the Commission shall constitute a quorum for the transaction of business.
(g)	Staff. – All clerical and other services required by the Commission shall be supplied by the Secretary of the Department."
Section 9.  In order to reestablish a schedule of six-year staggered terms for the Mining Commission as required by G.S. 143B-291, as amended by Section 8 of this act, the Governor, in making appointments to replace the two members of the Mining Commission who represent the mining industry and whose terms both expire on 30 June 1997, shall appoint one member under G.S. 143B-291(a)(2) to a full six-year term expiring on 30 June 2003 and shall appoint one member under G.S. 143B-291(a)(4), to a four-year term expiring 30 June 2001.
Section 10.  G.S. 143B-313.2 reads as rewritten:
"§ 143B-313.2.  North Carolina Parks and Recreation Authority; members; selection; compensation; meetings.
(a)	Membership. – The North Carolina Parks and Recreation Authority shall consist of 11 members. The members shall include persons who are knowledgeable about park and recreation issues in North Carolina or with expertise in finance.  In making appointments, each appointing authority shall specify under which subdivision of this subsection the person is appointed.  Members shall be appointed as follows:
(1)	One member appointed by the Governor.
(2)	One member appointed by the Governor.
(3)	One member appointed by the Governor.
(4)	One member appointed by the General Assembly upon the recommendation of the Speaker of the House of Representatives, as provided in G.S. 120-121.
(5)	One member appointed by the General Assembly upon the recommendation of the Speaker of the House of Representatives, as provided in G.S. 120-121.
(6)	One member appointed by the General Assembly upon the recommendation of the Speaker of the House of Representatives, as provided in G.S. 120-121.
(7)	One member appointed by the General Assembly upon the recommendation of the Speaker of the House of Representatives, as provided in G.S. 120-121.
(8)	One member appointed by the General Assembly upon the recommendation of the President Pro Tempore of the Senate, as provided in G.S. 120-121.
(9)	One member appointed by the General Assembly upon the recommendation of the President Pro Tempore of the Senate, as provided in G.S. 120-121.
(10)	One member appointed by the General Assembly upon the recommendation of the President Pro Tempore of the Senate, as provided in G.S. 120-121.
(11)	One member appointed by the General Assembly upon the recommendation of the President Pro Tempore of the Senate, as provided in G.S. 120-121.
(b)	Terms. – Members shall serve two-year terms. Members shall serve no more than two full two-year terms.  Upon the expiration of a two-year term, a member may continue to serve until a successor is appointed and duly qualified as provided by G.S. 128-7.  The term of members appointed under odd-numbered subdivisions of subsection (a) of this section shall expire on 30 June of odd-numbered years.  The term of members appointed under even-numbered subdivisions of subsection (a) of this section shall expire on 30 June of even-numbered years.
(c)	Chair. – The Governor shall appoint one member of the North Carolina Parks and Recreation Authority to serve as Chair.
(d)	Vacancies. – A vacancy on the North Carolina Parks and Recreation Authority shall be filled by the appointing authority responsible for making the appointment to that position as provided in subsection (a) of this section.  An appointment to fill a vacancy shall be for the unexpired balance of the term.
(e)	Removal. – The Governor may remove, as provided in G.S. 143-13, any member of the North Carolina Parks and Recreation Authority appointed by the Governor for misfeasance, malfeasance, or nonfeasance.  The General Assembly may remove any member of the North Carolina Parks and Recreation Authority appointed by the General Assembly for misfeasance, malfeasance, or nonfeasance.
	(f)	Compensation. – The members of the North Carolina Parks and Recreation Authority shall receive per diem and necessary travel and subsistence expenses according to the provisions of G.S. 138-5.
(g)	Meetings. – The North Carolina Parks and Recreation Authority shall meet at least quarterly at a time and place designated by the Chair.
	(h)	Quorum. – A majority of the North Carolina Parks and Recreation Authority shall constitute a quorum for the transaction of business.
	(i)	Staff. – All clerical and other services required by the North Carolina Parks and Recreation Authority shall be provided by the Secretary of Environment, Health, and Natural Resources."
Section 11.  In order to reestablish a schedule of two-year staggered terms for the North Carolina Parks and Recreation Authority as required by G.S. 143B-313.2, as amended by Section 10 of this act:
(1)	The Governor, in making appointments to replace the one member of the North Carolina Parks and Recreation Authority appointed by the Governor whose term expires on 30 June 1997, shall appoint a member under G.S. 143B-313.2(a)(1) to a full two-year term expiring on 30 June 1999.
(2)	The Governor, in making appointments to replace the two members of the North Carolina Parks and Recreation Authority appointed by the Governor whose terms expire on 30 June 1998, shall appoint one member under G.S. 143B-313.2(a)(2) to a full two-year term expiring on 30 June 2000 and shall appoint one member under G.S. 143B-313.2(a)(3) to a one-year term expiring 30 June 1999.
(3)	The General Assembly, in making appointments to replace the four members of the North Carolina Parks and Recreation Authority appointed by the General Assembly upon the recommendation of the Speaker of the House of Representatives whose terms expire on 30 June 1998, shall appoint two members under G.S. 143B-313.2(a)(4) and G.S 143B-313.2(a)(6) to full two-year terms expiring on 30 June 2000 and shall appoint two members under G.S. 143B-313.2(a)(5) and G.S. 143B-313.2(a)(7) to one-year terms expiring 30 June 1999.
(4)	The General Assembly, in making appointments to replace the four members of the North Carolina Parks and Recreation Authority appointed by the General Assembly upon the recommendation of the President Pro Tempore of the Senate whose terms expire on 30 June 1998, shall appoint two members under G.S. 143B-313.2(a)(8) and G.S 143B-313.2(a)(10) to full two-year terms expiring on 30 June 2000 and shall appoint two members under G.S. 143B-313.2(a)(9) and G.S. 143B-313.2(a)(11) to one-year terms expiring 30 June 1999.
Section 12.  G.S. 106-802(4) reads as rewritten:
"(4)	‘Site evaluation' means an investigation to determine if a site meets all federal and State standards as evidenced by the Waste Management Facility Site Evaluation Report on file with the Soil and Water Conservation District office or a comparable report certified by a professional engineer or a comparable report certified by a technical specialist approved by the North Carolina Soil and Water Conservation Commission.
".
Section 13.  G.S. 143-214.12(a) reads as rewritten:
"(a)	Wetlands Restoration Fund. – The Wetlands Restoration Fund is established as a nonreverting fund within the Department.  The Fund shall be treated as a special trust fund and shall be credited with interest by the State Treasurer pursuant to G.S. 147-69.2 and G.S. 147-69.3.  The Wetlands Restoration Fund shall provide a repository for monetary contributions and donations or dedications of interests in real property to promote projects for the restoration, enhancement, preservation, or creation of wetlands and riparian areas and for payments made in lieu of compensatory mitigation as described in subsection (b) of this section.  No funds shall be expended from this Fund for any purpose other than those directly contributing to the acquisition, perpetual maintenance, enhancement, restoration, or creation of wetlands and riparian areas in accordance with the basinwide plan as described in G.S. 143-214.10."
Section 14.  G.S. 143-215.10G(3) reads as rewritten:
"(3)	For a system with a design capacity of 800,000 pounds or more steady state live weight, two hundred dollars ($200.00)."
Section 15.  G.S. 143-215.74(b)(3) reads as rewritten:
"(3)	Subject to subdivision (7) of this subsection, priority designations for inclusions in the program shall be under the authority of the Soil and Water Conservation Commission. The Soil and Water Conservation Commission shall retain the authority to allocate the cost share funds."
Section 16.  G.S. 143B-282(a) reads as rewritten:
"(a)	There is hereby created the Environmental Management Commission of the Department of Environment, Health, and Natural Resources with the power and duty to promulgate rules to be followed in the protection, preservation, and enhancement of the water and air resources of the State.
(1)	Within the limitations of G.S. 143-215.9 concerning industrial health and safety, the Environmental Management Commission shall have all of the following powers and duties:
a.	To grant a permit or temporary permit, to modify or revoke a permit, and to refuse to grant permits pursuant to G.S. 143-215.1 and G.S. 143-215.108 with regard to controlling sources of air and water pollution.
b.	To issue a special order pursuant to G.S. 143-215.2(b) and G.S. 143-215.110 to any person whom the Commission finds responsible for causing or contributing to any pollution of water within such watershed or pollution of the air within the area for which standards have been established.
c.	To conduct and direct that investigations be conducted pursuant to G.S. 143-215.3 and G.S. 143-215.108(b)(5).
d.	To conduct public hearings, institute actions in superior court, and agree upon or enter into settlements, all pursuant to G.S. 143-215.3.
e.	To direct the investigation of any killing of fish and wildlife pursuant to G.S. 143-215.3.
f.	To consult with any person proposing to construct, install, or acquire an air or water pollution source pursuant to G.S. 143-215.3 and G.S. 143-215.111.
g.	To encourage local government units to handle air pollution problems and to provide technical and consultative assistance pursuant to G.S. 143-215.3 and G.S. 143-215.112.
h.	To review and have general oversight and supervision over local air pollution control programs pursuant to G.S. 143-215.3 and G.S. 143-215.112.
i.	To declare an emergency when it finds a generalized dangerous condition of water or air pollution pursuant to G.S. 143-215.3.
j.	To render advice and assistance to local government regarding floodways pursuant to G.S. 143-215.56.
k.	To declare and delineate and modify capacity use areas pursuant to G.S. 143-215.13.
l.	To grant permits for water use within capacity use areas pursuant to G.S. 143-215.15.
m.	To direct that investigations be conducted when necessary to carry out duties regarding capacity use areas pursuant to G.S. 143-215.19.
n.	To approve, disapprove and approve subject to conditions all applications for dam construction pursuant to G.S. 143-215.28; to require construction progress reports pursuant to G.S.  143-215.29.
o.	To halt dam construction pursuant to G.S. 143-215.29.
p.	To grant final approval of dam construction work pursuant to G.S. 143-215.30.
q.	To have jurisdiction and supervision over the maintenance and operation of dams pursuant to G.S. 143-215.31.
r.	To direct the inspection of dams pursuant to G.S. 143-215.32.
s.	To modify or revoke any final action previously taken by the Commission pursuant to G.S. 143-214.1 and G.S. 143-215.107. 
t.	To have jurisdiction and supervision over oil pollution pursuant to Article 21A of Chapter 143. 
u.	To administer the State's authority under 33 U.S.C. § 1341 of the federal Clean Water Act."
Section 17.  Section 17 of Chapter 626 of the 1995 Session Laws (1996 Regular Session) reads as rewritten:
"Sec. 17.  No later than October 1, 1996, the Environmental Management Commission and the Soil and Water Conservation Commission, with technical assistance from the Cooperative Extension Service, shall establish the record-keeping requirements under G.S. 143-215.10C(e)(8), as enacted by Section 2 of this act.  The Natural Resources Conservation Service is encouraged to cooperate fully with establishing these requirements."
Section 18.  Section 2 of Chapter 627 of the 1995 Session Laws (1996 Regular Session) reads as rewritten:
"Sec. 2.  G.S. 	113-133.1(e) is amended by deleting the words ‘Currituck: Session Laws 1959, Chapter 545.'"
Section 19.  This act is effective when it becomes law.