North Carolina DepartmentofHealth and Human Services DivisionofPublic Health Epidemiology Section Occupational and Environmental Epidemiology Branch 1912Mail Service Center Raleigh,North Carolina27699-1912 Tel 919-707-5950 Fax 919-870-4808 Beverly Eaves Perdue, Governor Jeffrey P Engel, 11D Lanier M. Cansler, Secretary State Health Director
January 20,2010

Ms. Liz Wilde U.S. EPA Region IV 61Forsyth Street Atlanta, GA 30303-3 104

Dear Ms. Wilde:

The Health Hazards Control Unit (HHCU) is pleased to submit North Carolina's applicationpackage for state Renovation, Repair and Painting authorization. North Carolina is applying through the self-certification process.

The original application was mailed to Mr. A. Stanley Meiburg, Acting Regional Administrator, Region IV, U.S. Environmental Protection Agency. Enclosed you will findtwo copies ofthe application. If you have any questions, please contact me at (919)707-595 1.

Mary T. Giguere Manager Health Hazards Control Unit

MTG/dfc

Enclosure

NorthCardins Public Health worlungfor P heakhw nndsPfu North Csrdin= Everywhere. Everyday Eveverybody.

Location: 5505 SixForks Road,

### znd Floor, Room D-I Raleigh,N.C. 27609

## NORTH CAROLINA APPLICATION FOR STATE AUTHORIZATION

TOXIC SUBSTANCES CONTROL ACT SECTIONS 4021404 LEAD-BASED PAINT RENOVATION PROGRAMTab 1

Tab 2

Tab 3

Tab 4

Tab 5

Tab 6 

### TABLE OF CONTENTS

Cover Sheet

Summary of State Program

Attorney General's Statement and Governor's Letter

Public Notice and Hearing Summary

Copies of Statutes and the Lead-Based Paint Hazard Management Program for Renovation, Repair and Painting Rules
State Program Description

### II.A.1. Coversheet

Following is a helpful cover sheet that may be filled out and included with your application. The sheetprovides the name of the primary contact within the State or Tribe and a list of the documents that are contained in your application.

# State or Tribal Program Authorization Application

TSCA§ 402/404Renovation Program U.S.Environmental ProtectionAgency

StateorTribe Applying for (circle one or both):

&enovation, Repair, and pain&

ContactName: 

### - Mary Giguere

Agency: NC Department ofHealth and Human Services, Division ofPublic Health, Health Hazards Control Unit -

Title: Unit Manager

Address:19 12 Mail Service Center, Raleigh,NC 27699-1912

Phone: (91 9) 707-595 1

Fax: -(9l9) 870-4808

The following documents (with a check mark) are included, in order, with this application.

J A summary of the State or Tribalprogram; --

J A transmittal letter from the Governor ; --

J An Attorney General's or Tribal equivalent's statement that the State's or Tribe's laws and

--regulations provide the necessary legal authority to administer and enforce this program ;

J Aprogtam description, including an enforcement and compliance program description and, for any --Tribe, documentation that the Tribe is eligible for Treatment as a State (This must include an analysis comparing the program to the Federal Program and demonstrating how the program is as protective as the Federal Program);

J Copies of all applicable State or Tribal statutes and regulations; and
--

J OPTIONAL. For States Only: A certification, signed by the Governor or Attorney General,
-- that the State program meets the criteria established for program authorization

### ll.A.4. Summary of State or Tribal Program (§ 745.324(a)(3)(ii))

A summary of the State or Tribal program must be included in the application. The summary should be a short (1-2 page) description of the State or Tribe=s program. The summary should describe the activities and building types covered by the program, provide a short summary of the pre-renovation notification requirements, renovation certification and accreditation requirements, a short summary of the renovation work practice standards included in the program, and any additional material the State or Tribe chooses to include.

After a State or Tribe submits an application, the Agency will publish a Federal Register notice announcing the receipt of the State or Tribal application, a summary of the program, and a request for public comment. EPA will use the program summary provided by the State or Tribe in the Federal Register notice to provide notice to residents of the State or Tribe.

### ll.A.4. 

### Summary of State or Tribal Program (5745.324(a)(3)(ii))

The State of North Carolina has implemented a lead-based paint hazard management program for renovation, repair, and painting in lieu of having a federally administered program apply inthe State. The Lead-Based Paint Hazard Management Program for Renovation, Repair and Painting (LHMP-RRP) is implemented through the Department of Health and Human Services, Divisionof Public Health, Health Hazards Control Unit. The North Carolina Legislature ratified House Bill 1151on August 11, 2009, granting the North Carolina Commissionfor Public Health (CPH) authority to establish Rules.The CPH approvedthe LHMP-RRP Temporary Rules on October 30, 2009. The Temporary Ruleswent to the Rules Review Commission and were approved December 17, 2009. The LHMP-RRP Rules (10A NCAC 41C .0900 - .0907) have an effective date of January 1,2010, and implementation of the Programwas effective January 1, 2010.

Requirements of the LHMP-RRP includethe following: accreditation of renovation and dust sampling technician training providers and training courses; certification of renovation firms and individuals that perform renovations, cleaning verification and dust sampling intarget housing or child occupied facilities; requiredwork practice standards for lead-based paint renovation activities: record retention, information distribution and reporting requirements. These requirements are at least as protective

as the federal regulations.

The LHMP-RRP Rules are applicable to all persons engaged in renovation activities for compensation intarget housing and child-occupied facilities built before 1978. However, an individual who perform renovations of a residential dwelling that is owned and occupied bythe person, or the person's immediate family, are exempt from the requirements. Definitions are adopted from the EPA federal regulation, contained in40 CFR Part 745 Subpart E and L. The requirements do not mandate the performance of renovation activities, but instead the Rules establish requirements and procedures to follow when renovation activities are conducted.

The LHMP-RRP regulatory requirements for the accreditation of lead-based paint renovation activities training programs are consistent with the accreditation of the federal program. Training providers conducting training in North Carolina must be accredited bythe Program.All initial and refresher training courses conducted in North Carolina must be accredited bythe Program.

Several requirements of the State program that are not included in the federal program include: a requirement that approval of the training program's course is contingent on submittal of an application and successfully completing an on-site audit, andtraining providers must submit a written notification of intentto teach thecourse in North Carolina 10working days prior to the start date of the course. The LHMP-RRP does not provide for proficiency tests.

The State certification requirements include the certification of firms and individual categories of renovator and dust sampling technician. Each individual certification category must submit an application for certification, meet required training course requirements and be employed by a certified renovation firm when conducting renovation activitiesfor compensation.

Work practice standards that are required for performing lead-based paint renovation activities for compensation intarget housing or child-occupied facilities are equivalent to the work practice standards inthe federal regulations.

The LHMP-RRP compliance and enforcement elements are comparable to the compliance and enforcement requirements of the federal program. As in the federal regulations,the Rules provide for the suspension and revocation of training provider accreditation, training course accreditation, firm certification and individual certification. Additionally, administrative and civil penalties may be assessed for violations. Criminal actions can also be pursued. The renovation firm and individual certification requirements assist in conducting an effective compliance and enforcement program.

North Carolina's LHMP-RRP provides for establishing reciprocity agreements with other states, tribes, or territories with authorized programs which have consistent requirements for certification of individuals and firms and accreditation of training courses and providers. The federal regulations encourage states to establish reciprocity procedures.

North Carolina's LHMP-RRP requires information be provided to the person contracting for the renovation when an EPA recognized test kit is used to determine the presence of LBP prior to the start of renovation activities.

Outreach activities have a high priority in the LHMP-RRP. The objective of the outreach program is to educate and make the public and regulated community aware of the hazards of lead-based paint and of the regulatory requirements applicableto lead-based paint renovation activities. The overall goal ofthe outreach program isto protect public health and the environment from the hazards of lead-based paint.

Fiscal program needs will be supported byavailable federal grants and fees collected by Department. The LHMP-RRP provides for the collection of fees and allows for acceptance of federal grants. Fees are assessed for the accreditation of training providers and training courses, certification of renovation firms and dust sampling technicians.

### ll.A.2. Transmittal Letter from State Governor or Tribal Equivalent Requesting ProgramApproval 

## c3 745.324(a)(3))

A letter from the Governor or Tribal equivalent officially transmits the State or Tribe=s application for approval of its program and acts as a formal request for EPA approval. The letter to EPA should include reference to the Federal statute, a request for authorization of the State or Tribal program, and the Governor or Tribal equivalent=s signature. The letter also designates the State or Tribal agency that is responsible for administering and enforcingthe program and that will serve as the key point of contact for the Renovation Program. A sample letter has been included on the adjacent page that contains all the necessary information and may be used aspart of a State or Tribal application.January 14,2010

Mr. A. Stanley Meiburg,Acting Regional Administrator Region 

### IV U.S. EnvironmentalProtection Agency 61Forsyth Street, SW Atlanta, GA 30303

Dear Mr.Meiburg:

In accordancewith Section 404 ofthe Toxic Substances ControlAct, I am forwardingNorth Carolina's application for authorization of the Lead-Based Paint Hazard Management Program for Renovation,Repair and Painting. The applicationhas been forwarded directlyto the EnvironmentalProtection Agency's Region 

### IVprogram officefor review. Ibelieve you will find it containsthe provisionsnecessary to implement an effectiveRenovation Program.

Shouldyou require furtherinformation,please contactMs. Mary Giguereofthe North Carolina Departmentof Health and Human Services, Health Hazards Control Unit at (919) 707-5951.

Sincerely, 

### n

Bev Perdue

### ll.A.3. Attorney General or Tribal Equivalent's Statement

(3 745.324(a)(3)(iv) and (c))

A State or Tribe must submit a written statement signed by the Attorney General or Tribal equivalent, certifying that the laws and regulations of the State or Tribe provide adequate legal authority to administer and enforce the State or Tribal Renovation Program. This statement shall include citations to the specific statutes and regulations providing that legal authority. The Tribal legal certification (the equivalent to the Attorney General's statement) may also be submitted and signed by an independent attorney retained by the Tribe for representation in matters before EPA or the courts pertaining to the Tribe's program. The certification shall include an assertion that the attorney has the authority to represent the Tribe with respect to the Tribe's authorization application.

Where a State or Tribe has incorporated by reference any Federal regulations, the Attorney General or Tribal equivalent, should demonstrate the authority to adopt the State or Tribal regulations in this manner. The Attorney General or Tribal equivalent, should cite the State or Tribal statutes and regulations, listing the comparable CFR cite and effective date.

A sample letter has been included below that may be used aspart of a State or Tribal application.

### ll.A.7. Program Certification for States(opti0nal) (9745.324(d))

Section 404(a) of TSCA provides that a State may also certify to the Agency that its program meets the criteria for program authorization. This optional certification must be presented to EPA in the form of a letter from the Governor or the Attorney General to the Regional Administrator. This certification must reference the program analysis contained in the program description portion of the application as the basis for concluding that the State program is at least as protective as the Federal
program and provides for adequate enforcement. If this certification is included in a State application, the State=sprogram will be deemed authorized until the Regional Administrator disapproves or withdraws the
program=s authorization. A program shall not be deemed authorized pursuant to this subpart to the extent that jurisdiction is asserted over Indian Country, including non-member fee lands within an Indian reservation. If the application does not contain such certification, the State program will be authorized only after the Regional Administrator authorizes the program.

A sample letter is included on the adjacent page.ROY COOPER ,%TORNEYGENEH.4L 

### State of North Carolina
Department of Justice REPLYTO: Grayson G.Kelley (919) 716-6400 PO BOX629 FAX: (919)716-0135 Raleigh. North Carolina

27602

December30,2009

A. Stanley Meiburg, Acting Regional Administrator Region IV U.S. Environmental Protection Agency 61 Forsyth Street, SW Atlanta, GA 30303

Dear Mr. Meiburg:

Pursuant to my authority as Chief Deputy Attorney General, StateofNorth Carolina, and in accordance with Section 404 of the Toxic Substances control Act, and 40 CFR s745.324, 1 hereby certify that the statutes and regulations cited inthe attachmentto this letter provide adequate legal authority for the State of North Carolina, Department of Health and Human Services (DHHS), Health Hazards Control Unit, to administer and enforce the State of North Carolina, Lead-Based Paint Hazard Management Programfor Renovation, Repair and Painting Program.

Further, Ihereby certify inaccordance with Section404(a) oftheToxic Substances ControlAct, and40 CFR §745.324(c), that based upon information provided by DHHS,the Lead-Based Hazard Management Programfor Renovation, Repair and Painting are at least as protectiveof humanhealth and the environmentasthe Federal Lead-Based Paint Renovation Programfound at 40 CFR Part 745 Subpart E.

Attachment: State of North Carolina Lead-Based Paint Hazard Management Program for Renovation, Repair and Painting Statutes and Regulations

cc: Regional Lead Coordinator, US. EPA Region IV, 100Alabama St. SW, Atlanta, GA 30303

### ll.A.5. Public Notice and Hearing Summary (§745.324(a)(2))

Before developing an application for authorization, a State or Tribe must disseminate a public notice of intentto seek such authorization and provide an opportunity for a public hearing. The application should reflect how the public participation requirements were met. Requirements for such procedures should be covered by the State or Tribal Administrative Procedures Act. The application should include detail asto whether or not a public hearing was held, as well as a record of comments received with the State or Tribe=s response to the comments. The State or Tribe=s initial and final notice should reflect adequately the details ofthe public participation.

### ll.A.5. Public Notice and Hearing Summary (5745.324(a)(2))

Notice of rule making and the opportunity for a public hearingwas published in the North Carolina state register on September2, 2009. A public hearingwas held in Raleigh, North Carolina, on September 18, 2009. Additionally, the intent to seek program authorization was also announced during this public hearing and received

no comments. Other opportunities for public comment, on intentto seek authorization were provided as part of the legislative process via the scheduled House Committee

on Commerce, Small Business, and Entrepreneurship and later the House Finance Committee, Senate Commerce Committee, and Senate Finance Committee. No commentswere provided regarding the state's intent to seek US EPA authorization during these committee meetings.

### ll.A.6. Copies of 

### Statutes, Rules, Standards and other Materials 

## (s745.324(a)(3)(v))

Copies of all applicable State or Tribal statutes, regulations, standards, and other materials (i.e. policies, administrative procedures, etc.) that provide the State or Tribe with the authority to administer and enforce a Renovation Program must be included in the application. Applicable materials should'be attached here.

Common authorities that will typically need to be shown by the State or Tribe include: pre-renovation education statute and regulations, renovation, repair and painting statute and regulations, administrative hearing procedures, penalty authorities (both criminal and civil penalty authorities), authority to incorporate by reference federal regulations (if applicable), authority to immediately suspend activities in response to immediate threats to human health or the environment, authority to suspend, revoke or modify certifications and accreditations.

## ll.A.6. Copies of Statutes, Rules, Standards and other Materials 

## (s 745.324(a)(3)(v))

Please list attached statutes, regulations, standards, and other materials:

Lead-Based Paint Hazard Management Program for Renovation, Repair and Painting: N.C. Gen. Stat. $§130A-453.12 thru 130A-453.21 Temporary Rules 10ANCAC 4 1 C.0900

Occupational and Environmental Epidemiology Section: 10ANCAC 41C .0100

Public Health Programs: N.C. Gen. Stat. §§l30A-1thru 130A-6

Rulemaking: A. Commission for Public Health N.C. Gen. Stat. §§130A-29thru 130A-33 10ANCAC 45B

B. North Carolina Administrative Procedures Act General Provisions 

### - N.C. Gen. Stat.

### 99 1 5OB-1thru 150B-4 Rules 

### - N.C. Gen. Stat.§§150B-18thru 150B-21.27

Remedies: N.C. Gen. Stat. $§130A-17thru 130A-28

Appeals: A. Administrative Hearings - N.C. Gen. Stat. 

### $9150B-22thru 150B-37

B. Judicial Review 

### - N.C. Gen. Stat. 

### $8150B-43thru 150B-52

## Lead-Based Paint Hazard Management Program for Renovation, Repair and Painting:



## N.C. Gen. Stat. 

# $9130A-453.12thru 130A-453.21 Temporary Rules: 10ANCAC 41 C.0900GENERALASSEMBLYOFNORTH CAROLINA SESSION 2009

SESSIONLAW2009-488 HOUSEBILL 1151

AN ACT TO ESTABLISH REQUIREMENTS FOR CERTTFICATION OF PERSONS PERFORMING LEAD-BASED PAINT RENOVATION WORK IN CERTAIN RESIDENTIAL HOUSING AND CHILD-OCCUPIED FACILITIES;AND 1'0REQUIRE ACCREDITATION OF RENOVATION TRAINERS AND RENOVATION TRAINING COURSES.
The General AssemblyofNorth Carolina enacts:

SECTION 1. Chapter 130A of the General Statutes is amended by adding a new Article to read: "Article 19B. "Certificationand AccreditationofLead-BasedPaint Renovation Activities. 

### "3130A-453.12. Definitions. Except as provided in subsection (b) ofthis section and in any rules adopted under this Article, the definitions set out in 40 C.F.R. 44 745.83 and 745.223, as amended, apply throughout this Article. @ Unless otherwiseresuired by the context,the followinp.definitions apply throughout this Article: 

### f!l Certified dust sampling technician.

### -An individual who (i) is employedby a certified renovation firm, (ii) has success full^ completed a dust sampling technician training course accreditedby the Department, and (iii) is certified by the Department to perform dust clearance sampling after the completion of renovation activities, ifthe person contracting for the renovation activity reauests dust clearance samplinp;, Certified renovation firm. - A company, partnership, corporation, sole

roprietorship, association, or other business entitv or individual doing gusiness in the State, or a federal, State, tribal. or local government agency, or a nonprofit organization that has been certified by the Department to perform renovation activitiescovered by this Article. Certified renovator. - An individual who (i) is emuloyed by a certified renovation firm, (ii) either performs or directs trained workers who perform renovation activities, (iii) has successfully completed a renovation training course accredited by the Department or the United States Environmental Protection Agency, and (iv) is certified with the Department to perform renovation activities. Child-occupied facility. -A building, or portion of a building, constructed prior to 1978, visitedremlarl~ by the same child under 6years ofage, on at least two differentdays within any week (Sunday throunh Saturday period), provided that each day's visit lasts at least three hours and the combined

I weekly visits last at least six hours, and the combined annual visits last at least 60 hours. Child-occupied facilities may include, but are not limited to, day care centers, preschools, and kindergarten classrooms. Child-occupied facilities may be located in tawet housing or in public or commercial buildings. With respect to common areas in public or commercial buildings, the child-occupied facility encompasses those common areas. both interior and exterior. routinely used by childrenunder age 6. Renovation activities. - The activities relative to lead-based paint renovations including the use of recognized lead test kits, information distribution, work practices such as cleaning verification and dust clearancesampling, as well as the activities performed by a certified firm, certified renovator, or certified dust sampling technician. Renovation activities include all activities included in the definition of the term 'renovation' in 40 C.F.R. 

### F 745.83. Target housing -Any housin~ constructed prior to 1978, except housing for the elderly or persons with disabilities, unless one or more children age 6 years or under resides or is expected to reside in such housing for the elderly

or persons with disabilities. or any zero-bedroom dwelling. For purposes of this Article. a zero-bedroom dwelling is any residential dwelling in which the living areas are not separated fiom the sleeping area. The term includes efficiencies, studio apartments. dormitory housing. militarv barracks. and rentals ofindividual rooms in residential dwellings. 

# a Trained renovation worker. - An individual who (i) receives on-the-job train in^ and direction pertaining to the individual's assigned tasks in renovation work in tarnet housing or child-occupied facilities fiom a certified renovator and (ii) is employed by a certified renovationfirm. "§ 130A-453.13. Purpose. This Article is enacted to establish an authorized State program under sections 402 and 406 of the Toxic Substance Control Act, 15 U.S.C. 44 2682 and 2686, as enacted by Subtitle B of the Residential Lead-Based Paint Hazard Reduction Act of 1992, 42 U.S.C. 

### 4 4852(d), that will apply in this State in lieu of the correspondinn federal program administered by the United States Environmental Protection Aaencv (EPA). This Article reauires that renovations for compensation in target housing and child-occupied facilities be performed or directed by certified renovators and certified firms; establishes procedures and requirements for certification of individuals and firms that perform renovation activities for compensation: and establishes renovation work practice standards. This Article also requires the accreditation of renovation training providers and courses and establishes record-keepingresuirements. Certified renovation firms are reauired to distribute EPA-approved pamphlets. 

### "3 130A-453.14. Certification ofindividuals and firms that perform renovations, cleaning verification, and dust clearance samplin~. No firm shall perform, offer. or claim to perform renovation activities for compensation in target housing or child-occupied facilities unless the firm is a certified renovation firm. No individual shall: Perform, offer, or claim to perform renovation activities for compensation in target housing or child-occupied facilities unless the individual is a certified renovator. (2) Perform as a trained renovation worker for compensation in tarnet housing or child-occupied facilities unless the individual is employed by a certified renovation firm and is trained and supervised in his orher assigned tasks by a certified renovator. (3J Conduct dust clearance sampling for compensation in target housing or child-occupied facilities unless the individual is a certified dust sampling technician, risk assessor, or lead-based paint inspector. For purposes of this Article, the terms 'risk assessor' and 'lead-based paint inspector' shall have the samemeaning as provided in Article 19Aofthis Chapter. (4) Conduct cleaning verification for compensation in target housing or child-occupied facilitiesunlessthe individualis a certifiedrenovator. @ The Commission shall adopt rules governing the certification of individuals and firms performing renovation, cleaning verification, or dust clearance sampling. The rules adopted shall include. but not be limited to, requirements for qualifications, training;, and experience, and thepayment offees pursuant to G.S.130A-453.17. 

### "3 130A-453.15. Renewals ofcertification. @ Certification as a renovation firm under this Article expires on the last day of the 12' month after the certification is issued and shall be renewed annually. A 

### firmmayrenew its certification by paying the renewal fees and meeting the standards for renewal established by theCommission. (b) Certification as a dust sampling technician expires on the last day of the month of the year after certification training is completed and shall be renewed annually.A certified dust
Page2 SessionLaw 2009-488 SL2009-0488sampling technician may renew his or her certificationby paying the renewal fees and meeting the standardsfor renewal established by the Commission. A certified renovator shall renew his or her certification every five years by meeting the standardsfor renewal established by the Commission. "€j 130A-453.16. Accreditation oftraining coursesand training providers. @ No training provider shall provide, offer,or claim to,provide: Training or refresher courses in renovation'unless the training or courses have been accredited by the Department. Dust sampling technician courses orrefiresher courses unless the courses have been accredited by the Department. (b) The Commission shall adopt rules noverninp the annual accreditation of training providers and the annual accreditationofinitial and refresher training courses. @ Accreditation as a training provider expires on the last day of the calendar year following the year the accreditation was issued. Accreditatio'n of atraining course or refresher

course expires on the last day of the calendar year following thkyear the accreditation was issued. The accreditation of a training provider and the accreditation of a training or refresher

course may be renewed by complying with this Article and any standards established by the Commission. Training providers and traininp course>abredited by the EPA are granted reciprocity, but providers and courses must be registered with the Departmentand comply with

.. . .. thls Article. 

### "3130A-453.17. Certificationand accreditation fee schedule. @ The Department shall collect annual accreditation and certification fees authorized under this Article, includin~ initial and renewal fees. The fees collected shall be used for the ongoing administration ofthis Article and shall not revertto the GeneralFund at the end of the fiscal year. The fees shall not exceed the follow in^: Maximum Fee 

# a Accreditationof atraininkprovider $150.00 j'2J Reaccreditation of a traininkprovider $150.00 (3J Accreditation or reaccreditationd'initial courses (Per course per language) $2,000 Accreditation or reaccreditationof refreshercourses fPercourse per language) $2,000 Certificationor recertification ofa firm $300.00 (6J Certificationor recertification ofa dust sampling technician $150.00 (b) The accreditation fees imposed under this section do not apply to local or State governmental remlatory agency personnel, Indiantribes, or nonprofittraining;providers. 

### "3130A-453.18. Work practices find responsibilities of renovation firms, renovators, and dustsampling technician$ The Commission shall establish standards for work practices and define the responsibilities ofcertified renovators and certifiedrenovation firms and individuals. 

### ''3130A-453.19. Record retention,infopnation distribution,and report in^ requirements. The Commission shall establish stankddrds for record keeping, record retention, and information distribution; and reporting requirementsfortrainingproviders, certifiedrenovators, and certified renovation firmsand individuals. 

### "3130A-453.20. Exemptions from renovation, repair,and painting requirements. TheCommission shall adoptrulesexempting; certainrenovation activitiesfromthis Article. 

### "3130A-453.21. Commission to adopt rules. TheCommission shall adoptrulesto implementthis Article." SECTION2. G.S. 130A-22(b3)reads as rewritten: "(b3) The Secretary may inipose an administrative penalty on a person who violates A#kbW&Article 19A or 19B of t~~apter or any rules adopted pursuant to f$&&d% Article 19A or 19B ofthis Chapter. Eack day of a continuing violation is a separate violation. The penalty shall not exceed one thousand dollars ($1,000) for each day the violation emi%ws continues for Article 19A of this Chapter. The penalty shall not exceed seven hundred fiftv dollars ($750.00) for each day the violation continues for Article 19B of this Chapter. The penalty authorized by this section does not apply to a person who is not required to be certified under i%kA&A Article 19Aor 19B."

SL2009-0488 Session Law 2009-488 Page 3SECTION2. This act becomeseffectiveJanuary 1,2010. In the General Assembly read three times and ratified this the 11" day ofAugust, 2009.

S/ Walter H. Dalton Presidentofthe Senate

S/ Joe Hackney Speakerofthe House ofRepresentatives

S/ Beverly E. Perdue Governor

Approved 1:44p.m.this 26&day ofAugust, 2009

Page4 SessionLaw2009-488

## Occupational and Environmental Epidemiology Section:

1OANCAC 41C .0100SUBCHAPTER41C

### - OCCUPATIONAL HEALTH

SECTION .0100 - GENERAL

10A NCAC 41C .0101 RESERVED FOR FUTURE CODIFICATION IOA NCAC 41C .0102 ACTIVITIES (a) The Occupational Health Section shall conduct progams to help obtain a safc and health>,workplace. Ihc act~vit~cs shall include at least the following: (1) support the North Carolina Industrial Commission in meeting the legislative mandate assigned to evaluate and control incidences of asbestosis and silicosis in dusty trades; (2) supply program consultation services to North Carolina employers to evaluate hazardous conditions and recommend solutions and improvements; (3) provide occupational health nursing consultation to industries, academia, health care and related agencies and affiliated professions; (4) evaluate health conditions inplaces ofemployment; (5) implement the Asbestos Hazard Management Program in Section .0600 ofthese Rules; (6) implement the Occupational Health Surveillance Section ,0700of these Rules. (b) The Occupational Health Sectionshall also offer technical assistance to other state and federal agencies.

History Note: Azithority G.S. 130A-5(3); Eff September 15, 1980; Amended EfS January 4, 1994;September I, 1990.

SECTION .0200

### - DUSTY TRADES PROGRAM

1OA NCAC 41C .0201 RESERVEDFOR FUTlJRE CODIFICATION

10A NCAC 41C .0202 RESERVEDFOR FUTURE CODIFICATION

10.4 NCAC 41C ,0203 RESERVED FOR FUTURE CODIFICATION

IOA NCAC 41C .0204 A1)VISOIIY MEDICAI, COMMITTEE (a) The Advisory Mcdical Committee consists of three members who are appointed by thc Industrial Commission and approved by the Governor. (b) Each member shall be paid one hundred dollars ($100.00) per month for conducting examinations and making reports and for assistingin any postmortemexaminations when sodirected by the North Carolina Industrial Commission.

History Note: Authority G.S. 97-69; 97-73; 130A-5(3); Eff: September 15, 1980; Amended Eff February 1, 1990; December 1, 1980.

10A NCAC 41C .0205 RESERVED FOR FUTURE CODIFICATION

10A NCAC 41C .0206 FEES FOR MEDICALEXAMS IN DUSTY TRADES Employers will be charged a fee for each employee screenedby the chest consultant pursuant to G.S. 97-60. The fee for this will be eight dollars ($8.00) per x-ray.

HistoryNote: Authority G.S. 97-72(6); TemporaryAdoption Eff:January 8, 1992for a Period of 180 Days toExpire onJuly 5, 1992; Eff:March 2, 1992; TemporaryAmendment Eff: February 10, 1998; AmendedEff: April 1, 1999.

SECTION .0300

### - INDUSTRIALHYGIENE CONSULTATION PROGRAM

10A NCAC 41C .0301 RESERVED FOR FIJTURE CODIFICATION

10A NCAC 41C .0302 SURVEYS

## Public Health Programs:



## N.C.

## Gen. Stat. @130A-1 

## thru 130A-6Chapter 130A.
Public Health.
Article I. Definitions, General Provisions and Remedies.

Part 1. General Provisions. 

## 5 130A-1. Title. This Chapter shall be known as the Public Health 1,aw of North Carolina. (1983. c. 891,s. 2.)


## 5 130A-1.1. Mission and essential services. (a) The General Assembly recognizes that unified purpose and direction of the public health system is necessary to ensurethat all citizens in the Statehave equal access
to essentialpublic health services. The General Assembly declares that the mission ofthe public health system is to promote and contribute to the highest level of health possible for thepeople ofNorth Carolina by: (1) Preventing health risks and disease; (2) Identifying and reducing health risks in the community; (3) Detecting, investigating, and preventing the spread of disease; (4) Promoting healthy lifestyles; (5) Promoting a safe and healthful environment; (6) Promoting the availability and accessibility of quality health care services through theprivate sector; and (7) Providing quality health care services when not otherwise available. (b) As used in this section, the term "essential public health services" means those services that the State shall ensure because they are essential to promoting and contributingto the highest level of health possible for the citizens ofNorth Carolina. The Departments of Environment and Natural Resources and Health and Human Services shall attempt to ensure within the resources available to them that the following essential public health services are available and accessible to all citizens of the State, and shall account for the financing ofthese services: ~ealth-su~~ort:

a. Assessment of health status, health needs, and environmental risks tohealth; b. Patient and community education;

c. Public health laboratory; d. Registration ofvital events; Environmental Health:

a. Lodging and institutional sanitation; b. On-site domestic sewagedisposal;

c. Water and food safety and sanitation; and Personal Health:a. Child health; b. Chronic disease control;

c. Communicable disease control; d. Dental public health;

e. Family planning; f. Health promotion and risk reduction;
&. Maternal health. The Commission for Public Health shall determine specific services to be provided under each ofthe essential public health services categories listed above. (c) The General Assembly recognizes that there are health-related services currently provided by State and local government and the private sector that are important to maintaining a healthy social and ecological environment but that are not included on the list of essential public health services required under this section. Omission of these services from the list of essential public health services shall not be construed as an intent to prohibit or decrease their availability. Rather, such omission means only that the omitted services may be more appropriately assured by government agencies or private entities other than the public health system. (d) The list of essential public health services required by this section shall not be construed to limit or restrict the powers and duties of the Commission for Public Health

or the Departments of Environment and Natural Resources and Health and Human Services as otherwise conferred by State law. (1991, c. 299, s. 1; 1997-443, s. 1lA.54; 2007- 1 82, S. 

### 2.)

tj 130A-2. Definitions. The following definitions shall apply throughout this Chapter unless otherwise

"Accreditation board" or "Board" means the Local Health Department Accreditation Board. "Commission" means the Commission forPublicHealth. "Communicable condition" means the state of being infected with a communicable agentbut without symptoms. "Communicable disease" means an illness due to an infectious agent or its toxic products which is transmitted directly or indirectly to a person from an infected person or animal through the agency ofan intermediate animal, host, or vector, or through the inanimate environment. "Department" means the Department ofHealth and Human Services. "Imminent hazard" means a situation that is likely to cause an immediate threat to human life, an immediate threat of serious physical injury, an immediate threat of serious adverse health effects, or a serious risk of irreparable damage to the environment ifno immediate action is taken. "Isolation authority" means the authority to issue an order to limit the freedom of movement or action ofpersons or animals that are infectedor reasonably suspected to be infected with a communicable disease or communicable condition for the period of communicability to prevent the direct or indirect conveyance ofthe infectious agent from the person

or animal to other persons or animals who are susceptible or who may spread the agent to others. "Local board of health" means a district board of health or a public health authority board or a county board of health. "Local health department" means a district health department or a public health authority or a county health department. "Local health director" means the administrative head of a local health department appointed pursuant to this Chapter. "Outbreak" means an occurrence of a case or cases of a disease in a locale in excess ofthe usual number of cases of the disease. "Person" means an individual, corporation, company, association, partnership, unit of local government or other legal entity. "Quarantine authority" means the authority to issue an order to limit the freedom of movement or action ofpersons or animals which have been exposed to or are reasonably suspected of having been exposed to a communicable disease or communicable condition for a period of time

as may be necessary to prevent the spread of that disease. Quarantine authority also means the authority to issue an order to limit access by
any person or animal to an area or facility that may be contaminated with an infectious agent. The term also means the authority to issue an order to limit the freedom of movement or action of persons who have not received immunizations against a communicable disease when the State Health Director or a local health director determines that the immunizations are required to control an outbreak ofthat disease. "Secretary"means the Secretary ofHealth and Human Services. "Unit of local government" means a county, city, consolidated city-county, sanitary district or other local political subdivision, authority or agency oflocal government. "Vital records" means birth, death, fetal death, marriage, annulment and divorce records registered under the provisions of Article 4 of this Chapter. (1957, c. 1357, s. 1; 1963,c. 492, ss. 5, 6; 1967,c. 343, s. 2; c. 1257, s. 1; 1973, c. 476, s. 128; 1975, c. 751, s. 1; 1981, c. 130, s. 1;c. 340, ss. 1-4; 1983, c. 891, s. 2; 1989, c. 727, s. 141; 1989 (Reg. Sess., 1990), c. 1004, s. 19(b); 1991, c. 631, s. 1; 1997-443, s. 1lA.55; 1997-502, s. 2(a), (b); 2002-179, s. 4; 2004-80, 

### s. 1; 2005-369, s. l(a); 2007-182, S. 2.)

€j 130A-3. Appointment of the State Health Director.or reasonably suspected to be infected with a communicable disease or communicable condition for the period of communicability to prevent the direct or indirect conveyance ofthe infectious agent from the person

or animal to other persons or animals who are susceptible or who may spread the agent to others. "Local board of health" means a district board of health or a public health authority board or a county board ofhealth. "Local health department" means a district health department or apublic health authority or a county health department. "Local health director" means the administrative head of a local health department appointed pursuant to this Chapter. "Outbreak" means an occurrence of a case or cases of a disease in a locale in excess of the usual number of cases ofthe disease. "Person" means an individual, corporation, company, association, partnership, unit of local government or other legal entity. "Quarantine authority" means the authority to issue an order to limit the freedom of movement or action ofpersons or animals which have been exposed to or are reasonably suspected of having been exposed to a communicable disease or communicable condition for a period of time as may be necessary to prevent the spread of that disease. Quarantine authority also means the authority to issue an order to limit access by
any person or animal to an area or facility that may be contaminated with an infectious agent. The term also means the authority to issue an order to limit the freedom of movement or action of persons who have
not received immunizations against a communicable disease when the State Health Director or a local health director determines that the immunizations are required to control an outbreak of that disease. "Secretary" means the Secretary ofHealth and Human Services. "Unit of local government" means a county, city, consolidated city-county, sanitary district or other local political subdivision, authority or agency oflocal government. "Vital records" means birth, death, fetal death, marriage, annulment and divorce records registered under the provisions of Article 4 of this Chapter. (1957, 

### c. 1357, s. 1; 1963,c. 492, ss. 5, 6; 1967,c. 343, s. 2; c. 1257, s. 1; 1973, c. 476, s. 128; 1975, c. 751, s. 1; 1981, c. 130, s. 1; c. 340, ss. 1-4; 1983, c. 891, s. 

### 2; 1989, c. 727, s. 141; 1989 (Reg. Sess., 1990), c. 1004, s. 19(b); 1991, c. 631, s. 

### 1; 1997-443, s. 1lA.55; 1997-502, s. 2(a), (b); 2002-179, s. 4; 2004-80, s. 1; 2005-369, s. l(a); 2007-182, S. 2.)


### $ 130A-3. Appointment of the State Health Director.To investigate the causes of epidemics and of infectious, communicable and other diseases affecting the public health in order to control and prevent these diseases; to provide, under the rules of the Commission, for the prevention, detection, reporting and control of communicable, infectious or any other diseases or health hazards considered harmful to the public health; To develop and carry out reasonable health programs that may be
necessary for the protection and promotion of the public health and the control of diseases. The Commission is authorized to adopt rules to carry out these programs; To make sanitary and health investigations and inspections; To investigate occupational health hazards and occupational diseases and to make recommendations for the elimination of the hazards and diseases. The Secretary shall work with the Industrial Commission and shall file sufficient reports with the Industrial Commission to enable it to carry out all ofthe provisions of the Workers' Compensation Act with respect to occupational disease. To receive donations ofmoney, securities, equipment, supplies, realty or any other property of any kind or description which shall be used by the Department for the purpose ofcarrying out its public health programs; To acquire by purchase, devise or otherwise in the name of the Department equipment, supplies and other property, real or personal,
necessary to carry out thepublic health programs; To use the official seal of the Department. Copies of documents in the possession of the Department may be authenticated with the seal of the Department, attested by the signature or a facsimile of the signature of the Secretary, and when authenticated shall have the same evidentiary value as the originals; To disseminate information to the general public on all matters pertaining to public health; to purchase, print, publish, and distribute free, or at cost, documents, reports, bulletins and health informational materials. Money collected from the distribution ofthese materials shall remain intheDepartment tobe used to replace the materials; To be the health advisor of the State and to advise State officials 

### in regard to the location, sanitary construction and health management of all State institutions; to direct the attention ofthe Stateto health matters which affect the industries, property, health and lives of the people of the State; to inspect at least annually State institutions and facilities; to make areport as to the health conditions ofthese institutions or facilities with suggestions and recommendations to the appropriate State agencies. It shallbe the duty ofthe persons in immediate charge ofthese institutions or facilities to finishall assistance necessary for athorough inspection;To establish a schedule of fees based on income to be paid by a recipient for services provided by Migrant Health Clinics and Development Evaluation Centers; To establish fees for the sale of specimen containers, vaccines and other biologicals. The fees shall not exceed the actual cost of such items, plus transportation costs; To establish a fee to cover costs of responding to requests by employers for industrial hygiene consultation services and occupational consultation services. The fee shall not exceed two hundred dollars ($200.00)per on siteinspection; and To establish a fee for companion animal certificate of examination forms to be distributed, upon request, by the Department to licensed veterinarians. The fee shall not exceed the cost ofthe form and shipping
costs. To establish a fee not to exceed the cost of analyzing clinical Pap smear specimens sent to the State Laboratory by local health departments and State-owned facilities and for reporting the results of the analysis. This fee shall be in addition to the charge for the Pap smear test kit. To charge a fee of up to fifty-five dollars ($55.00) for analyzing private well-water samples sent to the State Laboratory of Public Health by local health departments. The fee shall be imposed only for analyzing samples from newly constructed wells. The fee shall be computed annually by the Director of the State Laboratory of Public Health by analyzing the previous year's testing at the State Laboratory of Public Health, and applying the amount of the total cost of the private well-water testing, minus State appropriations that support this effort. The fee includes the charge for the private well-water panel test kit. (1957, c. 1357, s. 1; 1961,c. 51, s. 4; c. 833, s. 14; 1969, c. 982; 1973, c.476,ss. 128, 138; 1979,c.714,s.2; 1981,~. 562,s.4; 1983, c. 891,s. 2; 1985,c. 470, s. 1; 1991,c. 227, s. 1; 1993 (Reg. Sess., 1994),c. 715,

s. 1;2003-284, s. 34.13(a); 2006-66, s. 10.20(a);2007-1 15, s. 2.)

tj 130A-5.1. 

### State health standards. (a) The Secretary shall adopt measurable standards and goals for community health against which the State's actions to improve the health status of its citizens will be measured. The Secretary shall report annually to the General Assembly upon its convening or reconvening and to the Governor on all ofthe following: (I) How the State compares to national health measurements and established State goals for each standard. Comparisons shall be reported

### using disaggregated data for health standards. (2) Stepstakenby Stateand non-State entitiesto meet established goals. (3) Additional steps proposed or planned to be taken to achieve established goals.(b) The Secretary may coordinate and contract with other entities to assist in the establishment of standards and preparation of the report. The Secretary may use resources available to implement this section. (2000-67, s. 11.)


## 5 130A-6. Delegation of authority. Whenever authority is granted by this Chapter upon a public official, the authority may be delegated to anotherperson authorized by the public official. (1983, c. 891, s.2.)

## Rulemaking:



## A. Commission for Health Services N.C. Gen. Stat. $$130A-29thru 130A-33 10ANCAC 45B



## B. North Carolina Administrative Procedures Act

General Provisions 

# - N.C. Gen. Stat.

# $5l5OB-1 thru 150B-4

Rules 

# -N.C. Gen. Stat.$$50B-18thru 150B-

## A. Commission for Health Services

N.C. Gen. Stat. fjfj130A-29thru 130A-33 1

OA NCAC 

## 45BArticle 1A.
Commission for Public Health. 

## 5 130A-29. Commission for Public Health -Creation, powers and duties. (a) The Commission for Public Health is created with the authority and duty to adopt rules toprotect and promote thepublic health. (b) The Commission is authorized to adopt rules necessary to implement the public health programs administered by the Department as provided in this Chapter. (c) The Commission shall adopt rules: Repealed by Session Laws 1983 (Regular Session, 1984),c. 1022,s.5. Establishing standards for approving sewage-treatment devices and holding tanks for marine toilets as provided in G.S. 75A-6(o). Establishing specifications for sanitary privies for schools where water-carried sewage facilities are unavailable as provided in G.S. 115C-522. Establishing requirements for the sanitation of local confinement facilities as provided in Part 2 of Article 10 of Chapter 153A of the General Statutes. Repealed by Session Laws 1989 (Regular Session, 1990),c. 1075,s. 1. Establishing eligibility standards for participation in Department reimbursement programs. Requiring proper treatment and disposal of sewage and other waste from chemical andportable toilets. Establishing statewide health outcome objectives and delivery standards. Establishing permit requirements for the sanitation ofpremises, utensils, equipment, and procedures to be used by a person engaged 

### in tattooing, as provided 

### in Part 1 1 ofArticle 8 of this Chapter. Implementing immunization requirements for adult care homes as provided in G.S. 131D-9 and for nursing homes as provided in G.S. 131E-113. Pertaining to the biological agents registry in accordance with G.S. 130A-479. (d) The Commission is authorized to create: (1) Metropolitan water districts as provided in G.S. 162A-33; (2) Sanitary districts asprovided in Part 2 ofArticle 2 ofthis Chapter; and (3) Mosquito control 'districts as provided in Part 2 of Article 12 of this Chapter. (e) Rules adopted by the Commission shall be enforced by the Department. (1973,

c.476, s. 123; 1975, c. 19,s. 57; c. 694, s. 6; 1979,c. 41, s. 1; 1981,c. 614, s. 9; 1983,c. 891, s. 15; 1983 (Reg. Sess., 1984), c. 1022, s. 5; 1989, c. 727, ss. 175, 176; 1989 (Reg. Sess., 1990), c. 1004, s. 50; c. 1075, s. 1; 1991, c. 548, s. 2; 1993, c. 321, s. 274; 1993(Reg. Sess., 1994), c. 670, s. 3; 2000-1 12, s. 6; 2001-469, s. 2; 2002-179, s. 2(b); 2007-182, S. 2.)

130A-30. Commission for Public Health 

### - Members; selection; quorum; compensation. (a) The Commission for Public Health shall consist of 13members, four ofwhom shall be elected by the North Carolina Medical Society and nine of whom shall be appointed by the Governor. (b) One ofthe members appointed by the Governor shall be a licensed pharmacist,

one a registered engineer experienced in sanitary engineering or a soil scientist, one a licensed veterinarian, one a licensed optometrist, one a licensed dentist, and one a registered nurse. The initial members of the Commission shall be the members of the State Board of Health who shall serve for a period equal to the remainder oftheir current terms on the State Board ofHealth, three ofwhose appointments expire May 1, 1973,and two of whose appointments expire May 1, 1975. At the end of the respective terms of officeof initial members of the Commission, their successors shallbe appointed for terms of four years and until their successors are appointed and qualify.Any appointment to fill

a vacancy on the Commission created by the resignation, dismissal, death, or disability of a member shallbe for the balance ofthe unexpired term. (c) The North Carolina Medical Society shall have the right to remove any member elected by it for misfeasance, malfeasance, or nonfeasance, and the Governor shall have the right to remove any member appointed by him for misfeasance, malfeasance, or nonfeasance in accordance with the provisions of G.S. 143B-13. Vacancies on said Commission among the membership elected by the North Carolina Medical Society shall be filled by the executive committee of the Medical Society until the next meeting of the Medical Society, when the Medical Society shall fill the vacancy for the unexpired term. Vacancies on said Commission among the membership appointed by the Governor shall be filled by the Governor for the unexpired term. (d) 

### A majority of the members of the Commission shall constitute a quorum for the transaction 

### ofbusiness. (e) 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. (1973, c. 476, s. 124; c. 1367, ss. 1, 2; 1981, c. 553; 1989, c. 727, ss. 175, 177; 1989 (Reg. Sess., 1990),c. 1004,s. 51; 1995,c. 507, s.26.8(d); 2007- 182,s.2.)


## 5 130A-31. Commission for Public Health - Officers. 'The Commission for Public Health shall have a chairman and a vice-chairman. The chairman shall be designated by the Governor from among the members of the Commission to serve 

### as chairman at his pleasure. The vice-chairman shall be elected by and fiom the members 

### ofthe Commission and shall serve for a term oftwo years or until the expiration ofhis regularly appointed term. (1973, c. 476, s. 125; 1989, c. 727, s. 175; 2007-182, S. 2.)

## 3 130A-32. Commission forPublic Health 

### -Election meetings. The meeting of the Commission for Public Health for the election of vice-chairman shall be at the first regular meeting after thejoint session of the Commission for Public Health and the North Carolina Medical Society at the annual meeting of the North Carolina Medical Society each odd-numbered year. (1973, c. 476, 

### s. 126; 1989, c. 727, s. 175;2007-182, S. 2.)


## 3 130A-33. Commission for Public Health 

### -Regular and special meetings. Each year there shall be four regular meetings of the Commission for Public Health,

one of which shall be held conjointly with a general session ofthe annual meeting ofthe North Carolina Medical Society. The State Health Director shall submit an annual report

on public health at this meeting. The other three meetings shall be at such times and places as the chairman of the Commission shall designate. Special meetings of the Commission may be called by the chairman. or by a majorit) of thc mcmbers of tho Commission. (1973, c. 476, s. 127; 1989, c. 727, ss. 175, 178; 1993, c. 5 13, s. 6; 2007-182, S. 2.)SUBCHAPTER 45B - PROCEDURAL RULES

10A NCAC 45B .0101 PETITIONS (a) Any person wishing to request a rule change (adoption, amendment, or repeal) of a rule of the Commission for Public Health shall make the request in a petition addressed to the State Health Director, Division of Public Health, 1915 Mail Service Center, Raleigh, North Carolina27699- 1915. (b) The petition shall contain the following information: (1) either a draft ofthe proposed rule change or a summary ofits contents; (2) the statutory authority for the agency to make the proposed rule change; (3) the reasons for the proposal; (4) the effect ofthe proposed rule change on existing rules and statutes; (5) any data supportingthe proposal; (6) the effect ofthe proposed rule change on existing practices inthe area involved, including cost factors; (7) the names and addresses, if known, ofthose most likelyto be affected by the proposed rule change; and (8) the name and address ofthe petitioner. (c) The Commission for Public Health orthe State Health Director, eachwithin their designated authorities, shall determine, based on a study ofthe facts stated in the petition, whether the public interest will be served by granting the petition. The Commission for Public Health or the State Health Director shall consider all the contents ofthe submitted petition, plus any additional information it deems relevant. (d) Withinthe time period prescribed by G.S. 150B-16, the Commission for Public I-lealthor the State Health Director, each within their designated authorities, shall render a decision to deny the petition or to initiate rule making proceedings. If the decision is to deny the petition, thc Commission for Public I-lealthor the State llcalth I>irecto~- shall notis! the petitionel- in writing, statingthe reasons for the denial. If the decision is to approve the petition, the Department shall initiate rule-making proceedings as provided in these rules.

History Note: Authority G.S. ISOB-16; Efl: February 1, 1976; AmendedEff: March 1, 1987;December 22,1980; TransferredandRecodified from 10NCAC 4B .OIOI Eff: April 4,1990; AmendedEfl: December 1, 1990. 10A NCAC 45B .0102 RESERVED FOR FUTURE CODIFICATION

10A NCAC 45B .0103 RESERVED FOR FUTURE CODIFICATION

10ANCAC 45B .0104 DECLARATORY RULINGS (a) The Department shall in accordance with G.S. 150B-4 issue declaratory rulings concerning rules found in 15A NCAC 13, 15A NCAC 18,and 10ANCAC 39through 47. (b) All requests for declaratory rulings shall be by written petition and shall be submitted to: Division of Public Health, 191 5 Mail Service Center, Raleigh, North Carolina 27699-1915. (c) Everyrequest for a declaratoryruling must include the following information: (1) the name and address ofthe petitioner, (2) the statute or rule to which the petition relates, (3) a concise statement ofthe manner inwhich the petitioner is aggrieved by the rule or statute or its potential applicationto him, and (4) the consequences ofa failureto issue a declaratory ruling. (d) The Department shall refuse to issue a declaratory ruling whenever the Department believes for good cause that the issuance of a declaratory ruling is undesirable. When good cause is deemed to exist, the Department shall notify the petitioner ofthe decision in writing, statingthe reasons for the denial of a declaratory ruling. The Department shall issue a declaratoryruling under the following circumstances: (1) the petitioner shows that the circumstances are so changed since adoption of the rule that such a ruling would be warranted; (2) the rule makingrecord evidences a failureby the agencyto consider specified relevantfactors. (e) The Department shall not issue a declaratoryrulingunder the followingcircumstances: (1) ifthere has been a similar controlling factual determination in a contested case, or ifthe factual context being raised for a declaratory ruling was specifically considered upon adoption of the rule being questioned as evidenced bytherule makingrecord; or (2) ifcircumstances statedinthe request orotherwiseknowntothe agency show that a contested casehearing wouldpresentlybe appropriate. (f) A declaratory ruling procedure may consist of written submissions, oral hearings, or such other procedure as may bedeemed appropriate, in the discretion ofthe Department, in the particular case. (g) The Department may issue notice to persons who might be affectedby the ruling that written comments may be submitted or oral presentations received at a scheduled hearing.

his tor.^ Note: Aztrhoritj. GS 1SOB-4, Efl Februu~y 1, 1Y 76, Amended Eff Murch I, 1Y8', Dr~.e~liber 22, 1980. Transferred and Recod~f~edfrom 10NCAC 1B,0108Efi .4pril1, 1990; Amended Eff November I,2005; December 1, 1990.

10A NCAC 45B .0105 RESERVED FOR FUTURE CODIFICATION

## B. North CarolinaAdministrative Procedures Act

General Provisions 

# -N.C. Gen. Stat. 

# $5l5OB-1 

## thru 15OB-4

Rules - 

## N.C. 

## Gen. Stat. @ 

## 150B-18thru 150B21.27Chapter 150B.
Administrative Procedure Act.
Article 1.
General Provisions. 

## 5 150B-1. Policy and scope. (a) Purpose.
- This Chapter establishes a uniform system of administrative rule making and adjudicatory procedures for agencies. The procedures ensure that the functions ofrule making, investigation, advocacy, and adjudication arenot all performed by the same person in the administrative process. (b) Rights. -This Chapter confers procedural rights. (c) Full Exemptions. -This Chapter applies to every agency except: (1) The North Carolina National Guard in exercising its court-martial jurisdiction. (2) The Department of Health and Human Services in exercising its authority over the Camp Butner reservation granted in Article 6 of Chapter 122C of the General Statutes. (3) The Utilities Commission. (4) The Industrial Commission. (5) TheEmployment Security Commission. (6) The State Board of Elections in administering the HAVA Administrative Complaint Procedure of Article 8A of Chapter 163 of the General Statutes. (7) The North Carolina State Lottery. (d) Exemptions from Rule Making.
-Article 2A of this Chapter does not apply to the following: (1) (2) (3) The Commission. Repealed by SessionLaws 2000-189, s. 14,effectiveJuly 1,2000. Repealed by Session Laws 2001-474, s. 34, effective November 29, 2001. The Department of Revenue, with respect to the notice and hearing requirements contained in Part 

### 2 ofArticle 2A. The North Carolina Global Transpark Authority with respect to the acquisition, construction, operation, or use, including fees or charges, of any portion of a cargo airport complex. The Department of Correction, with respect to matters relating solely to persons in its custody or under its supervision, including prisoners, probationers, andparolees. The State Health Plan for Teachers and State Employees in administering the provisions of Article 3A of Chapter 135 of the General Statutes.The North Carolina Federal Tax Reform Allocation Committee, with respect to the adoption of the annual qualified allocation plan required by 26 U.S.C. 

## 5 42(m), and any agency designated by the Committee to the extent necessary to administer the annual qualified allocation plan. The Department of Health and Human Services in adopting new or amending existing medical coverage policies under the State Medicaid Program. The Economic Investment Committee in developing criteria for the Job Development Investment Grant Program under Part 2F of Article 10 of Chapter 143Bofthe General Statutes. The North Carolina State Ports Authority with respect to fees established pursuant to G.S. 143B-454(a)(11). The Department of Commerce and the Economic Investment Committee in developing criteria and administering the Site Infrastructure DevelopmentProgram under G.S. 143B-437.02. The Department of Commerce and the Governor's Office in developing guidelines for the One North Carolina Fund under Part 2H ofArticle 10 ofChapter 143Bofthe General Statutes. The Community Colleges System Office in developing guidelines for the Community CollegeFacilities and Equipment Fund. The Department of Commerce in developing guidelines for the North Carolina EconomicDevelopment Reserve. The StateEthics Commission with respect to Chapter 138A and Chapter 120Cofthe General Statutes. The Department of Commerce in developing guidelines for the NC Green Business Fund under Part 2B of Article 10 of Chapter 143B of the General Statutes. The Department of Commerce and the Economic Investment Committee in developing criteria and administering the Job Maintenance and Capital Development Fund under G.S. 143B-437.012. (e) Exemptions From Contested Case Provisions.
-The contested case provisions ofthis Chapter apply to all agencies and all proceedings not expressly exempted from the Chapter. The contested case provisions of this Chapter do not apply to the following: (1) The Department of Health and Human Services and the Department of Environment and Natural Resources in complying with the procedural safeguardsmandated 

### by Section 680 ofPart 

### H of Public Law 99-457 as amended (Education oftheHandicapped Act Amendments of 

### 1986). (2) Repealed by Session Laws 1993, c. 501, 

### s. 29. (3), (4) Repealed by SessionLaws 200 1-474,s. 35, effective November 29, 2001. 

### (5) Hearings required pursuant to the Rehabilitation Act of 1973, (Public Law 93-122), as amended and federal regulations promulgatedthereunder. G.S. 150B-51 (a) is considered a contested case hearing provision that does not apply to these hearings. Repealed by Session Laws 2007-49 1,s. 2, effective January 1,2008. The Department of Correction. The Department ofTransportation, except as provided in G.S. 136-29. The North Carolina Occupational Safety and Health Review Commission. The North Carolina Global Transpark Authority with respect to the acquisition, construction, operation, or use, including fees or charges, of
any portion of a cargo airport complex. Hearings that are provided by the Department of Health and Human Services regarding the eligibility and provision of services for eligible assaultive and violent children, as defined in 

### G.S. 122C-3(13a), shall be conducted pursuant to the provisions outlined in G.S. 122C, Article 4, Part 7. The State Health Plan for Teachers and State Employees respect to disputes involving the performance, terms, or conditions of a contract between the Plan and an entity under contract with the Plan. The State Health Plan for Teachers and State Employees with respect to determinations by the Executive Administrator and Board of Trustees, the Plan's designated utilization review organization, or a self-funded health maintenance organization under contract with the Plan that an admission, availability of care, continued stay, or other health care service has been reviewed and, based upon the information provided, does not meet the Plan's requirements for medical necessity, appropriateness, health care setting, or level of care or effectiveness, and the requested service is therefore denied, reduced, or terminated. The Department of Crime Control and Public Safety for hearings and appeals authorized under Chapter 20 ofthe General Statutes. The Wildlife Resources Commission with respect to determinations of whether to authorize or terminate the authority of a person to sell licenses and permits as a license agent of the Wildlife Resources Commission. The Department of Health and Human Services with respect to contested cases commenced 

### by (i) Medicaid providers appealing a denial or reduction in reimbursement for community support services, and (ii) community support services providers appealing decisions by the LME to deny or withdraw the provider's endorsement. (f) Exemption for the University of North Carolina.

- Except as provided in G.S. 143-135.3, no Article in this Chapter except Article 4 applies to The University of North Carolina. (1973, c. 1331, s. 1; 1975,c. 390; c. 716, s. 5; c. 721, s. 1;c. 742, s.4; 1981,c. 614, s. 22; 1983, c. 147, s. 2; c. 927, s. 13; 1985,c. 746, 

### ss. 1, 19; 1987, c. 112, s. 2; c. 335, s. 2; c. 536, s. 1;c. 847, s. 2; c. 850, s. 20; 1987

### (Reg. Sess., 1988),c. 1082,s. 14; c.1111,s.9; 1989,~. 76,~.29;c. 168,~.33;c. 373,~.2;c. 538,s. 1;c.751,s. 7(44); 1989 (Reg. Sess., 1990),c. 1004,s. 36; 1991, c. 103,s. 1;c. 418, s.2; c. 477, s. 1;c. 749, ss. 9, 10; 1991 (Reg. Sess., 1992),c. 1030, s. 46; 1993, c. 501, s. 29; 1993 (Reg. Sess., 1994), c. 777, ss. 4Q), 4(k); 1995, c. 249, s. 4; c. 507, s. 27.8(m); 1997-35,s. 2; 1997-278,s. 1; 1997-412, s. 8; 1997-443, ss. 1lA.llO, 1lA.l19(a); 2000-189, s. 14; 2001-192, s. 1; 2001-299, s. 1; 2001-395, s. 6(c); 2001-424, ss. 6.20(b), 21.20(c); 2001-446, s. 5(d); 2001-474, ss. 34, 35; 2001-496, s. 8(c); 2002-99, s. 7(b); 2002-159, ss. 31.5(b), 49; 2002-172, 

### s. 2.6; 2002-190, s. 16; 2003-226, s. 17(b);2003-416, s. 2; 2003-435, 2nd Ex. Sess., s. 1.3; 2004-88, s. l(e); 2005-133, s. 10; 2005-276, s. 31.l(@; 2005-300, s. 1; 2005-344, s. 11.1; 2005-455, s. 3.3; 2006-66, ss. 12.8(c), 8.10(d); 2006-201, s. 2(a); 2007-323, SS. 13.2(~), 28.22A(0); 2007-345, S. 12; 2007-491, S. 2; 2007-552, 1st. 

### Ex. Sess., s. 3; 2008-107, s. lO.l5A(f); 2008-168, s.5(a);2008-187, s.26(b).)

fj150B-2. Definitions. As used in this Chaptcr. "Administrative law judge" means a person appointed under G.S. 7A-752, 7A-753, or 7A-757. "Agency" means an agency or an officer in the executive branch of the government of this State and includes the Council of State, the Governor's Office, a board, a commission, a department, a division, a council, and any other unit of government in the executive branch. A local unit ofgovernment is not an agency. "Adopt" means totake final action to create, amend, or repeal a rule. "Codifier of Rules" means the Chief Administrative Law Judge of the Office of Administrative Hearings or a designated representative of the Chief Administrative Law Judge. "Commission" means the Rules Review Commission. Tontested case" means an administrative proceeding pursuant to this Chapter to resolve a dispute between an agency and another person that involves the person's rights, duties, or privileges, including licensing or the levy of a monetary penalty. "Contested case" does not include rulemaking, declaratory rulings, or the award or denial of a scholarship, a grant, or a loan. Repealed by Session Laws 1991,c. 418, s. 3. ''Hearing officer" means a person or group of persons designated by an agency that is subject to Article 3A of this Chapter to preside in a contested casehearing conducted under that Article. "License" means any certificate, permit or other evidence, by whatever name called, of a right or privilege to engage in any activity, except licenses issued under 

### Chapter20 and Subchapter

### I of Chapter 105ofthe General Statutesand occupational licenses. "Licensing" means any administrative action issuing, failing to issue, suspending, or revoking a license or occupational license. "Licensing"does not include controversies over whether an examination was fair or whether the applicant passed the examination. (4a) "Occupational license" means any certificate, permit. or other evidence. by whatever name called, of a right or privilege to engage in a profession, occupation, or field of endeavor that is issued by an occupational licensing agency. (4b) "Occupational licensing agency" means any board, commission, committee or other agency of the State of North Carolina which is established for the primary purpose of regulating the entry of persons into, andlor the conduct of persons within a particular profession, occupation or field of endeavor, and which is authorized to issue and revoke licenses. "Occupational licensing agency" does not include State agencies or departments which may as only a part of their regular function issue permits or licenses. (5) "Party" means any person or agency named or admitted as a party or properly seeking as of right to be admitted as a party and includes the
agency as appropriate. This subdivision does not permit an agency that makes a final decision, or an officer or employee of the agency, to petition for initialjudicial review ofthat decision. (6) "Person aggrieved" means any person or group of persons of common interest directly or indirectly affected substantially in his or its person, property, or employment by an administrative decision. (7) "Person" means any natural person, partnership. corporation, bod) politic and any unincorporated association, organizalion, or socicty which may sueor be sued under a common name. (8) "Residence"means domicile or principal place ofbusiness. (8a) "Rule" means any agency regulation, standard, or statement of general applicability that implements or interprets an enactment of the General Assembly or Congress or a regulation adopted by a federal agency or that describes the procedure or practice requirements of an agency. The
term includes the establishment of

### a fee and the amendment or repeal of

aprior rule. The term does not includethe following: a. Statements concerning only the internal management of an agency or group of agencies within the same principal office or department enumerated in G.S. l43A-11 or 143B-6, including policies and procedures manuals, if the statement does not directly or substantially affect the procedural or substantive rights or duties of a person not employed by the agency or group of agencies. b. Budgets and budget policies and procedures issued by the Director of the Budget, by the head of a department, as defined by G.S. 143A-2 or G.S. 143B-3, by an occupational licensingboard, as defined by G.S. 93B-1, or by the State Board of Elections. Nonbinding interpretative statements within the delegated authority of an agency that merely define, interpret, or explain the meaning ofa statute orrule. 

### A form, the contents or substantive requirements of which are prescribed by rule or statute. Statements of agency policy made in the context of another proceeding, including: 1. Declaratory rulings under G.S. 1 50B-4. 

### 2. Orders establishing or fixing rates or tariffs. Requirements, communicated to the public by the use of signs or symbols, concerning the use of public roads, bridges, ferries, buildings, or facilities. Statements that set forth criteria or guidelines to be used by the staff of 

### an agency in performing audits, investigations, or inspections; in settling financial disputes or negotiating financial arrangements; or in the defense, prosecution, or settlement of

cases. Scientific, architectural, or engineering standards, forms, or procedures, including design criteria and construction standards used to construct or maintain highways, bridges, or ferries. Job classification standards, job qualifications, and salaries established for positions under the jurisdiction of the State Personnel Commission. Establishment of the interest rate that applies to tax assessments under G.S. 105-241.21 and the variable component of the excise
tax on motor fuel under G.S. 105-449.80. The State Medical Facilities Plan, if the Plan has been prepared with public notice and hearing asprovided in G.S. 131E-176(25), reviewed by the Commission for compliance with G.S. 131

### E-176(25). and approved by the Governor.

- - (8b) "Substantial evidence" means relevant evidence a reasonable mind might accept as adequate to support a conclusion. (9) Repealed by Session Laws 1991, c. 418, s. 3. (1973, c. 1331, s. 1; 1975, 2nd Sess., c. 983, ss. 61, 62; 1977,c. 915, s. 5; 1983, c. 641, s. 1; 1985, c. 746, s. 1; 1985 (Reg. Sess., 1986),c. 1022, s. l(2)-l(5); 1987, c. 878,

ss. 1,2,21; 1987meg.Sess., 1988),c. 1111,s. 17; 1991,~.418,s. 3;c. 477, ss. 3.1, 3.2, 9; 1995, c. 390, s. 29; 1996, 2nd Ex. Sess., c. 18, s. 7.10(g); 1997-456, s. 27; 2003-229, S. 12;2007-491, 

### s.44(l)b.)


## 5 150B-3. 

### Special provisions on licensing.(a) When an applicant or a licensee makes a timely and sufficient application for issuance or renewal of a license or occupational license, including the payment of any required license fee, the existing license or occupational license does not expire until a decision on the application is finally made by the agency, and if the application is denied or the terms of the new license or occupational license are limited, until the last day for applying forjudicial review of the agency order. This subsection does not affect agency action summarily suspending a license or occupational license under subsections (b) and (c) of this section. (b) Before the commencement of proceedings for the suspension, revocation, annulment, withdrawal, recall, cancellation, or amendment of any license other than an occupational license, the agency shall give notice to the licensee, pursuant to the provisions of G.S. 150B-23. Before the commencement of such proceedings involving an occupational license, the agency shall give notice pursuant to the provisions of G.S. 150B-38. In either case, the licensee shall be given an opportunity to show compliance with all lawful requirements forretention ofthe license or occupational license. (c) Ifthe agency finds that the public health, safety, or welfare requires emergency action and incorporates this finding in its order, summary suspension of a license or occupational license may be ordered effective on the date specified in the order or on service of the certified copy of the order at the last known address of the licensee, whichever is later, and effective during the proceedings. The proceedings shall be promptly commenced and determined. Nothing in this subsection shall be construed as amending or repealing any special statutes, in effect prior to February 1, 1976, which provide for the summary suspension of a license. (d) This section does not apply to the following: (1) Revocations of occupational licenses based solely on a court order of child support delinquency or a Department of Health and Human Services determination of child support delinquency issued pursuant to G.S. 110-142, 110-142.1, or 110-142.2. (2) Refusal to renew an occupational license pursuant to 

### G.S. 87-10.1, 87-22.2, 87-44.2, or 89C-18.1, based solely on a Department of Revenue determination that the licensee owes a delinquent income tax debt. (1973, c. 1331, s. 1; 1985, c. 746, s. 1; 1995, c. 538, s. 2(i); 1997-443, s. 1lA.118(a); 1998-162, s. 8.)

§ 150B-4. Declaratory rulings. (a) Onrequest of a person aggrieved, an agency shall issue a declaratory ruling as
to the validity of a rule or as to the applicability to a given state of facts of a statute administered by the agency or of a rule or order of the agency, except when the agency for good cause finds issuance of a ruling undesirable. The agency shall prescribe in its rules the circumstances in which rulings shall or shall not be issued. A declaratory ruling is binding onthe agency and theperson requesting it unless it is altered or set aside by the
court. 

### An agency may not retroactively change a declaratory ruling, but nothing in this

### section prevents an agency from prospectively changing a declaratory ruling. 

### A declaratory ruling is subject to judicial review in the same manner as an order in a contested case. Failure ofthe agency to issue a declaratory ruling on the merits within 60 

### days of the request for such ruling shall constitute a denial of the request as well as a denial of the merits ofthe request and shall be subject tojudicial review. (b) 

### Repealed by 

### Session Laws 1997-34, 

### s. 1. (1973, 

### c. 1331, s. 1; 1985, 

### c. 746, 

### s. 1; 1991,c. 418, S. 4; C. 477, S. 2.1; 1997-34, S. 1.)Article 2A.
Rules.

Part I. General Provisions. 

## 5 150B-18. Scope and effect. This Article applies to an agency's exercise of its authority to adopt a rule. A rule is
not valid unless it is adopted in substantial compliance with this Article. (1991, c.4 18, s. 1



## -1

€j 150B-19. Restrictions on what can be adopted as a rule.

An agency may not adopt a rule that does one or more of the following: Implements or interprets a law unless that law or another law specifically authorizes the agency todo so. Enlarges the scope of a profession, occupation, or field of endeavor for which an occupational license is required. Imposes criminal liability or a civil penalty for an act or omission, including the violation of a rule, unless a law specifically authorizes the
agency to do so or a law declares that violation of the rule is a criminal offense or is grounds for a civil penalty. Repeats the content of a law, a rule, or a federal regulation. A brief statement that informs the public of a requirement imposed by law does
not violate this subdivision and satisfies the "reasonably necessary" standard ofreview set in G.S. 150B-21.9(a)(3). Establishes a fee or other charge forproviding a service in fulfillment of a duty unless a law specifically authorizes the agency to do so or the fee

or other charge is for one ofthe following:

a. A service to a State, federal, or local governmental unit. b. A copy ofpart or all of a Statepublication or other document, the cost of mailing a document, or both.

c. A transcript of apublic hearing. d. A conference, workshop, or course.

e. Dataprocessing services. Allows the agency to waive or modify a requirement set in a rule unless

a rule establishes specific guidelines the agency must follow 

### in determining whether to waive or modify the requirement. (1973, c. 1331, s. 1; 1985,

### c. 746, s. 1; 1991, 

### c. 418, 

### s. 1; 1996, 2nd Ex. Sess., c. 18, s.7.10(a).)


## 5 150B-20. Petitioning an agency to adopt a rule. (a) Petition.
-A person may petition an agency to adopt a rule by submittingto the agency a written rule-making petition requesting the adoption. A person may submit written comments with a rule-making petition. If a rule-making petition requests the agency to create or amend a rule, the person must submit the proposed text of therequested rule change and a statement of the effect of the requested rule change. Each
agency must establish by rule the procedure for submitting a rule-making petition to it and the procedure the agency follows in considering a rule-making petition. (b) Time.
- 

### An agency must grant or deny a rule-making petition submitted to it within 30 days after the date the rule-making petition is submitted, unless the agency is a board or commission. If the agency is a board or commission, it must grant or deny a rule-making petition within 120days after the date the rule-making petition is submitted. (c) Action.
- If an agency denies a rule-making petition, it must send the person who submitted the petition a written statement of the reasons for denying the petition. If

an agency grants a rule-making petition, it must inform the person who submitted the rule-making petition of its decision and must initiate rule-making proceedings. When an agency grants a rule-making petition, the notice of text it publishes in the North Carolina Register may state that the agency is initiating rule making as the result of a rule-making petition and state the name of the person who submitted the rule-making petition. If the rule-making petition requested the creation or amendment of a rule, the notice of text the
agency publishes may set out the text of the requested rule change submitted with the rule-making petition and statewhether the agency endorses the proposed text. (d) Review.
- Denial of a rule-making petition is a final agency decision and is subject tojudicial review under Article 4 ofthis Chapter. Failure of an agency to grant or deny a rule-making petition within the time limits set in subsection (b) is a denial of the rule-making petition. (e) Repealed by Session Laws 1996, Second Extra Session, c. 18, s. 7.10(b). (1973,~. 1331,s. 1; 1985,~.746,s. 1; 1991,~.418,s. l;c.477,s.2; 1996,2ndEx.Sess.,

c. 18, S. 7.10(b); 1997-34,S.2; 2003-229, S. 1.)

tj 150B-21. Agency must designate rule-making coordinator; duties of coordinator. (a) Each agency must designate one or more rule-making coordinators to oversee the agency's rule-making functions. The coordinator shall serve as the liaison between the
agency, other agencies, units of local government, and the public in the rule-making process. The coordinator shall report directly tothe agency head. (b) Therule-making coordinator shallbe responsible for the following: Preparing notices of public hearings. Coordinating accesstothe agency's rules. Screening all proposed rule actions prior to publication in the North Carolina Register to assure that an accurate fiscal note has been completed asrequired by G.S. 1 SOB-21.4(b). Consulting with the North Carolina Association of County Commissioners and the North Carolina League of Municipalities to determine which local governments would be affected by any proposed rule action. Providing the North Carolina Association of County Commissioners andtheNorth Carolina League ofMunicipalities with copiesofall fiscalnotes required by G.S. 150B-21.4(b), prior to publication in the North Carolina Register ofthe proposed text of apermanent rule change. (6) Coordinating the submission of proposed rules to the Governor as provided by G.S. 150B-21.26. (c) At the earliest point in the rule-making process and in consultation with the North Carolina Association of County Commissioners, the North Carolina League of Municipalities, and with samples of county managers or city managers, as appropriate, the rule-making coordinator shall lead the agency's efforts in the development and drafting of anyrules or rule changes that could: (1) Require any unit of local government, including a county, city, school administrative unit, or other local entity funded by or through a unit of local government to carry out additional or modified responsibilities; (2) Increase the cost of providing or delivering a public service funded in whole or in part by any unit of local government; or (3) Otherwise affect the expenditures or revenues of a unit of local government. (d) The rule-making coordinator shall send to the Office of State Budget and Management for compilation a copy of each final fiscal note prepared pursuant to G.S. 150B-21.4(b). (e) The rule-making coordinator shall compile a schedule of the administrative rules and amendments expected to be proposed during the next fiscal year. The coordinator shall provide a copy of the schedule to the Office of State Budget and Management in a manner proposed by that Office. (f) Whenever an agency proposes a rule that is purported to implement a federal law, or required by or necessary for compliance with federal law, or on which the receipt offederal funds is conditioned, the rule-making coordinator shall: Attach to the proposed rule a certificate prepared by the rule-making coordinator identifying the federal law requiring adoption of the proposed rule. The certification shall contain a statement setting forth the reasons for why the proposed rule isrequired by law. If all orpart of the proposed rule is not required by federal law or exceeds the requirements of federal law, then the certification shall state the reasons for that opinion. No comment or opinion shall be included in the certification with regard to the merits ofthe proposed rule; and The rule-making coordinator shall maintain a copy of the federal law and shall provide to the Office of State Budget and Management for compilation the citation to the federal law requiring or pertaining to the proposed rule. (1991, c. 418, s. 1; 1995, c. 415, s. 1; c. 507, s. 27.8(v); 2000-140, s. 93.l(a); 2001-424, s, 12.2(b).)

Part 2. Adoption ofRules. 

## 5 150B-21.1. Procedure for adoptinga temporary rule.(a) Adoption.
- 

### An agency may adopt a temporary rule when it finds that adherence to the notice and hearing requirements of 

### G.S. 150B-21.2would be contrary to the public interest and that the immediate adoption of the rule is required by one or more ofthe following:

### A serious and unforeseen threat to thepublic health, safety, or welfare. The effective date of a recent act of the General Assembly or the United States Congress. A recent change in federal or State budgetary policy. A recent federal regulation.
A recent court order. 'l'he need for a rule establishing review criteria as authorized by G.S. 131E-183(b) to complement or be made consistent with the State Medical Facilities Plan approved by the Governor, if the rule addresses
a matter included in the State Medical Facilities Plan, and the proposed rule and a notice ofpublic hearing is submitted to the Codifier of Rules prior to the effective date ofthe Plan. The need for the Wildlife Resources Commission to establish any ofthe following:

a. No wake zones. b. Hunting or fishing seasons.

c. Hunting or fishing bag limits. d. Management of public game lands as defined in G.S. 113-129(8a). The need for the Secretary of State to implement the certification technology provisions of Article 11A of Chapter 66 of the General Statutes, to adopt uniform Statements ofPolicy that have been officially adopted by the North American Securities Administrators Association, Inc., for the purpose of promoting uniformity of state securities regulation, and to adopt rules governing the conduct of hearings pursuant to this Chapter. The need for the Commissioner of Insurance to implement the provisions of G.S. 58-2-205. The need for the Chief Information Officer to implement the information technology procurement provisions of Article 

### 3D of Chapter 

### 147ofthe General Statutes. Theneed for the StateBoard ofElections to adopt a temporary rule after prior notice or hearing or upon 

### any abbreviated notice or hearing the
agency findspractical for one ormore ofthe following:

a. In accordance with the provisions ofG.S. 163-22.2. b. To implement any provisions of state or federal law for which the StateBoard ofElections has been authorized to adoptrules.requirements of G.S. 12-3.1. The statement must be signed by the head of the agency adopting the temporary rule. (b) Review. -When an agency adopts a temporary rule it must submit the rule and the agency's written statement of its findings of the need for the rule to the Rules Review Commission. Within 15 business days after receiving the proposed temporary rule, the Commission shall review the agency's written statement of findings of need for the rule and the rule to determine whether the statement meets the criteria listed in subsection (a) of this section and the rule meets the standards in G.S. 150B-21.9.The Commission shall direct a member of its staff who is an attorney licensed to practice law in North Carolina
to review the statement of findings of need and the rule. The staff member shall make a recommendation to the Commission, which must be approved by the Commission or its designee. The Commission's designee shall be a panel of at least three members of the Commission. In reviewing the statement, the Commission or its designee may consider
any information submitted by the agency or another person. If the Commission or its designee finds that the statement meets the criteria listed in subsection (a) of this section and the rule meets the standards in G.S. 150B-2

### 1.9, the Commission or its designee must approve the temporary rule and deliver the rule to the Codifier of Rules within two business days of approval. The Codifier of Rules must enter the rule into the North Carolina Administrative Code on the sixth business day following receipt from the Commission or its designee. (bl) If the Commission or its designee finds that the statement does not meet the criteria listed in subsection (a) ofthis section or that the rule does not meet the standards in G.S. 150B-21.9,the Commission or its designee must immediately notify the head of the agency. The agency may supplement its statement of need with additional findings or submit a new statement. If the agency provides additional findings or submits a new statement, the Commission or its designee must review the additional findings or new statement within five business days after the agency submits the additional findings or

new statement. If the Corninission or its designee again finds that the statement does not meet the criteria listed in subsection (a) of this section or that the rule does not meet the standards in G.S. 150B-21.9,the Commission or its designee must immediately notify the head ofthe agency andreturn the rule to the agency. (b2) If an agency decides not to provide additional findings or submit a new statement when notified by the Commission or its designee that the agency's findings of need for a rule donot meet the required criteriaorthat therule does not meet the required standards, the agency must notify the Commission or its designee of its decision. The Commission or its designee shall then return the rule to the agency. When the Commission returns a rule to an agency in accordance with this subsection, the agency may file an action for declaratory judgment in Wake County Superior Court pursuant to Article 26 ofChapter 1ofthe General Statutes. (b3) Notwithstanding 

### any other provision of this subsection, if the agency has not complied with 

### theprovisions of G.S. 12-3.1,the Codifier ofRules shall not entertherule into the Code.c. The need for the rule to become effective immediately in order to preserve the integrity of upcoming elections and the elections
process. (12) The need for an agency to adopt a temporary rule to implement the provisions of any of the following acts until all rules necessary to implement the provisions of the act have become effective as either temporary or permanent rules:

a. Repealed by Session Laws 2000- 148. s.5. effecti~ c .luly 1. 2002. b. Repealed by Session Laws 2000-69, s.5,effectiveJuly 1, 2003. (13) Reserved (14) Reserved. (15) Expired pursuant to Session Laws 2002-164, s. 5, effective October 1, 2004. (16) Expired pursuant to Session Laws 2003- 184,s. 3, effective July 1,2005. (al) Recodified as subdivision (a)(16) ofthis section by Session Laws 2004-156, s. 1. (a2) 

### A recent act, change, regulation, or order as used in subdivisions (2) through (5)of subsection (a) of this section means an act, change, regulation, or order occurring

or made effective no more than 210 days prior to the submission of a temporary rule to the Rules Review Commission. Upon written request ofthe agency,the Commission may waive the 210-day requirement upon consideration of the degree of public benefit, whether the agency had control over the circumstances that required the requested waiver, notice to and opposition by the public, the need for the waiver, and previous requests for waivers submittedby the agency. (a3) Unless otherwise provided by law, at least 30 business days prior to adopting a temporary rule, the agency shall: submit the rule and a notice of public hearing to the Codifier of Rules. and the Codifier of Rules shall publish the proposed temporary rule and the notice 

### of public hearing on the Internet to be posted within five business days. Notify persons on the mailing list maintained pursuant to 

### G.S. 150B-21.2(d) and any other interested parties of its intent to adopt a temporary rule and ofthepublic hearing. Accept written comments ontheproposed temporary rule for at least 15 business days prior to adoption ofthe temporary rule. Hold at least onepublic hearing on the proposed temporary rule no less than five days afterthe rule and notice have been published. (a4) 

### An agency must also prepare a written statement of its findings of need for a temporary rule stating why adherence to the notice and hearing requirements in 

### G.S. 150B-21.2 would be contrary to the public interest and why the immediate adoption of the rule is required. If the temporary rule establishes a new fee or increases an existing fee, the agency shall include in the written statement that it has complied with the(c) Standing.
-A person aggrieved by a temporary rule adopted by an agency may file an action for declaratory judgment in Wake County Superior Court pursuant to Article 26 of Chapter 1 of the General Statutes. In the action, the court shall determine whether the agency's written statement of findings of need for the rule meets the criteria listed in subsection (a) of this section and whether the rule meets the standards in G.S. 150B-21.9.The court shall not grant an exparte temporary restraining order. (cl) Filing a petition for rule making or a request for a declaratory ruling with the agency that adopted the rule is not a prerequisite to filing an action under this subsection. A person who files an action for declaratory judgment under this subsection must serve a copy ofthe complaint on the agency that adopted the rule being contested,the Codifier of Rules, and the Commission. (d) Effective Date and Expiration.
- A temporary rule becomes effective on the date specified in G.S. 150B-21.3. A temporary rule expires on the earliest of the following dates: (I) The date specified in therule. (2) The effective date of the permanent rule adopted to replace the temporary rule, if the Commission approves thepermanent rule. (3) The date the Commission returns to an agency a permanent rule the
agency adopted toreplace thetemporary rule. (4) The effective date of an act of the General Assembly that specifically disapproves a permanent rule adopted to replace the temporary rule. (5) 270 days from the date the temporary rule was published in the North Carolina Register, unless the permanent rule adopted to replace the temporary rule has been submitted to the Commission. (e) Publication.
-When the Codifier of Rules enters a temporary rule in the North Carolina Administrative Code, the Codifier must publish the rule in the North Carolina Register. (1973, c. 1331, s. 1; 1981, c. 688, s. 12; 1981 (Reg. Sess., 1982),c. 1232, s. 1; 1983,c. 857; c. 927, ss. 4, 8; 1985, c. 746, s. 1; 1985 (Reg. Sess., 1986),c. 1022, s. 1(1), l(8); 1987, c. 285, ss. 10-12; 1991, c. 418, s. 1; 1991 (Reg. Sess., 1992), c. 900, s. 149; 1993, c. 553, s. 54; 1995, c. 507, s. 27.8(c); 1996, 2nd Ex. Sess., c. 18, ss. 7.10(c), (d); 1997-403, ss. 1-3; 1998-127, s. 2; 1998-212, s. 26B(h); 1999-434, s. 16; 1999-453, s. 5(a); 2000-69, ss. 3, 5; 2000-148, ss. 4, 5; 2001-126, s. 12; 2001-421, s. 2.3; 2001-424,

ss. 27.17(b), 27.22(a); 2001-487, s. 21(g); 2002-97, ss. 2, 3; 2002-164, s. 4.6; 2003-184,

s. 3; 2003-229, s. 2; 2003-413, SS. 27,29;2004-156, S. 1.)


## 5 150B-21.1A. Adoption of anemergencyrule. (a) Adoption.
-An agency may adopt an emergency rule without prior notice or hearing or upon any abbreviated notice orhearing the agency findspractical when it finds that adherence to the notice and hearing requirements of this Part would be contrary to the public interest and that the immediate adoption oftherule is required by a serious and unforeseen threat to the public health or safety. When an agency adopts an emergency rule, it must simultaneously commence the process for adopting a temporary rule by submitting the rule to the Codifier of Rules for publication on the Internet in accordancewith G.S. 150B-21.l(a3). The Department of Health and Human Services or the appropriate rule-making agency within the Department may adopt emergency rules in accordance with this section when a recent act of the General Assembly or the United States Congress or a recent change in federal regulations authorizes new or increased services or benefits for children and families and the emergency rule is necessary to implement the change in Stateor federal law. (b) Review. 

### -An agency must prepare a written statement of its findings of need for an emergencyrule. The statement must be signed by the head of the agency adopting the rule. When an agency adopts an emergency rule, it must submit the rule and the agency's written statement of its findings of the need for the rule to the Codifier of Rules. Within two business days after an agency submits an emergency rule, the Codifier of Rules must review the agency's written statement of findings of need for the rule to determine whether the statement of need meets the criteria in subsection (a) of this section. In reviewing the statement, the Codifier of Rules may consider any information submitted by the agency or another person. If the Codifier of Rules finds that the
statement meets the criteria, the Codifier ofRules must notifjl the head of the agency and
enter the rule in the North Carolina Administrative Code on the sixth business day following approval

### by the Codifier ofRules. If the Codifier of Rules finds that the statement does not meet the criteria in subsection (a) of this section, the Codifier of Rules must immediately notify the head of the agency. The agency may supplement its statement ofneed with additional findings or submit a new statement. If the agency provides additional findings or submits a new statement, the Codifier of Rules must review the additional findings or new statement within one business day after the agency submits the additional findings or new
statement.Ifthe Codifier ofRules again finds that the statement doesnot meet the criteria in subsection (a) of this section, the Codifier of Rules must immediately notify the head ofthe agency. If an agency decides not to provide additional findings or submit a new statement when notified by the Codifier ofRules that the agency's findings ofneed for a rule donot meet the required criteria, the agency must notify the Codifier of Rules of its decision. The Codifier ofRules must then enter the rule in the North Carolina Administrative Code

on the sixth business day after receiving notice ofthe agency's decision. Notwithstanding
any other provision of this subsection, ifthe agency has not complied with the provisions ofG.S. 12-3.1,the Codifier ofRules shall not enterthe rule into the Code. (c) Standing. - A person aggrieved by an emergency rule adopted by 

### an agency may file an action for declaratoryjudgment in Wake County Superior Court pursuant to Article 

### 26 of Chapter 

### 1 of the General Statutes. 

### In the action, the court shall determine whether the agency's written statement of findings ofneed for the rule meets the criteria listed 

### in subsection 

### (a) of this section and whether the rule 

### meets the standards 

### in G.S. 

### 150B-2

### 1.9. Thecourt shall not grant 

### an exparte temporary restraining order. Filing a petition for rule making or a request for 

### a declaratory ruling with the agency that adopted the rule is not a prerequisite to filing an action under this subsection, 

### A person who files an action for declaratory judgment under this subsection must serve acopy ofthe complaint onthe agency that adopted the rule being contested, the Codifier of Rules, and the Commission. (d) Effective Date and Expiration.

-An emergency rule becomes effective on the date specified in G.S. 150B-21.3. An emergency rule expires on the earliest of the following dates: (1) The date specified in the rule. (2) The effective date of the temporary rule adopted to replace the
emergency rule, ifthe Commission approves the temporary rule. (3) The date the Commission returns to an agency a temporary rule the agency adopted to replace the emergency rule. (4) Sixty days from the date the emergency rule was published in the North Carolina Register, unless the temporary rule adopted to replace the
emergency rule has been submittedto the Commission. (e) Publication.
- When the Codifier of Rules enters an emergency rule in the North Carolina Administrative Code, the Codifier of Rules must publish the rule in the North Carolina Register. (2003-229, s. 3.)


## 5 150B-21.2. Procedure for adopting a permanent rule. (a) Steps.
- Before an agency adopts a permanent rule, it must take the following actions: (1) Publish a notice oftext in theNorth CarolinaRegister. (2) When required by G.S. 150B-2 1.4,prepare or obtain a fiscal note for the proposed rule. (3) Repealed by Session Laws 2003-229, s.4, effective July 1,2003. (4) When required by subsection (e) of this section. hold a public hearing

on the proposed rule after publication of the proposed text oi'the rule. (5) Accept oral or written comments on the proposed rule as required by subsection (f) ofthis section. (b) Repealed by SessionLaws 2003-229, s. 4, effective July 1,2003. (c) Notice ofText.
-A notice oftheproposed text of a rule must include all ofthe

Thetext oftheproposed rule. A short explanation ofthereason for the proposed rule. A citation to the law that gives the agency the authority to adopt the rule. The proposed effective date oftherule. The date,time, andplace of anypublic hearing scheduled onthe rule. Instructions on how a person may demand a public hearing on a proposed rule if the notice does not schedule a public hearing on the proposed rule and subsection (e) of this section requires the agency to hold a public hearing ontheproposed rule whenrequested to do so. The period of time during which and the person to whom written
comments may be submitted ontheproposed rule.(8) 

### If a fiscal note has been prepared for the rule, a statement that a copy of the fiscal note can be obtained from the agency. 

### (9) The procedure by which a person can object to a proposed rule and the requirements for subjecting a proposed rule to the legislative review
process. (d) Mailing List. - An agency must maintain a mailing list of persons who have requested notice of rule making. When an agency publishes in the North Carolina Register a notice of text of a proposed rule, it must mail a copy of the notice or text to each person on thc mailing list who has requested notice on the subject matter described in the notice or the rule affected. An agency may charge an annual fee to each person on the agency's mailing list to cover copying and mailing costs. (e) Hearing. 

### -An agency must hold apublic hearing on a rule it proposes to adopt if the agency publishes the text of the proposed rule 

### in the North Carolina Register and the agency receives a written request for a public hearing on the proposed rule within 

### 15 days afterthe notice oftext ispublished. 

### An agency may hold a public hearing on a proposed rule in other circumstances. When an agency is required to hold a public hearing on a proposed rule or decides to hold

a public hearing on a proposed rule when it is not required to do so, the agency must publish in the North Carolina Register a notice of the date, time, and place of the public hearing. The hearing date of apublic hearing held after the agency publishes notice ofthe hearing in the North Carolina Register must be at least 15days after the date the notice is published. Ifnotice of apublic hearing has been published in the North Carolina Register and that public hearing has been cancelled, the agency shall publish notice in the North CarolinaRegister at least 15days prior tothe date of any rescheduled hearing. (f) Comments. -An agency must accept comments on the text of a proposed rule that is published in the North Carolina Register for at least 60 days after the text is published or until the date of any public hearing held on the proposed rule, whichever is longer. An agency must consider fully all written and oral comments received. (g) Adoption.
-An agency shall not adopt a rule until the time for commenting on the proposed text of the rule has elapsed and shallnot adopt arule ifmore than 12months have elapsed since the end of the time for commenting on the proposed text of the rule. An agency shall not adopt a rule that differs substantially fromthe text of a proposed rule published in the North Carolina Register unless the agency publishes the text of the proposed different rule 

### in the North Carolina Register and accepts comments on the proposed differentrule forthe time set

### in subsection(f)ofthis section. 

### An adoptedrule differs substantiallyfrom a proposed rule ifit does one ormore ofthe following:(1) Affects the interests ofpersons who, based on the proposed text of the rule published in the North Carolina Register, could not reasonably have determined that the rule would affecttheir interests. (2) Addresses a subject matter or 

### an issue that is not addressed in the proposed text ofthe rule.(3) Produces an effect that could not reasonably have been expected based

onthe proposed text ofthe rule. When an agency adopts a rule, it shall not take subsequent action on the rule without following the procedures in this 

### Part. An agency must submit an adopted rule to the Rules Review Commission within 30 days ofthe agency's adoption ofthe rule. (h) Explanation. - 

### An agency must issue a concise written statement explaining why the agency adopted a rule if, within 15 days after the agency adopts the rule, a person asks the agency to do so. The explanation must state the principal reasons for and against adopting the rule and must discuss why the agency rejected any arguments madc or considerations urged against the adoption of the rulc. I he agencj must issuc the explanation within 15days after receipt ofthe request for an explanation. (i) Record.
- An agency must keep a record of a rule-making proceeding. The record must include all written comments received, a transcript or recording of any public hearing held on the rule, and any written explanation made by the agency for adopting the rule. (1973, c. 1331, s. 1; 1975,2nd Sess., c. 983, s. 63; 1977, c. 915, s. 2; 1983, c. 927,

ss. 3, 7; 1985, c. 746, s. 1; 1985 (Reg. Sess., 1986),c. 1022, s. 1(1), (7); 1987,c. 285, ss. 7-9; 1989,~. 5,s. 1; 19917c.418,s. 1; 1995,~. 507,s.27.8(d); 1996,2ndEx.Sess.,~. 18,

s.7.10(e); 2003-229, s. 4.)


## 5 150B-21.3. Effective date of rules. (a) Temporary and Emergency Rules.
- A temporary rule or an emergency rule becomes effective on the date the Codifier of Rules enters the rule in the North Carolina Administrative Code. (b) Permanent Rule.
- A permanent rule approved by the Commission becomes effective on the first day of the month following the month the rule is approved by the Commission,unless the Commission received written objections to the rule in accordance with subsection (b2) of this section, or unless the agency that adopted the rule specifies a later effective date. (bl) Delayed Effective Dates.

- If the Coinlnission received written objections to the rule in accordance with subsection (b2) of this section, the rule becomes effective on the earlier of the thirty-first legislative day or the day of adjournment of the next regular session of the General Assembly that begins at least 25 days after the date the Commission approved the rule, unless a different effectivedate applies under this section. If a bill that specifically disapproves the rule is introduced in either house ofthe General Assembly before the thirty-frst legislative day ofthat session, the rule becomes effective



### on the earlier of either the day 

### an unfavorable final action is taken on the bill or 

### the day that session of the General Assembly adjourns without ratifying a bill that specifically disapproves the rule. If the agency adopting the rule specifies a later effective date than the date that would otherwise apply under this subsection, the later date applies. 

### A permanent rule that is not approved by the Commission orthat is specifically disapproved by a bill enacted into law before itbecomes effective does not become effective. A bill specifically disapproves a rule ifit contains aprovision that refers to the rule by appropriate North Carolina Administrative Code citation and states that the rule isdisapproved. Notwithstanding any rule of either house of the General Assembly, any member of the General Assembly may introduce a bill during the first 30 legislative days of any regular session to disapprove a rule that has been approved by the Commission and that either has not become effective or has become effective by executive order under subsection (c)ofthis section. (b2) Objection.
-Any person who objects to the adoption of a permanent rule may submit written comments to the agency. If the objection is not resolved prior to adoption of the rule, a person may submit written objections to the Commission. If the Commission receives written objections from 10or more persons, no later than 5:00

### P.M. of the day following the day the Commission approves the rule, clearly requesting review by the legislature in accordance with instructions contained in the notice pursuant to G.S. 150B-21.2(~)(9), and the Commission approves the rule, the rule will become effective as provided in subsection (bl) of this section. The Commission shall notify the agency that the rule is subject to legislative disapproval on the day followingthe day it receives 10or

more written objections. When the requirements of this subsection have been met and a rule is subject to legislative disapproval, the agency may adopt the rule as a temporary rule if the rule would have met the criteria listed in 

### G.S. 150B-21.l(a) at the time the notice of text for the permanent rule was published in the North Carolina Register. If the Commission receives objections from 10 or more persons clearly requesting review by the legislature, and the rule objected to is one of a group of related rules adopted by the agency at the same time, the agency that adopted the rule may cause any of the other rules in the group to become effective as provided in subsection (bl) of this section by submitting a written statement to that effect to the Commission before the other rules become effective. (c) Executive Order Exception. - The Governor may, by executive order, make effective a permanent rule that has been approved by the Commission but the effective date of which has been delayed in accordance with subsection (bl) of this section upon finding that it is necessary that the rule become effective in order to protect public health, safety, or welfare. 

### A rule made effective by executive order becomes effective on the date the order is issued or at a later date specified 

### in the order. When the Codifier of Rules
enters 

### in the North Carolina Administrative Code a rule made effective by executive order, the entry must reflect this action. A rule that is made effective by executive order remains in effect unless it is specifically disapproved by the General Assembly in a bill enacted into law on or before the day ofadjournment ofthe regular session of the General Assembly that begins at least 25 days after the date the executive order is issued. 

### A rule that is made effective by executive order and that is specifically disapprovedby 

### a bill enacted into law is repealed



### as ofthe date specified in the bill. If arulethat ismade effective by executive order is not specifically disapproved by a bill enacted into law within the time set by this subsection, the Codifier 

### ofRules must notethis in the North Carolina Administrative Code. (cl) Fees. 

### - Notwithstanding any other provision of this section, a rule that establishes 

### a new fee or increases 

### an existing fee shall not become effective until the agency has complied with the requirements ofG.S. 12-3.1.(d) Legislative Day and Day ofAdjournment.
-As used in this section: (I) A "legislative day" is a day on which either house of the General Assembly convenes in regular session. (2) The "day of adjournment" of a regular session held in an odd-numbered year is the day the General Assembly adjourns by joint resolution for more than 10days. (3) The "day of adjournment" of a regular session held in an even-numbered year is the day the General Assembly adjourns sine die. (e) OSHA Standard.
- A permanent rule concerning an occupational safety and health standard that is adopted by the Occupational Safety and Health Division of the Department of Labor and is identical to a federal regulation promulgated by the Secretary of the United States Department of Labor becomes effective on the date the Division delivers the rule to the Codifier of Rules, unless the Division specifies a later effective date. If the Division specifies a later effective date, the rule becomes effective on that date. 

### (f) Technical Change.
- A permanent rule for which no notice or hearing is required under G.S. 150B-21 S(a)(l) through (a)(5) or G.S. 150B-21.5(b) becomes effective on the first day of the month following the month the rule is approved by the Rules Review Commission. (1991, c.418, s. 1; 1995,c. 507, s. 27.8(e); 1995 (Reg. Sess., 1

996), c. 742, s. 43; 1996, 2nd Ex. Sess., c. 18, s. 7.1O(f); 1997-34, s. 3; 200 1-487, s. 80(b);2002-97, S.5; 2003-229, S.5; 2004-156, SS. 2, 3.)

tj 150B-21.4. Fiscal notes on rules. (a) State Funds. - Before an agency publishes in the North Carolina Register the proposed text of a permanent rule change that would require the expenditure or distribution of funds subject to the State Budget Act, Chapter 143C of the General Statutes it must submit the text of the proposed rule change and a fiscal note on the proposed rule change to the Director of the Budget and obtain certification from the Director that the funds that would be required by the proposed rule change are available. The fiscal note must state the amount of fundsthat would be expended or distributed as a result of the proposed rule change and explain how the amount was computed. The Director ofthe Budget must certify aproposed rule change if funds are available to cover the expenditure or distribution required by the proposed rule change. (al) DOT Analyses.
- In addition to the requirements of subsection (a) of this section, any agency that adopts a rule affecting environmental permitting of Department of Transportation projects shall conduct an analysis to determine if the rule will result 

### in an increased cost to the Department of Transportation. The analysis shall be conducted and submitted to the Board of Transportation before the agency publishes the proposed
text of the rule change in the North Carolina Register. The agency shall consider any recommendations offered by the Board ofTransportation prior to adoptingthe rule. Once

a rule subject to this subsection is adopted, the Board of Transportation may submit any objection to the rule it may have to the Rules Review Commission. If the Rules Review Commission receives an objection to a rule from the Board of Transportation no laterthan 5:00

### P.M. of the day following the day the Commission approves the rule, then the rule shall only become effective as provided in G.S. 150B-21.3(b1). (b) Local Funds. - Before an agency publishes in the North Carolina Register the proposed text of a permanent rule change that would affect the expenditures or revenues of a unit of local government, it must submit the text of the proposed rule change and a fiscal note on the proposed rule change tothe Office ofthe Governor as provided by G.S. 150B-21.26, the Fiscal Research Division of the General Assembly, the Office of State Budget and Management, the North Carolina Association of County Commissioners, and the North Carolina League of Municipalities. The fiscal note must state the amount by which the proposed rule change would increase or decrease expenditures or revenues of a unit of local government and must explain how the amount was computed. (bl) Substantial Economic Impact. - Before an agency publishes in the North Carolina Register the proposed text of a permanent rule change that would have a substantial economic impact and that is not identical to a federal regulation that the
agency is required to adopt, the agency must obtain a fiscal note for the proposed rule change from the Oficeof State Budget and Management orprepare 

### a fiscal note for the proposed rule change and have the note approved by that Office. If an agency requests the Office of State Budget and Management to prepare a fiscal note for a proposed rule change, that Office must prepare the note within 

### 90 days after receiving a written request for the note. If the Office of State Budget and Management fails to prepare a fiscal note within this time period, the agency proposing the rule change may prepare a fiscal note. A fiscal note prepared in this circumstance does not require approval of the Office of State Budget and Management. If an agency prepares the required fiscal note, the agency must submit the note to the Office of State Budget and Management for review. The Office of State Budget and Management must review the fiscal note within 14 days after it is submitted and either approve the note or inform the agency in writing of the reasons why it does not approve the fiscal note. After addressing these reasons, the agency may submit the revised fiscal note to that Office for its review. If an agency is not sure whether a proposed rule change would have a substantial economic impact, the agency may ask the Office of State Budget and Management to determine whether the proposed rule change has a substantial economic impact. As used in this subsection, the term "substantial economic impact" means an aggregate financial impact on all persons affected of at least three million dollars ($3,000,000) 

### in a 12-month period. (b2) Content. - 

### A fiscal note required by subsection (bl) of this section must contain the following: (1) 

### A description of the persons who would be affected by the proposed rule change. (2) 

### A description of the types of expenditures that persons affected by the proposed rule change would have to make to comply with the rule and an estimate ofthese expenditures. (3) A description ofthe purpose and benefits oftheproposed rule change.(4) 

### An explanation ofhow the estimate ofexpenditures was computed. (c) Errors. - 

### An erroneous fiscal note prepared in good faith does not affect the validity of a rule. (1973, c. 1331, s. 1; 1979, 2nd Sess., c. 1137, s.

### 4 1.1; 1983, c. 761, s. 185; 1985,c. 746, s. 1; 1987,c. 827, s. 54; 1991,c.418, s. 1; 1995,c.415, s. 2; c. 507, s. 27.8(b); 2000-140, s. 93.1(a); 2001-424, s. 12.2(b);2003-229, s. 6; 2005-276, 

### s. 28.8(a); 2006-203, S. 124.)


## 5 150B-21.5. Circumstanceswhen notice and rule-making hearing not required. (a) Amendment.
- An agency is not required to publish a notice of text in the North Carolina Register or hold a public hearing when it proposes to amend a rule to do

one of the following: 

### (I) Reletter or renumber the rule or subparts of the rule. (2) Substitute one name for another when an organization or position is renamed. (3) Correct a citation in the rule to another rule or law when the citation has become inaccurate since the rule was adopted because of the repeal or renumbering of the cited rule or law. (4) Change information that is readily available to the public, such as an address or atelephone number. (5) Correct a typographical error in the North Carolina Administrative Code. (6) Change a rule in response to a request or an objection by the Commission, unless the Commission determines that the change is substantial. (b) Repeal.
- An agency is not required to publish a notice of text in the North Carolina Register or hold a public hearing when it proposes to repeal a rule as a result of any ofthe following: (1) The law under which the rule was adopted is repealed. (2) The law under which the rule was adopted or the rule itself is declared unconstitutional. (3) Therule is declared to be in excess ofthe agency's statutory authority. (c) OSHA Standard. - The Occupational Safety and Health Division of the Department of Labor is not required to publish a notice of text in the North Carolina Register or hold a public hearing when it proposes to adopt a rule that concerns an occupational safety and health standard and is identical to a federal regulation promulgated by the Secretary of the United States Department of Labor. The Occupational Safety and Health Division is not required to submit to the Commission for review arule for which notice and hearing is not required under this subsection. (d) StateBuilding Code.
-The Building Code Council is not required to publish a notice of text 

### in the North Carolina Register when it proposes to adopt a rule that concerns the North Carolina State Building Code. 

### The Building Code Council is required
to publish a notice in the North Carolina Register when it proposes to adopt a rule that

### concerns the North Carolina State Building Code. The notice must include all of the following: (1) 

### A statement of the subjectmatter ofthe proposed rule making. (2) A short explanation of thereason for theproposed action. (3) 

### A citation to the law that gives the agency the authority to adopt a rule

on the subject matter of the proposed rule making. (4) 

### The person to whom questions or written comments may be submitted

on the subject matter of the proposed rule making. The Building Code Council is required to submit to the Commission for review a rule for which notice of text is not required under this subsection. In adopting a rule, the Council shall comply with theprocedural requirements ofG.S. 

### 150B-21.3. (1991, c. 

### 418,

s. 1; 1995,c. 504, s. 12; 1997-34,S.4; 2001-141, S. 

### 5; 2001-421, s. 1.3;2003-229, s. 

### 7.)



# - 5 150B-21.6. Incorporating material in a 

### rule by reference. An 

### agency may incorporate the following material by reference in a rule without repeating the text ofthe referenced material: (I) 

### Another rule or part of arule adoptedby the agency. (2) All or part of a code, standard,or regulation adopted by another agency, the federal government, or a generally recognized organization or association. (3) Repealedby Session Laws 1997-34,s. 5. In incorporating material by reference, the agency must designate in the rule whether
or not the incorporation includes subsequent amendments and editions of the referenced material. The agency can change this designation only by a subsequent rule-making proceeding. The agency must have copies of the incorporated material available for inspection and must specify in 

### the rule both where copies ofthe material can be obtained and the cost on the 

### date the rule is 

### adopted of a copy of the material. A 

### statement in a 

### rule that a 

### rule incorporatesmaterial by reference in accordance with former G.S. 

### 150B-14(b) is a 

### statement that the rule does not include subsequent amendments and editions of the referenced material. A statement in a rule that a rule incorporates material by reference 

### in accordance with former G.S. 

### 150B-14(c) is a statement that the rule includes subsequent amendments and editions of the referenced material. (1973, c. 

### 1331, s. 1; 1975, 2nd Sess., c. 983, s. 64; 1981 (Reg. Sess., 1982),

### c. 1359,s. 5; 

### 1983,c.

### 641, s. 3; c. 768, 

### s. 19; 1985,c.

### 746, s. 1; 1987,c. 285, s. 13; 1991, c. 418, s. 1; 1997-34,s. 5.)



## 5 150B-21.7. Effect oftransfer ofduties ortermination of agency on rules. 

### When a law that authorizes 

### an agency to adopt a rule is repealed and another law gives the same or anotheragency substantially the same authorityto adopt arule, the rule remains 

### in effectuntil the agency amends orrepeals therule. When a law that authorizes

an agency to adopt a 

### rule is repealed and another law does not give the same or another
agency substantially the same authorityto adopt a rule, a rule adopted under the repealed law isrepealed as ofthe date the law is repealed.When an executive order abolishes part or all of an agency and transfers a function of that agency to another agency, a rule concerning the transferred function remains in effect until the agency to which the hnction is transferred amends or repeals the rule. When an executive order abolishes part or all of an agency and does not transfer a function of that agency to another agency, a rule concerning a fimction abolished by the executive order is repealed as ofthe effective date ofthe executive order. The Director of Fiscal Research of the General Assembly must notify the Codifier of Rules when a rule is repealed under this section. When notified of a rule repealed under this section, the Codifier of Rules must enter the repeal of the rule in the North Carolina Administrative Code. (1973, c. 1331,s. 1 : 1985,c.746, s. 1 ; 1991. c.3 18, s. 1 .)

Part 3. Review by Commission 

## 5 150B-21.8. Review of rule by Commission. (a) Emergency Rule.
-The Commission does not review an emergency rule. (b) Temporary and Permanent Rules. - An agency must submit temporary and permanent rules adopted by it to the Commission before the rule can be included in the North Carolina Administrative Code. The Commission reviews a temporary orpermanent rule in accordance with the standards in G.S. 150B-21.9and follows the procedure in this Part in its review of arule. (c) Scope.
- When the Commission reviews an amendment to a permanent rule, it may review the entire rule that is being amended. The procedure in G.S. l5OB-21.12 applies when the Commission objects to a part of a permanent rule that is within its scope ofreview but is not changed by a rule amendment. (d) Judicial Review. - When the Commission returns a permanent rule to an agency in accordance with G.S. 150B-21.12(d), the agency may file an action for declaratory judgment in Wake County Superior Court pursuant to Article 26 of Chapter 1 ofthe General Statutes. (1991, c.418, s. 1;2003-229, s. 8.)

tj 150B-21.9. Standards and timetable for review by Commission. (a) Standards.
- The Commission must determine whether a rule meets all of the following criteria: (1) It is within the authority delegated to the agency by the General Assembly. (2) It is clear andunambiguous. (3) It is reasonably necessary to implement or interpret an enactment ofthe General Assembly, or of Congress, or a regulation of a federal agency. The Commission shall consider the cumulative effect of all rules adopted by the agency related to the specificpurpose for which the rule isproposed. (4) It was adoptedin accordance with Part 2 ofthis Article. The Commission shall not consider questions relating to the quality or efficacy ofthe rule but shall restrict its review to determination of the standards set forth in this subsection.TheCommission may ask the Office of StateBudget and Management to determine if a rule has a substantial economic impact and is therefore required to have a fiscal note. The Commission must ask the Office of State Budget and Management to make this determination if a fiscal note was not prepared for a rule and the Commission receives a written request for a determination ofwhether therule has a substantial economic impact. (al) Entry of a rule in the North Carolina Administrative Code after review by the Commission creates a rebuttable presumption that the rule was adopted in accordance with Part 2 ofthis Article. (b) Timetable.
-The Commission must review a permanent rule submitted to it on

or before the twentieth of a month by the last day of the next month. The Commission
must review a rule submitted to it after the twentieth of a month by the last day of the second subsequent month. The Commission must review a temporary rule in accordance with the timetable and procedure set forth in G.S. 150B-21.1.(1991,c. 4 18,s. 1; 1995,c. 

### 507, s.27.8(f); 2000-140, s.93.l(a); 2001-424, s. 12.2(b);2003-229, s.9.)

tj 

### 150B-21.10. Commission action on permanent rule. At the first meeting at which a permanent rule is before the Commission for review, the Commission must take one of the following actions: (1) Approve the rule, if the Commission determines that the rule meets the standards for review. (2) Object to the rule, if the Commission determines that the rule does not meet the standards for review. (3) Extend the period for reviewing the rule, if the Commission determines it needs additional information on the rule to be able to decide whether the rule meets the standards for review. In reviewing a new rule or an amendment to an existing rule, the Commission may request an agency to make technical changes to the rule and may condition its approval of the rule on the agency's making the requested technical changes. (1 

### 991,c.4

### 18,s. 1.)

tj 

### 150B-21.11. Procedure when Commission approves permanent rule. When the Commission approves a permanent rule, it must notify the agency that adopted the rule of the Commission's approval, deliver the approved rule to the Codifier of Rules, and include the text of the approved rule and a summary of the rule in its next report to the Joint Legislative Administrative Procedure Oversight Committee. If the approved rule will increase or decrease expenditures or revenues of a unit of local government, the Commission must also notify the Governor of the Commission's approval ofthe rule and deliver a copy of the approved rule to the Governor 

### by the end of the month 

### in which the Commission approved the rule. (1991, c. 418, s. 1; 1995, c. 415,

s.4; c. 

### 507,

### s.27.8(g).)


## 5 150B-21.12. Procedurewhen Commission objects to a permanent rule.(a) Action. - When the Commission objects to a permanent rule, it must send the agency that adopted the rule a written statement of the objection and the reason for the objection. The agency that adopted the rule must take one ofthe following actions: (1) Change the rule to satisfy the Commission's objection and submit the revised rule to the Commission. (2) Submit a written response to the Commission indicating that the agency has decided not to change the rule. (b) Time Limit.
- An agency that is not a board or commission must take one of the actions listed in subsection (a) of this section within 30 days after receiving the Commission's statement of objection. A board or commission must take one of these actions within 30 days after receiving the Commission's statement of objection or within 10 days after the board or commission's next regularly scheduled meeting, whichever comes later. (c) Changes.

- When an agency changes a rule in response to an objection by the Commission, the Commission must determine whether the change satisfies the Commission's objection. If it does, the Commission must approve the rule. If it does not, the Commission must send the agency a written statement ofthe Commission's continued objection and the reason for the continued objection. The Commission must also determine whether the change is substantial. In making this determination, the Commission shall use the standards set forth in G.S. 150B-21.2(g). If the change is substantial, the revised rule shall be published and reviewed in accordance with the procedure set forth in G.S. l5OB-2l.l(a3) and (b). (d) Return of Rule. -

### A rule to which the Commission has objected remains under review by the Commission until the agency that adopted the rule decides not to satisfy the Commission's objection and makes a written request to the Commission to return the rule
to the agency. When the Commission returns a rule to which it has objected, it must notify the Codifier of Rules of its action and must send a copy of the record of the Commission's review of the rule to the Joint Legislative Administrative Procedure Oversight Committee in its next report to that Committee. If the rule that is returned would have increased or decreased expenditures or revenues of a unit of local government, the Commission must also notify the Governor ofits action and must send a copy ofthe record ofthe Commission's review oftherule to the Governor. The record of review consists of the rule, the Commission's letter of objection to the rule, the agency's written response to the Commission's letter, and any other relevant documents before the Commissionwhen it decided to object to the rule. (1991, c. 418, s. 1; 1995,c.415, s. 5; c. 507, s. 27.8(h), (y); 2003-229, s. 10.)


## 5 150B-21.13. Procedure when Commission extends period for review of permanent rule. When the Commission extends the period for review of a permanent rule, it must notify the agency that adopted therule ofthe extension 

### and the reason for the extension. After the Commission extends theperiod for review ofa rule, it may call a public hearing on the rule. Within 70 days after extending the period for review of a rule, theCommission must decide whether to approve the rule, object to the rule, or call a public hearing on the rule. (1991, c. 4 18,s. 1.)

tj 150B-21.14. 

### Public hearing on a rule. The Commission may call a public hearing on a rule when it extends the period for review of the rule. At the request of an agency, the Commission may call a public hearing on a rule that is not before it for review. Calling a public hearing on a rule not already before the Commission for review places the rule before the Commission for review. When the Commission decides to call a public hearing on a rule, it must publish notice ofthe public hearing in the North Carolina Register. After a public hearing on a rule, the Commission must approve the rule or object to the rule in accordance with the standards and procedures in this Part. The Commission
must make its decision ofwhether to approve or object to the rule within 70 days after the public hearing. (1991, c. 418, s. 1.)


## 5 150B-21.15: 

### Repealed by 

### Session Laws 1995, c. 507, 

### s. 27.8(i).


## 5 150B-21.16. 

### Report to Joint Legislative Administrative Procedure Oversight Committee. The Commission must make monthly reports to the Joint Legislative Administrative Procedure Oversight Committee. The reports are due by the last day of the month. 

### A report must include the rules approved by the Commission at its meeting held in the month in which the report is due and the rules the Commission returned to agencies during that month after the Commission objected to the rule. A report must include any other information requested by the Joint Legislative Administrative Procedure Oversight Committee. When the Commission sends a report to the Joint Legislative Administrative Procedure Oversight Committee, the Commission must send a copy of the report to the Codifier ofRules. (1995, c. 507, s.27.8(j).)

Part 4.Publication ofCode and Register. tj 150B-21.17. 

### North Carolina Register. (a) Content. - The Codifier of Rules must publish the North Carolina Register. The North Carolina Register must be published at least two times a month and must containthe following: (I) Temporary rules entered 

### intheNorth Carolina Administrative Code. (la) The text ofproposed rules and the text ofpermanent rules approved by the Commission. (lb) Emergencyrules entered intotheNorth Carolina Administrative Code. (2) Notices of receipt of a petition for municipal incorporation, 

### as required by G.S. 120-165. (3) Executive orders ofthe Governor. (4) Final decision letters from the United States Attorney General concerning changes in laws that affect voting in ajurisdiction subject tosection 5 of the Voting Rights Act of 1965, as required by G.S. 120-30.9H. (5) Orders ofthe Tax Review Board issued under G.S. 105-241.2. (6) Other information the Codifier determinesto be helpful tothe public. (b) Form.
-When an agency publishes notice in the North Carolina Register ofthe proposed text of a new rule, the Codifier of Rules must publish the complete text of the proposed new rule. In publishing the text of a proposed new rule, the Codifier must indicatethe rule is new by underlining the proposed text ofthe rule. When an agency publishes notice in the North Carolina Register of the proposed text of an amendment to an existing rule, the Codifier must publish the complete text of the rule that is being amended unless the Codifier determines that publication of the complete
text of the rule being amended is not necessary to enable the reader to understand the proposed amendment. In publishing the text of a proposed amendment to a rule, the Codifier must indicate deleted text with overstrikes and added text with underlines. When an agency publishes notice in the North Carolina Register of the proposed repeal of an existing rule, the Codifier must publish the complete text of the rule the agency proposes to repeal unless the Codifier determines that publication of the complete
text is impractical. In publishing the text of a rule the agency proposes to repeal, the Codifier must indicate the rule is to be repealed. (c) The Codifier may authorize and license the private indexing, marketing, sales, reproduction, and distribution of the Register. (1991, c. 4 18, s. 1; 1995,c. 507, s. 27.8(k); 2001-141, S. 6;2001-421, S. 1.4;2003-229, S. 11;2006-66, S. 18.1.)

tj 150B-21.18. North Carolina Administrative Code. The Codifier ofRules must compile all rules into a Code known as the North Carolina Administrative Code. The format and indexing of the Code must conform as nearly as practical to the format and indexing of the North Carolina General Statutes. The Codifier
must publish printed copies of the Code and may publish the Code in other forms. The Codifier must keep the Code current by publishing the Code in a loose-leaf format and periodically providing new pages to be substituted for outdated pages, by publishing the Code in volumes and periodically publishing cumulative supplements, or by another means. The Codifier may authorize and license the private indexing, marketing, sales, reproduction, and distribution of the Code. The Codifier must keep superseded rules. (1973, c. 1331, s. 1; 1979, c. 69, ss. 3, 7; c. 541, s. 2; c. 688, s. 1; 1979, 2nd Sess., c. 1266, ss. 1-3; 1981 (Reg. Sess., 1982), c. 1359, s. 6; 1983,

### c. 641, s. 6; 1985, c. 746, s. 1; 1985 (Reg. Sess., 1986), 

### c. 1003, s. 2; c. 1022, s. 1(1), (19); 

### c. 1032, s. 12; 1987, c. 774,

ss. 2-4; 1987 (Reg. Sess., 1988), c. 11 11, s. 3; 1989, c. 500, s. 43(a); 1991, c. 418, s. 1; 1993(Reg. Sess., 1994),c. 777, s.2.)

tj 150B-21.19. Requirements for including rule in Code. To be acceptable for inclusion in the North Carolina Administrative Code, a rule
must: (I) Cite the law under which therule is adopted.(2) Be signed by the head ofthe agency or the rule-making coordinator for the agency that adopted the rule. (3) Be in the physical form specified by the Codifier ofRules. (4) Have been approved by the Commission, if the rule is a permanent rule. (5) Have complied with the provisions of G.S. 12-3.1, if the rule establishes

a new fee or increases an existing fee. (1973, c. 1331, s. 1; 1979,c. 571,

s. 1; 1981,~. 688,s. 14; 1983,c.927,ss.6,9; 1985,~. 746,s. 1; 1985 (Reg. Sess., 1986), c. 1022, 

### s. l(1); c. 1028, s. 35; 1987, c. 285, s. 16; 1991, c. 418, s. 1; 1995,c. 507, s.27.8(1); 2002-97, s.4.)

tj 

### 150B-21.20. Codifier's authority to revise form ofrules. (a) Authority. - After consulting with the agency that adopted the rule, the Codifier of Rules may revise the form of a rule submitted for inclusion in the North Carolina Administrative Code within 10 business days after the rule is submitted to do

one or more ofthe following: Rearrange the order of the rule in the Code or the order of the subsections, subdivisions, or other subparts of the rule. Provide a catch line or heading for the rule or revise the catch line or heading ofthe rule. Reletter or renumber the rule or the subparts of the rule in accordance with auniform system. Rearrange definitions and lists. Make other changes in arrangement or in form that do not change the substance of the rule and are necessary or desirable for a clear and orderly arrangement of the rule. Omit from the published rule a map, a diagram, an illustration, a chart,

or other graphic material, if the Codifier of Rules determines that the Office of Administrative Hearings does not have the capability to publish the material or that publication ofthe material is not practicable. When the Codifier of Rules omits graphic material from the published rule, the Codifier must insert a reference to the omitted material and information onhow to obtain a copy ofthe omitted material. (b) Effect. 

### -Revision ofa rule by the Codifier ofRules under this section does not affect the effective date of the rule or require the agency to readopt or resubmit the rule. When the Codifier ofRulesrevises the form ofarule, the Codifier ofRules must send the agency that adopted the rule a copy of the revised rule. 

### The revised rule is the official rule, unless the rule was revised under subdivision (a)(6) of this section to omit graphic material. When a rule is revised under that subdivision, the official rule is the published
text of the rule plus the graphic material that was not published. (1973, c. 1331, s. 1; 1979, c. 571, 

### s. 1; 1981, c. 688, s. 14; 1983, c. 927, ss. 

### 6, 9; 1985, c. 746, s. 1; 1985 (Reg. Sess., 1986),

### c. 1022, 

### s. l(1); 

### c. 1028,

### s. 35; 1987,c. 285, s. 16; 1987 (Reg. Sess., 1988),



### c. 1111,s.23; 1991,c.418,~. 

### 1; 1997-34,s.6.)

## 5 150B-21.21. Publication of rules of North Carolina State Bar, Building Code Council, and exempt agencies. (a) State Bar.
- The North Carolina State Bar must submit a rule adopted or approved by it and entered in the minutes of the North Carolina Supreme Court to the Codifier of Rules for inclusion in the North Carolina Administrative Code.The State Bar must submit a rule within 30 days after it is entered in the minutes ofthe Supreme Court. The Codifier of Rules must compile, make available for public inspection, and publish a rule included in the North Carolina Administrative Code under this subsection in the

samemanner as other rules in the Code. (al) Building Code Council.
- The Building Code Council shall publish the North Carolina State Building Code as provided in G.S. 143-138(g). The Codifier of Rules is not required to publish the North Carolina State Building Code in the North Carolina Administrative Code. (b) Exempt Agencies.
-Notwithstanding G.S. l5OB-1, the North Carolina Utilities Commission must submit to the Codifier ofRules those rules ofthe Utilities Commission that are published from time to time in the publication titled "North Carolina Utilities Laws and Regulations." The Utilities Commission must submit a rule required to be included in the Code within 30days after it is adopted. Notwithstanding G.S. 150B-1, an agency other than the Utilities Commission that is exempted from this Article by that statute must submit a temporary or permanent rule adopted by it to the Codifier of Rules for inclusion in the North Carolina Administrative Code. These exempt agencies must submit a rule to the Codifier of Rules within 30 days after adopting the rule. (c) Publication.
-A rule submitted to the Codifier ofRules under this section must be in the physical form specified by the Codifier of Rules. The Codifier of Rules must compiIe, make available for public inspection, and publish a rule submitted under this section in the same manner as other rules in the North Carolina Administrative Code. (1991, C. 418, S. 1; 1997-34,S. 7; 2001-141, S.7.)


## 5 150B-21.22. Effect ofinclusion in Code. Official or judicial notice can be taken of a rule in the North Carolina Administrative Code and shall be taken when appropriate. (1973, c. 133 1, s. 1; 1985, c. 746, s. 1; 1991,

c.418, s. 1; 1997-34, s. 8.)

tj 150B-21.23. Rule publication manual. The Codifier of Rules must publish a manual that sets out the form and method for publishing a notice of rule-making proceedings and a notice oftext in theNorth Carolina Register and for filing a rule in the North Carolina Administrative Code. (1973, c. 1331,

s. 1; 1979, c. 571,s. 1; 1981,

### c. 688,s. 14; 1983, c. 927,ss. 6,9; 1985, c.746,~. 1; 1985 (Reg. Sess., 1986), c. 1022, s. l(1); c. 1028, s. 35; 1987, c. 285, s. 16; 1991,c. 418, s. 1; 1997-34, S. 9.)

§ 150B-21.24. Access to Register and Code.(a) Register. - The Codifier of Rules shall make available the North Carolina Register on the Internet at no charge. Upon request the Codifier shall provide a free copy ofthe current volume ofthe Register to any person who receives a free copy of the North Carolina AdministrativeCodeor any member ofthe General Assembly. (b) Code. - The Codifier of Rules shall make available the North Carolina Administrative Code on the Internet at no charge. The Codifier shall distribute copies of the North Carolina Administrative Code as soon after publication as practical, without charge, to the following: One copy to the board ofcommissioners ofeach county that specifically requests a printed copy, to be placed at the county clerk of court's office

or at another place selected by the board of commissioners. The Codifier of Rules is not required to provide a copy of the Administrative Code to any board ofcounty commissioners unless arequest is made. One copy tothe Commission. One copy to the Clerk of the Supreme Court and to the Clerk of the Court ofAppeals ofNorth Carolina. One copy to the Supreme Court Library and one copy to the library of the Court ofAppeals. One copy to the Administrative Office of the Courts. One copy tothe Governor. One copy to the Legislative Services Commission for the use of the General Assembly. Repealed by Session Laws 2002-97, s. 1, effective August 29, 2002. One copy to the Division of State Library ofthe Department of Cultural Resources pursuant to G.S. 125-11.7. (1973, c. 1331, 

### s. 1;c. 69, ss. 3, 7; c. 688, 

### s. 1; 1979, c. 541, s. 

### 2; 1979, 2nd Sess., c. 1266, ss. 1-3; 1981 (Reg. Sess., 1982), c. 1359, s. 6; 1983, c. 641, s. 6; 1985, c. 746, s. 1; 1985 (Reg. Sess., 1986), c. 1003, s. 

### 2; c. 1022,s. 1(1), (19); c. 1032, s. 12; 1987, c. 774, ss. 2-4; 1987 (Reg. Sess., 1988),c. 1 1 11, s. 3; 1989, c. 500, s.43(a); 1991,c. 418, s. 1;2002-97, s. 1.)

€j 150B-21.25. Paid copies ofRegister and Code. A person who is not entitled to a free copy ofthe North Carolina Administrative Code

or North Carolina Register may obtain a copy by paying a fee set by the Codifier of Rules. 

### The Codifier must set separate fees for the North Carolina Register and the

### North Carolina Administrative Code in amounts that cover publication, copying, and mailing
costs. All monies received under this section 

### must be credited to the General Fund. (1991, c. 418, s. 1.)



### Part 5. Rules Affecting Local Governments. €j 150B-21.26. Governor to conduct preliminary review of certain administrative rules.(a) Preliminary Review.
- At least 30 days before an agency publishes in the North Carolina Register the proposed text of a permanent rule change that would affect the expenditures or revenues of a unit of local government, the agency must submit all of the following to the Governor for preliminary review: (I) Thetext ofthe proposed rule change. (2) A short explanation ofthe reason for theproposed change. (3) A fiscal note stating the amount by which the proposed rule change would increase or decrease expenditures or revenues of a unit of local government and explaining how the amount was computed. (b) Scope.

- The Governor's preliminary review of a proposed permanent rule change that would affect the expenditures or revenues of a unit of local government shall include consideration ofthe following: (1) The agency's explanation of the reason for theproposed change. (2) Any unanticipated effects of the proposed change on local government budgets. (3) The potential costs ofthe proposed change weighed against the potential risks to the public of not taking the proposed change. (1995, c. 415, s. 3;

c. 507, s.27.8(w).)


## 5 150B-21.27. Minimizing the effects of rules on local budgets. In adopting permanent rules that would increase or decrease the expenditures or

revenues of a unit of local government, the agency shall consider the timing for implementation of the proposed rule as part of the preparation of the fiscal note required by G.S. 150B-21.4(b). If the computation of costs in a fiscal note indicates that the proposed rule change will disrupt the budget process as set out in the Local Government Budget and Fiscal Control Act, Article 3 of Chapter 159 of the General Statutes, the agency shall specify the effective date of the change as July 1 following the date the change would otherwise become effective under G.S. 150B-21.3.(1995, c. 415, s. 3; c. 507, s.27.8(x).)

## Remedies:



## N.C. 

## Gen. Stat. §§130A-17

## thru 130A-28Part 2. Remedies. 

## 5 130A-17. Right ofentry. (a) The Secretary and a local health director shall have the right of entry upon the premises of any place where entry is necessary to enforce the provisions of this Chapter or the rules adopted by the Commission or a local board of health. If consent for entry is
not obtained, an administrative search and inspection warrant shall be obtained pursuant to G.S. 15-27.2. However, if an imminent hazard exists, no warrant is required for entry upon the premises. (b) The Secretary of Environment and Natural Resources and a local health director shall have the same rights enumerated in subsection (a) ofthis section to enforce the provisions of Part 4 of Article 5 and Articles 8, 9, 10, 11, and 12 of this Chapter. (1983, c. 891, s.2; 1997-443, s. 1lA.60; 2001-474, s. 19; 2006-255, s. 13.3.)


## 5 130A-18. Injunction. (a) If a person shall violate any provision of this Chapter, the rules adopted by the Commission or rules adopted by a local board of health, or a condition or term of a permit or order issued under this Chapter, the Secretary or a local health director may institute an action for injunctive relief, irrespective of all other remedies at law, in the superior court ofthe county where the violation occurred or where a defendant resides. (b) The Secretary of Environment and Natural Resources and a local health director shall have the same rights enumerated in subsection (a) of this section to enforce the provisions of Part 4 of Article 5 and Articles 8, 9, 10, 11, and 12 of this Chapter. (1983, c. 891, s.2; 1997-443, s. 11A.61;2001-474, s. 20; 2006-255, s. 13.4; 2007-550, s. 2(a>.)


## 5 130A-19. Abatement of public health nuisance. (a) If the Secretary or a local health director determines that a public health nuisance exists, the Secretary or a local health director may issue an order of abatement directing the owner, lessee, operator or other person in control ofthe property to take any action necessary to abate the public health nuisance. If the person refuses to comply with the order, the Secretary or the local health director may institute an action 

### in the superior
court of the county where the public health nuisance exists to enforce the order. The action shall be calendared for trial within 60 days after service of the complaint upon the defendant. The court may order the owner to abate the nuisance or direct the Secretary or the local health director to abate the nuisance. If the Secretary or the local health director is ordered to abate the nuisance, the Department or the local health department shall have

a lien on the property for the costs of the abatement of the nuisance in the nature of a mechanic's and materialmen's lien as provided in Chapter 44A of the General Statutes and the lien may be enforced asprovided therein. (b) The Secretary of Environment and Natural Resources and a local health director shall have the same rights enumerated in subsection (a) ofthis section to enforce the provisions of Part 4 of Article 5 and Articles 8, 9, 10, 11, and 12 of this Chapter. (1893,~. 214, s.22;Rev.,ss.3446,4450; 1911,~.62,ss. 12, 13; 1913,~. 181,s.3;C.S.,ss. 7071, 7072; 1957, c. 1357,s. 1; 1983, c. 891, s. 2; 1997-443, s. 11A.62;2006-255, s. 13.5.)


## 5 130A-20. Abatementofan imminent hazard. (a) If the Secretary or a local health director determines that an imminent hazard exists, the Secretary or a local health director may order the owner, lessee, operator, or other person in control of the property to abate the imminent hazard or may, after notice
to or reasonable attempt to notify the owner, lessee, operator, or other person in control of the prop* enter upon any property and take any action necessary to abate the imminent hazard. If the Secretary or a local health director abates the imminent hazard, the Department or the local health department shall have a lien on the property of the owner, lessee, operator, or other person in control of the property where the imminent hazard existed for the cost ofthe abatement ofthe imminent hazard. The lien may be enforced in accordance with procedures provided in Chapter 44A of the General Statutes. The lien
may be defeated by a showing that an imminent hazard did not exist at the time the Secretary or the local health director took the action. The owner, lessee, operator, or any other person against whose property the lien has been filed may defeat the lien by showingthat thatperson 

### was not culpable in the creation ofthe imminent hazard. (b) The Secretary of Environment and Natural Resources and a local health director shall have the same rights enumerated in subsection (a) ofthis section to enforce the provisions of Part 4 of Article 5 and Articles 8, 9, 10, 11, and 12 of this Chapter. (1893, c. 214, s. 22; Rev., ss. 3446, 4450; 1911,c. 62, ss. 12, 13; 1913, c. 181, s. 3; C.S., SS.7071, 7072; 1957,C. 1357, S. 1; 1983, C.891, S. 2; 1997-443, s. 11A.63;2002-179, S. 6; 2006-255, S. 13.6.)


## 5 130A-20.01. Action for the recovery of costs of hazardous materials emergency medical response. A person who causes the release of a hazardous material that results in the activation of one or more State Medical Assistance Teams (SMATs) or the Epidemiology Section of the Division of Public Health of the Department of Health and Human Services shall be liable for all reasonable costs incurred by each team or the Epidemiology Section that responds to or mitigates the incident. The Secretary of Health and Human Services shall invoice the person liable for the hazardous materials release and, in the event of nonpayment, may institute an action to recover those costs in the superior court of the county 

### in which the release occurred. (2007-107,s. 3.1(b).)


## 5 130A-21. Embargo. (a) 

### In addition to the authority of the Department of Agriculture and Consumer Servicespursuant to 

### G.S. 106-125, the Secretary ofEnvironment and Natural Resources

or a local health director has authority to exercise embargo authority concerning food or drink pursuant to G.S. 106-125(a), (b) and (c) when the food or drink is 

### in an establishment that is subjecttoregulation by the Department of Environment and Natural Resourcespursuant to this Chapter, that is subject to rules adopted by the Commission, orthat is the subject of an investigation pursuant to G.S. l3OA-144;however, no such action shall be taken in any establishment or part of an establishment that is under inspection or otherwise regulated by the Department of Agriculture and Consumer Services or the United States Department of Agriculture other than the part of the establishment that is subject to regulation by the Department of Environment and Natural Resources pursuant
to this Chapter. Any action under this section shall only be taken by, or after consultation with, Department of Environment and Natural Resources regional environmental health specialists, or the Director of the Division of Environmental Health or the Director's designee, in programs regulating food and drink pursuant to this Chapter or in programs regulating food and drink that are subject to rules adopted by the Commission. Authority under this section shall not be delegated to individual environmental health specialists in local health departments otherwise authorized and carrying out laws andrules pursuant to G.S. 130A-4. When any action is taken pursuant to this section, the Department of Environment and Natural Resources or the local health director shall immediately notify the Department of Agriculture and Consumer Services. For the purposes of this subsection, all duties andprocedures in G.S. 106-125 shall be carried out by the Secretary of the Department ofEnvironment and Natural Resources or the local health director and shall not be required to be carried out by the Department of Agriculture and Consumer Services.It shall be unlawful for any person to remove or dispose of the food or drink by sale or otherwise without the permission of a Department of Environment and Natural Resources regional environmental health specialist, the Director of the Division of Environmental Health or the Director's designee, the local health director, or a duly authorized agent of the Department of Agriculture and Consumer Services, or by the
court in accordance with theprovisions of G.S. 106-125. (b) If the Secretary of Environment and Natural Resources or a local health director has probable cause to believe that any milk designated as Grade "A" milk is misbranded or does not satisfy the milk sanitation rules adopted pursuant to G.S. 130A-275,the Secretary of Environment and Natural Resources or a local health director
may detain or embargo the milk by affixing a tag to it and warning all persons not to remove or dispose of the milk until permission for removal or disposal is given by the official by whom the milk was detained or embargoed or by the court. It shall be unlawful for any person to remove or dispose ofthe detained or embargoed milk without that permission. The official by whom the milk was detained or embargoed shall petition ajudge of the district or superior court in whosejurisdiction the 

### milk is detained or embargoed for

an order for condemnation ofthe article. Ifthe court frnds that the milkis misbranded or that it does not satisfythemilk sanitation rules adoptedpursuant to G.S. 130A-275, either the milk shall be destroyed under the supervision of the petitioner or the petitioner shall

ensure that the milk will not be used for human consumption as Grade "A" milk. All
court costs and fees, storage, expenses of carrying out the court's order and other expense shall be taxed against the claimant of the milk. If, the milk, by proper labelling or processing, can be properly branded and will satisfy the milk sanitation rules adopted pursuant to G.S. 130A-275, the court, after the payment of all costs, fees, and expensesand afierthe claimant posts an adequate bond,. may order that the milk be delivered to the claimant for proper labelling and processing under the supervision of the petitioner. The bond shall be returned to the claimant after the petitioner represents to the court either that the milk is no longer mislabelled or in violation of the milk sanitation rules adopted pursuant to G.S. 130A-275,or that the milk will not be used for human consumption, and that in either case the expenses of supervision have been paid. (c) If the Secretary of Environment and Natural Resources or a local health director has probable cause to believe that any scallops, shellfish or crustacea is adulterated or misbranded, the Secretary of Environment and Natural Resources or a local health director may detain or embargo the article by affixing a tag to it and warning all persons not to remove or dispose of the article until permission for removal or disposal is given by the official by whom it was detained or embargoed or by the court. It shall be unlawful for any person to remove or dispose of the detained or embargoed article without that permission. 'fhe official by whom the scallops, shellfish or crustacea was detained or embargoed shall petition ajudge orthe district or superior court in whose jurisdiction the article 

### is detained or embargoed for an order for condemnation ofthe article. If the court finds that the article is adulterated or misbranded, that article shall be destroyed under the supervision ofthe petitioner. All court costs and fees, storage and other expense shall be taxed against the claimant ofthe article. If, the article,by proper labelling can be properly branded, the court, after the payment of all costs, fees, expenses, and an adequate bond,
may order that the article be delivered to the claimant for proper labelling under the supervision of the petitioner. The bond shall be returned to the claimant after the petitioner represents to the court that the article is no longer mislabelled and that the expenses of supervision have been paid. (d) Nothing in this section is intended to limit the embargo authority of the Department ofAgriculture and Consumer Services. The Department of Environment and Natural Resources and the Department of Agriculture and Consumer Services are authorized to enter agreements respecting the duties and responsibilities of each agency in the exercise oftheir embargo authority. (e) For the purpose of this section, a food or drink is adulterated if the food or drink is deemed adulterated under G.S. 106-129; and food or drink is misbranded if it is deemed misbranded under G.S. 106-130.(1983, c. 891, s. 2; 1997-261,s. 109; 1997-443,

s. 11A.63A;2006-80, s. 1;2007-7, s. 1.)

$ 130A-22. Administrative penalties. (a) The Secretary of Environment and Natural Resources may impose an administrative penalty on a person who violates Article 9 of this Chapter, rules adopted by the Commission pursuant to Article 9, or any term or condition of a permit or order issued under Article 

### 9. Each day of a continuing violation shall constitute a separate violation. Thepenalty shall not exceed fifteen thousand dollars ($15,000) per day in the

case ofa violation involving nonhazardous

### waste. 

### Thepenalty shall not exceed thirty-two thousand five hundred dollars ($32,500)per day in the case of a first violation involvinghazardous waste as defined in G.S. 130A-290 or involving the disposal of medical waste as defined in G.S. 130A-290 in or upon water in a manner that results in medical waste entering waters or lands of the State; and shall not exceed fifty thousand dollars ($50,000) per day for a second or further violation involving the disposal of medical
waste as defined in G.S. 130A-290 in or upon water in a manner that results in medical waste entering waters or lands of the State. The penalty shall not exceed thirty-two thousand five hundred dollars ($32,500) per day for a violation involving a voluntary remedial action implemented pursuant to G.S. 130A-31 O.~(C) or a violation of the rules adopted pursuant to G.S. 130A-310.12(b). If a person fails to pay a civil penalty within 60 days after the final agency decision or court order has been served on the violator, the Secretary of Environment and Natural Resources shall request the Attorney General to institute a civil action in the superior court of any county in which the violator resides or has his or its principal place of business to recover the amount of the assessment. Such civil actions must be filed within three years ofthe date the finalagency decision or court order was served on the violator. (al) Part 5 of Article 21A of Chapter 143 of the General Statutes shall apply to the determination of civil liability orpenalty pursuant to subsection (a) ofthis section. (b) The Secretary of Environment and Natural Resources may impose an administrative penalty on aperson who violates G.S. 130A-325.Each day of a continuing violation shall constitute a separate violation. The penalty shall not exceed twenty-five thousand dollars ($25,000) for each day the violation continues. (bl) The Secretary may impose an administrative penalty on a person who violates Article 19ofthis Chapter or a rule adopted pursuant to that Article. Except as provided in subsection (b2) ofthis section, the penalty shall not exceed one thousand dollars ($1,000)
per day per violation. Until the Department has notified the person of the violation. a continuing violation shall be treated as one violation. Each day thereafter of a continuing violation shall be treated as a separate violation. In determining the amount of apenalty under this subsection or subsection (b2) ofthis section, the Secretary shall consider all ofthe following factors: (I) The degree and extent of harm to the natural resources of the State, to thepublic health, ortoprivate property resulting fiomthe violation. (2) The duration and gravity ofthe violation. (3) The effect on air quality. (4) The cost ofrectifyingthe damage. (5) The amount ofmoney the violator saved by noncompliance. (6) The prior record of the violator in complying or failing to comply with Article 19ofthis Chapter or arule adopted pursuant to that Article. (7) The cost to the State ofthe enforcement procedures. (8) If applicable, the size of the renovation and demolition involved in the violation. (b2) The penalty for violations of the asbestos 

### NESHAP for demolition and renovation, 

### as defined in G.S. 130A-444, shall not exceed ten thousand dollars ($10,000)
per day per violation. Until the Department has provided the person with writtennotification of the violation of the asbestos NESHAP for demolition and renovation that describes the violation, recommends a general course of action, and establishes a time frame in which to correct the violations, a continuing violation shall be treated 

### as one violation. Each day thereafter of a continuing violation shall be treated 

### as a separate violation. A violation of the asbestos NESHAP for demolition and renovation is not considered to continue during the period a person who has received the notice of violation is following the general course of action and complying with the time frame set forth in the notice of violation. (b3) The Secretary may impose an administrative penalty on a person who violates Article 19A of this Chapter or any rules adopted pursuant to Article 19A of this Chapter. Each day of a continuing violation is a separate violation. The penalty shall not exceed one thousand dollars ($1,000) for each day the violation continues. The penalty authorized by this section does not apply to a person who is not required to be certified under this Article. (c) The Secretary of Environment and Natural Resources may impose an administrative penalty on a person who willfblly violates Article 11ofthis Chapter, rules adopted by the Commission pursuant to Article 11 or any condition imposed upon a permit issued under Article 11. 

### An administrative penalty may not be imposed upon a person who establishes that neither the site nor the system may be improved or a new system installed so as to comply with Article 11 of this Chapter. Each day of a continuing violation shall constitute a separate violation. The penalty shall not exceed fifty dollars ($50.00) per day in the case of a wastewater collection, treatment and disposal system with a design daily flowofno more than 480 gallons or in the case of any system serving

a single one-family dwelling. The penalty shall not exceed three hundred dollars ($300.00) per day in the case of a wastewater collection, treatment and disposal system with a design daily flow of more than 480 gallons which does not serve a single one-family dwelling. (cl) The Secretary may impose a monetary penalty on a vendor who violates rules adopted by the Commission pursuant to Article 13 of this Chapter when the Secretary determines that disqualification would result in hardship to participants in the Women, Infants, and Children (WIC) program. The penalty shall be calculated using the following formula: multiply five percent (5%) times the average dollar amount of the vendor's monthly redemptions of WIC food instruments for the 12-month period immediately preceding disqualification, then multiply that product by the number of months of the disqualification period determined by the Secretary. 

### (d) In determining the amount of the penalty 

### in subsections (a), (b) and (c), the Secretary 

### and the Secretary of Environment and Natural Resources shall consider the degree and extent of the harm caused by the violation and the cost of rectifying the damage. (e) A person contesting a penalty shall, by filing a petition pursuant to G.S. 150B-23(a) not later than 30 days after receipt by the petitioner of the document which constitutes agency action, be entitled to an administrative hearing andjudicial review in accordance with Chapter 1 SOB of the General Statutes,theAdministrative ProcedureAct.(f) The Commission shall adopt rules concerning the imposition of administrative penalties under this section. (g) The Secretary or the Secretary of Environment and Natural Resources may bring a civil action in the superior court of the county where the violation occurred or where the defendant resides to recover the amount of an administrative penalty authorized under this section whenever aperson: (1) Who has not requested an administrative hearing in accordance with subsection (e) ofthis section fails to pay the penalty within 60 days after being notified ofthe penalty; or (2) Who has requested an administrative hearing fails to pay the penalty within 60 days after service of a written copy of the final agency decision. (h) A local health director may impose an administrative penalty on any person who willfully violates the wastewater collection, treatment, and disposal rules of the local board of health adopted pursuant to G.S. 130A-335(c) or who willfully violates a condition imposed upon a permit issued under the approved local rules. An administrativepenalty may not be imposed upon aperson who establishes that neither the site nor the system may be improved or a new system installed so as to comply with Article 11 of this Chapter. The local health director shall establish and recover the amount of the administrative penalty in accordance with subsections (d) and (g). Each day of a continuing violation shall constitute a separate violation. The penalty shall not exceed fifty dollars ($50.00)per day in the case of a wastewater collection, treatment and disposal system with a design daily flow of no more than 480 gallons or in the case of any system serving a single one-family dwelling. The penalty shall not exceed three hundred dollars ($300.00) per day in the case of a wastewater collection, treatment and disposal system with a design daily flow of more than 480 gallons which does not serve a single one-family dwelling. A person contesting a penalty imposed under this subsection shall be entitled to an administrative hearing andjudicial review in accordance with G.S. 130A-24. A local board of health shall adopt rules concerning the imposition of administrativepenalties under this subsection. (i) The clear proceeds of penalties assessed pursuant to this section shall be remitted to the Civil Penalty and Forfeiture Fund in accordancewith G.S. 115C-457.2. (j) The Secretary of Environment and Natural Resources may also assess the reasonable costs of 

### any investigation, inspection, or monitoring associated with the
assessment of the civil penalty against any person who is assessed a civil penalty under this section. (1983, c. 891, s. 

### 2; 1987, c. 269, s. 2; c. 656; c. 704, s. 1; c. 827, s. 247; 1989,~. 742,s.4; 1991,~.691,s. l;c.725,s. 8; 1991 (Reg. Sess., 1992), c.944, s. 11; 1993(Reg. Sess., 1994),c. 686, s. 1; 1995, c. 504, s. 8; 1997-443, s. 11A.64; 1997-523,s. 2; 1998-215, s. 54(a); 2001-474, s.21; 2002-154, s. 1;2007-550, ss. 3(a),4(a).)

tj 130A-23. Suspension and revocation ofpermits and program participation. (a) The Secretary may suspend or revoke a permit issued under this Chapter upon

a finding that a violation of the applicable provisions of this Chapter, the rules of theCommission or a condition imposed upon the permit has occurred. 

### A permit may also be suspended or revoked upon a finding that its issuance was based upon incorrect or inadequate information that materially affected the decision to issue the permit. (b) The Secretary may suspend or revoke a person's participation in a program administered under this Chapter upon a finding that a violation of the applicable provisions of this Chapter or the rules of the Commission has occurred. Program participation may also be suspended or revoked upon a finding that participation was based upon incorrect or inadequate information that materially affected the decision to grant program participation. (c) 

### A person shall be given notice that there has been a tentative decision to suspend orrevoke the permit or program participation and that an administrative hearing will be held in accordance with Chapter 150B ofthe General Statutes, the Administrative Procedure Act, at which time the person may challenge the tentative decision. (d) A permit shall be suspended or revoked immediately if a violation of the Chapter, the rules or a condition imposed upon the permit presents an imminent hazard. An operation permit issued pursuant to G.S. 130A-28 1 shall be immediately suspended for failure of a public swimming pool to maintain minimum water quality or safety standards or design and construction standards pertaining to the abatement of suction hazards which result 

### in an unsafe condition. A permit issued pursuant to G.S. 130A-248 shall be revoked immediately for failure of an establishment to maintain a minimum grade of C. The Secretary ofEnvironment and Natural Resources shall immediately give notice of the suspension or revocation and the right of the permit holder or program participant to appeal the suspension orrevocation under G.S. 150B-23. (e) The Secretary of Environment and Natural Resources shall have all of the applicable rights enumerated in this section to enforce the provisions ofArticles 8, 9, 10, 11, and 12ofthis Chapter. (1983, c. 891, s.2; 1987,c. 827, s. 1;c.438, s. 3; 1993,c. 2 11,

s. 2; 1993 (Reg. Sess., 1994),c. 732, s. 2; 1995,c. 123, s. 15; 1997-443, s. 1lA.65.)


## 5 130A-24. Appeals procedure. (a) Appeals concerning the enforcement of rules adopted by the Commission, concerning the suspension and revocation of permits and program participation by the Secretary and concerning the imposition of administrative penalties by the Secretary shall be governedby Chapter 150Bofthe General Statutes, the Administrative Procedure Act. (al) Any person appealing an action taken by the Department pursuant to this Chapter or rules of the Commission shall file a petition for a contested case with the Office of Administrative Hearings 

### as provided 

### in G.S. 15OB-23(a). 

### The petition shall be filed not later than 30 days after notice of the action which confers the right of appeal unless a federal statute or regulation provides for a different time limitation. The time limitation imposed under this subsection shall commence when notice of the agency decision is given to all persons aggrieved. Such notice shall be provided to all persons known to the agency by personal delivery or by 

### the placing of notice 

### in an official depository oftheUnited StatesPostal Serviceaddressed tothe person atthe latest address provided tothe agency by theperson.(b) Appeals concerning the enforcement of rules adopted by the local board of health and concerning the imposition of administrative penalties by a local health director shall be conducted in accordance with this subsection and subsections (c) and (d) of this section. The aggrieved person shall give written notice of appeal to the local health director within 30 days of the challenged action. The notice shall contain the name and address ofthe aggrieved person, a description ofthe challenged action and a statement of the reasons why the challenged action is incorrect. Upon filing of the notice, the local health director shall, within five working days, transmit to the local board of health the notice of appeal and the papers and materials upon which the challenged action was taken. (c) The local board of health shall hold a hearing within 15 days of the receipt of the notice of appeal. The board shall give the person not less than 10 days' notice of the date, time and place of the hearing. On appeal, the board shall have authority to affirm, modify or reverse the challenged action. The local board of health shall issue a written decision based on the evidence presented at the hearing. The decision shall contain a concise statementofthe reasons for the decision. (d) A person who wishes to contest a decision of the local board of health under subsection (b) of this section shall have a right of appeal to the district court having jurisdiction within 30 days after the date of the decision by the board. The scope of review in district court shallbe the same as in G.S. 150B-51. (e) The appeals procedures enumerated in this section shall apply to appeals concerning the enforcement of rules, the imposition of administrative penalties, or any other action taken by the Department of Environment and Natural Resources pursuant to Articles 8, 9, 10, 11, and 12 of this Chapter. (1983, c. 891. s. 2; 1987. c. 482; c. 827, s. 248; 1993,c. 21 1, s. 1; 1997-443,s. 11A.66; 1998-217,s. 33.)


## 5 130A-25. Misdemeanor. (a) A person who violates a provision of this Chapter or the rules adopted by the Commission or a local board ofhealth shall be guilty of a misdemeanor. (b) A person convicted under this section for violation ofG.S. l3OA-144(f) or G.S. 130A-145 shall not be sentenced under Article 81B of Chapter 15A of the General Statutes but shall instead be sentenced to a term of imprisonment of no more than two years and shall serve any prison sentence in McCain Hospital, Division of Prisons, Department of Correction, McCain, North Carolina; the North Carolina Correctional Center for Women, Division of Prisons, Department of Correction, Raleigh, North Carolina; or any other confinement facility designated for this purpose by the Secretary of Correction after consultation with the State Health Director. The Secretary of Correction shall consult with the State Health Director concerning the medical management ofthesepersons. (c) Notwithstanding G.S. 148-4.1, G.S. 148-13, or any other contrary provision of law, a person imprisoned forviolation of G.S. l3OA- 144(f)or G.S. l3OA-145shallnot be released prior to the completion of the person's term of imprisonment unless and until a determination has been made by the District Court that release of the person would notcreate a danger to the public health. This determination shall be made only after the medical consultant of the confinement facility and the State Health Director, in consultation with the local health director ofthe person's county ofresidence, have made recommendations to the Court. (1983, c. 891, s. 2; 1987, c. 782, s. 19; 1991, c. 187,

### s. I; 1993, c. 539, s. 946; 1994,

### Ex. Sess., c. 24, s. 14(c); 1993 (Reg. Sess., 1994), c. 767, s. 18.)


## 5 130A-26: Repealed by Session Laws 1995,c. 311, s. 1.



## 5 130A-26.1. Criminal violation of Article 9. (a) The definition of "person" set out in G.S. 130A-290 shall apply to this section. In addition, for purposes of this section, the term "person" shall also include any responsible corporate or public officer or employee. (b) No proceeding shall be brought or continued under this section for or on account of a violation by any person who has previously been convicted of a federal violation based upon the same set of facts. (c) In proving the defendant's possession of actual knowledge, circumstantial evidence may be used, including evidence that the defendant took affirmative steps to shield himself from relevant information. Consistent with the principles of common law, the subjectivemental state of defendants may be inferred from their conduct. (d) For the purposes of the felony provisions of this section, a person's state of mind shall not be found "knowingly and willfully" or "knowingly" if the conduct that is the subject of the prosecution is the result of any of the following occurrences or circumstances: (I) 

### A natural disaster or other act of God which could not have been prevented or avoided by the exerciseofdue care or foresight. (2) An act of third parties other than agents, employees, contractors, or subcontractors of the defendant. (3) An act done in reliance on the written advice or emergency on-site direction of an employee ofthe Department of Environment and Natural Resources. 

### In emergencies, oral advice may be relied upon if written confirmation is delivered to the employee as soon as practicable after receiving and relying onthe advice. (4) 

### An act causing no significant harm to the environment or risk to the public health, safety, or welfare and done in compliance with other conflicting environmental requirements or other constraints imposed 

### in writing by environmental agencies or officials after written notice is delivered to all relevant agenciesthat 

### the conflict exists and will cause a violation ofthe identified standard. (5) Violations of permit limitations causing no significant harm to the environment or risk to the public health, safety, or welfare for which no enforcement action or civil penalty could have been imposed under any written civil enforcement guidelines in use by the Department ofEnvironment and Natural Resources at the time, including but not limited to, guidelines for the pretreatment permit civil penalties. This subdivision shall not be construed to require the Department of Environment and Natural Resources to develop or use written civil enforcement guidelines. (e) All general defenses, affirmative defenses, and bars to prosecution that may apply with respect to other criminal offenses under State criminal offenses may apply to prosecutions brought under this section or other criminal statutes that refer to this section and shall be determined by the courts of this State according to the principles of common law as they may be applied in the light of reason and experience.Concepts ofjustification and excuse applicable under this section may be developed in the light of reason and experience. 

### (f) Any person who knowingly and willfully does any of the following shall be guilty of a Class 

### I felony, which may include a fine not to exceed one hundred thousand dollars ($100,000) per day of violation, provided that this fine shall not exceed a cumulative total of five hundred thousand dollars ($500,000) for each period of 30 days duringwhich a violation continues: (1) Transports or causes to be transported any hazardous waste identified or listed under G.S. 130A-294(c)to a facility which does not have a permit

or interim status under G.S. 130A-294(c)or 42 U.S.C.

## 5 6921, et seq. (2) Transports or causes to be transported such hazardous waste with the intent ofdelivery to a facility without a permit. (3) Treats, stores, or disposes of such hazardous waste without a permit or interim status under G.S. 130A-294(c) or 42 U.S.C. 

## 5 6921, et seq., or in knowing violation of any material condition or requirement or such permit or applicable interim status rules. (g) Any person who knowingly and willfully does any of the following shall be guilty of a Class I felony, which may include a fine not to exceed one hundred thousand dollars ($100,000) per day of violation, provided that the fine shall not exceed a cumulative total of five hundred thousand dollars ($500,000) for each period of 30 days during which a violation continues: Transports or causes to be transported hazardous waste without a manifest asrequired under G.S. 13OA-294(c). Transports hazardous waste without a United States Environmental Protection Agency identification number as required by rules promulgated under G.S. 13OA-294(c). Omits material information or makes any false material statement or representation in any application, label, manifest, record, report, permit,

or other document filed, maintained, or used for purposes ofcompliance with rules promulgated under G.S. 13 0A-294(c). Generates, stores, treats, transports, disposes of, exports, or otherwise handles anyhazardous waste or any used oil burned for energy recovery and who knowingly destroys, alters, conceals, or fails to file any record,application, manifest, report, or other document required to be maintained or filed for purposes of compliance with rules promulgated under G.S. 130A-294(c). Provides false information or fails to provide information relevant to a decision by the Department as to whether or not to enter into a brownfields agreement under Part 5 ofArticle 9 ofthis Chapter. Provides false information or fails to provide information required by a brownfields agreement under Part 5 of Article 9 ofthis Chapter. Provides false information relevant to a decision by the Department pursuant to:



### a. G.S. 13OA-308(b). b. G.S. 13OA-3lO.'i'(c).

C. G.S. 143-215.3(f). d. G.S. 143-215.84(e). the purposes of subsections 

### (f) and (g) of this section, the phrase "knowingly and willfully" shall mean intentionally and consciously as the courts of this State, according to the principles of common law interpret the phrase in the light of

reason and experience. Any person who knowingly transports, treats, stores, disposes of, or exports any hazardous waste or used oil regulated under G.S. 130A-294(c) in violation of subsection 

### (0 or (g) of this section, who knows at the time that he thereby places another person in imminent danger of death or personal bodily injury shall be guilty of a Class C felony which may include a fine not to exceed two hundred fifty thousand dollars ($250,000)per day of violation, provided that this fine shall not exceed a cumulative total of one million dollars ($1,000,000) for each period of 30 days during which a violation continues. For the purposes of this subsection, a person's state of mind is knowing with respect to:

a. His conduct, ifhe is aware ofthe nature ofhis conduct; b. 

### An existing circumstance, if he is aware or believes that the circumstance exists; or

c. A result ofhis conduct, ifhe is aware orbelieves that his conduct is substantially certain to cause danger of death or serious bodily injury



### . Under this subsection, in determining whether a defendant who is a natural person knew that his conduct placed another person in imminent danger ofdeath or serious bodily injury:

a. The person is responsible only for actual awareness or actual belief that hepossessed; and b. Knowledge possessed 

### by a person other than the defendant but not by the defendant himself may not be attributed to the defendant.(4) It is an affirmative defense to a prosecution under this subsection that the conduct charged was conduct consented to by the person endangered and that the danger and conduct charged were reasonably foreseeable hazards of an occupation, a business, or a profession; or of medical
treatment or medical or scientific experimentation conducted by professionally approved methods and such other person had been made

aware of the risks involved prior to giving consent. The defendant may establish an affirmative defense under this subdivision by a preponderance of the evidence. (j) Any person convicted of an offense under subsection 

## (0, (g), or (h) of this section following a previous conviction under this section shall be subject to a fine, or imprisonment, or both, not exceeding twice the amount of the fine, or twice the term of imprisonment provided in the subsection under which the second or subsequent conviction occurs. (1989 (Reg. Sess., 1990), c. 1045, s. 9; 1993, c. 539, ss. 1303-1305; 1994, Ex. Sess.,c. 24, s. 14(c); 1997-357, s. 3; 1997-443, s. 11A.67.)



## 5 130A-26.2. Penalty for false reporting underArticle 9. Any person who knowingly makes any false statement, representation, or certification in any application, record, report, plan, or other document filed or required to be maintained under Article 9 of this Chapter or rules adopted under Article 9 of this Chapter; or who knowingly makes a false statement of a material fact in a rule-making proceeding or contested case under Article 9 of this Chapter; or who falsifies, tampers with, or knowingly renders inaccurate any recording or monitoring device or method required to be operated or maintained under Article 9 of this Chapter or rules adopted under Article 9 of this Chapter is guilty of a Class 2 misdemeanor. The maximum fine that may be imposed for an offense under this section is ten thousand dollars ($10,000). (1993 (Reg. Sess., 1994),c. 598, s. 3.)


## 5 130A-26A. Violations of Article 4. (a) A person who commits any of the following acts shall be guilty of a Class 1 misdemeanor: (1) Willfully and knowingly makes any false statement in a certificate, record, or report required by Article 4 ofthis Chapter; Removes or permits the removal of a dead body of a human being without authorization provided in Article 

### 4 ofthis Chapter; Refuses or fails to furnish correctly any information 

### in the person's possession or hishesfalse information affecting a certificate or record required by Article 4 ofthis Chapter; Fails, neglects, or refuses toperform any act or duty required by Article 4 of this Chapter or by the instructions of the State Registrar prepared under authority oftheArticle.(5) Charges a fee for performing any act or duty required by Article 4 of this Chapter or by the State Registrar pursuant to Article 4 of this Chapter, other than fees specifically authorizedby law. (b) 

### A person who commits any of the following acts shall be guilty of a Class 

### I felony: (1) Willhlly and knowingly makes any false statement in an application for

a certified copy of a vital record, or who willfully and knowingly supplies false information intending that the information be used in the obtaining ofany copy ofa vital record; Without lawful authority and with the intent to deceive makes, counterfeits, alters, amends, or mutilates a certificate, record, or report required by Article 4 of this Chapter or a certified copy of the certificate, record, or report; Willfully and knowingly obtains, possesses, sells, furnishes, uses, or attempts to use for any purpose of deception, a certificate, record, or report required by Article 

### 4 of this Chapter or a certified copy of the certificate, record, orreport, which is counterfeited, altered, amended, or

.. -- mutilated, or which is false 

### in whole or in part or which relates to the birth ofanother person, whether living or deceased; When employed by the Vital Records Section of the Department or designated under Article 4 of this Chapter, willf!ully and knowingly furnishes or processes a certificate of birth, death, marriage, or divorce,

or certified copy of a certificate of birth, death, marriage, or divorce with the knowledge or intention that it be used for the purposes of deception; Without lawful authority possesses a certificate, record, or report required by Article 4 of this Chapter or a certified copy of the certificate, record, or report knowing that it was stolen or otherwise unlawfully obtained; Willfully alters, except as provided by G.S. 130A-118, or falsifies a certificate or record required by Article 4 of this Chapter; or willfully alters, falsifies, or changes a photocopy, certified copy, extract copy, or any document containing information obtained from an original or copy of a certificate or record required by Article 

### 4 of this Chapter; or willfUlly makes, creates, oruses any altered, falsified or changed record, reproduction, copy or document for the purpose of attempting to prove

or establish for any purpose whatsoever any matter purported to be shown on it; Without Iawfid authority, manufactures orpossesses the seal of: (i) the Vital Records Section, (ii) a 

### county register of deeds, or (iii) a county health department, or without lawful authority, manufactures or possesses a reproduction or a counterfeit copy ofthe seal;Without lawful authority prepares or issues any certificate which purports to be an official certified copy of a vital record; Without lawful authority, manufactures or possesses Vital Records Section, county register of deeds, or county health department vital records forms or safety paper used to certify births, deaths, marriages, and divorces, or reproductions or counterfeit copies of the forms or safety paper; or Willfully and knowingly hrnishes a certificate of birth or certified copy of a record of birth with the intention that it be used by an unauthorized
person or for an unauthorized purpose. (1995, c. 311, s. 2.)


## 5 130A-27. Recovery of money. The Secretary or the Secretary of Environment and Natural Resources may institute an action in the county where the action arose or the county where the defendant resides
to recover any money, other property or interest in property or the monetary value of goods or services provided or paid for by the Department or the Secretary of Environment and Natural Resources which are wrongfully paid or transferred to a person under a program administered by the Department or the Secretary of Environment and Natural Resources pursuant to this Chapter. (1983, c. 891, s.2; 1997-443, s. 

### I lA.68.)


## 5 130A-28. Forfeiture of gain. In the case of a violation of this Chapter or the rules adopted by the Commission,
money or other property or interest in property so acquired shall be forfeited to the State unless ownership by an innocent person may be established. An action may be instituted by theAttorney General or a district attorney pursuant to G.S. 1-532.(1983, c. 891, s.2.)

## Appeals:



## A. Administrative Hearings 

# -N.C. 

## Gen. Stat. 

# 5

# 5 1SOB22 thru 150B-37



## B. Judicial Review 

# -N.C. Gen. Stat. 

# $5150B-43thru 15OB-52

## A. Administrative Hearings 

# - N.C. Gen. Stat.

# 55l5OB22 thru 150B-37Chapter 150B

consideration ofthe following: (1) The agency's explanation ofthe reason for the proposed change. (2) Any unanticipated effects of the proposed change on local government budgets. (3) The potential costs of the proposed change weighed against the potential risks to the public of not taking the proposed change. (1995, c. 415, s. 3; c. 507, s. 27.8(w).)



## 5 150B-21.27. Minimizing the effects of rules on local budgets. 

### In adopting permanent rules that would increase or decrease the expenditures or revenues of a unit of local government, the agency shall consider the timing for implementation of the proposed rule as part of the preparation of the f~cal note required by G.S. 150B-21.4(b). If the computation of costs in a fiscal note indicates that the proposed rule change will disrupt the budget process as set out in the Local Government Budget and Fiscal Control Act, Article 3 of Chapter 159 of the General Statutes, the agency shall specifL the effective date of the change as July 1 following the date the change would otherwise become effective under G.S. 150B-21.3. (1995, c.415, s. 3; c. 507, s. 27.8(x).)



## 5 150B-21.28. Role of the Office of State Budget and Management. The Oficeof State Budget and Management shall: (1) Compile an annual summary of the projected f~cal impact on units of local government of State administrative rules adopted during the preceding f~cal
year. (2) Compile kom information provided by each agency schedules of anticipated rule actions for the upcoming fiscalyear. (3 Provide the Governor, the General Assembly, the North Carolina Association of County Commissioners, and the North Carolina League of Municipalities with a copy ofthe annual summary and schedules by no later than March 1 of each year. (1995, c. 415, s. 3; 2000-140, s. 93.l(a); 2001-424, S. 12.2(b).)

Article 3.
AdministrativeHearings.
€j 150B-22. Settlement; contested case.

It is the policy of this State that any dispute between an agency and another person that involves the person's rights, duties, or privileges, including licensing or the levy of a monetary penalty, should be settled through informal procedures. In trying to reach a settlement through informalprocedures, the agency may not conduct a proceeding at which sworn testimony is taken and witnesses may be cross-examined. Ifthe agency and the other person do not agree to a resolution of the dispute through informal procedures, either the agency or the person
may commence an administrative proceeding to determine the person's rights, duties, or privileges, at which time the dispute becomes a "contested case." (1985 (Reg. Sess., 1986), c. 1022, s. l(11); 1991, c. 418, s. 16.)the following: (1) One copy to the board of co~n~nissioners of each count) that specifically requests a printed copy, to be placed at the county clerk of court's office or at another place selected by the board of commissioners. The Codifier of Rules is not required to provide a copy of the Administrative Code to any board ofcounty commissioners unless a request is made.

One copy to the Commission. One copy to the Clerk ofthe Supreme Court and to the Clerk ofthe Court ofAppeals ofNorth Carolina.

One copy to the Supreme Court Library and one copy to the library of the Court ofAppeals. One copy to the Administrative Officeofthe Courts. One copy to the Governor. One copy to the Legislative Services Commission for the use of the General Assembly.

Repealed by Session Laws 2002-97, s. 

### 1, effectiveAugust 29, 2002. One copy to the Division of State Library of the Department of Cuhral Resources pursuant to G.S. 125-11.7.(1973, c. 1331, s. 1; c. 69, ss. 3, 7; c. 688, 

### s. 1; 1979, c. 541, s. 2; 1979, 2nd Sess., c. 1266, ss. 1-3; 1981 

### (Reg. Sess., 1982),c. 1359, s. 6; 1983, c. 641, s. 6; 1985,c. 746, s. 1; 1985 (Reg. Sess., 1986), c. 1003, s. 2; c. 1022, s. 1(1), (19); c. 1032, s. 12; 1987, c. 774, ss. 2-4; 1987 (Reg. Sess., 1988), c. 1111, s. 3; 1989, c. 500, s. 43(a); 1991,c.418, s. 1; 2002-97, s. 1.)

Paid copies ofRegisterand Code. A person who is not entitled to a fiee copy of the North Carolina Administrative Code or North Carolina Register may obtain a copy by paying a fee set by the Codifier ofRules. The Codifier must set separate fees for the North Carolina Register and the North Carolina Administrative Code in amountsthat cover publication, copying, and mailing costs. 

### All monies received under this section must be credited to the GeneralFund. (1991, c. 4 18, s. 1.)

Part 5. Rules AffectingLocal Governments. 

### 5 150B-21.26. Governorto conduct preliminary reviewof certain administrative rules. (a) Preliminary Review. - At least 30 days before an agency publishes 

### in the North Carolina Register the proposed text of a permanent rule change that would affect the expenditures or revenues of a unit of local government, the agency must submit all of the followingto the Governor forpreliminary review: 

### (1) The text ofthe proposed rule change. (2) A short explanationofthe reason forthe proposed change. (3) A fiscal note stating the amount by which the proposed rule change would increase or decrease expenditures or revenues of a unit of local government and explaininghow the amount was computed. (b) Scope. 

### -The Governor's preliminary review of a proposed permanent rule change that would affect the expenditures or revenues of a unit of local government shall include§ 150B-22.1. Special education petitions. (a) Notwithstanding any other provision ofthis Chapter, timelines and other procedural safeguards required to be provided under IDEA and Article 9 of Chapter 115C ofthe General Statutes must be followed in an impartial due process hearing initiated when a petition is filed under G.S. 

### I 15C-109.6with the Office ofAdministrative Hearings. (b) The administrative law judge who conducts a hearing under G.S. 115C-109.6 shall not be a person who has a personal or professional interest that conflicts with the judge's objectivity in the hearing. Furthermore, thejudge must possess knowledge of, and the ability to understand, IDEA and legal interpretations of IDEA by federal and State courts. Thejudges

are encouraged to participate in training developed and provided by the State Board of Education under G.S. 1

### 1 5C-lO7.2(h)[(g)]. (c) For the purpose of this section, the term "IDEA" means The Individuals with Disabilities Education Improvement Act, 20 U.S.C. 

## 8 1400, et seq., (2004), as amended, and its regulations. (2006-69, s. 5.)

150B-23. Commencement; assignment of administrative law judge; hearing required; notice; intervention. (a) A contested case shall be commenced by filing a petition with the OEce of Administrative Hearings and, except as provided in Article 3A of this Chapter, shall be conducted by that Ofice. The party who files the petition shall serve a copy of the petition on all other parties and, if the dispute concerns a license, the person who holds the license. A party who files a petition shall file a certificate of service together with the petition. A petition shall be signed by a party or a representative of the party and, if filed by a party other than an agency, shall state facts tending to establish that the agency named as the respondent has deprived the petitioner ofproperty, has ordered the petitioner to pay a fine or civil penalty, or has otherwise substantially prejudiced the petitioner'srights and that the agency: 

### (I) Exceeded its authority orjurisdiction; (2) Acted erroneously; (3) Failed to use proper procedure; (4) Acted arbitrarily or capriciously; or (5) Failed to act asrequired by law or rule. The parties 

### in a contested case shall be given an opportunity for a hearing without undue delay. Any person aggrieved may commence a contested case hereunder. A local government employee, applicant for employment, or former employee to whom Chapter 126 of the General Statutes applies may commence a contested case under this Article in the same manner as any other petitioner. The case shall be conducted in the same

manner as other contested cases under this Article, except that the State Personnel Commission shall enter final decisions only in cases in which it is found that the employee, applicant, or former employee has been subjected to discrimination prohibited by Article 6 of Chapter 126 of the General Statutes or in any case where 

### a binding decision is required by applicable federal standards. 

### In these cases, the State Personnel Commission's decision shall be binding on the local appointing authority. 

### In all other cases, the finaldecision shallbe made by the applicable appointing authority. (a

### 1) Repealed by Session Laws 1985(Regular Session, l986), c. 1022, s. l(9). (a2) An administrative law judge assigned to a contested case may require a party to thecase to file a prehearing statement.A party's prehearing statement must be served on all other parties to the contested case. (b) The parties to a contested case shall be given a notice of hearing not less than 15 days before the hearing by the Ofice of Administrative Hearings. If prehearing statements have been fded 

### in the case, the notice shall state the date, hour, and place of the hearing. If prehearing statements have not been filed in the case, the notice shall state the date, hour, place, and nature of the hearing, shall list the particular sections of the statutes and rules involved, and shall

### give a short and plain statement ofthe factualallegations. (c) Notice shall be given personally or by certified mail. If given by certified mail, it shall be deemed to have been given on the delivery date appearing on the return receipt. If giving ofnotice cannot be accomplishedeitherpersonally or by certified mail, notice shallthen be given in the manner provided in G.S. 1A-1,Rule 4Cjl). (d) Any person may petition to become a party by filing a motion to intervene in the

manner provided in G.S. 1A-1, Rule 24. 

### In addition, any person interested in a contested case
may intervene and participate in that proceeding to the extent deemed appropriate by the administrative lawjudge. (e) 

### AU hearings under this Chapter shall be open to the public. Hearings shall be conducted in an impartial manner. Hearings shall be conducted according to the procedures
set out in this Article, except to the extent and in the particulars that specific hearing procedures and time standards are governed by another statute. (

### 1) Unless another statute or a federal statute or regulation sets a time limitation for the filing of a petition in contested cases against a specified agency, the general limitation for the filing of a petition in a contested case is 60 days. The tirne limitation, whether established by another statute, federal statute, or federal regulation, or this section, shall commence when notice is given of the agency decision to all persons aggrieved who are known to the agency by personal delivery or by the placing of the notice in an official depository of the United States Postal Servicewrapped in a wrapper addressed to the person at the latest address given by the person to the agency. The notice shall be in writing, and shall set forth the agency action, and shall inform the persons of the right, the procedure, and the time limit to file a contested case petition. When no informal settlementrequest has been received by the agency prior to issuance of the notice, any subsequent informal settlement request shall not suspend the time limitation for the filing of a petition for a contested case hearing. (1973, c. 1331, s. 1; 1975, 2nd Sess., c. 983, s. 65; 1985, c. 746, s. 1; 1985 (Reg. Sess., 1986), c. 1022, ss. 1(9), (lo), 6(2), (3); 1987, c. 878, ss. 3-5; c. 879, s. 6.1; 1987 (Reg. Sess., 1988), c. 1111, s. 5; 1991,c. 35, s. 1; 1993(Reg. Sess., 1994), c. 572, s. 

### 2.)



## 5 150B-23.1. Mediated settlement conferences. (a) Purpose. - This section authorizes a mediation program in the Office of Administrative Hearings 

### in which the chief administrative lawjudge may require the parties 

### in a contested case to attend a prehearing settlement conference conducted by a mediator. The
purpose of the program is to determine whether a system ofmediated settlement conferences
may make the operation of the Office of Administrative Hearings more efficient, less costly, and more satisfyingto the parties. (b) Definitions. -The followingdefinitions apply in 

### this section: (1) Mediated settlement conference. - 

### A conference ordered by the chiefadministrative law judge involving the parties to a contested case and conducted by a mediator prior to a contested case hearing. (2) Mediator.

- A neutral person who acts to encourage and facilitate a resolution of a contested case but who does not make a decision on the merits of the contested case. (c) Conference. -The chief administrative law judge may order a mediated settlement conference for all or any part of a contested case to which an administrative law judge is assigned to preside. 

### All aspects of the mediated settlement conference shall be conducted insofar as possible in accordance with the rules adopted by the Supreme Court for the court-ordered mediation pilot program under G.S. 7A-38. (d) Attendance. - The parties to a contested case in which a mediated settlement conference is ordered, their attorneys, and other persons having authority to settle the parties' claims shall attend the settlement conference unless excused by the presiding administrative lawjudge. (e) Mediator.
- The parties shall have the right to stipulate to a mediator. Upon the failure ofthe parties to agree within a time limit established by the presiding administrative law judge, a mediator shallbe appointed by the presiding administrative lawjudge. 

## (0 Sanctions.
- Upon failure of a party or a party's attorney to attend a mediated settlement conference ordered under this section, the presiding administrative lawjudge may impose any sanction authorized by G.S. 1500-33(b)(8)or ( 10). (g) Standards.

- Mediators authorized to conduct mediated settlement conferences under this section shall comply with the standards adopted by the Supreme Court for the court-ordered mediationpilot program under G.S. 7A-38. (h) Immunity.
-A mediator acting pursuant to this section shallhave judicial immunity in the same manner and to the same extent as ajudge ofthe General Court ofJustice. (i) Costs. 

### - Costs of a mediated settlement conference shall be paid one share by the petitioner, one share by the respondent, and an equal share by any intervenor, unless otherwise apportioned by the administrative lawjudge. 

### (i) Inadmissibility of Negotiations. - 

### All conduct or communications made during a mediated settlement conference are presumed to be made in compromise negotiations and shall be governedby Rule 408 ofthe North Carolina Rules ofEvidence. 

### (k) Right to Hearing.
- Nothing in this section restricts the right to a contested case hearing. (1993, c. 321, s. 25(b); c. 363, ss. 1, 3; 1995,

### c. 145, s. 1.)

§ 150B-24. Venue of hearing. (a) The hearing of a contested case shallbe conducted: 

### (1) 

### In the county 

### in this State in which any person whose property or rights are the subject matter ofthe hearing maintains his residence; 

### (2) In the county where the agency maintains its principal office ifthe property

or rights that are the subject matter ofthe hearing do not affect any person or ifthe subject matter of the hearing is the property or rights of residents of

more than one county; or (3) 

### In any county determined by the administrative law judge in 

### his discretionto promote the ends ofjustice or better serve the convenience ofwitnesses. (b) Any person whose property or rights are the subject matter of the hearing waiveshis objection to venue by proceeding in the hearing. (1973, c. 133 1, s. 1;'1985, c. 746, s. 1; 1987,c. 878, s. 6.)

fj 

### 150B-25. Conduct of hearing; answer. (a) If a party fads to appear in a contested case after proper service of notice, and ifno adjournment or continuance is granted, the administrative law judge may proceed with the hearing in the absence of the party. (b) Repealed by Session Laws 1991, c. 35, s. 2. (c) The parties shallbe given an opportunityto present arguments on issues oflaw and policy and an opportunityto present evidence on issues offact. (d) A party may cross-examine any witness, including the author of a doc,ument prepared by, on behalf of, or for use of the agency and offered in evidence. Any party may submit rebuttal evidence. (1973, c. 1331, s. 1; 1985, c. 746, s. 1; 1985 (Reg. Sess., 1986), c. 1022, s. l(13); 1987, c. 878, s. 6; 1991, c. 35, s. 2.)



## 5 150B-26. Consolidation. When contested cases involving a common question of law or fact or multiple proceedings involving the same or related parties are pending, the Director of the Office of Administrative Hearings may order a joint hearing of any matters at issue in the cases, order the cases consolidated, or make other orders to reduce costs or delay in the proceedings. (1973, c. 1331, s. 1; 1985,c. 746, s. 1; 1985, (Reg. Sess., 1986),c. 1022, s. 1(1), 1(14).)



## 5 150B-27. Subpoena. After the commencement of a contested case, subpoenas may be issued and served in accordance with G.S. 1A-1, Rule 45. In addition to the methods of service in G.S. 1A-1, Rule 45, a State law enforcement officer may serve a subpoena on behalf of an agency that is a party to the contested case by any method by which a sheriff may serve a subpoena under that Rule. Upon a motion, the administrative law judge may quash a subpoena if, upon a hearing, the administrative law judge finds that the evidence the production of which is required does not relate to a matter in issue, the subpoena does not describe with sufficient particularity the evidence the production of which-is required, or for any other reason sufficientin law the subpoena may be quashed. Witness fees shallbe paid by the party requesting the subpoenato subpoenaed witnesses 

### in accordance with G.S. 7A-314. However, State officials or employees who are subpoenaed shall not be entitled to witness fees, but they shall receive their normal salary and they shall
not be required to take any annual leave for the witness days. Travel expenses of State officials or employees who are subpoenaed shall be reimbursed as provided in G.S. 138-6. (1973, c. 1331, s. 1; 1975, 2ndSess., c. 983, s. 66; 1985, c. 746, s. 1; 1987, c. 878, s. 6; 1991,c. 35, s. 3.)

§ 

### 150B-28. Depositions and discovery. (a) A deposition may be used 

### in lieu of other evidence when taken in compliance with the Rules of 

### CMProcedure, 

### G.S. 1A-1. Parties in contested cases may engage in discovery pursuant to the provisions ofthe Rules of

### CivilProcedure, 

### G.S. 1A-1.(b) Repealed by Session Laws 2007-491, s. 2, effective January 1, 2008. (1973, c. 1331, s. 1; 1985,c. 746, s. 1; 2007-491, s. 2.)



## 5 150B-29. Rules of evidence. (a) 

### In all contested cases, irrelevant, immaterial and unduly repetitious evidence shall be excluded. Except as otherwise provided, the rules ofevidence as applied in the trial division of the General Court of Justice shall be followed; but, when evidence is not reasonably available under the rules to showrelevant facts, then the most reliable and substantial evidence available shall be admitted. On the judge's own motion, an administrative law judge may exclude evidence that is inadmissibleunder this section. The party with the burden ofproof in a contested case must establish the facts required by G.S. 150B-23(a) by a preponderance of the evidence. It shall not be necessary for a party or his attorney to object at the hearing to evidence in order to preserve the right to object to its consideration by the administrative law judge in making a decision, by the agency in making a final decision, or by the court on judicial review. (b) Evidence in a contested case, including records and documents, shall be offered and made a part of the record. Factual information or evidence not made a part of the record shall not be considered in the determination of the case, except as permitted under G.S. 150B-30. Documentary evidence may be received in the form of a copy or excerpt or may be incorporated by reference, if the materials so incorporated are available for examination by the parties. Upon timely request, a party shall be given an opportunity to compare the copy with the original if available. (1973, c. 1331, s. 1; 1985, c. 746, s. 1; 1987, c. 878, s. 7; 1991,

c. 35, s.4; 2000-190, s. 4.)

§ 150B-30. Official notice. Officialnotice may be taken of all facts ofwhich judicial notice may be taken and of other facts within the specialized knowledge ofthe agency. The noticed fact and its source shall be stated and made known to affected parties at the earliest practicable time, and any party shall

on timely request be afforded an opportunityto dispute the noticed fact through submission of evidence and argument. (1973, c. 1331, s. 1; 1985,c. 746, s. 1.)



## 5 150B-31. Stipulations. (a) The parties in a contested case may, by a stipulation in writing filed with the administrative law judge, agree upon any fact involved in the controversy, which stipulation shall be used as evidence at the hearing and be binding on the parties thereto. Parties should
agree upon facts when practicable. (b) Except as otherwise provided by law, disposition may be made of a contested case by stipulation, agreed settlement, consent order, waiver, default, or other method agreed upon by the parties. (1973, c. 1331, s. 1; 1985,c. 746, s. 1; 1987, 

### c. 878, s. 6.)



## 5 150B-31.1. Contested tax cases. (a) Application. - This section applies only to contested tax cases. A contested tax

case 

### is a case involving a disputed tax matter arising under G.S. 105-241.15. To the extent any provision in this section conflicts with anotherprovision in this Article, this section controls. (b) Simple Procedures.
- The ChiefAdministrative Law Judge may limit and simph@the procedures that apply to a contested tax case involving a taxpayer who is not represented by an attorney. An administrative law judge assigned to a contested tax case must make reasonable efforts to assist a taxpayer who is not represented by an attorney in order to assure

a fair hearing. (c) Venue. - 

### A hearing in a contested tax case must be conducted in Wake County, unless the parties agree to hear the case 

### in another county. (d) Reports. - The following agency reports are admissible without testimony fkom personnelofthe agency: (1) Law enforcement reports. 

### (2) Government agency lab reports used for the enforcement of motor fbel tax laws. (e) Confidentiality. 

### -The record, proceedings, and decision in a contested tax case are confidentialuntil the frnal decision is issued in the case. (2007-491, s. 42; 2008- 134, s. 9.)

Ej150B-32. Designation of administrative law judge. (a) The Director of the Ofice of Administrative Hearings shall assign himself or another administrative lawjudge to preside over a contested case. (al) Repealed by Sessions Laws 1985 (Reg. Sess., 1986), c. 1022, s. 1(15), effective July 15, 1986. (b) On the f~g in good faith by a party of a timely and sufficient affidavit ofpersonal bias or disqualification of an administrative law judge, the administrative law judge shall determine the matter as a part of the record in the case, and this determination shall be subject
tojudicial review at the conclusion ofthe proceeding. (c) When an administrative law judge is disqualified or it is impracticable for him to continue the hearing, the Director shall assign another administrative law judge to continue with the case unless it 

### is shown that substantial prejudice to any party will result, 

### in which
event a new hearing shall be held or the case dismissedwithout prejudice. (1973, c. 133 1, s. 

### 1; 1985, c. 746, s. 1; 1985 (Reg. Sess., 1986), c. 1022, s. 1(1), 1(12), 1(15), c. 1028, s. 40; 1987, c. 878, s. 8.)

§ 150B-33. Powers ofadministrative lawjudge. (a) An administrative law judge shall stay any contested case under this Article on motion of an agency which is a party to the contested case, ifthe agency showsby supporting affidavitsthat it is engaged in other litigation or administrativeproceedings, 

### by whatever name called, with or before a federal agency, and this other litigation or administrative proceedings will determine the position, in whole or in part, of the agency 

### in the contested case. At the conclusion of the other litigation or administrative proceedings, the contested case shall proceed and be determined as expeditiously aspossible. (b) 

### An administrative law judge may: (1) Administer oaths and afkmations; (2) Sign, issue, and rule on subpoenas 

### in accordance with 

### G.,S. 150B-27 and G.S. 1A-1, Rule 45; (3) Provide for the taking of testimony by deposition and rule on all objections
to discovery in accordance with 

### G.S. 1A-1, the Rules ofCivil,Procedure; (3a) Rule on all prehearing motions that are authorized 

### by G.S. 1A-I, the RulesofCivil Procedure; Regulate the course of the hearings, including discovery, set the time and place for continued hearings, and fuc the time for filing of briefs and other documents;

Direct the parties to appear and confer to consider simplification of the issues by consent of the parties;

Stay the contested action by the agency pending the outcome of the case, upon such terms as he deems proper, and subject to the provisions of G.S. 1A-1, Rule 65; Determine whether the hearing shallbe recorded by a stenographer or by an electronic device; and

Enter an order returnable in the General Court of Justice, Superior Court Division, to show cause why the person should not be held in contempt. The Court shall have the power to impose punishment as for contempt for any act which would constitute direct or indirect contempt if the act occurred in an action pending in Superior Court. Determine that a rule as applied in a particular case is void because (1) it is
not within the statutory authority of the agency, (2) is not clear and unambiguous to persons it is intended to direct, guide, or assist, or (3) is not reasonably necessary to enable the agency to hlfrll a duty delegated to it by the General Assembly.

Impose the sanctions provided for in G.S. 1A-1 or Chapter 3 of Title 26 of the North Carolina Administrative Code for noncompliance with applicable procedural rules.

Order the assessment of reasonable attorneys' fees and witnesses' fees against the State agency involved in contested cases decided under Chapter 126 where the administrative lawjudge finds discrimination, harassment, or orders reinstatement or back pay.

Except as provided 

### in G.S. 150B-36(d), accept a remanded case fiom an agency only when a claim for relief has been raised in the petition, and the decision of the administrative law judge makes no findings of fact or conclusions of law regarding the claim for relief, and the agency requests that the administrative lawjudge make findings offact and conclusions oflaw

as to the specific claim for relief. The administrative law judge may refuse to accept a remand ifthere is a sufficient record to allow the agency to make a final decision. (1973, c. 1331, s. 1; 1985, c. 746, s. 1; 1987, c. 878, ss. 5. 9. 10, 26; 1987 (Reg. Sess., 1988). c. 1111, ss. 18, 19; 1991. c. 35. s. 5; 2000-190, S.5; 2004- 156,S. 4.)



## fi 150B-34. Decision of administrative law judge. (a) Except as provided in 

### G.S. 150B-36(c), and subsection (c) of

### this section, 

### in each contested case the administrative law judge shallmake a decision that contains findings offact and conclusions oflaw and 

### return the decisionto the agency for a final decision in accordance 

### with 

### G.S. 150B-36. The administrative law judge shall decide the case based upon the preponderance of the evidence, giving due regard to 

### the demonstrated knowledge andexpertise of the agency with respect to facts and inferences within the specialized knowledge of the agency. All references in this Chapter to the administrative lawjudge's decision shall include orders enteredpursuant to 

### G.S. 150B-36(c). (b) Repealed by Session Laws 1991,c. 35, s. 6. (c) Notwithstanding subsection (a) of this section, in cases arising under Article 9 of Chapter 131Eofthe General Statutes, the administrative lawjudge shall make a recommended decision or order that contains findings offact and conclusions oflaw. A final decision shallbe made by the agency in writing afterreview ofthe official record as dehedin 

### G.S. 150B-37(a) and shall include findings offact and conclusions oflaw. The final agency decision shall recite and address all ofthe facts set forth in the recommended decision. For each finding of fact in the recommended decision not adopted by the agency, the agency shall state the specitic
reason, based on the evidence, for not adopting the findings of fact and the agency's findings shall be supported by substantial evidence admissible under G.S. 150B-29(a), 150B-30, or 150B-31. The provisions of 

### G.S. 150B-36(b), (bl), (b2), (b3), and (d), and 

### G.S. 150B-5 1 do not apply to cases decided under this subsection. (d) Except for the exemptions contained 

### in 

### G.S. 1

SOB- 1 (c) and (e), and subsection (c) of this section, the provisions of this section regarding the decision of the administrative law judge shall apply only to agencies subject to Article 3 of this Chapter, notwithstanding any other provisions to the contrary relating to recommended decisions by administrative law judges. (1973, c. 1331, s. 1; 1985, c. 746, s. 1; 1987, c. 878, ss. 5, 23; 1987 (Reg. Sess.,

1988), c. 1111, s. 21; 1991, c. 35, s. 6; 2000-190, s. 6.)

fj

### 150B-35. No ex parte communication; exceptions. Unless required for disposition of an 

### ex parte matter authorized by law, neither the administrative law judge assigned to a contested case nor a member or employee of the
agency making a final decision in the case may communicate, directly or indirectly, in connection with any issue of fact, or question of law, with any person or party or his representative, except on notice and opportunity for all parties to participate. (1973, c. 1331,

s. 1; 1985,~. 746,s. 1; 1987,~. 878,s. 11.)



## 5 150B-36. 

### Final decision, (a) Before the agency makes a finaldecision, it shall 

### give eachparty an opportunity to file exceptions to the decision made 

### by the administrative lawjudge, and to present written arguments to those 

### in the agency who will make the final decision or order. If a party files in good faith 

### a timely and sufficient affidavitofpersonal bias or other reason for disqualification ofa member ofthe agency making the final decision, the agency shall determine the matter as

a part of the record in the case, and the determination is subject to judicial review at the conclusion ofthe case. (b) Except as provided in 

### G.S.150B-34(c) 

### or subsection (d) of 

### this section, a final decision in a contested case shall be made by the agency in writing after review ofthe official record as defined in 

### G.S. 1 5OB-37(a) and shallinclude findings offact and conclusions oflaw. The agency shalladopt each findingoffact contained in the administrativelawjudge's decision unless the finding is clearly contrary to 

### the preponderance of the admissible evidence, giving due regard to the opportunity of the administrative law judge to evaluate the credibility ofwitnesses. For each fmding of fact not adopted by the agency and each fmdhg of fact made by the agency that is not contained in the administrative lawjudge's decision. the agency shall follow the procedures set forth in subsections (bl)and (b2)ofthis section. (bl) For each fmding of fact not adopted by the agency, the agency shall set forth separately and in detail the following: (I) The reasons for not adopting the findings offact. (2) The evidence in the record relied upon by the agency in not adopting the finding offact contained in the administrative law judge's decision. Any finding of fact not specifically rejected as required by this subsection shallbe deemed accepted for purposes ofjudicial review of the final decision pursuant to Article 

### 4 of this Chapter. (b2) For each finding of fact made by the agency that is not contained in the administrative law judge's decision, the agency shall set forth separately and in detail the evidence in the record relied upon by the agency in making the finding of fact. Any new finding of fact made by the agency shall be supported by a preponderance of the admissible evidence in the record. The agency shall not make any new finding of fact that is inconsistent with a fmding of fact contained in the administrative law judge's decision unless the finding of fact in the administrative lawjudge's decision is not adopted as required by subsection (bl) of this section. (b3) Except as provided in 

### G.S. 150B-34(c), the agency shall adopt the decision of the administrativelawjudge unless the agency demonstrates that the decision of the administrative lawjudge is clearly contrary to the preponderance of the admissible evidence in the record. IS the agency does not adopt the administrative law judge's decision as its final decision, the agency shall set forth its reasoning for the final decision in light of the findings of fact and conclusions of law in the final decision, including any exercise of discretion by the agency. The agency may consider only the official record prepared pursuant to G.S. 150B-37 in making a final decision. A copy ofthe decision shall be served upon each party personally or by certified mail addressed to the party at the latest address given by the party to the agency, and a copy shall be hrnished to his attorney of record and the Office of Administrative Hearings. (c) The following decisions made by administrative law judges in contested cases are final decisions appealable directly to superior court under Article 4 ofthis Chapter: (I) A determination that the Office ofAdministrative Hearings lacksjurisdiction. (2) An order enteredpursuant to the authority in G.S. 7A-759(e). (3) An order entered pursuant to a written prehearing motion that either dismisses the contested case for failure of the petitioner to prosecute or grants the relief requested when a party does not comply with procedural requirements. (4) 

### An order entered pursuant to a prehearing motion to dismiss the contested

case in accordance with 

### G.S.1A-1, Rule 12(b) when the order disposes of all issues in the contested case. (d) An administrative law judge may grant judgment on the pleadings, pursuant to a motion made in accordance with 

### G.S.1A-1, Rule 12(c), or summary judgment, pursuant to a motion made in accordance with G.S. 1A-1, Rule 56, that disposes of all issues in the contested case. Notwithstanding subsection (b) ofthis section, a decision grantinga motion for

### judgment on the pleadings or summary judgment need not include findings of fact or conclusions of law, except as determined by the administrative lawjudge to be required or allowed by 

### G.S. 1A-I,Rule 12(c)or Rule 56. For any decision by the administrative lawjudge granting judgment on the pleadings or summaryjudgment that disposes of all issues in the contested case, the agency shall make a final decision. If the agency does not adopt the administrative lawjudge's decision, it shall set forth the basis for failing to adopt the decision and shallremand the case to the administrative lawjudge for hearing. The party aggrieved by the agency's decision shall be entitled to immediatejudicial review of the decision under Article 4 ofthis Chapter. (1973, c. 1331, s. 1; 1975, 2nd Sess., c. 983, s. 67; 1985,c. 746, s. 1; 1985 (Reg. Sess., 1986), c. 1022, s. l(16); 1987, c. 878, ss. 12, 24; 1987 (Reg. Sess., 1988),c. 1111,s. 20; 1991,~. 35, s. 7;2000-190, 

### s. 7.)



## 5 150B-37. Official record. 

### (a) In 

### a contested case, the Office of Administrative Hearings shall prepare an official record ofthe case that includes: (1) 

### Notices, pleadings, motions, and intermediate rulings; (2) 

### Questions and offers ofproof, objections, and rulings thereon; (3) 

### Evidencepresented; (4) Matters officially noticed, except matters so obvious that a statement of them would serveno usefulpurpose; and (5) 

### Repealed by SessionLaws 1987,c. 878, s. 25. (6) 

### The administrative lawjudge's decision, or order. (b) 

### Proceedings at which oral evidence is 

### presented shall be recorded, but need not be transcribed unless requested by a party. Each party shall bear the cost ofthe transcript or part thereofor copy of said transcript or part thereofwhich said party requests, and said transcript

or part thereof shallbe added to the officialrecord as an exhibit. (c) 

### The Office ofAdministrative Hearings shall forward a copy of the officialrecord to the agency makingthe final decision and shall forward a copy ofthe administrative lawjudge's decision to each party. (1973, c. 1331, s. 

### 1; 1985, c. 746, 

### s. 1; 1987, c. 

### 878, ss. 13, 25; 2000-190, S. 8.)



### Article 3A.



## . OtherAdministrative Hearings.
6j 150B-38. Scope; hearing required; notice; venue. (a) 

### The provisions ofthis Article shallapply to: (1) 

### Occupational licensing agencies. (2) The State Banking Commission,the Commissioner ofBanks, and the Credit Union Division ofthe DepartmentofCommerce. 

### (3) The DepartmentofInsurance and the Commissionerof Insurance. (4) The State Chief Information Officer in the administration ofthe provisions of Article 

### 3D ofChapter 147ofthe General Statutes. (5) TheNorth Carolina State Building Code Council. (b) Prior to any agency action in a contested case, the agency shall give the parties in the case an opportunity for a hearing without undue delay and notice not less than 15 daysbefore the hearing. Notice to the parties shall include: (I) A statement ofthe date, hour, place, and nature of the hearing; (2) A reference to the particular sections ofthe statutes and rules involved; and (3) A short and plain statement of the facts alleged. (c) Notice shall be given personally or by certified mail. If given by certified mail. notice shallbe deemed to have been given on the delivery date appearing on the return receipt. If notice cannot be given personally or by certified mail, then notice shall be given in the

manner provided in G.S. 1A-1,Rule 461). (d) A party who has been served with a notice of hearing may file a written response with the agency. If a written response is filed, a copy of the response must be mailed to all other parties not less than 10days before the date set for the hearing. (e) 

### All hearings conducted under this Article shall be open to the public. A hearing conducted by the agency shall be held 

### in the county where the agency maintains its principal office. A hearing conducted for the agency by an administrative law judge requested under G.S. 150B-40 shall be held in a county in this State where any person whose property or rights are the subject matter of the hearing resides. If a different venue would promote the ends ofjustice or better serve the convenience of witnesses, the agency or the administrative lawjudge may designate another county. A person whose property or rights are the subject matter ofthe hearing waives his objection to venue ifhe proceeds in the hearing. (f) Any person may petition to become a party by fhg with the agency or hearing officer a motion to intervene in the manner provided by G.S. 1A-1, Rule 24. In addition, any
person interested in a contested case under this Article may intervene and participate to the extent deemed appropriate by the agency hearing officer. (g) When contested cases involving a common question of law or fact or multiple proceedings involving the same or related parties are pending before an agency, the agency
may order ajoint hearing of any matters at issue in the cases, order the cases consolidated, or make other orders to reduce costs or delay in the proceedings. (h) Every agency shall adopt rules governing the conduct of hearings that are consistent with the provisions of this Article. (1985, c. 746, s. 1; 1985 (Reg. Sess., 1986), c. 1022, s. 6(3); 1989, c. 76, s. 30; c. 751, s. 7(45); 1991 (Reg. Sess., 1992), c. 959, s. 76; 1999-434, s. 17; 2001-141, s. 8;2001-193, s. 12;2001-487, S. 21(h).)



## 5 150B-39. Depositions; discovery; subpoenas. (a) A deposition may be used in lieu of other evidence when taken in compliance with the Rules of Civil Procedure, G.S. 1A-1. Parties in a contested case may engage in discovery pursuant to the provisions ofthe Rules ofCivil Procedure, G.S. 1A-1. (b) Upon a request for an identifiable agency record involving a material fact 

### in a contested case, the agency shall promptly provide the record to a party, unless the record relates solely to the agency's internalprocedures or is exempt from disclosure by law. (c) 

### In preparation for, or in the conduct of, a contested case subpoenas may be issued and served in accordance with 

### G.S. 1A-1, Rule 45. Upon a motion, the agency may quash a subpoena if, upon a hearing, the agency finds that the evidence, the production of which is required, does not relate to a matter in issue, the subpoena does not describe with sufficient particularity the evidence the production of which is required, or for any other reason sufficient in law the subpoena may be quashed. Witness fees shall be paid by the partyrequesting the subpoena to subpoenaed witnesses in accordance with G.S. 7A-3 14. However, State officials or employees who are subpoenaed shall not be entitled to any witness fees, but they shall receive their normal salary and they shall not be required to take any annual leave for the witness days. Travel expenses of State officials or employees who are subpoenaed shallbe reimbursed asprovided 

### in G.S. 138-6. (1985, c. 746, s. 1; 1991,c. 35, s. 8.)



## 8 150B-40. Conduct of hearing; presiding officer; exparte communication. (a) Hearings shall be conducted in 

### a fair and impartial manner. At the hearing, the
agency and the parties shall be given an opportunity to present evidence on issues of fact, examine and cross- examine witnesses, including the author of a document prepared by, on behalf ofor for the use ofthe agency and offered into evidence, submitrebuttalevidence, and present arguments on issues oflaw or policy. 

### If a party fails to appear in a contested case after he has been given proper notice, the
agency may continue the hearing or proceed with the hearing and make its decision in the absence ofthe party. (b) Except as provided under subsection (e) ofthis section, hearings under this Article shall be conducted by a majority of the agency. An agency shall designate one or more of its members to preside at the hearing. If a party files in good faith a timely and sufficient affidavit of the personal bias or other reason for disqualification of any member of the agency, the
agency shall determine the matter as a part of the record in the case, and its determination shall be subject tojudicial review at the conclusion of the proceeding. If a presiding officer is disqualified or it is impracticable for him to continue the hearing, another presiding officer shall be assignedto continuewith the case, exceptthat 

### if assignmentof a new presiding officer will cause substantial prejudice to any party, a new hearing shallbe held or the case dismissed withoutprejudice. (c) The presidingofficer may: (1) Administer oaths and atlknations; (2) Sign and issue subpoenas in the name of the agency, requiring attendance and giving of testimony by witnesses and the production of books, papers, and other documentary evidence; (3) Provide for the taking oftestimony by deposition; (4) Regulate the course of the hearings, set the time and place for continued hearings, and 

### fix the time for filingofbriefi and other documents; (5) Direct the parties to appear and confer to consider simplification of the issues by consentoftheparties; and (6) Apply to anyjudge ofthe superior court resident 

### in the district or presiding at a term of court 

### in the county where a hearing is pending for an order to show cause why any person should not be held 

### in contempt of the agency and 

### its processes, and the court shall have the power to impose punishment

as for contempt for acts which would constitute direct or indirect contempt 

### if the acts occurred in an action pendingin superior court. (d) Unless required for disposition of an ex parte matter authorized by law, a member of an agency assigned to make 

### a decision or to make findings off'act and conclusions oflaw in a contested case under 

### this Article shallnot communicate, directly or indirectly, 

### in connection with any issue of fact or question of law, with any person or party or 

### his representative,except on notice and opportunity for all parties to participate. This prohibition begins at the time of the notice of hearing. An agency member may communicate with other members of the agency and may have the aid and advice ofthe agency staff other than the staffwhich has been or is engaged in investigatingor prosecuting functions in connection with the case under consideration or a factually-related case. This section does not apply to an agency employee or party representative with professional training in accounting, actuarial science, economics

or fmancial analysis insofar as the case involves fmancial practices or conditions. (e) When a majority of an agency is unable or elects not to hear a contested case, the agency shall apply to the Director of the Office ofAdministrative Hearings for the designation of an administrative law judge to preside at the hearing of a contested case under this Article. Upon receipt of the application, the Director shall, without undue delay, assign an administrativelaw judge to hear the case. The provisions of this Article, rather than the provisions of Article 3, shall govern a contested case in which the agency requests an administrative law judge fiom the Office of Administrative Hearings. The administrative law judge assigned to hear a contested case under this Article shall sit in place of the agency and shall have the authority of the presiding officer in a contested case under this Article. The administrativelaw judge shall make a proposal for decision, which shall contain proposed findings of fact and proposed conclusions of law. An administrative lawjudge shall stay any contested case under this Article on motion of

an agency which is a party to the contested case, ifthe agency shows, by supporting affidavits that it is engaged in other litigation or administrative proceedings, by whatever name called, with or before a federal agency, and this other litigation or administrative proceedings will determine the position, in whole or in part, of the agency in the contested case. At the conclusion of the other litigation or administrative proceedings, the contested case shall proceed and be determined as expeditiouslyaspossible. The agency may make its final decision only after the administrative law judge's proposal for decision is served on the parties, and an opportunity is given to each party to file exceptions and proposed findings of fact and to present oral and written arguments to the agency. (1985, c. 746, s. 1; 1985 (Reg. Sess., 1986),c. 1022, ss. 1(1), 6(3), 6(4).)



## 5 150B-41. Evidence; stipulations; official notice. (a) In all contested cases, irrelevant, immaterial, and unduly repetitious evidence shall be excluded. Except as otherwiseprovided, the rules ofevidence as applied in the trial division of the General Court of Justice shall be followed; but, when evidence 

### is not reasonably available under such rules to showrelevant facts, they may be shown by the most reliable and substantial evidence available. It shall not be necessary for a party or his attorney to object to evidence at the hearing in order to preserve the right to object to its consideration by the
agency in reaching its decision, or by the court of judicial review. (b) Evidence 

### in a contested case, including records and documents shall be offered and made a part of the record. Other factual information or evidence shall not be considered in determination of the case, except as permitted under G.S. 150B-30. Documentary evidence
may be received in the form of a copy or excerpt or may be incorporated by reference, 

### ifthe materials so incorporated are available for examination by the parties. Upon timely request, a party shallbe given an opportunity to compare the copy with the original

### ifavailable.(c) The parties in a contested case under this Article by a stipulation in writing fded with the agency may agree upon any fact involved in the controversy, which stipulation shall be used as evidence at the hearing and be binding on the parties thereto. Parties should agree upon facts when practicable. Except as otherwise provided by law, disposition may be made of a contested case by stipulation, agreed settlement, consent order, waiver, default, or other method agreed upon by the parties. (d) Official notice may be taken of all facts of which judicial notice may be taken and of other facts within the specialized knowledge of the agency. The noticed fact and its source shall be stated and made known to affected parties at the earliest practicable time, and any party shall on timely request be afforded an opportunity to dispute the noticed fact through submission' of evidence and argument. 

### An agency may use its experience, technical competence, and specialized knowledge in the evaluationofevidence presented to it. (1985, c. 746, s. 1.)



## 5 150B-42. Final agency decision; official record. (a) After compliance with ~hc provisions ofG.S. 150F3- 40(e), if applicable, and review of the of'licial record, as defined in subsection (b) of this section, an agency shall make a written fmal decision or order in a contested case. The decision or order shall include findings of fact and conclusions of law. Findings of fact shall be based exclusively on the evidence and

on matters officially noticed. Findings of fact, 

### if set forth in statutory language, shall be accompanied by 

### a concise and explicit statement of the underlying facts supporting them. A decision or order shall not be made except upon consideration of the record as a whole or suchportion thereof as may be cited by any party to the proceeding and shallbe supported by substantial evidence admissible under G.S. 150B-41. A copy of the decision or order shall be served upon each party personally or by certified mail addressed to the party at the latest address given by the party to the agency and a copy shall be fbrnished to his attorney of record. (b) An agency shallprepare an officialrecord ofa hearing that shall include: (1) Notices, pleadings, motions, and intermediaterulings; (2) Questions and offers of proof, objections, and rulings thereon; (3) Evidence presented; (4) Matters officially noticed, except matters so obvious that a statement of them would serve no useful purpose; (5) Proposed findings and exceptions; and (6) Any decision, opinion, order, or report by the officer presiding at the hearing and by the agency. (c) Proceedings at which oral evidence 

### is presented shall be recorded, but need not be transcribed unless requested by a party. Each party shallbear the cost ofthe transcript or part thereof or copy of said transcript or part thereof which said party requests. (1985, c. 746, s. 

### 1.1

Article 4.

JudicialReview. 

## 8 150B-43. Right to

### judicial 

### review. Any person who is aggrieved by the final decision in a contested case, and who has

## B. Judicial Review 

# - -N.C. Gen. Stat.

# $5 150B-43thru 150B-52Chapter 150B http://www.ncleg.net/enactedlegislation/apt

...

(c) The parties in a contested case under this Article by a stipulation in writing filed with the agency may agree upon any fact involved in the controversy, which stipulation shall be used as evidence at the hearing and be binding on the parties thereto. Parties should agree upon facts when practicable. Except as otherwise provided by law, disposition may be made of a contested case by stipulation, agreed settlement, consent order, waiver, default, or other method agreed upon by the parties. (d) Official notice may be taken of all facts ofwhichjudicial notice may be taken and of other facts within the specialized knowledge ofthe agency. The noticed fact and its source shall be stated and made known to affected parties at the earliest practicable time, and any party shall on timely request be afforded an opportunity to dispute the noticed fact through submission of evidence and argument. An agency may use its experience, technical competence, and specialized knowledge in the evaluationofevidencepresented to it. (1985, c. 746, s. 1.)



## 5 150B-42. Final agency decision; official record. (a) After compliance with the provisions of G.S. l5OB- 40(e), if applicable, and review of the official record, as defined in subsection (b) of this section, an agency shall make a written final decision or order in a contested case. The decision or order shall include findings of fact and conclusions of law. Findings of fact shallbe based exclusively on the evidence and

on matters officially noticed. Findings of fact, 

### if set forth in statutory language, shall be accompanied by a concise and explicit statement of the underlying facts supporting them. A decision or order shall not be made except upon consideration of the record as a whole or suchportion thereof as may be cited by any party to the proceeding and shallbe supported by substantial evidence admissible under G.S. 150B-41.A copy of the decision or order shall be served upon each party personally or by certified mail addressed to the party at the latest address given by the party to the agency and a copy shall be hrnished to his attorney of record. (b) An agency shallprepare an officialrecord ofa hearing that shall include: (1) Notices, pleadings, motions, and intermediaterulings; 

### (2) Questions and offers ofproof, objections, andrulings thereon; (3) Evidencepresented; (4) Matters officially noticed, except matters so obvious that a statement of them would serveno usefulpurpose; (5) Proposed findings and exceptions; and (6) Any decision, opinion, order, or report by the officer presiding at the hearing and by the agency. (c) Proceedings at which oral evidence is presented shall be recorded, but need not be transcribed unless requested by a party. Each party shall bear the cost ofthe transcript or part thereof or copy of said transcript or part thereof which said party requests. 

### (1985, c. 746, 

### s. 1.)

Article 4.

JudicialReview. 

## 5 150B-43. Right tojudicial review. 

### Any person who is aggrieved by the final decision in a contested case, and who hasexhausted all administrative remedies made available to him by statute or agency rule, is entitled to judicial review of the decision under this Article. unless adequate procedure for judicial review is provided by another statute, in which case the review shall be under such other statute. Nothing in this Chapter shall prevent any person fiom invoking any judicial remedy available to him under the law to test the validity of any administrative action not made reviewable under this Article. (1973, c. 133 1, s. 1; 1985,c. 746, s. 1.)



## 5 150B-44. Right tojudicial intervention when decision unreasonably delayed. Unreasonable delay on the part of any agency or administrative lawjudge in taking any required action shall be justification for any person whose rights, duties, or privileges are adversely affected by such delay to seek a court order compelling action by the agency or administrative lawjudge. An agency that is subject to Article 3 of this Chapter and is not a board or commission has 60 days fiom the day it receives the official record in a contested

case from the Ofice of AdministrativeHearings to make a final decision in the case. This time limit may be extended by the parties or, for good cause shown, by the agency for an additional period ofup to 60 days. 

### An agency that is subject to Article 3 ofthis Chapter and is

a board or commission has 60 days fiom the day it receives the officialrecord in a contested

case from the Office ofAdministrative Hearings or 60 days after its next regularly scheduled meeting, whichever is longer, to make a final decision in the case. This time limit may be extended by the parties or, for good cause shown, by the agency for an additional period ofup to 60 days. If an agency subject to Article 3 of this Chapter has not made a final decision within these time limits, the agency is considered to have adopted the administrative law judge's decision as the agency's frnal decision. Failure of an agency subject to Article 3A of this Chapter to make a final decision within 120 days of the close of the contested case hearing isjustification for a person whose rights, duties, or privileges are adversely affectedby the delay to seek a court order compelling action by the agency or, ifthe case was heard by

an administrative law judge, by the administrative lawjudge. The Board of Trustees of the North Carolina State Health Plan for Teachers and State Employees is a "board" for purposes of this section. (1973, c. 1331, s. 1; 1985, c. 746, s. 1; 1985 (Reg. Sess., 1986), c. 1022, s. l(17); 1987,c. 878, ss. 5, 27; 1991,c. 35, s. 9; 2000-190, s. 9; 2008-168, s. 5(b).)



## 5 150B-45. Procedure for seeking review; waiver. (a) Procedure.
- To obtain judicial review of a final decision under this Article, the person seeking review must file a petition within 30 days after the person is served with a written copy of the decision. The petition must be fded as follows: (1) Contested tax cases. -

### A petition for review of a final decision 

### in a contested

tax case arising under G.S. 105-241.15must be filed in the Superior Court of Wake County. (2) Other final decisions. - A petition for review of any other fhal decision under this Article must be filed in the Superior Court of Wake County or in the superior court of the county where the person resides. (b) Waiver. -A person who fails to file a petition within the required time waives the right tojudicial review under this Article. For good cause shown, however, the superior court
may accept anuntimely petition. (1973, c. 1331, s. 1; 1985,c. 746, s. 1; 1987, c. 878, s. 16; 2007-49 1, S. 43.)

### 5 150B-46. Contents of petition; copies served on all parties; intervention. The petition shall explicitly state what exceptions are taken to the decision or procedure and what relief the petitioner seeks. Within 10 days after the petition 

### is filed with the court, the party seeking the review shall serve copies of the petition by personal service or by certified mail upon all who were parties of record to the administrativeproceedings. Names and addresses of such parties shall be hishedto the petitioner by the agency upon request. Any party to the administrative proceeding is a party to the review proceedings unless the party withdraws by notifying the court of the withdrawal and serving the other parties with notice of the withdrawal. Other parties to the proceeding may file a response to the petition within 30 days of service. Parties, including agencies, may state exceptions to the decision or procedure and what relief is sought in the response. Any person aggrieved may petition to become a party by 

### filing a motion to intervene as provided in 

### G.S.1A-1,Rule 

### 24.(1973, c. 1331,s. 1; 1985,c. 746, s. 1; 1991,c. 35, s. 10.)



## 5 150B-47. Records filed with clerk ofsuperior court; contents of records; costs. Within 30 days after receipt ofthe copy ofthe petition for review, or within such additional time asthe court may allow,the agency that made the final decision in the contested case shall transmit to the reviewing court the original or a certified copy of the official record in the contested case under review together with: (i) any exceptions, proposed findings of fact, or written arguments submitted to the agency in accordance with 

### G.S.150B-36(a); and (ii) the agency's final decision or order. With the permission of the court, the record may be shortened by stipulation of all parties to the review proceedings. Any party unreasonably refbsing to stipulate to limit the record may be taxed by the court for such additional costs as may be occasionedby the refbsal. The court may require or permit subsequent corrections or additions to the record when deemed desirable. (1973, c. 1331, s. 1; 1983, c. 919, s. 3; 1985, c. 746, s. 1; 1985(Reg. Sess., 1986),c. 1022,s. l(18); 1987, c. 878, s. 22.)



### $ 

### 150B-48. Stay ofdecision. At any time before or during the review proceeding, the person aggrieved may apply to the reviewing court for an order staying the operation of the administrative decision pending the
outcome of the review. The court may grant or deny the stay 'in its discretion upon such terms

as it deems proper and subject to the provisions of G.S. 1A-1, Rule 65. (1973, c. 1331, s. 1; 1985, c. 746, s. 1.)


## 8 150B-49. Newevidence. 

### An aggrieved person who files a petition in the superior court may apply to the court 

### to present additional evidence.

### Ifthe court is satisfied that the evidence is material to the issues, is not merely cumulative, and could not reasonably have been presented at the administrative hearing, the court may remand the case so that additional evidence can be taken. If an administrative law judge did not make a decision 

### in the case, the court shall remand the case to the agency that conducted the administrative hearing. After hearing the evidence, the
agency may affirm or mod@ its previous findings of fact and final decision. If an administrative lawjudge made a decision in the case, the court shall remand the case to the administrative lawjudge. After hearing the evidence, the administrative law judge may a&mor modify his previous findings of fact and decision. The administrative law judge shall forward a copy of his decision to the agency that made the final decision, which in turn may affirm or modie its previous findings of fact and final decision. The additional evidence and
any affirmation or modification of a decision of the administrative lawjudge or final decision shallbe made part ofthe official record. (1973, c. 1331, s. 1; 1985, c. 746, s. 1; 1987, c. 878,

S. 17; 2000- 190, S. 10.)

§ 150B-50. Reviewby superior court withoutjury. The review by a superior court of agency decisions under this Chapter shall be conducted by the court without ajury. (1973, c. 1331, s. 1; 1983, c. 919, s. 2; 1985,c. 746, s. 

### 1; 1987, c. 878, s. 18.)



## 5 150B-51. Scope andstandard of review. (a) In reviewing a final decision in a contested case in which an administrative law judge made a recommended decision and the State Personnel Commission made an advisory decision in accordance with G.S. 126-37(b1), the court shall make two initial determinations. First, the court shall determine whether the applicable appointing authority heard new evidence after receiving the recommended decision. Ifthe court determines that the applicable appointing authority heard new evidence, the court shall reverse the decision or remand the

case to the applicable appointing authority to enter a decision in accordance with the evidence in the official record. Second, if the applicable appointing authority did not adopt the recommended decision, the court shall determine whether the applicable appointing authority's decision states the specific reasons why the applicable appointing authority did not adopt the recommended decision. If the court determines that the applicable appointing authority did not state specific reasons why it did not adopt a recommended decision, the court shallreverse the decision or remand the case to the applicable appointing authority to enter the specific

reasons. (al) 

### In reviewing a final decision in a contested case in which an administrative law judge made a decision, in accordance with G.S. 150B-34(a), and the agency adopted the administrative lawjudge's decision, the court shall determine whether the agency heard new evidence after receiving the decision. If the court determines that the agency heard new evidence, the court shall reverse the decision or remand the case to the agency to enter a decision in accordance with the evidence in the officialrecord. The court shall also determine whether the agency specifically rejected findings of fact contained in the. administrative law judge's decision in the manner provided by G.S. 150B-36(bl) and made findings of fact in accordance with G.S. 150B-36(b2). Ifthe court determines that the agency failed to follow the procedure set forth in G.S. 150B-36, the court may take appropriate action under subsection (b) ofthis section. (b) Except as provided in subsection (c) of this section, in reviewing a £ha1 decision, the court may afknthe decision of the agency or remand the case to the agency or to the administrative law judge for Wer proceedings. It may also reverse or mod@ the agency's decision, or adopt the administrative law judge's decision 

### if the substantial rights of the petitioners may have been prejudiced because the agency's findings, inferences, conclusions,

or decisions are: (I) 

### In violation ofconstitutionalprovisions;

### (2) In excess ofthe statutory authority or jurisdiction ofthe agency; (3) Made upon unlawfulprocedure; (4) Affected by other error oflaw; (5) Unsupported by substantial evidence admissible under 

### G.S. 150B-29(a), 150B-30, or 150B-31in view ofthe entirerecord as submitted;or (6) Arbitrary, capricious, or an abuse ofdiscretion. (c) 

### In reviewing a final decision in a contested case in which an administrative law judge made a decision, in accordance with 

### G.S.150B-34(a), and the agency does not adopt the administrative lawjudge's decision, the court shallreview the official record, de novo, and shall make findings of fact and conclusions of law. 

### In reviewing the case, the court shall not give deference to any prior decision made in the case and shallnot be bound by the findings of fact or the conclusions of law contained in the agency's fmal decision. The court shall determine whether the petitioner is entitled to the relief sought in the petition, based upon its review of the official record. The court reviewing a final decision under this subsection may adopt the administrative law judge's decision; may adopt, reverse, or modlfjr the agency's decision; may remand the case to the agency for further explanations under 

### G.S. l5OB-36(bl), 15OB-36(b2), or 150B-36(b3), or reverse or modify the final decision for the agency's failure to provide the explanations; and may take any other action allowedby law. (4 In reviewing a final agency decision allowing judgment on the pleadings or summaryjudgment, or in reviewing an agency decision that does not adopt an administrative law judge's decision allowing judgment on the pleadings or summaryjudgment pursuant to 

### G.S.150B-36(d), the court may enter any order allowedby 

### G.S.1A-1, Rule 12(c)or ~ulk 56. Ifthe order ofthe court does not fully adjudicate the case, the court shallremand the case to the administrative lawjudge for such fiuther proceedings as are just. (1973, c. 1331, s. 1; 1983, c. 919, s.4; 1985,c. 746, s. 1; 1987,c. 878, S. 19; 2000-140, s. 94.1; 2000-190, s. 11.)



## 5 150B-52. Appeal; stay of court's decision. A party to a review proceeding in a superior court may appeal to the appellate division fi-omthe fmaljudgment ofthe superior court as provided in G.S. 7A-27. The scope ofreview
to be applied by the appellate court under this section is the same as it 

### is for other civil cases. 

### In cases reviewed under 

### G.S. 150B-51(c), the court's findings of fact shall be upheld 

### if supported by substantial evidence. Pending the outcome of an appeal, an appealingparty may apply to the court that issued thejudgment under appeal for a stay ofthatjudgment or a stay ofthe administrative decision that is the subject ofthe appeal as appropriate. (1973, c. 133 1,

s. 1; 1985,c. 746, s. 1; 1987, c. 878, s. 20; 2000-140, s. 94; 2000-190, s. 

### 12.) 

## $8 150B-53 through 

### 150B-57. Resewed for future codification purposes.

Article 5.

Publication ofAdministrative Rules. 

## $5 150B-58 through 

### 150B-64: Repealed 

### by Session 

### Laws 1991, 

### c. 418, s. 

### 5.

### State Program Description

## 6.1. State or Tribal Primaryandlor Secondary Administering Agencies 

# (s745.324(b)(l) )

A State or Tribe seekingto administer and enforce a
program must submit a description ofthe program. The description ofthe State or Tribal program must include:

a. Thename ofthe Stateor Tribal agency(s)that is orwill be responsible for administering and enforcing the program, the name ofthe official inthe agency(s) designated as the point ofcontact with EPA, and addresses and phone numbers where the official(s) can be contacted

# 1 11.8.1. State or Tribal Primary andlor Secondary Administering Agencies (g 745.324(b)(I))

a. Please list the name ofthe State or Tribal agency(s) that is or will be responsible for

I administering and enforcing the program, the name of the official in the agency(s) designated as the point ofcontact with EPA, and addresses and phone numbers where the official(s) can be contacted:

Agency: NCDept. of Health andHuman Services, Division ofPublic Health, Health Hazards Control Unit

ContactName: Mart T. Giguere

Title: Unit Manager

Address: 1912Mail Service Center

Raleigh, NC 27699- 1912

Telephone: (919) 707-595 1

Fax: (919) 870-4808

E-mail: Maw.Gi~uere@dhhs.nc. gov

Agency:

ContactName:

Title:

Address:

Telephone:

Fax:

E-mail:

### 11.8.1. State or Tribal Primary andlor Secondary Administering Agencies 

# (e745.324(b)(1) )

b. Where more than one agency is or will be responsible for administering and enforcing the program, the State or Tribe must designate a primary agency to oversee and coordinate administration and enforcement ofthe program and serve as the primary contact with EPA.

c. In the event that more than one agency is or will be responsible for administering and enforcing the program, the application must also include a description ofthe functionsto be performed by each agency. The description shall explain how the program will be coordinated by theprimary agency to ensure consistency and effective administration of the lead-based paint training accreditation and certificationprogram within the State or Tribe.1I.B.1.b. Wheremore than one agency is or will be responsible for administering and enforcing theprogram, please designate a primary agencyto oversee and coordinate administration and enforcement of the program and serve as the primary contact with EPA:

Primary Agency: NC De~t, of Health and Human Services, Division ofPublic Health, Health Hazards ControlUnit

Secondary Agency (or Agencies): Not Aplicable

1I.B.I .c. In the event that more than one agencyis or will be responsible for administering and enforcing the program, please include a description of the functions to be performed by each agency:

### ll.

## B.2. Program Elements (9745.326(a)(I))

To demonstrate that the State or Tribal pre-renovation education program is at least as protective as the Federal program, the State or Tribal application must include a description ofthe program that demonstratesthat the program contains all ofthe following elements:

Procedures and Requirements for the distribution of lead hazard information to owners and occupants oftarget housing and child occupied facilities before renovations for compensation Appropriate Infrastructure or Government Capacity



### a. Pre-Renovation Education

The Stateor Tribe must have procedures and requirements for the distribution of lead hazard information to owners and occupants oftarget housing and child-occupied facilitiesbefore renovations for compensation.ll.B.2.a.ProgramElements-Proceduresandrequirements forpre-renovationProcedures andRequirements for thedistribution of lead hazard info.toownersandoccupantsoftarget housing&child-occupied facilitiespriortorenovations for compensation:Clearstandards foridentifying renovationactivitiesthattriggertheinformationdistributionrequirements:Proceduresfordistributing theleadhazardinformationto ownersandoccupantsofhousing&child-occupiedfacilitiespriorto renovationactivities:RequiredistributionofRenovateRightoranapproved alternate,meetingTSCA406(a)contentrequirements,andinaformatreadablebyStateorTribesdiverse audienceofhousingandchild-occupiedownersandoccupants:40CFRPart745SubpartEreference(Federal Program)4pplicant'sCitationReference:IOANCAC41C.0901(b)10ANCAC41C.0907(a)and(b)10ANCAC41C.0901(b)IndicateifvariesfromFederalProgram(**)Reasongivenfor variationThestate programaddsrequirementthat firmsusingEPArecognizedtestkitstodeterminethepresenceofLBPtoprovide said informationinwritingtothe personcontractingfortherenovationpriortothestart oftherenovation

### 11.8.2. Program Elements (5745.326(a)(2))

To demonstrate that the State or Tribal renovation training, certification, accreditation, and work practice standardsprogram is at least asprotective as the Federal program, the State or Tribal application must include a description of the program that demonstrates that the program contains all ofthe following elements:

Procedures and Requirements for Accreditation ofRenovatorand Dust Sampling Technician TrainingPrograms Procedures and Requirements for Certification ofIndividuals and/or Firms Requirements that all Renovationsbe Conductedby Appropriately Certified Individuals and/orFirms using properly trained individuals Work Practice Standards for the ConductofRenovations Appropriate Infrastructure or GovernmentCapacity Tribal Information (TribesOnly)



### b. Accreditation

The State or Tribe must have eitherprocedures and requirements for the accreditation of training
programs orprocedures and requirements for the acceptance ofrenovation training offered by an training providers accredited by EPA or a State or Tribal program authorized by EPA under 40 C.F.R. Part 745 subpart E. Applicant must indicate which procedures and requirements will be used in the accreditationoftrainers.

### ll.B.2.b. Programelements

# - Procedures and requirements for the accreditationof renovation training programs(g 745.326(~))

Please indicate State or Tribal procedures and requirements that will be used for the accreditation ofRenovation training programs or the acceptance ofRenovation training offered by a training provider accredited byEPA or by a State or Tribe authorized byEPA under Section 745,SubpartE (J):

J The Stateor Tribe has established requirements for the accreditation of Renovation training programs (proceed to "Procedures and Requirements for Accreditation," Item 2.a.,page 26)

J The State or Tribe has established procedures or regulations for the acceptance ofRenovation training offered by an accredited training provider in a Stateor Tribe authorized by EPA (proceed to "Procedures and Requirements for Certification," Item 2.b., page 28).

Please describe procedures orrequirements:

### 11.8.2. Program elements (§ 745.326(c))



### b. Accreditation(cont.)

The State or Tribe must have requirements for the accreditation ofrenovation training providers. Stateor Tribal citations for renovation training provider requirements must be included inthis section.ll.B.2.b.ProgramElements-Proceduresandrequirementsforthe accreditationofProceduresandRequirementsforthe accreditation of renovation anddust sampling technician trainingprograms:Trainingcurriculumandapplication requirements:Traininghour requirements:Hands-on training requirements:Traineecompetencyandproficiency requirements:Requirements for trainingprogram quality control:40CFRPart745SubpartE&Lreference(FederalProgram)---§745.225(b)(c)&(e)9745.225(d)(6)&(7)4pplicant'sCitationReference:10ANCAC41C.0904(9)(5)10ANCAC41C.0902(b)10ANCAC41C.0904(e)(5)rndicateifvariesfromFederalProgram(**)ReasongivenforvariationThe Staterequiresanon-site auditforfullapprovalofatrainingcourse.TheFederalProgramdoesnot containthisrequirement.The StateProgramdoesnotprovideforaproficiencytest.TheStateProgram doesrequire acourse examinationminimum score of70%forallcourses.Procedures for there-accreditationoftrainingprograms:----Proceduresfortheoversightoftrainingprograms:Proceduresforsuspensionrevocation,ormodification oftrainingprogramaccreditations:5745.225(c)&$745.225(i)10ANCAC41C.0904(9)(7)10ANCAC41C.0904(i)Course notificationarerequiredatleast10working days priorto thestart date, the federalprogram allows for7businessdays.

### 11.8.2. 

### Program Elements (374532qd))



### c. 

### Certification

The Stateor Tribe must have procedures and requirements for the certification ofrenovators and/or firms. If a State or Tribal program can demonstrate that it is asprotective as the Federal program without requirements for a Dust SamplingTechnician, e.g.,a State or Tribe has requirements for Certified Inspectors or Certified Risk Assessors to do clearance sampling,the State or Tribe program may be authorized without requirements for a Dust Sampling Technician discipline. Citations to the State or Tribal certificationrequirements must be included in this section. Also include a citation ofregulation requiringthat renovation activities are conductedby appropriately certified individuals andlor firms using properly trained individuals.ll.B.2.~.ProgramElements-Proceduresandrequirementsforthe certificationofindividualsandfirmsengagedinrenovationactivities(s745.326(d))The StateorTribemusthaverequirementsforthe certificationofindividualsandflrmthat ensure:Renovatorsand dust sampling technicians aretrainedbyanaccreditedtrainingprogram:Requirecertificationrequirement processforFirmsEstablishproceduresforre-certification:Require the conductof renovation activitiesinaccordance with workpracticestandardsestablishedbythestateorTribe:40CFRPart745SubpartEreference(FederalProgram)ApplicantCitationReference:IOANCAC41C.0903(a),(b)and(c)10ANCAC41C.0902(c)(4)and(dM3)and.0903(c)10ANCAC41C.0906IndicateifvariesfromFederalProgram(**)Reason givenfor variationThe stateprogramrequiresrenovators anddustsamplingtechnicianstomeetdisciplinespecific accreditedtrainingandapplication requirementsforstate certification,thefederalprogramrequiresattending accreditedtrainingonly.The stateprogramrequiresannualfirmre-certification,thefederalprogram requiresfirmre-certificationevery5years.Thestateprogram providesforanapplicationprocessforrecertificationofrenovatorsevery60months andannuallyfor dustsamplingtechnicianrecertification.Establishproceduresforthesuspension,revocation,ormodificationofcertifications:10ANCAC41C.0902(f)and(9)and.0903(d)10ANCAC41C.0902(a),.0906Responsibilitiesofrenovators, dust samplingtechnicians&firmsRequirementsthatallrenovation activitiesbeconductedbyappropriately certifiedindividualsandlorfirmsusingproperly trainedindividuals:§745.90(b)&(c)5745.89(d)§745.85(a).0902(a)andG.S.l3OA-453.l4(a)and(b)and.0907(a)10ANCAC41CI

### 11.8.2. Program Elements (3745.326(e))

The State or Tribe must have requirements or standards that ensure that renovation activities are conducted reliably, effectively, and safely. Required work practice standards for Renovations are:

Renovations must be conducted by certified individuals andlor firms using properly trained individuals



# ~ Renovations are conducted using lead-safe work practices that are at least as protective as the requirements in § 745.85 

# 1 Certified contractors must retain appropriate records



### d. Work Practice Standards

Citations to the State or Tribal work practice standards for renovation activities.I.B.2.cProgram Elements-Work practicestandards fortheconductofrenovationsTheStateorTribe'sworkpractice standards forconductingrenovations must containthefollowingrequirements:RenovationsareconductedonlybyindividualsandlorFirmscertifiedbythe appropriateStateorTribalauthorityto conductorsupervise renovations:Renovationsareconducted using lead-safeworkpracticesthatdonotincreasethe hazardsoflead-basedpainttotheoccupantsofthedwellingorchild-occupied facilityandareatleastasprotectiveasthe requirementsin745.80(b):Renovationsincludepost-renovation cleaningprotocols,includingcleaning verification protocols,oroptionaldustclearancetestingwhere requiredbycontractinconformancewithclearancelevelsestablishedoradoptedbytheStateorTribeaslong astheyareasprotectiveas thestandardsestablishedunderTSCA403:Thecertifiedfirmretainsappropriaterecords:40CFRPart745SubpartEreference(FederalProgram)!j745.85(b)(c)&(d)g745.227(e)(8)ApplicantCitatwnReference:10ANCAC41C.0902(a)and.0903(a)andG.S.130A-453.1410ANCAC41C.0901(b)and.a906-10ANCAC41C.0901(b)and.090610ANCAC 41 C.0907(a)IndicateifvariesfromFederalProgram(**)ReasongivenFor variation