North Carolina Department of Health and Human Services 

Division of Public Health Epidemiology Section 

Occupational and Environmental Epidemiology Branch 

19 12 Mail Service Center Raleigh, North Carolina 27699- 19 12 

Tel 9 19-707-5950 Fax 9 19-870-4808 

Beverly Eaves Perdue, Governor Jeffrey P Engel, 11 D 

Lanier M. Cansler, Secretary State Health Director 

January 20,20 10 

Ms. Liz Wilde 

U.S. EPA Region IV 

6 1 Forsyth Street 

Atlanta, GA 30303-3 104 

Dear Ms. Wilde: 

The Health Hazards Control Unit (HHCU) is pleased to submit North Carolina's 

application package 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 find two 

copies of the application. If you have any questions, please contact me at (91 9) 707-595 1. 

Mary T. Giguere 

Manager 

Health Hazards Control Unit 

MTG/dfc 

Enclosure 

North Cardins Public Health 

worlung for P heakhw nnd sPfu North Csrdin= 

Everywhere. Everyday Eveverybody. 

Location: 5505 Six Forks 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 PROGRAM 
Tab 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 

sheet provides 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 § 402/404 Renovation Program 

U.S. Environmental Protection Agency 

State or Tribe 

Applying for (circle one or both): 

&enovation, Repair, and pain& 

Contact Name: - Mary Giguere 

Agency: NC Department of Health and Human Services, Division of Public Health, 

Health Hazards Control Unit - 

Title: Unit Manager 

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

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 Tribal program; 

-- 

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 A progtam 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 

(5 745.324(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 in the 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, Division of 

Public Health, Health Hazards Control Unit. The North Carolina Legislature ratified 

House Bill 1151 on August 11, 2009, granting the North Carolina Commission for 

Public Health (CPH) authority to establish Rules. The CPH approved the LHMP-RRP 

Temporary Rules on October 30, 2009. The Temporary Rules went 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 Program was effective January 1, 2010. 

Requirements of the LHMP-RRP include the 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 in target housing or child occupied facilities; required work 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 in target housing and child-occupied facilities built before 1978. 

However, an individual who perform renovations of a residential dwelling that is 

owned and occupied by the person, or the person's immediate family, are exempt 

from the requirements. Definitions are adopted from the EPA federal regulation, 

contained in 40 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 by the Program. All initial and refresher training courses conducted in 

North Carolina must be accredited by the 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, and training providers must submit a written notification of intent to teach the 
course in North Carolina 10 working 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 activities for compensation. 

Work practice standards that are required for performing lead-based paint renovation 

activities for compensation in target housing or child-occupied facilities are equivalent 

to the work practice standards in the 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 applicable to 

lead-based paint renovation activities. The overall goal of the outreach program is to 

protect public health and the environment from the hazards of lead-based paint. 

Fiscal program needs will be supported by available 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 Program Approval 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 enforcing the 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 as part of a State or Tribal application. 
January 14,2010 

Mr. A. Stanley Meiburg, Acting Regional Administrator 

Region IV 

U.S. Environmental Protection Agency 

6 1 Forsyth Street, SW 

Atlanta, GA 30303 

Dear Mr. Meiburg: 

In accordance with Section 404 of the Toxic Substances Control Act, I am forwarding North 

Carolina's application for authorization of the Lead-Based Paint Hazard Management Program 

for Renovation, Repair and Painting. The application has been forwarded directly to the 

Environmental Protection Agency's Region IV program office for review. I believe you will find 

it contains the provisions necessary to implement an effective Renovation Program. 

Should you require further information, please contact Ms. Mary Giguere of the North Carolina 

Department of 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 as part of a State or Tribal application. 
ll.A.7. Program Certification for States(opti0nal) (9 745.324(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=s program 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 

,%TORNEY GENEH.4L 

State of North Carolina 

Department of Justice REPLY TO: Grayson G. Kelley 

(91 9) 716-6400 

PO BOX 629 FAX: (919) 716-0135 

Raleigh. North Carolina 

2 7602 

December 30,2009 

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, State of North 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 in the attachment to 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 Program for 

Renovation, Repair and Painting Program. 

Further, I hereby certify in accordance with Section 404(a) of the Toxic Substances 

Control Act, and 40 CFR §745.324(c), that based upon information provided by DHHS, the 

Lead-Based Hazard Management Program for Renovation, Repair and Painting are at 

least as protective of human health and the environment as the Federal Lead-Based Paint 

Renovation Program found 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, 

100 Alabama 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 intent to 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 as to 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 of the public participation. 
ll.A.5. Public Notice and Hearing Summary (5 745.324(a)(2)) 

Notice of rule making and the opportunity for a public hearing was published in the 

North Carolina state register on September 2, 2009. A public hearing was 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 intent to 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 

comments were 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 (s 745.324(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 10A NCAC 4 1 C.0900 

Occupational and Environmental Epidemiology Section: 

10A NCAC 41C .0100 

Public Health Programs: 

N.C. Gen. Stat. §§l30A-1 thru 130A-6 

Rulemaking: 

A. Commission for Public Health 

N.C. Gen. Stat. §§130A-29 thru 130A-33 

10A NCAC 45B 

B. North Carolina Administrative Procedures Act 

General Provisions - N.C. Gen. Stat. 9 9 1 5OB- 1 thru 1 50B-4 

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

Remedies: 

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

Appeals: 

A. Administrative Hearings - N.C. Gen. Stat. $9 150B-22 thru 150B-37 

B. Judicial Review - N.C. Gen. Stat. $8 150B-43 thru 150B-52 
Lead-Based Paint Hazard Management Program for 

Renovation, Repair and Painting: 

N.C. Gen. Stat. $9 130A-453.12 thru 130A-453.21 

Temporary Rules: 10A NCAC 4 1 C.0900 
GENERAL ASSEMBLY OF NORTH CAROLINA 

SESSION 2009 

SESSION LAW 2009-488 

HOUSE BILL 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 1'0 REQUIRE 

ACCREDITATION OF RENOVATION TRAINERS AND RENOVATION TRAINING 

COURSES. 

The General Assembly of North Carolina enacts: 

SECTION 1. Chapter 130A of the General Statutes is amended by adding a new 

Article to read: 

"Article 19B. 

"Certification and Accreditation of Lead-Based Paint Renovation Activities. 

"3 130A-453.12. Definitions. 

Except as provided in subsection (b) of this 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 otherwise resuired by the context, the followinp. definitions apply throughout 

this Article: 

f!l Certified dust sampling technician. - An individual who (i) is employed by a 

certified renovation firm, (ii) has success full^ completed a dust sampling 

technician training course accredited by the Department, and (iii) is certified 

by the Department to perform dust clearance sampling after the completion 

of renovation activities, if the 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 activities covered 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, visited remlarl~ by the same child under 6 years of age, on at 

least two different days 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 children under 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 clearance 
sampling, 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 of individual 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 renovation firm. 

"§ 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-keeping resuirements. 

Certified renovation firms are reauired to distribute EPA-approved pamphlets. "3 130A-453.14. Certification of individuals 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 or her 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 same meaning as provided in Article 19A of this Chapter. 

(4) Conduct cleaning verification for compensation in target housing or 

child-occupied facilities unless the individual is a certified renovator. 

@ 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 the payment of fees pursuant to G.S. 130A-453.17. 

"3 130A-453.15. Renewals of certification. 

@ 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 firm may renew its 

certification by paying the renewal fees and meeting the standards for renewal established by 

the Commission. 

(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 

Page 2 Session Law 2009-488 SL2009-0488 
sampling technician may renew his or her certification by paying the renewal fees and meeting 

the standards for renewal established by the Commission. 

A certified renovator shall renew his or her certification every five years by meeting 

the standards for renewal established by the Commission. 

"€j 130A-453.16. Accreditation of training courses and 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 accreditation of initial 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 a training 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 Department and comply with .. . .. thls Article. 

"3 130A-453.17. Certification and 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 of this Article and shall not revert to the General Fund at the end of the 

fiscal year. The fees shall not exceed the follow in^: 

Maximum Fee 

a Accreditation of a traininkprovider $150.00 

j'2J Reaccreditation of a traininkprovider $150.00 

(3J Accreditation or reaccreditationd'initial courses 

(Per course per language) $2,000 

Accreditation or reaccreditation of refresher courses 

fPer course per language) $2,000 

Certification or recertification of a firm $300.00 

(6J Certification or recertification of a dust sampling 

technician $150.00 

(b) The accreditation fees imposed under this section do not apply to local or State 

governmental remlatory agency personnel, Indian tribes, or nonprofit training; providers. "3 130A-453.18. Work practices find responsibilities of renovation firms, renovators, and 

dust sampling technician$ 

The Commission shall establish standards for work practices and define the responsibilities 

of certified renovators and certified renovation firms and individuals. 

''3 130A-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 requirements for training providers, certified renovators, 

and certified renovation firms and individuals. 

"3 130A-453.20. Exemptions from renovation, repair, and painting requirements. 

The Commission shall adopt rules exempting; certain renovation activities from this Article. 

"3 130A-453.21. Commission to adopt rules. 

The Commission shall adopt rules to implement this Article." 

SECTION 2. 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 of this 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 19A or 19B." 

SL2009-0488 Session Law 2009-488 Page 3 
SECTION 2. This act becomes effective January 1,20 10. 

In the General Assembly read three times and ratified this the 11" day of August, 

2009. 

S/ Walter H. Dalton 

President of the Senate 

S/ Joe Hackney 

Speaker of the House of Representatives 

S/ Beverly E. Perdue 

Governor 

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

Page 4 Session Law 2009-488 
Occupational and Environmental Epidemiology 

Section: 

1OA NCAC 41C .0100 
SUBCHAPTER 41C - OCCUPATIONAL HEALTH 

SECTION .0100 - GENERAL 

10A NCAC 41C .0101 RESERVED FOR FUTURE CODIFICATION 

IOA NCAC 41 C .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 in places of employment; 

(5) implement the Asbestos Hazard Management Program in Section .0600 of these Rules; 

(6) implement the Occupational Health Surveillance Section ,0700 of these Rules. 

(b) The Occupational Health Section shall 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 RESERVED FOR FUTlJRE CODIFICATION 

10A NCAC 41C .0202 RESERVED FOR 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 assisting in any postmortem examinations when so directed by the North Carolina Industrial Commission. 

History Note: Authority G.S. 97-69; 9 7- 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 MEDICAL EXAMS IN DUSTY TRADES 

Employers will be charged a fee for each employee screened by the chest consultant pursuant to G.S. 97-60. The fee for this 

will be eight dollars ($8.00) per x-ray. 

History Note: Authority G.S. 97-72(6); 

Temporary Adoption Eff: January 8, 1992for a Period of 180 Days to Expire on July 5, 1992; 

Eff: March 2, 1992; 

Temporary Amendment Eff: February 10, 1998; 

Amended Eff: April 1, 1999. 

SECTION .0300 - INDUSTRIAL HYGIENE 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-6 
Chapter 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. 

89 1, 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 ensure that all citizens in the State have equal access 

to essential public health services. The General Assembly declares that the mission of the 

public health system is to promote and contribute to the highest level of health possible 

for the people of North 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 the private 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 

contributing to the highest level of health possible for the citizens of North 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 of these services: 

~ealth-su~~ort: 

a. Assessment of health status, health needs, and environmental 

risks to health; 

b. Patient and community education; 

c. Public health laboratory; 

d. Registration of vital events; 

Environmental Health: 

a. Lodging and institutional sanitation; 

b. On-site domestic sewage disposal; 

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 of the 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. 1 lA.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 for Public Health. 

"Communicable condition" means the state of being infected with a 

communicable agent but 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 of an intermediate 

animal, host, or vector, or through the inanimate environment. 

"Department" means the Department of Health 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 if no immediate action is 

taken. 

"Isolation authority" means the authority to issue an order to limit the 

freedom of movement or action of persons or animals that are infected 
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 of the 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 of the 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 of persons 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 of Health and Human Services. 

"Unit of local government" means a county, city, consolidated 

city-county, sanitary district or other local political subdivision, 

authority or agency of local 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. 1 lA.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 of the 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 of the 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 of persons 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 of Health and Human Services. 

"Unit of local government" means a county, city, consolidated 

city-county, sanitary district or other local political subdivision, 

authority or agency of local 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. 1 lA.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 of the provisions of the Workers' Compensation Act with 

respect to occupational disease. 

To receive donations of money, securities, equipment, supplies, realty or 

any other property of any kind or description which shall be used by the 

Department for the purpose of carrying 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 the public 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 of these materials shall 

remain in the Department to be 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 of the State to 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 a report as to the health conditions of these institutions or facilities 

with suggestions and recommendations to the appropriate State 

agencies. It shall be the duty of the persons in immediate charge of these 

institutions or facilities to finish all assistance necessary for a thorough 

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 site inspection; 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 of the 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 of the 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) Steps taken by State and non-State entities to 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 another person authorized by the public official. (1983, c. 891, s. 2.) 
Rulemaking: 

A. Commission for Health Services 

N.C. Gen. Stat. $$130A-29 thru 130A-33 

10A NCAC 45B 

B. North Carolina Administrative Procedures Act 

General Provisions - N.C. Gen. Stat. $5 l5OB- 1 

thru 150B-4 

Rules - N.C. Gen. Stat.$$50B-18 thru 150B- 
A. Commission for Health Services 

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

1 OA NCAC 45B 
Article 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 to protect and promote the public 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. 

1 15C-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 and portable toilets. 

Establishing statewide health outcome objectives and delivery 

standards. 

Establishing permit requirements for the sanitation of premises, utensils, 

equipment, and procedures to be used by a person engaged in tattooing, 

as provided in Part 1 1 of Article 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. 

13 1E-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 as provided in Part 2 of Article 2 of this 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 13 members, four of whom 

shall be elected by the North Carolina Medical Society and nine of whom shall be 

appointed by the Governor. 

(b) One of the 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 of their current 

terms on the State Board of Health, three of whose appointments expire May 1, 1973, and 

two of whose appointments expire May 1, 1975. At the end of the respective terms of 

office of initial members of the Commission, their successors shall be 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 shall be for the balance of the 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 of business. 

(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. 5 1; 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 of the Commission and shall serve for a term of two years or until 

the expiration of his regularly appointed term. (1973, c. 476, s. 125; 1989, c. 727, s. 175; 

2007-1 82, S. 2.) 
3 130A-32. Commission for Public 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 the joint 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 of the annual meeting of the 

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 Carolina 27699- 19 15. 

(b) The petition shall contain the following information: 

(1) either a draft of the proposed rule change or a summary of its 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 supporting the proposal; 

(6) the effect of the proposed rule change on existing practices in the area involved, including cost factors; 

(7) the names and addresses, if known, of those most likely to be affected by the proposed rule change; and 

(8) the name and address of the petitioner. 

(c) The Commission for Public Health or the State Health Director, each within their designated authorities, shall determine, 

based on a study of the 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 of the submitted petition, plus any 

additional information it deems relevant. 

(d) Within the time period prescribed by G.S. 150B-16, the Commission for Public I-lealth or 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-lealth or the State llcalth I>irecto~- shall notis! the petitionel- in 

writing, stating the 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; 

Amended Eff: March 1, 1987; December 22, 1980; 

Transferred and Recodified from 10 NCAC 4B .OIOI Eff: April 4, 1990; 

Amended Efl: December 1, 1990. 

10A NCAC 45B .0102 RESERVED FOR FUTURE CODIFICATION 

10A NCAC 45B .0103 RESERVED FOR FUTURE CODIFICATION 

10A NCAC 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 10A NCAC 39 through 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 27699-1 91 5. 

(c) Every request for a declaratory ruling must include the following information: 

(1) the name and address of the petitioner, 

(2) the statute or rule to which the petition relates, 

(3) a concise statement of the manner in which the petitioner is aggrieved by the rule or statute or its potential 

application to him, and 

(4) the consequences of a failure to 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 of the decision in writing, stating the reasons for the denial of a declaratory ruling. The Department shall issue a 

declaratory ruling 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 making record evidences a failure by the agency to consider specified relevant factors. 

(e) The Department shall not issue a declaratory ruling under the following circumstances: 

(1) if there has been a similar controlling factual determination in a contested case, or if the factual context 

being raised for a declaratory ruling was specifically considered upon adoption of the rule being 

questioned as evidenced by the rule making record; or 

(2) if circumstances stated in the request or otherwise known to the agency show that a contested case hearing 

would presently be appropriate. 

(f) A declaratory ruling procedure may consist of written submissions, oral hearings, or such other procedure as may be 
deemed appropriate, in the discretion of the Department, in the particular case. 

(g) The Department may issue notice to persons who might be affected by the ruling that written comments may be submitted 

or oral presentations received at a scheduled hearing. 

his tor.^ Note: Aztrhoritj. G S 1 SOB-4, 

Efl Februu~y 1, 1 Y 76, 

Amended Eff Murch I, 1 Y8', Dr~.e~liber 22, 1980. 

Transferred and Recod~f~edfrom 10 NCAC 1B ,0108 Efi .4pril1, 1990; 

Amended Eff November I, 2005; December 1, 1990. 

10A NCAC 45B .0105 RESERVED FOR FUTURE CODIFICATION 
B. North Carolina Administrative Procedures Act 

General Provisions - N.C. Gen. Stat. $5 l5OB- 1 

thru 15OB-4 

Rules - N.C. Gen. Stat. @ 150B-18 thru 150B2 1.27 
Chapter 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 of rule making, investigation, advocacy, and adjudication are not 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) The Employment 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 Session Laws 2000-189, s. 14, effective July 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 of Article 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, and parolees. 

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 143B of the 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 Development Program 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 of Article 10 

of Chapter 143B of the General Statutes. 

The Community Colleges System Office in developing guidelines for 

the Community College Facilities and Equipment Fund. 

The Department of Commerce in developing guidelines for the North 

Carolina Economic Development Reserve. 

The State Ethics Commission with respect to Chapter 13 8A and Chapter 

120C of the 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 

of this 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 

safeguards mandated by Section 680 of Part H of Public Law 99-457 as 

amended (Education of the Handicapped Act Amendments of 1986). 

(2) Repealed by Session Laws 1993, c. 501, s. 29. 

(3), (4) Repealed by Session Laws 200 1-474, s. 35, effective November 29, 

200 1. 

(5) Hearings required pursuant to the Rehabilitation Act of 1973, (Public 

Law 93-122), as amended and federal regulations promulgated 
thereunder. G.S. 150B-5 1 (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 of Transportation, 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 of the 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; 199 1 (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. 1 lA.llO, 1 lA.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).) 

fj 150B-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 of government is not an agency. 

"Adopt" means to take 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 case hearing 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 Chapter 20 and Subchapter I of Chapter 105 of the 

General Statutes and 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 initial judicial review of that 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 sue or be sued under a common name. 

(8) "Residence" means domicile or principal place of business. 

(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 

a prior rule. The term does not include the 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- 1 1 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 licensing 
board, 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 of a statute or rule. 

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 as provided in G.S. 13 1E- 176(25), 

reviewed by the Commission for compliance with G.S. 

13 1 E- 1 76(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. 41 8, s. 3. (1973, c. 133 1, 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 for judicial 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 for retention of the license or occupational license. 

(c) If the 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. 1 lA. 11 8(a); 1998-162, s. 8.) 

§ 150B-4. Declaratory rulings. 

(a) On request 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 on the agency and the person 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 of the 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 of the request and shall be subject to judicial review. 

(b) Repealed by Session Laws 1997-34, s. 1. (1973, c. 133 1, 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 to do 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 of review set in G.S. 150B-21.9(a)(3). 

Establishes a fee or other charge for providing 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 of the following: 

a. A service to a State, federal, or local governmental unit. 

b. A copy of part or all of a State publication or other document, the 

cost of mailing a document, or both. 

c. A transcript of a public hearing. 

d. A conference, workshop, or course. 

e. Data processing 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 submitting to 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 the 
requested 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 120 days 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 state whether the agency endorses the proposed text. 

(d) Review. - Denial of a rule-making petition is a final agency decision and is 

subject to judicial review under Article 4 of this 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 to the agency head. 

(b) The rule-making coordinator shall be responsible for the following: 

Preparing notices of public hearings. 

Coordinating access to the 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 as required by G.S. 1 SOB-2 1.4(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 

and the North Carolina League of Municipalities with copies of all fiscal 
notes required by G.S. 150B-2 1.4(b), prior to publication in the North 

Carolina Register of the proposed text of a permanent rule change. 

(6) Coordinating the submission of proposed rules to the Governor as 

provided by G.S. 150B-2 1.26. 

(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 any rules 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-2 1.4(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 

of federal 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 is required by law. If all or part 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 of the 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 of Rules. 

5 150B-21.1. Procedure for adopting a 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-2 1.2 would be contrary to 

the public interest and that the immediate adoption of the rule is required by one or more 

of the following: 

A serious and unforeseen threat to the public 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 of public hearing is submitted to the Codifier of Rules 

prior to the effective date of the Plan. 

The need for the Wildlife Resources Commission to establish any of the 

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 of Policy 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 147 of the General Statutes. 

The need for the State Board of Elections to adopt a temporary rule after 

prior notice or hearing or upon any abbreviated notice or hearing the 

agency finds practical for one or more of the following: 

a. In accordance with the provisions of G.S. 163-22.2. 

b. To implement any provisions of state or federal law for which the 

State Board of Elections has been authorized to adopt rules. 
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) 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 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-2 1.9, the Commission or its designee must immediately notify the 

head of the agency and return 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 do not meet the required criteria or that the rule 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 of Chapter 1 of the General Statutes. 

(b3) Notwithstanding any other provision of this subsection, if the agency has not 

complied with the provisions of G.S. 12-3.1, the Codifier of Rules shall not enter the rule 

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, effective July 1, 2003. 

(13) Reserved 

(1 4) Reserved. 

(15) Expired pursuant to Session Laws 2002-164, s. 5, effective October 1, 

2004. 

(1 6) Expired pursuant to Session Laws 2003- 184, s. 3, effective July 1,2005. 

(al) Recodified as subdivision (a)(16) of this 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 of the 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 submitted by 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 of the public hearing. 

Accept written comments on the proposed temporary rule for at least 15 

business days prior to adoption of the temporary rule. 

Hold at least one public hearing on the proposed temporary rule no less 

than five days after the 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-2 1.9. The court shall not grant an ex parte 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 of the 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 the rule. 

(2) The effective date of the permanent rule adopted to replace the 

temporary rule, if the Commission approves the permanent rule. 

(3) The date the Commission returns to an agency a permanent rule the 

agency adopted to replace the temporary 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 an emergency rule. 

(a) Adoption. - An agency may adopt an emergency rule without prior notice or 

hearing or upon any abbreviated notice or hearing the agency finds practical 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 of the rule 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 accordance 
with 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 State or federal law. 

(b) Review. - An agency must prepare a written statement of its findings of need 

for an emergency rule. 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 of Rules 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 of Rules. 

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 of need 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. If the Codifier of Rules again 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. 

If an agency decides not to provide additional findings or submit a new statement 

when notified by the Codifier of Rules that the agency's findings of need for a rule do not 

meet the required criteria, the agency must notify the Codifier of Rules of its decision. 

The Codifier of Rules must then enter the rule in the North Carolina Administrative Code 

on the sixth business day after receiving notice of the agency's decision. Notwithstanding 

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

of G.S. 12-3.1, the Codifier of Rules shall not enter the rule into the Code. 

(c) Standing. - A person aggrieved by an emergency 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-2 1.9. The court shall not grant an ex parte 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 a 
copy of the complaint on the 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, if the 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 submitted to 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 of text in the North Carolina Register. 

(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) of this section. 

(b) Repealed by Session Laws 2003-229, s. 4, effective July 1, 2003. 

(c) Notice of Text. - A notice of the proposed text of a rule must include all of the 

The text of the proposed rule. 

A short explanation of the reason for the proposed rule. 

A citation to the law that gives the agency the authority to adopt the 

rule. 

The proposed effective date of the rule. 

The date, time, and place of any public hearing scheduled on the 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 on the proposed rule when requested to do so. 

The period of time during which and the person to whom written 

comments may be submitted on the proposed 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 a public 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 after the notice of text is published. 

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 a public hearing held after the agency publishes notice of the 

hearing in the North Carolina Register must be at least 15 days after the date the notice is 

published. If notice of a public hearing has been published in the North Carolina Register 

and that public hearing has been cancelled, the agency shall publish notice in the North 

Carolina Register at least 15 days prior to the 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 shall not adopt a rule if more than 12 months 

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 from the 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 different rule for the time set in subsection (f) of this section. 

An adopted rule differs substantially from a proposed rule if it does one or more of the 

following: 

(1) Affects the interests of persons who, based on the proposed text of the 

rule published in the North Carolina Register, could not reasonably have 

determined that the rule would affect their interests. 

(2) Addresses a subject matter or an issue that is not addressed in the 

proposed text of the rule. 
(3) Produces an effect that could not reasonably have been expected based 

on the proposed text of the 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 of the agency's adoption of the 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 15 days after receipt of the 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 effective date applies under this section. 

If a bill that specifically disapproves the rule is introduced in either house of the General 

Assembly before the thirty-frst legislative day of that 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 or that is specifically disapproved 

by a bill enacted into law before it becomes effective does not become effective. 

A bill specifically disapproves a rule if it contains a provision that refers to the rule by 

appropriate North Carolina Administrative Code citation and states that the rule is 
disapproved. 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) of this 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 10 or 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-2 1.2(~)(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 following the day it receives 10 or 

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 of adjournment of the 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 disapproved by a bill enacted into law is repealed 

as of the date specified in the bill. If a rule that is made effective by executive order is not 

specifically disapproved by a bill enacted into law within the time set by this subsection, 

the Codifier of Rules must note this 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 of G.S. 12-3.1. 
(d) Legislative Day and Day of Adjournment. - 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 10 days. 

(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-2 1 S(a)(l) through (a)(5) or G.S. 150B-2 1.5(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. 7.1 O(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 funds that would be expended or distributed as a 

result of the proposed rule change and explain how the amount was computed. The 

Director of the Budget must certify a proposed 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 of Transportation prior to adopting the 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 later 
than 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-2 1.3(b 1). 

(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 to the Office of the 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 Ofice of State Budget and Management or prepare 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 of these expenditures. 

(3) A description of the purpose and benefits of the proposed rule change. 
(4) An explanation of how the estimate of expenditures was computed. 

(c) Errors. - An erroneous fiscal note prepared in good faith does not affect the 

validity of a rule. (1973, c. 133 1, s. 1; 1979, 2nd Sess., c. 1 137, s. 4 1.1; 1983, c. 76 1, 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. Circumstances when 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 a telephone 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 of the 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) The rule is declared to be in excess of the 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 a rule for which notice and hearing is not required under this subsection. 

(d) State Building 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 subject matter of the proposed rule making. 

(2) A short explanation of the reason for the proposed 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 the procedural requirements of G.S. 150B-21.3. (1991, c. 41 8, 

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 of the referenced material: 

(I) Another rule or part of a rule adopted by 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) Repealed by 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 of the 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 incorporates material 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. 133 1, 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 of transfer of duties or termination of agency on rules. 

When a law that authorizes an agency to adopt a rule is repealed and another law 

gives the same or another agency substantially the same authority to adopt a rule, the rule 

remains in effect until the agency amends or repeals the rule. 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 authority to adopt a rule, a rule adopted under the repealed 

law is repealed as of the 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 of the effective date of the 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. (1 973, c. 133 1, s. 1 : 1985, c. 746, s. 1 ; 199 1. 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 or permanent 

rule in accordance with the standards in G.S. 150B-2 1.9 and follows the procedure in this 

Part in its review of a rule. 

(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 

of review 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 

of the General Statutes. (1991, c. 41 8, 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 and unambiguous. 

(3) It is reasonably necessary to implement or interpret an enactment of the 

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 specific purpose for which the rule 

is proposed. 

(4) It was adopted in accordance with Part 2 of this Article. 

The Commission shall not consider questions relating to the quality or efficacy of the 

rule but shall restrict its review to determination of the standards set forth in this 

subsection. 
The Commission may ask the Office of State Budget 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 of whether the rule 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 of this 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-2 1.1. (199 1, 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 99 1, 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 of the 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. Procedure when 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 of the 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 of the 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-2 1.2(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 of its action and must send a 

copy of the record of the Commission's review of the rule 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 

Commission when 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 the rule of the extension and the reason for the extension. 

After the Commission extends the period for review of a rule, it may call a public hearing 

on the rule. Within 70 days after extending the period for review of a rule, the 
Commission must decide whether to approve the rule, object to the rule, or call a public 

hearing on the rule. (1 99 1, 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 of the 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 of whether to approve or object to the rule within 70 days after the 

public hearing. (1991, c. 41 8, 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 of Rules. (1995, c. 507, s. 27.8(j).) 

Part 4. Publication of Code 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 

contain the following: 

(I) Temporary rules entered in the North Carolina Administrative Code. 

(la) The text of proposed rules and the text of permanent rules approved by 

the Commission. 

(lb) Emergency rules entered into the North Carolina Administrative Code. 

(2) Notices of receipt of a petition for municipal incorporation, as required 

by G.S. 120-165. 

(3) Executive orders of the Governor. 

(4) Final decision letters from the United States Attorney General 

concerning changes in laws that affect voting in a jurisdiction subject to 
section 5 of the Voting Rights Act of 1965, as required by G.S. 

120-30.9H. 

(5) Orders of the Tax Review Board issued under G.S. 105-24 1.2. 

(6) Other information the Codifier determines to be helpful to the public. 

(b) Form. - When an agency publishes notice in the North Carolina Register of the 

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 

indicate the rule is new by underlining the proposed text of the 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 of Rules 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. 133 1, 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. 41 8, 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 the rule is adopted. 
(2) Be signed by the head of the agency or the rule-making coordinator for 

the agency that adopted the rule. 

(3) Be in the physical form specified by the Codifier of Rules. 

(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. (1 973, c. 133 1, s. 1 ; 1979, c. 57 1, 

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; 

199 1, c. 41 8, s. 1; 1995, c. 507, s. 27.8(1); 2002-97, s. 4.) 

tj 150B-21.20. Codifier's authority to revise form of rules. 

(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 of the 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 of the rule. 

Reletter or renumber the rule or the subparts of the rule in accordance 

with a uniform 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 of the 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 on how to obtain a copy of the omitted material. 

(b) Effect. - Revision of a rule by the Codifier of Rules 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 of Rules revises the form of a rule, the Codifier of Rules 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. 133 1, 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 of the 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 

same manner 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 of Rules those rules of the 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 30 days 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 of Rules 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 of inclusion 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 of text in the North Carolina 

Register and for filing a rule in the North Carolina Administrative Code. (1 973, c. 133 1, 

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 

of the current volume of the Register to any person who receives a free copy of the North 

Carolina Administrative Code or any member of the 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 of commissioners of each 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 of county commissioners unless a request is made. 

One copy to the Commission. 

One copy to the Clerk of the Supreme Court and to the Clerk of the 

Court of Appeals of North Carolina. 

One copy to the Supreme Court Library and one copy to the library of 

the Court of Appeals. 

One copy to the Administrative Office of the 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, effective August 29, 2002. 

One copy to the Division of State Library of the Department of Cultural 

Resources pursuant to G.S. 125- 1 1.7. (1973, c. 133 1, 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 1 1, s. 3; 1989, c. 

500, s. 43(a); 1991, c. 41 8, s. 1; 2002-97, s. 1 .) 

€j 150B-21.25. Paid copies of Register and Code. 

A person who is not entitled to a free copy of the 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) The text of the proposed rule change. 

(2) A short explanation of the reason for the 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 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 of the following: 

(1) The agency's explanation of the 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. 41 5, 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-28 
Part 2. Remedies. 

5 130A-17. Right of entry. 

(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) 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. 1 lA.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 of the 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, 1 1, 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 of the 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 as provided therein. 

(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. 

(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. Abatement of an 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 of the abatement of the 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 

showing that that person was not culpable in the creation of the imminent hazard. 

(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. 

(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 

Services pursuant to G.S. 106-125, the Secretary of Environment 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 subject to regulation by the Department of Environment and Natural 

Resources pursuant to this Chapter, that is subject to rules adopted by the Commission, or 
that 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 and rules 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 and procedures in G.S. 106-125 shall be carried out by the Secretary 

of the Department of Environment 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 the provisions 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 of the detained or embargoed milk without 

that permission. 

The official by whom the milk was detained or embargoed shall petition a judge of 

the district or superior court in whose jurisdiction the milk is detained or embargoed for 

an order for condemnation of the article. If the court frnds that the milk is misbranded or 

that it does not satisfy the milk sanitation rules adopted pursuant 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 expenses 
and afier the 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 a judge or the district or superior court in whose jurisdiction the article is 

detained or embargoed for an order for condemnation of the article. If the court finds that 

the article is adulterated or misbranded, that article shall be destroyed under the 

supervision of the petitioner. All court costs and fees, storage and other expense shall be 

taxed against the claimant of the 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 of Agriculture 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 of their 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. 1 1A.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. The penalty shall not exceed fifteen thousand dollars ($15,000) per day in the 

case of a violation involving nonhazardous waste. The penalty shall not exceed thirty-two 

thousand five hundred dollars ($32,500) per day in the case of a first violation involving 
hazardous 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-3 1 O.~(C) or a violation of the rules 

adopted pursuant to G.S. 130A-3 10.12(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 of the date the final agency 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 or penalty pursuant to subsection (a) of this section. 

(b) The Secretary of Environment and Natural Resources may impose an 

administrative penalty on a person 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 19 of this Chapter or a rule adopted pursuant to that Article. Except as provided in 

subsection (b2) of this 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 a penalty under this subsection or subsection (b2) of this 

section, the Secretary shall consider all of the following factors: 

(I) The degree and extent of harm to the natural resources of the State, to 

the public health, or to private property resulting fiom the violation. 

(2) The duration and gravity of the violation. 

(3) The effect on air quality. 

(4) The cost of rectifying the damage. 

(5) The amount of money the violator saved by noncompliance. 

(6) The prior record of the violator in complying or failing to comply with 

Article 19 of this Chapter or a rule adopted pursuant to that Article. 

(7) The cost to the State of the 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 written 
notification 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 11 of this 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 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. 

(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 and judicial review in 

accordance with Chapter 1 SOB of the General Statutes, the Administrative Procedure Act. 
(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 a person: 

(1) Who has not requested an administrative hearing in accordance with 

subsection (e) of this section fails to pay the penalty within 60 days after 

being notified of the 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 

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. 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 and judicial review in accordance with G.S. 

130A-24. A local board of health shall adopt rules concerning the imposition of 

administrative penalties 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 accordance with 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. 1 1A.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 of permits 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 the 
Commission 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 or revoke the permit or program participation and that an administrative hearing 

will be held in accordance with Chapter 150B of the 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 of Environment 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 or revocation 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 of Articles 8, 9, 10, 

1 1, and 12 of this Chapter. (1983, c. 89 1, s. 2; 1987, c. 827, s. 1 ; c. 438, s. 3; 1993, c. 2 1 1, 

s. 2; 1993 (Reg. Sess., 1994), c. 732, s. 2; 1995, c. 123, s. 15; 1997-443, s. 1 lA.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 governed by Chapter 150B of the 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 of the United States Postal Service addressed to the person at the latest address 

provided to the agency by the person. 
(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 of the aggrieved person, a description of the 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 statement of the 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 shall be 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, 1 1, 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 of health shall be guilty of a misdemeanor. 

(b) A person convicted under this section for violation of G. 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 of these persons. 

(c) Notwithstanding G.S. 148-4.1, G.S. 148-13, or any other contrary provision of 

law, a person imprisoned for violation of G.S. l3OA- 144(f) or G.S. l3OA- 145 shall not 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 not 
create 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 of the person's county of residence, 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 subjective mental 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 exercise of due 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 of the 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 on the 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 agencies that the conflict exists and will cause a 

violation of the 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 of 
Environment 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 

during which 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 of delivery 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 as required 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 of compliance 

with rules promulgated under G. S. 13 0A-294(c). 

Generates, stores, treats, transports, disposes of, exports, or otherwise 

handles any hazardous 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 of Article 9 of this Chapter. 

Provides false information or fails to provide information required by a 

brownfields agreement under Part 5 of Article 9 of this Chapter. 

Provides false information relevant to a decision by the Department 

pursuant to: 

a. G.S. 13OA-308(b). 

b. G.S. 13OA-3 lO.'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, if he is aware of the nature of his conduct; 

b. An existing circumstance, if he is aware or believes that the 

circumstance exists; or 

c. A result of his conduct, if he is aware or believes 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 of death or serious bodily injury: 

a. The person is responsible only for actual awareness or actual 

belief that he possessed; 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. 1 1A.67.) 

5 130A-26.2. Penalty for false reporting under Article 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 of this Chapter; 

Removes or permits the removal of a dead body of a human being 

without authorization provided in Article 4 of this Chapter; 

Refuses or fails to furnish correctly any information in the person's 

possession or hishes false information affecting a certificate or record 

required by Article 4 of this Chapter; 

Fails, neglects, or refuses to perform any act or duty required by Article 

4 of this Chapter or by the instructions of the State Registrar prepared 

under authority of the Article. 
(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 authorized by 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 of any copy of a 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, or report, which is counterfeited, altered, amended, or .. -- 

mutilated, or which is false in whole or in part or which relates to the 

birth of another 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, or uses 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 or possesses 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 of the 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. 3 11, 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 the Attorney General or a district attorney pursuant to G.S. 1-532. (1 983, c. 89 1, s. 2.) 
Appeals: 

A. Administrative Hearings - N.C. Gen. Stat. 5 5 1 SOB22 thru 150B-37 

B. Judicial Review - N.C. Gen. Stat. $5 150B-43 thru 

15OB-52 
A. Administrative Hearings - N.C. Gen. Stat. 5 5 l5OB22 thru 150B-37 
Chapter 150B 

consideration of the following: 

(1) The agency's explanation of the 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-2 1.4(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 Ofice of 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 fiscal year. 

(3 Provide the Governor, the General Assembly, the North Carolina 

Association of County Commissioners, and the North Carolina League of 

Municipalities with a copy of the 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. 

Administrative Hearings. 

€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 

informal procedures, the agency may not conduct a proceeding at which sworn testimony is 

taken and witnesses may be cross-examined. If the 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 of county commissioners unless a request is made. 

One copy to the Commission. 

One copy to the Clerk of the Supreme Court and to the Clerk of the Court 

of Appeals of North Carolina. 

One copy to the Supreme Court Library and one copy to the library of the 

Court of Appeals. 

One copy to the Administrative Office of the 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, effective August 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. 11 11, s. 3; 1989, c. 500, s. 43(a); 

1991, c. 418, s. 1; 2002-97, s. 1.) 

Paid copies of Register and 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 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. (199 1, c. 4 18, s. 1 .) 

Part 5. Rules Affecting Local Governments. 

5 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: 

(1) The text of the proposed rule change. 

(2) A short explanation of the reason for the 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 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 
§ 150B-22.1. Special education petitions. 

(a) Notwithstanding any other provision of this Chapter, timelines and other procedural 

safeguards required to be provided under IDEA and Article 9 of Chapter 115C of the General 

Statutes must be followed in an impartial due process hearing initiated when a petition is filed 

under G.S. I 15C- 109.6 with the Office of Administrative Hearings. 

(b) The administrative law judge who conducts a hearing under G.S. 1 15C- 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, the judge must possess knowledge of, and the ability to 

understand, IDEA and legal interpretations of IDEA by federal and State courts. The judges 

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 of property, has ordered the petitioner to pay a fine or civil penalty, or 

has otherwise substantially prejudiced the petitioner's rights and that the agency: 

(I) Exceeded its authority or jurisdiction; 

(2) Acted erroneously; 

(3) Failed to use proper procedure; 

(4) Acted arbitrarily or capriciously; or 

(5) Failed to act as required 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 final decision shall be 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 the 
case 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 of the factual allegations. 

(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 of notice cannot be accomplished either personally or by certified mail, notice shall then 

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 law judge. 

(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 Service wrapped 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 settlement request 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. 133 1, 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 law judge 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 of mediated settlement conferences 

may make the operation of the Office of Administrative Hearings more efficient, less costly, 

and more satisfying to the parties. 

(b) Definitions. - The following definitions apply in this section: 

(1) Mediated settlement conference. - A conference ordered by the chief 
administrative 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-3 8. 

(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 

law judge. 

(e) Mediator. - The parties shall have the right to stipulate to a mediator. Upon the 

failure of the parties to agree within a time limit established by the presiding administrative law 

judge, a mediator shall be appointed by the presiding administrative law judge. 

(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 law judge 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 mediation pilot program under G. S. 7A-3 8. 

(h) Immunity. - A mediator acting pursuant to this section shall have judicial immunity 

in the same manner and to the same extent as a judge of the General Court of Justice. 

(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 law judge. 

(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 governed by Rule 408 of the North Carolina Rules of Evidence. 

(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 shall be conducted: 

(1) In the county in this State in which any person whose property or rights are 

the subject matter of the hearing maintains his residence; 

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

or rights that are the subject matter of the hearing do not affect any person or 

if the 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 discretion to 

promote the ends ofjustice or better serve the convenience of witnesses. 

(b) Any person whose property or rights are the subject matter of the hearing waives 
his 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 if no 

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 shall be given an opportunity to present arguments on issues of law and 

policy and an opportunity to present evidence on issues of fact. 

(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. 133 1, 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 

sufficient in law the subpoena may be quashed. 

Witness fees shall be paid by the party requesting the subpoena to 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 CM Procedure, G.S. 1A-1. Parties in contested cases may engage in discovery 

pursuant to the provisions of the Rules of Civil Procedure, 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 of evidence 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 show relevant 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 inadmissible under this section. The party with the burden of proof 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. 133 1, 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. 

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. (1 973, c. 133 1, 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 another provision in this Article, this section controls. 

(b) Simple Procedures. - The Chief Administrative 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 

personnel of the 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 

confidential until the frnal decision is issued in the case. (2007-49 1, s. 42; 2008- 134, s. 9.) 

Ej 150B-32. Designation of administrative law judge. 

(a) The Director of the Ofice of Administrative Hearings shall assign himself or 

another administrative law judge 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 of personal 

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 

to judicial review at the conclusion of the 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 dismissed without 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 of administrative law judge. 

(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, if the 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 expeditiously as possible. 

(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 of Civil,Procedure; 

(3a) Rule on all prehearing motions that are authorized by G.S. 1A-I, the Rules 
of Civil 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 shall be 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 law judge 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 law judge make findings of fact and conclusions of law 

as to the specific claim for relief. The administrative law judge may refuse to 

accept a remand if there is a sufficient record to allow the agency to make a 

final decision. (1973, c. 133 1, 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 shall make a decision that contains findings of fact 

and conclusions of law and return the decision to 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 and 
expertise of the agency with respect to facts and inferences within the specialized knowledge 

of the agency. All references in this Chapter to the administrative law judge's decision shall 

include orders entered pursuant 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 13 1E of the General Statutes, the administrative law judge shall make a recommended 

decision or order that contains findings of fact and conclusions of law. A final decision shall be 

made by the agency in writing after review of the official record as dehed in G.S. 150B-37(a) 

and shall include findings of fact and conclusions of law. The final agency decision shall recite 

and address all of the 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-3 1. 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. 11 11, 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. 133 1, 

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

5 150B-36. Final decision, 

(a) Before the agency makes a final decision, it shall give each party an opportunity to 

file exceptions to the decision made by the administrative law judge, 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 affidavit of personal bias or other reason for disqualification 

of a member of the 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 of the 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 of the official 

record as defined in G.S. 1 5OB-37(a) and shall include findings of fact and conclusions of law. 

The agency shall adopt each finding of fact contained in the administrative law judge'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 of 
witnesses. 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 law judge's decision. the agency shall 

follow the procedures set forth in subsections (bl) and (b2) of this 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 of fact. 

(2) The evidence in the record relied upon by the agency in not adopting the 

finding of fact contained in the administrative law judge's decision. 

Any finding of fact not specifically rejected as required by this subsection shall be deemed 

accepted for purposes of judicial 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 law judge'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 

administrative law judge unless the agency demonstrates that the decision of the administrative 

law judge 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 of the 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 of this Chapter: 

(I) A determination that the Office of Administrative Hearings lacks jurisdiction. 

(2) An order entered pursuant 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) of this section, a decision granting a 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 law judge to be required or 

allowed by G.S. 1A-I, Rule 12(c) or Rule 56. For any decision by the administrative law judge 

granting judgment on the pleadings or summary judgment that disposes of all issues in the 

contested case, the agency shall make a final decision. If the agency does not adopt the 

administrative law judge's decision, it shall set forth the basis for failing to adopt the decision 

and shall remand the case to the administrative law judge for hearing. The party aggrieved by 

the agency's decision shall be entitled to immediate judicial review of the decision under 

Article 4 of this Chapter. (1973, c. 133 1, 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 of the case that includes: 

(1) Notices, pleadings, motions, and intermediate rulings; 

(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; and 

(5) Repealed by Session Laws 1987, c. 878, s. 25. 

(6) The administrative law judge'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 of the transcript or part 

thereof or copy of said transcript or part thereof which said party requests, and said transcript 

or part thereof shall be added to the official record as an exhibit. 

(c) The Office of Administrative Hearings shall forward a copy of the official record to 

the agency making the final decision and shall forward a copy of the administrative law judge's 

decision to each party. (1973, c. 133 1, s. 1; 1985, c. 746, s. 1; 1987, c. 878, ss. 13, 25; 

2000-190, S. 8.) 

Article 3A. 

. Other Administrative Hearings. 

6j 150B-38. Scope; hearing required; notice; venue. 

(a) The provisions of this Article shall apply to: 

(1) Occupational licensing agencies. 

(2) The State Banking Commission, the Commissioner of Banks, and the Credit 

Union Division of the Department of Commerce. 

(3) The Department of Insurance and the Commissioner of Insurance. 

(4) The State Chief Information Officer in the administration of the provisions of 

Article 3D of Chapter 147 of the General Statutes. 

(5) The North 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 days 
before the hearing. Notice to the parties shall include: 

(I) A statement of the date, hour, place, and nature of the hearing; 

(2) A reference to the particular sections of the 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 shall be 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 46 1). 

(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 10 days 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 of justice or better serve the convenience of witnesses, the agency or the administrative 

law judge may designate another county. A person whose property or rights are the subject 

matter of the hearing waives his objection to venue if he 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 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. 

(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. 75 1, 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 of the Rules of Civil 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 internal procedures 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 party 
requesting 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 

shall be reimbursed as provided in G.S. 138-6. (1985, c. 746, s. 1; 1991, c. 35, s. 8.) 

8 150B-40. Conduct of hearing; presiding officer; ex parte 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 of or for the use of the agency and offered into evidence, submit rebuttal evidence, and 

present arguments on issues of law 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 of the party. 

(b) Except as provided under subsection (e) of this 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 to judicial 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 assigned to continue with the case, except that if assignment of a new presiding officer 

will cause substantial prejudice to any party, a new hearing shall be held or the case dismissed 

without prejudice. 

(c) The presiding officer 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 of testimony by deposition; 

(4) Regulate the course of the hearings, set the time and place for continued 

hearings, and fix the time for filing of briefi and other documents; 

(5) Direct the parties to appear and confer to consider simplification of the 

issues by consent of the parties; and 

(6) Apply to any judge of the 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 pending in 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 of f'act and conclusions of law in 

a contested case under this Article shall not 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 of the agency staff other than the staff which has 

been or is engaged in investigating or 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 of Administrative 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 

administrative law 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 administrative law judge shall make a proposal for decision, which shall 

contain proposed findings of fact and proposed conclusions of law. 

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, if the 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 expeditiously as possible. 

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 otherwise provided, the rules of evidence 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 show relevant 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, 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. 
(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 evaluation of evidence presented to it. (1985, c. 

746, s. 1.) 

5 150B-42. Final agency decision; official record. 

(a) After compliance with ~hc provisions of G.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 

such portion thereof as may be cited by any party to the proceeding and shall be 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 shall prepare an official record of a hearing that shall include: 

(1) Notices, pleadings, motions, and intermediate rulings; 

(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 shall bear the cost of the transcript or part 

thereof or copy of said transcript or part thereof which said party requests. (1985, c. 746, s. 

1.1 

Article 4. 

Judicial Review. 

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-43 thru 

150B-52 
Chapter 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 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 evaluation of evidence presented 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 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 

such portion thereof as may be cited by any party to the proceeding and shall be 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 shall prepare an official record of a hearing that shall include: 

(1) Notices, pleadings, motions, and intermediate rulings; 

(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 shall bear the cost of the transcript or part 

thereof or copy of said transcript or part thereof which said party requests. (1985, c. 746, s. 

1 .) 

Article 4. 

Judicial Review. 

5 150B-43. Right to judicial review. 

Any person who is aggrieved by the final decision in a contested case, and who has 
exhausted 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 to judicial intervention when decision unreasonably delayed. 

Unreasonable delay on the part of any agency or administrative law judge 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 law judge. 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 Administrative Hearings 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 of up to 60 days. An agency that is subject to Article 3 of this Chapter and is 

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

case from the Office of Administrative 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 of up 

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 is justification for a person whose rights, duties, or privileges are adversely affected by 

the delay to seek a court order compelling action by the agency or, if the case was heard by 

an administrative law judge, by the administrative law judge. 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. 105-24 1.15 must 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 to judicial review under this Article. For good cause shown, however, the superior court 

may accept an untimely 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 administrative proceedings. Names 

and addresses of such parties shall be hished to 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 of superior court; contents of records; costs. 

Within 30 days after receipt of the copy of the petition for review, or within such additional 

time as the 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 occasioned by 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 of decision. 

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. New evidence. 

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

present additional evidence. If the 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 law judge made a decision in the case, the court shall remand the case to the 

administrative law judge. After hearing the evidence, the administrative law judge may a&m 
or 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 law judge or final decision 

shall be 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. Review by superior court without jury. 

The review by a superior court of agency decisions under this Chapter shall be conducted 

by the court without a jury. (1973, c. 1331, s. 1; 1983, c. 919, s. 2; 1985, c. 746, s. 1; 1987, c. 

878, s. 18.) 

5 150B-51. Scope and standard 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(b 1), 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. If the 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 shall reverse 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 law judge'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 official record. 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). If the 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) of this section. 

(b) Except as provided in subsection (c) of this section, in reviewing a £ha1 decision, 

the court may afkn the 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 of constitutional provisions; 
(2) In excess of the statutory authority or jurisdiction of the agency; 

(3) Made upon unlawful procedure; 

(4) Affected by other error of law; 

(5) Unsupported by substantial evidence admissible under G.S. 150B-29(a), 

150B-30, or 150B-3 1 in view of the entire record as submitted; or 

(6) Arbitrary, capricious, or an abuse of discretion. 

(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 law judge's decision, the court shall review 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 shall not 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 allowed by law. 

(4 In reviewing a final agency decision allowing judgment on the pleadings or 

summary judgment, or in reviewing an agency decision that does not adopt an administrative 

law judge's decision allowing judgment on the pleadings or summary judgment pursuant to 

G.S. 150B-36(d), the court may enter any order allowed by G.S. 1A-1, Rule 12(c) or ~ulk 56. 

If the order of the court does not fully adjudicate the case, the court shall remand the case to 

the administrative law judge for such fiuther proceedings as are just. (1973, c. 133 1, 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-om the fmal judgment of the superior court as provided in G.S. 7A-27. The scope of review 

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 appealing party may 

apply to the court that issued the judgment under appeal for a stay of that judgment or a stay 

of the administrative decision that is the subject of the 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 of Administrative Rules. 

$5 150B-58 through 150B-64: Repealed by Session Laws 1991, c. 418, s. 5. 

State Program Description 
6.1. State or Tribal Primary andlor Secondary 

Administering Agencies (s 745.324(b)(l) ) 

A State or Tribe seeking to administer and enforce a 

program must submit a description of the program. The 

description of the State or Tribal program must include: 

a. The name of the State or Tribal agency(s) that is or will be responsible for administering 

and enforcing the program, the name of the official in the agency(s) designated as the 

point of contact 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 of the 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 of contact with EPA, and addresses and phone numbers where 

the official(s) can be contacted: 

Agency: NC Dept. of Health and Human Services, Division of Public Health, Health Hazards 

Control Unit 

Contact Name: Mart T. Giguere 

Title: Unit Manager 

Address: 19 12 Mail Service Center 

Raleigh, NC 27699- 19 12 

Telephone: (919) 707-595 1 

Fax: (9 19) 870-4808 

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

Agency: 

Contact Name: 

Title: 

Address: 

Telephone: 

Fax: 

E-mail: 
11.8.1. State or Tribal Primary andlor Secondary 

Administering Agencies (e 745.324(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 of the 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 of the functions to 

be performed by each agency. The description shall explain how the program will be 

coordinated by the primary agency to ensure consistency and effective administration of 

the lead-based paint training accreditation and certification program within the State or 

Tribe. 
1I.B. 1 .b. Where more than one agency is or will be responsible for administering and 

enforcing the program, please designate a primary agency to 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 of Public Health, Health Hazards 

Control Unit 

Secondary Agency (or Agencies): Not Aplicable 

1I.B. I .c. In the event that more than one agency is 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 (9 745.326(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 of the program 

that demonstrates that the program contains all of the following 

elements: 

Procedures and Requirements for the distribution of lead hazard 

information to owners and occupants of target housing and child 

occupied facilities before renovations for compensation 

Appropriate Infrastructure or Government Capacity 

a. Pre-Renovation Education 

The State or Tribe must have procedures and requirements for the distribution of lead hazard 

information to owners and occupants of target housing and child-occupied facilities before 

renovations for compensation. 
ll.B.2.a. Program Elements - Procedures and requirements for pre-renov

Procedures and Requirements for the distribution of lead hazard info. to owners 

and occupants of target housing & 

child-occupied facilities prior to 

renovations for compensation: 

Clear standards for identifying renovation 

activities that trigger the information 

distribution requirements: 

Procedures for distributing the lead 

hazard information to owners and 

occupants of housing & child-occupied 

facilities prior to renovation activities: 

Require distribution of Renovate Right or 

an approved alternate, meeting TSCA 

406(a) content requirements, and in a 

format readable by State or Tribes 

diverse audience of housing and 

child-occupied owners and occupants: 

40 CFR Part 745 Subpart E reference 

(Federal Program) 

4pplicant's Citation Reference: 

I OA NCAC 41 C 

.0901 (b) 

10A NCAC 41C 

.0907(a) and (b) 

10A NCAC 41C 

.0901 (b) 

Indicate if 

varies 

from Federal 

Program (**) 

Reason gfor varia

The state 

that firms 

kits to de

to provid

the perso

renovatio

renovati
11.8.2. Program Elements (5 745.326(a)(2)) 

To demonstrate that the State or Tribal renovation training, 

certification, accreditation, and work practice standards program 

is at least as protective as the Federal program, the State or Tribal 

application must include a description of the program that 

demonstrates that the program contains all of the following 

elements: 

Procedures and Requirements for Accreditation of Renovator and Dust 

Sampling Technician Training Programs 

Procedures and Requirements for Certification of Individuals and/or 

Firms 

Requirements that all Renovations be Conducted by 

Appropriately Certified Individuals and/or Firms using properly 

trained individuals 

Work Practice Standards for the Conduct of Renovations 

Appropriate Infrastructure or Government Capacity 

Tribal Information (Tribes Only) 

b. Accreditation 

The State or Tribe must have either procedures and requirements for the accreditation of training 

programs or procedures and requirements for the acceptance of renovation 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 accreditation of trainers. 
ll.B.2.b. Program elements - Procedures and requirements for 

the accreditation of renovation training programs (g 745.326(~)) 

Please indicate State or Tribal procedures and requirements that will be used for the 

accreditation of Renovation training programs or the acceptance of Renovation 

training offered by a training provider accredited by EPA or by a State or Tribe 

authorized by EPA under Section 745, Subpart E (J): 

J The State or 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 of Renovation training offered by an accredited training 

provider in a State or Tribe authorized by EPA (proceed to "Procedures 

and Requirements for Certification," Item 2.b., page 28). 

Please describe procedures or requirements: 
11.8.2. Program elements (§ 745.326(c)) 

b. Accreditation (cont.) 

The State or Tribe must have requirements for the accreditation of renovation 

training providers. State or Tribal citations for renovation training provider 

requirements must be included in this section. 
ll.B.2.b. Program Elements - Procedures and requirements for the accred

Procedures and Requirements for 

the accreditation of renovation and dust sampling technician training 

programs : 

Training curriculum and 

application requirements: Training hour requirements: 

Hands-on training requirements: Trainee competency and 

proficiency requirements: Requirements for training 

program quality control: 

40 CFR Part 745 

Subpart E& L 

reference 

(Federal Program) 

- - - 

§ 745.225(b)(c) & (e) 

9 745.225(d)(6) & (7) 

4pplicant's Citation Reference: 

10A NCAC 41C 

.0904(9)(5) 

10A NCAC 41 C 

.0902(b) 

10A NCAC 41 C 

.0904(e)(5) 

rndicate if varies 

from Federal 

Program (**) 

Reason 

for va

The St

on-site approv

course

Progra

this re

The St

not pro

profici

Progra

course 

minim

all cou
Procedures for the 

re-accreditation of training 

programs: 

- - -- 

Procedures for the oversight of 

training programs: 

Procedures for suspension 

revocation, or modification of 

training program accreditations: 

5 745.225 (c) & 

$ 745.225(i) 

10A NCAC 41C 

.0904(9)(7) 

10A NCAC 41 C 

.0904(i) 

Cour

requi

workstart 

progr

busin
11.8.2. Program Elements (3 74532qd)) 

c. Certification 

The State or Tribe must have procedures and requirements for the certification of renovators 

and/or firms. If a State or Tribal program can demonstrate that it is as protective as the Federal 

program without requirements for a Dust Sampling Technician, 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 certification requirements must be included in this 

section. Also include a citation of regulation requiring that renovation activities are conducted by 

appropriately certified individuals andlor firms using properly trained individuals. 
Program Elements - Procedures and requirements for the certification of 

ndividuals and firms engaged in renovation activities (s 745.326(d)) 

certification of 

ensure: 

pling technicians are 

raining program: 

irement process for 

re-certification: 

novation activities in 

actice standards 

r Tribe: 

40 CFR Part 745 

Subpart E reference 

(Federal Program) 

Applicant 

Citation 

Reference: 

IOA NCAC 41 C 

.0903(a),(b) and 

(c) 

10A NCAC 41 C 

.0902(c)(4) and 

(dM3) 

and 

.0903(c) 

10A NCAC 41 C 

.0906 

Indicate if 

varies from 

Federal 

Program (**) 

Reason given 

for variation 

The state program requires 

renovators and dust sampling 

technicians to meet discipline 

specific accredited training 

and application requirements 

for state certification, the 

federal program requires 

attending accredited training only. The state program requires 

annual firm re-certification, the 

federal program requires firm 

re-certification every 5 years. 

The state program provides 

for an application process for 

recertification of renovators 

every 60 months and annually 

for dust sampling technician 

recertification. 
 the suspension, 

ion of certifications: 

10A NCAC 41 C 

.0902 (f) and 

(9) 

and 

.0903(d) 

10A NCAC 41 C 

.0902(a), .0906 

ators, dust sampling 

novation activities be 

tely certified 

 using properly trained 

§ 745.90(b) & (c) 

5 745.89(d) 

§ 745.85(a) .0902(a) and 

G.S. 

l3OA-453.l4(a) 

and (b) 

and .0907(a) 

10A NCAC 41 C I 
11.8.2. Program Elements (3 745.326(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.c Program Elements - Work practice standards for the conduct of renov

The State or Tribe 's work practice standards for 

conducting renovations must contain the following 

requirements: 

Renovations are conducted only by individuals andlor 

Firms certified by the appropriate State or Tribal 

authority to conduct or supervise renovations: Renovations are conducted using lead-safe work 

practices that do not increase the hazards of 

lead-based paint to the occupants of the dwelling or 

child-occupied facility and are at least as protective as 

the requirements in 745.80(b): 

Renovations include post-renovation cleaning 

protocols, including cleaning verification protocols, or 

optional dust clearance testing where required by contract in conformance with clearance levels 

established or adopted by the State or Tribe as long as 

they are as protective as the standards established 

under TSCA 403: 

The certified firm retains appropriate records: 

40 CFR Part 745 Subpart E reference 

(Federal Program) 

!j 745. 85(b) (c) & (d) 

g 745.227(e)(8) 

Applicant 

Citatwn 

Reference: 

10A NCAC 41C 

.0902(a) 

and .0903(a) 

and G.S. 

130A-453.14 

10A NCAC 41 C 

.0901(b) 

and .a906 

- 

10A NCAC 41C 

.0901 (b) 

and .0906 

10A NCAC 41 C 

.0907(a) 

Indicate if 

varies from Federal 

Program (*