Attachment 2 

North Carolina General Statutes 

Referenced in the North Carolina Certification for 

Clean Air Act Section 110(a)(1) and (2) 

2008 Lead Requirements 
(This page intentionally left blank)
Attachment 2 

July 20, 2012 

Page 1 

This document contains the North Carolina General Statutes (NCGS) that supports North 

Carolina’s certification for Clean Air Act Section 110(a)(1) and (2) requirements for the 2008 

lead national ambient air quality standards. Below is a table of contents of the NCGS that were 

referenced in Attachment 1. 

NCGS Chapter 138A State Government Ethics Act........................................................................2 

NCGS §138A-39 Disqualification to serve ...................................................................................36 

NCGS §143-215.107 Air quality standards and classifications .....................................................39 

NCGS §143-215.197D Emissions of oxides of nitrogen (NOx) and sulfur dioxide (SO2) from 

certain coal fired generating units ......................................................................................40 

NCGS §143 215.108 Control of sources of air pollution; permits required ..................................41 

NCGS §143- 215.3 General powers of Commission and Department; auxiliary powers .............47 

 §143- 215.3(a)(1) ...............................................................................................................47 

 §143- 215.3(a)(12) .............................................................................................................52 

NCGS §143B-283 Environmental Management Commission – members; selection; removal; 

compensation; quorum; services ........................................................................................55 

NCGS §150B-21.1 Procedure for adopting a temporary rule ........................................................56 

NCGS §150B-21.2 Procedure for adopting a permanent rule .......................................................59 
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Chapter 138A. 

State Government Ethics Act. 

Article 1. 

General Provisions. 

§ 138A-1. Title. 

This Chapter shall be known and may be cited as the "State Government Ethics Act". 

(2006-201, s. 1.) 

§ 138A-2. Purpose. 

The purpose of this Chapter is to ensure that elected and appointed State agency officials 

exercise their authority honestly and fairly, free from impropriety, threats, favoritism, and undue 

influence. To this end, it is the intent of the General Assembly in this Chapter to ensure that 

standards of ethical conduct and standards regarding conflicts of interest are clearly established 

for elected and appointed State agency officials, that the State continually educates these officials 

on matters of ethical conduct and conflicts of interest, that potential and actual conflicts of 

interests are identified and resolved, and that violations of standards of ethical conduct and 

conflicts of interest are investigated and properly addressed. (2006-201, s. 1.) 

§ 138A-3. Definitions. 

The following definitions apply in this Chapter: 

(1) Blind trust. – A trust established by or for the benefit of a covered person or a 

member of the covered person's immediate family for divestiture of all control 

and knowledge of assets. A trust qualifies as a blind trust under this 

subdivision if the covered person or a member of the covered person's 

immediate family has no knowledge of the holdings and sources of income of 

the trust, the trustee of the trust is independent of and not associated with or 

employed by the covered person or a member of the covered person's 

immediate family and is not a member of the covered person's extended 

family, and the trustee has sole discretion as to the management of the trust 

assets. 

(1c) Board. – Any State board, commission, council, committee, task force, authority, 

or similar public body, however denominated, created by statute or executive 

order, as determined and designated by the Commission, except for those 

public bodies that have only advisory authority. 

(2) Business. – Any of the following organized for profit: 

a. Association. 

b. Business trust. 

c. Corporation. 

d. Enterprise. 

e. Joint venture. 

f. Organization. 

g. Partnership. 

h. Proprietorship. 

i. Vested trust. 
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j. Every other business interest, including ownership or use of land for 

income. 

(3) Business with which associated. – A business in which the covered person or 

filing person or any member of that covered person's or filing person's 

immediate family does any of the following: 

a. Is an employee. 

b. Holds a position as a director, officer, partner, proprietor, or member or 

manager of a limited liability company, irrespective of the amount of 

compensation received or the amount of the interest owned. 

c. Owns a legal, equitable, or beneficial interest of ten thousand dollars 

($10,000) or more in the business or five percent (5%) of the business, 

whichever is less, other than as a trustee on a deed of trust. 

d. Is a lobbyist registered under Chapter 120C of the General Statutes. 

For purposes of this subdivision, the term "business" shall not 

include a widely held investment fund, including a mutual fund, 

regulated investment company, or pension or deferred compensation 

plan, if all of the following apply: 

1. The covered person, filing person, or a member of the covered 

person's or filing person's immediate family neither exercises 

nor has the ability to exercise control over the financial 

interests held by the fund. 

2. The fund is publicly traded, or the fund's assets are widely 

diversified. 

(4) Commission. – The State Ethics Commission. 

(5) Committee. – The Legislative Ethics Committee as created in Part 3 of Article 14 

of Chapter 120 of the General Statutes. 

(6) Compensation. – Any money, thing of value, or economic benefit conferred on or 

received by any covered person or filing person in return for services rendered 

or to be rendered by that covered person or filing person or another. This term 

does not include campaign contributions properly received and, reported as 

required by Article 22A of Chapter 163 of the General Statutes. 

(7) Confidential information. – Information defined as confidential by the law. 

(8) Constitutional officers of the State. – Officers whose offices are established by 

Article III of the North Carolina Constitution. 

(9) Contract. – Any agreement, including sales and conveyances of real and personal 

property, and agreements for the performance of services. 

(10) Covered person. – A legislator, public servant, or judicial officer, as identified by 

the Commission under G.S. 138A-11. 

(11) Repealed by Session Laws 2008-213, s. 84(c), effective August 15, 2008. 

(12) Employing entity. – For public servants, any of the following bodies of State 

government of which the public servant is an employee or a member, or over 

which the public servant exercises supervision: agencies, authorities, boards, 

commissions, committees, councils, departments, offices, institutions and their 

subdivisions, and constitutional offices of the State. For legislators, it is the 

house of which the legislator is a member. For legislative employees, it is the 
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authority that hired the individual. For judicial employees, it is the Chief 

Justice. 

(13) Extended family. – Spouse, lineal descendant, lineal ascendant, sibling, spouse's 

lineal descendant, spouse's lineal ascendant, spouse's sibling, and the spouse 

of any of these individuals. 

(14) Filing person. – An individual required to file a statement of economic interest 

under G.S. 138A-22. 

(14a), (14b) Reserved for future codification purposes. 

(14c) Financial benefit. – A direct pecuniary gain or loss to the legislator, the public 

servant, or a person with which the legislator or public servant is associated, 

or a direct pecuniary loss to a business competitor of the legislator, the public 

servant, or a person with which the legislator or public servant is associated. 

(15) Gift. – Anything of monetary value given or received without valuable 

consideration by or from a lobbyist, lobbyist principal, liaison personnel, or a 

person described under G.S. 138A-32(d)(1), (2), or (3). The following shall 

not be considered gifts under this subdivision: 

a. Anything for which fair market value, or face value if shown, is paid by the 

covered person or legislative employee. 

b. Commercially available loans made on terms not more favorable than 

generally available to the general public in the normal course of 

business if not made for lobbying. 

c. Contractual arrangements or commercial relationships or arrangements 

made in the normal course of business if not made for lobbying. 

d. Academic or athletic scholarships based on the same criteria as applied to 

the public. 

e. Anything of value properly reported as required under Article 22A of 

Chapter 163 of the General Statutes. 

f. Expressions of condolence related to a death of an individual, sent within a 

reasonable time of the death, if the expression is one of the following: 

1. A sympathy card, letter, or note. 

2. Flowers. 

3. Food or beverages for immediate consumption. 

4. Donations to a religious organization, charity, the State or a political 

subdivision of the State, not to exceed a total of two hundred 

dollars ($200.00) per death per donor. 

(15a) through (15c) Reserved for future codification purposes. 

(15d) Governmental unit. – A political subdivision of the State, and any other entity 

or organization created by a political subdivision of the State. 

(16) Honorarium. – Payment for services for which fees are not legally or 

traditionally required. 

(17) Immediate family. – An unemancipated child of the covered person residing in 

the household and the covered person's spouse, if not legally separated. A 

member of a covered person's extended family shall also be considered a 

member of the immediate family if actually residing in the covered person's 

household. 
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(18) Judicial employee. – The director and assistant director of the Administrative 

Office of the Courts and any other individual, designated by the Chief Justice, 

employed in the Judicial Department whose annual compensation from the 

State is sixty thousand dollars ($60,000) or more. 

(19) Judicial officer. – Justice or judge of the General Court of Justice, district 

attorney, clerk of court, or any individual elected or appointed to any of these 

positions prior to taking office. 

(20) Legislative action. – As the term is defined in G.S. 120C-100. 

(21) Legislative employee. – As the term is defined in G.S. 120C-100. 

(22) Legislator. – A member or presiding officer of the General Assembly, or an 

individual elected or appointed a member or presiding officer of the General 

Assembly before taking office. 

(23) Lobbying. – As the term is defined in G.S. 120C-100. 

(24) Nonprofit corporation or organization with which associated. – Any not for 

profit corporation, organization, or association, incorporated or otherwise, that 

is organized or operating in the State primarily for religious, charitable, 

scientific, literary, public health and safety, or educational purposes and of 

which the covered person, filing person, or any member of the covered 

person's or filing person's immediate family is a director, officer, governing 

board member, employee, lobbyist registered under Chapter 120C of the 

General Statutes, or independent contractor. Nonprofit corporation or 

organization with which associated shall not include any board, entity, or 

other organization created by this State or by any political subdivision of this 

State. 

(25) Official action. – Any decision, including administration, approval, disapproval, 

preparation, recommendation, the rendering of advice, and investigation, 

made or contemplated in any proceeding, application, submission, request for 

a ruling or other determination, contract, claim, controversy, investigation, 

charge, or rule making. 

(26) Participate. – To take part in, influence, or attempt to influence, including acting 

through an agent or proxy. 

(26c) Permanent designee. – An individual designated by a public servant to serve 

and vote in the absence of the public servant on a regular basis on a board on 

which the public servant serves. 

(27) Person. – Any individual, firm, partnership, committee, association, corporation, 

business, or any other organization or group of persons acting together. The 

term "person" does not include the State, a political subdivision of the State, a 

board, or any other entity or organization created by the State or a political 

subdivision of the State. 

(27a), (27b) Reserved for future codification purposes. 

(27c) Person with which the legislator is associated. – Any of the following: 

a. A member of the legislator's extended family. 

b. A client of the legislator. 

c. A business with which the legislator or a member of the legislator's 

immediate family is associated. 
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d. A nonprofit corporation or association with which the legislator or a 

member of the legislator's immediate family is associated. 

e. The State, a political subdivision of the State, a board, or any other entity or 

organization created by the State or a political subdivision of the State 

that employs the legislator or a member of the legislator's immediate 

family. 

(27d) Person with which the public servant is associated. – Any of the following: 

a. A member of the public servant's extended family. 

b. A client of the public servant. 

c. A business with which the public servant or a member of the public 

servant's immediate family is associated. 

d. A nonprofit corporation or association with which the public servant or a 

member of the public servant's immediate family is associated. 

e. The State, a political subdivision of the State, a board, or any other entity or 

organization created by the State or a political subdivision of the State 

that employs the public servant or a member of the public servant's 

immediate family. 

(28) Political party. – Either of the two largest political parties in the State based on 

statewide voter registration at the applicable time. 

(29) Repealed by Session Laws 2008-213, s. 49, effective August 15, 2008. 

(30) Public servants. – All of the following: 

a. Constitutional officers of the State and individuals elected or appointed as 

constitutional officers of the State prior to taking office. 

b. Employees of the Office of the Governor. 

c. Heads of all principal State departments, as set forth in G.S. 143B-6, who 

are appointed by the Governor. 

d. The chief deputy and chief administrative assistant of each individual 

designated under sub-subdivision a. or c. of this subdivision. 

e. Confidential assistants and secretaries as defined in G.S. 126-5(c)(2), to 

individuals designated under sub-subdivision a., c., or d. of this 

subdivision. 

f. Employees in exempt positions designated in accordance with G.S. 

126-5(d)(1), (2), or (2a) and confidential secretaries to these 

individuals. 

g. Any other employees or appointees in the principal State departments as 

may be designated by the Governor to the extent that the designation 

does not conflict with the State Personnel Act. 

h. Judicial employees. 

i. All voting members of boards, including ex officio members, permanent 

designees of any voting member, and members serving by executive, 

legislative, or judicial branch appointment. 

j. For The University of North Carolina, the voting members of the Board of 

Governors of The University of North Carolina, the president, the 

vice-presidents, and the chancellors, the vice-chancellors, and voting 

members of the boards of trustees of the constituent institutions. 
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k. For the Community College System, the voting members of the State Board 

of Community Colleges, the President and the chief financial officer of 

the Community College System, the president, chief financial officer, 

and chief administrative officer of each community college, and voting 

members of the boards of trustees of each community college. 

l. Members of the Commission, the executive director, and the assistant 

executive director of the Commission. 

m. Individuals under contract with the State working in or against a position 

included under this subdivision. 

n. The director of the Office of State Personnel. 

o. The State Controller. 

p. The chief information officer, deputy chief information officers, chief 

financial officers, and general counsel of the Office of Information 

Technology Services. 

q. The director of the State Museum of Art. 

r. The executive director of the Agency for Public Telecommunications. 

s. The Commissioner of Motor Vehicles. 

t. The Commissioner of Banks and the chief deputy commissioners of the 

Banking Commission. 

u. The executive director of the North Carolina Housing Finance Agency. 

v. The executive director, chief financial officer, and chief operating officer of 

the North Carolina Turnpike Authority. 

(30a) through (30j) Reserved for future codification purposes. 

(30k) State agency. – An agency in the executive branch of the government of this 

State, including the Governor's Office, a board, a department, a division, and 

any other unit of government in the executive branch. 

(31) Vested trust. – A trust, annuity, or other funds held by a trustee or other third 

party for the benefit of the covered person or a member of the covered 

person's immediate family, except a blind trust. A vested trust shall not 

include a widely held investment fund, including a mutual fund, regulated 

investment company, or pension or deferred compensation plan, if: 

a. The covered person or a member of the covered person's immediate family 

neither exercises nor has the ability to exercise control over the 

financial interests held by the fund; and 

b. The fund is publicly traded, or the fund's assets are widely diversified. 

(2006-201, s. 1; 2007-347, ss. 7, 8; 2007-348, ss. 19-26; 2008-187, s. 

44; 2008-213, ss. 40-54, 84(c); 2010-169, ss. 10, 17(n), (o); 2010-170, 

s. 14.) 

§ 138A-4. Application to Lieutenant Governor. 

For purposes of this Chapter, the Lieutenant Governor shall be considered a legislator when 

carrying out the Lieutenant Governor's duties under Sec. 13 of Article II of the Constitution, and 

a public servant for all other purposes. (2006-201, s. 1.) 

§ 138A-5. Reserved for future codification purposes. 
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Article 2. 

State Ethics Commission. 

§ 138A-6. State Ethics Commission established. 

There is established the State Ethics Commission. (2006-201, s. 1.) 

§ 138A-7. Membership. 

(a) The Commission shall consist of eight members. Four members shall be appointed by the 

Governor, of whom no more than two shall be of the same political party. Four members shall be 

appointed by the General Assembly, two upon the recommendation of the Speaker of the House 

of Representatives, neither of whom shall be of the same political party, and two upon the 

recommendation of the President Pro Tempore of the Senate, neither of whom shall be of the 

same political party. Members shall serve for four-year terms, beginning January 1, 2007, except 

for the initial terms that shall be as follows: 

(1) Two members appointed by the Governor shall serve an initial term of one year. 

(2) Two members appointed by the General Assembly, one upon the recommendation 

of the Speaker of the House of Representatives and one upon the 

recommendation of the President Pro Tempore of the Senate, shall serve 

initial terms of two years. 

(3) Two members appointed by the Governor shall serve initial terms of three years. 

(4) Two members appointed by the General Assembly, one upon the recommendation 

of the Speaker of the House of Representatives and one member upon the 

recommendation of the President Pro Tempore of the Senate, shall serve 

initial terms of four years. 

(b) Members shall be removed from the Commission only for misfeasance, malfeasance, or 

nonfeasance. Members appointed by the Governor may be removed by the Governor. Members 

appointed by the General Assembly upon the recommendation of the Speaker of the House of 

Representatives shall be removed by the Governor upon the recommendation of the Speaker. 

Members appointed by the General Assembly upon the recommendation of the President Pro 

Tempore of the Senate shall be removed by the Governor upon the recommendation of the 

President Pro Tempore. 

(c) Vacancies in appointments made by the Governor shall be filled by the Governor for the 

remainder of any unfulfilled term. Vacancies in appointments made by the General Assembly 

shall be filled in accordance with G.S. 120-122 for the remainder of any unfulfilled term. 

(d) No member while serving on the Commission or employee while employed by the 

Commission shall: 

(1) Hold or be a candidate for any other office or place of trust or profit under the 

United States, the State, or a political subdivision of the State. 

(2) Hold office in any political party above the precinct level. 

(3) Participate in or contribute to the political campaign of any covered person or any 

candidate for a public office as a covered person over which the Commission 

would have jurisdiction or authority. 

(4) Otherwise be an employee of the State, a community college, or a local school 

system, or serve as a member of any other State board. 
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(e) The Governor shall annually appoint a member of the Commission to serve as chair of the 

Commission. The Commission shall elect a vice-chair annually from its membership. The 

vice-chair shall act as the chair in the chair's absence or if there is a vacancy in that position. 

(f) Members of the Commission shall receive no compensation for service on the 

Commission but shall be reimbursed for subsistence, travel, and convention registration fees as 

provided under G.S. 138-5 or 138-7, as applicable. (2006-201, s. 1.) 

§ 138A-8. Meetings and quorum. 

The Commission shall meet at least quarterly and at other times as called by its chair or by 

four of its members. In the case of a vacancy in the chair, meetings may be called by the 

vice-chair. Five members of the Commission constitute a quorum. (2006-201, s. 1.) 

§ 138A-9. Staff and offices. 

The Commission may employ professional and clerical staff, including an executive director. 

The Commission shall be located within the Department of Administration for administrative 

purposes only, but shall exercise all of its powers, including the power to employ, direct, and 

supervise all personnel, independently of the Secretary of Administration, and is subject to the 

direction and supervision of the Secretary of Administration only with respect to the 

management functions of coordinating and reporting. (2006-201, s. 1.) 

§ 138A-10. Powers and duties. 

(a) In addition to other powers and duties specified in this Chapter, the Commission shall: 

(1) Provide reasonable assistance to covered persons in complying with this Chapter. 

(2) Develop readily understandable forms, policies, and procedures to accomplish the 

purposes of the Chapter. 

(3) Identify and publish the following: 

a. A list of nonadvisory boards. 

b. The names of individuals subject to this Chapter as covered persons and 

legislative employees under G.S. 138A-11. 

(4) Receive and review all statements of economic interests filed with the 

Commission by prospective and actual covered persons and evaluate whether 

(i) the statements conform to the law and the rules of the Commission, and (ii) 

the financial interests and other information reported reveals actual or 

potential conflicts of interest. Pursuant to G.S. 138A-24(e), this subdivision 

does not apply to statements of economic interest of legislators and judicial 

officers. 

(5) Conduct inquiries of alleged violations against judicial officers, legislators, and 

legislative employees in accordance with G.S. 138A-12. 

(6) Conduct inquiries into alleged violations against public servants in accordance 

with G.S. 138A-12. 

(7) Render advisory opinions in accordance with G.S. 138A-13 and G.S. 120C-102. 

(8) Initiate and maintain oversight of ethics educational programs for public servants 

and their staffs, and legislators and legislative employees, consistent with G.S. 

138A-14. 
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(9) Conduct a continuing study of governmental ethics in the State and propose 

changes to the General Assembly in the government process and the law as 

are conducive to promoting and continuing high ethical behavior by 

governmental officers and employees. 

(10) Adopt procedures and guidelines to implement this Chapter. 

(11) Report annually to the General Assembly and the Governor on the Commission's 

activities and generally on the subject of public disclosure, ethics, and 

conflicts of interest, including recommendations for administrative and 

legislative action, as the Commission deems appropriate. 

(12) Publish annually statistics on complaints filed with or considered by the 

Commission, including the number of complaints filed, the number of 

complaints referred under G.S. 138A-12(b), the number of complaints 

dismissed under G.S. 138A-12(c)(4), the number of complaints dismissed 

under G.S. 138A-12(f), the number of complaints referred for criminal 

prosecution under G.S. 138A-12, the number of complaints dismissed under 

G.S. 138A-12(h), the number of complaints referred for appropriate action 

under G.S. 138A-12(h) or G.S. 138A-12(k)(3), and the number and age of 

complaints pending action by the Commission. 

(13) Perform other duties as may be necessary to accomplish the purposes of this 

Chapter. 

(b) The Commission may authorize the Executive Director and other staff of the Commission 

to evaluate statements of economic interest on behalf of the Commission as authorized under 

subdivision (a)(4) of this section. 

(c) Except as otherwise provided in this Chapter, the Commission shall be the sole State 

agency with authority to determine compliance with or violations of this Chapter and to issue 

interpretations and advisory opinions under this Chapter. Decisions and advisory opinions by the 

Commission under this Chapter shall be binding on all other State agencies. (2006-201, s. 1; 

2008-213, s. 55; 2008-215, s. 7; 2009-549, s. 8.) 

§ 138A-11. Identify and publish names of covered persons and legislative employees. 

The Commission shall identify and publish at least quarterly a listing of the names and 

positions of all individuals subject to this Chapter as covered persons or legislative employees. 

The Commission shall also identify and publish at least annually a listing of all boards to which 

this Chapter applies. This listing may be published electronically on a public Internet Web site 

maintained by the Commission. (2006-201, s. 1; 2008-213, s. 56.) 

§ 138A-12. Inquiries by the Commission. 

(a) Jurisdiction. – The Commission may receive complaints alleging unethical conduct by 

covered persons and legislative employees and shall conduct inquiries of complaints alleging 

unethical conduct by covered persons and legislative employees, as set forth in this section. 

(a1) Notice of Allegation. – Upon receipt by the Commission of a written allegation of 

unethical conduct by a covered person or legislative employee, or the initiation by the 

Commission of an inquiry into unethical conduct under subsection (b) of this section, the 

Commission shall immediately notify the covered person or legislative employee subject to the 

allegation or inquiry in writing. 
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(b) Institution of Proceedings. – On its own motion, in response to a signed and sworn 

complaint of any individual filed with the Commission, or upon the written request of any public 

servant or those responsible for the hiring, appointing, or supervising of a public servant, the 

Commission shall conduct an inquiry into any of the following: 

(1) The application or alleged violation of this Chapter. 

(2) For legislators, the application or alleged violations of Part 1 of Article 14 of 

Chapter 120 of the General Statutes. 

(3) An alleged violation of the criminal law by a covered person in the performance 

of that individual's official duties. 

(4) An alleged violation of G.S. 126-14. 

Upon receipt of a referral under G.S. 147-64.6B or a report under G.S. 147-64.6(c)(19), the 

Commission may conduct an inquiry under this section on its own motion. Allegations of 

violations of the Code of Judicial Conduct shall be referred to the Judicial Standards 

Commission without investigation. 

(b1) Complaints on Its Own Motion. – An investigation initiated by the Commission on its 

own motion or upon written request of any public servant or those responsible for the hiring, 

appointing, or supervising of a public servant instituted under subsection (b) of this section shall 

be treated as a complaint for purposes of this section and need not be sworn or verified. 

(c) Complaint. – 

(1) A sworn complaint filed under this Chapter shall state the name, address, and 

telephone number of the individual filing the complaint, the name and job title 

or appointive position of the covered person or legislative employee against 

whom the complaint is filed, and a concise statement of the nature of the 

complaint and specific facts indicating that a violation of this Chapter or 

Chapter 120 of the General Statutes or G.S. 126-14 or the criminal law in the 

performance of that individual's official duties has occurred, the date the 

alleged violation occurred, and either (i) that the contents of the complaint are 

within the knowledge of the individual verifying the complaint, or (ii) the 

basis upon which the individual verifying the complaint believes the 

allegations to be true. 

(2) Except as provided in subsection (d) of this section, a complaint filed under this 

Chapter must be filed within two years of the date the complainant knew or 

should have known of the conduct upon which the complaint is based. 

(3) The Commission may decline to accept, refer, or conduct an inquiry into any 

complaint that does not meet all of the requirements set forth in subdivision 

(1) of this subsection, or the Commission may, in its sole discretion, request 

additional information to be provided by the complainant within a specified 

period of time of no less than five business days. 

(4) In addition to subdivision (3) of this subsection, the Commission may decline to 

accept, refer, or conduct an inquiry into a complaint if it determines that any 

of the following apply: 

a. The complaint is frivolous or brought in bad faith. 

b. The covered person or legislative employee and conduct complained of 

have already been the subject of a prior complaint. 
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Page 12 

c. The conduct complained of is primarily a matter more appropriately and 

adequately addressed and handled by other federal, State, or local 

agencies or authorities, including law enforcement authorities. If other 

agencies or authorities are conducting an investigation of the same 

actions or conduct involved in a complaint filed under this section, the 

Commission may stay its complaint inquiry pending final resolution of 

the other investigation. 

(5) The Commission shall send a copy of the complaint to the covered person or 

legislative employee who is the subject of the complaint and the employing 

entity, within 10 business days of the filing. 

(d) Conduct of Inquiry of Complaints by the Commission. – The Commission shall conduct 

an inquiry into all complaints properly before the Commission in a timely manner. The 

Commission shall initiate an inquiry into a complaint within 10 business days of the filing of the 

complaint. The Commission is authorized to initiate inquiries upon request of any member of the 

Commission if there is reason to believe that a covered person or legislative employee has or 

may have violated this Chapter. Commission-initiated complaint inquiries under this section 

shall be initiated within two years of the date the Commission knew of the conduct upon which 

the complaint is based, except when the conduct is material to the continuing conduct of the 

duties in office. In determining whether there is reason to believe that a violation has or may 

have occurred, a member of the Commission may take general notice of available information 

even if not formally provided to the Commission in the form of a complaint. The Commission 

may utilize the services of a hired investigator when conducting inquiries. 

(e) Covered Person and Legislative Employees Cooperation With Inquiry. – Covered persons 

and legislative employees shall promptly and fully cooperate with the Commission in any 

Commission-related inquiry. Failure to cooperate fully with the Commission in any inquiry shall 

be grounds for sanctions as set forth in G.S. 138A-45. 

(f) Dismissal of Complaint After Preliminary Inquiry. – The Commission shall conclude the 

preliminary inquiry within 20 business days. The Commission shall dismiss the complaint, if at 

the end of its preliminary inquiry the Commission determines that any of the following apply: 

(1) The individual who is the subject of the complaint is not a covered person or 

legislative employee subject to the Commission's jurisdiction and authority 

under this Chapter. 

(2) The complaint does not allege facts sufficient to constitute a violation within the 

jurisdiction of the Commission under subsection (b) of this section. 

(3) The complaint is determined to be frivolous or brought in bad faith. 

(g) Commission Inquiries. – If at the end of its preliminary inquiry, the Commission 

determines to proceed with further inquiry into the conduct of a covered person or legislative 

employee, the Commission shall provide written notice to the individual who filed the complaint 

and the covered person or legislative employee as to the fact of the inquiry and the charges 

against the covered person or legislative employee. The covered person or legislative employee 

shall be given an opportunity to file a written response with the Commission. 

(h) Action on Inquiries. – The Commission shall conduct inquiries into complaints to the 

extent necessary to either dismiss the complaint for lack of probable cause of a violation under 

this section, or: 
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(1) For public servants, decide to proceed with a hearing under subsection (i) of this 

section. 

(2) For legislators, except the Lieutenant Governor, refer the complaint to the 

Committee. 

(3) For judicial officers, refer the complaint to the Judicial Standards Commission for 

complaints against justices and judges, to the senior resident superior court 

judge of the district or county for complaints against district attorneys, or to 

the chief district court judge for the district or county for complaints against 

clerks of court. 

(4) For legislative employees, refer the complaint to the employing entity. 

(i) Hearing. – 

(1) The Commission shall give full and fair consideration to all complaints received 

against a public servant. If the Commission determines that the complaint 

cannot be resolved without a hearing, or if the public servant requests a 

hearing, a hearing shall be held. 

(2) The Commission shall send a notice of the hearing to the complainant, and the 

public servant. The notice shall contain the time and place for a hearing on the 

matter, which shall begin no less than 30 days and no more than 90 days after 

the date of the notice. 

(3) The Commission shall make available to the public servant or that public servant's 

private legal counsel all documents or other evidence which are intended to be 

presented at the hearing to the Commission or which a reasonable person 

would believe might exculpate the accused public servant at least 30 days 

prior to the date of the hearing held in connection with the investigation of a 

complaint. Any documents or other evidence discovered within less than 30 

days of the hearing shall be furnished as soon as possible after discovery but 

prior to the hearing. 

(4) At any hearing held by the Commission: 

a. Oral evidence shall be taken only on oath or affirmation. 

b. The hearing shall be open to the public, except for matters involving 

minors, personnel records, or matters that could otherwise be 

considered in closed session under G.S. 143-318.11. In any event, the 

deliberations by the Commission on a complaint may be held in closed 

session. 

c. The public servant being investigated shall have the right to present 

evidence, call and examine witnesses, cross-examine witnesses, 

introduce exhibits, and be represented by counsel. 

(j) Settlement of Inquiries. – The public servant who is the subject of the complaint and the 

staff of the Commission may meet by mutual consent before the hearing to discuss the possibility 

of settlement of the inquiry or the stipulation of any issues, facts, or matters of law. Any 

proposed settlement of the inquiry is subject to the approval of the Commission. 

(k) Disposition of Inquiries. – After hearing, the Commission shall dispose of the matter in 

one or more of the following ways: 
Attachment 2 

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(1) If the Commission finds substantial evidence of an alleged violation of a criminal 

statute, the Commission shall refer the matter to the Attorney General for 

investigation and referral to the district attorney for possible prosecution. 

(2) If the Commission finds that the alleged violation is not established by clear and 

convincing evidence, the Commission shall dismiss the complaint. 

(3) If the Commission finds that the alleged violation of this Chapter is established by 

clear and convincing evidence, the Commission shall do one or more of the 

following: 

a. Issue a private admonishment to the public servant and notify the 

employing entity, if applicable. Such notification shall be treated as 

part of the personnel record of the public servant. 

b. Refer the matter for appropriate action to the Governor and the employing 

entity that appointed or employed the public servant or of which the 

public servant is a member. 

c. Refer the matter for appropriate action to the Chief Justice for judicial 

employees. 

d. Refer the matter to the Principal Clerks of the House of Representatives and 

Senate of the General Assembly for constitutional officers of the State. 

e. Refer the matter for appropriate action to the principal clerk of the house of 

the General Assembly that elected the public servant for members of 

the Board of Governors and the State Board of Community Colleges. 

(l) Notice of Dismissal. – Upon the dismissal of a complaint under this section, the 

Commission shall provide written notice of the dismissal to the individual who filed the 

complaint and the covered person or legislative employee against whom the complaint was filed. 

The Commission shall forward copies of complaints and notices of dismissal of complaints 

against legislators to the Committee, against legislative employees to the employing entity for 

legislative employees, and against judicial officers to the Judicial Standards Commission for 

complaints against justices and judges, and the senior resident superior court judge of the district 

or county for complaints against district attorneys, or the chief district court judge of the district 

or county for complaints against clerks of court. The Commission shall also forward a copy of 

the notice of dismissal to the employing entity of the covered person against whom a complaint 

was filed if the employing entity received a copy of the complaint under subdivision (5) of 

subsection (c) of this section. Except as provided in subsection (n) of this section, the complaint 

and notice of dismissal are confidential and not public records. 

(m) Reports and Records. – The Commission shall render the results of its inquiry in writing. 

When a matter is referred under subdivision (h)(2) and (3), or subsection (k) of this section, the 

Commission's report shall consist of the complaint, response, and detailed results of its inquiry in 

support of the Commission's finding of a violation under this Chapter. 

(n) Confidentiality. – Complaints and responses filed with the Commission and reports and 

other investigative documents and records of the Commission connected to an inquiry under this 

section, including information provided pursuant to G.S. 147-64.6B or G.S. 147-64.6(c)(19), 

shall be confidential and not matters of public record, except as otherwise provided in this 

section or when the covered person or legislative employee under inquiry requests in writing that 

the complaint, response, and findings be made public. Once a hearing under this section 

commences, the complaint, response, and all other documents offered at the hearing in 
Attachment 2 

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Page 15 

conjunction with the complaint, not otherwise privileged or confidential under law, shall be 

public records. If no hearing is held at such time as the Commission reports to the employing 

entity a recommendation of sanctions, the complaint and response shall be made public. 

(o) Recommendations of Sanctions. – After referring a matter under subsection (k) of this 

section, if requested by the entity to which the matter was referred, the Commission may 

recommend sanctions or issue rulings as it deems necessary or appropriate to protect the public 

interest and ensure compliance with this Chapter. In recommending appropriate sanctions, the 

Commission may consider the following factors: 

(1) The public servant's prior experience in an agency or on a board and prior 

opportunities to learn the ethical standards for a public servant as set forth in 

Article 4 of this Chapter, including those dealing with conflicts of interest. 

(2) The number of ethics violations. 

(3) The severity of the ethics violations. 

(4) Whether the ethics violations involve the public servant's financial interest. 

(5) Whether the ethics violations were inadvertent or intentional. 

(6) Whether the public servant knew or should have known that the improper conduct 

was a violation of this Chapter. 

(7) Whether the public servant has previously been advised or warned by the 

Commission. 

(8) Whether the conduct or situation giving rise to the ethics violation was pointed out 

to the public servant in the Commission's Statement of Economic Interest 

evaluation letter issued under G.S. 138A-24(e). 

(9) The public servant's motivation or reason for the improper conduct or action, 

including whether the action was for personal financial gain versus protection 

of the public interest. 

In making recommendations under this subsection, if the Commission determines, after 

proper review and investigation, that sanctions are appropriate, the Commission may recommend 

any action it deems necessary to properly address and rectify any violation of this Chapter by a 

public servant, including removal of the public servant from the public servant's State position. 

Nothing in this subsection is intended, and shall not be construed, to give the Commission any 

independent civil, criminal, or administrative investigative or enforcement authority over 

covered persons, or other State employees or appointees. 

(p) Authority of Employing Entity. – Any action or failure to act by the Commission under 

this Chapter, except G.S. 138A-13, shall not limit any authority of any of the applicable 

employing entities to discipline the covered person or legislative employee. 

(q) Continuing Jurisdiction. – The Commission shall have continuing jurisdiction to 

investigate possible criminal violations of this Chapter for a period of one year following the 

date an individual, who was formerly a public servant or legislative employee, ceases to be a 

public servant or legislative employee for any investigation that commenced prior to the date the 

public servant or legislative employee ceases to be a public servant or legislative employee. 

(r) Subpoena Authority. – The Commission may petition the Superior Court of Wake County 

for the approval to issue subpoenas and subpoenas duces tecum as necessary to conduct 

investigations of alleged violations of this Chapter. The court shall authorize subpoenas under 

this subsection when the court determines the subpoenas are necessary for the enforcement of 

this Chapter. Subpoenas issued under this subsection shall be enforceable by the court through 
Attachment 2 

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contempt powers. Venue shall be with the Superior Court of Wake County for any person or 

governmental unit covered by this Chapter, and personal jurisdiction may be asserted under G.S. 

1-75.4. 

(s) Reports. – The number of complaints referred under this section shall be reported under 

G.S. 138A-10(a)(12). 

(t) Concurrent Jurisdiction. – Nothing in this section shall limit the jurisdiction of the 

Committee or the Judicial Standards Commission with regards to legislative or judicial 

misconduct, and jurisdiction under this section shall be concurrent with the jurisdiction of the 

Committee and the Judicial Standards Commission. (2006-201, s. 1; 2007-348, ss. 27-30; 

2008-187, s. 21; 2008-213, ss. 1(b), 57; 2008-215, ss. 4, 5; 2009-549, ss. 9, 10, 11; 2010-169, s. 

23(a)-(e), (h).) 

§ 138A-13. Request for advice. 

(a) At the request of any public servant or legislative employee, any individual who is 

responsible for the supervision or appointment of a public servant or legislative employee, legal 

counsel for any public servant or legislative employee, any ethics liaison under G.S. 138A-14, or 

any member of the Commission, the Commission shall render advice on specific questions 

involving the meaning and application of this Chapter and the public servant's or legislative 

employee's compliance therewith. Requests for advice and advice rendered in response to those 

requests shall relate prospectively to real or reasonably anticipated fact settings or circumstances. 

(a1) On its own motion, the Commission may render advisory opinions on specific questions 

involving the meaning and application of this Chapter. 

(a2) A request for a formal advisory opinion under subsection (a) of this section shall be in 

writing, electronic or otherwise. The Commission shall issue formal advisory opinions having 

prospective application only. A public servant or legislative employee who relies upon the advice 

provided to that public servant or legislative employee on a specific matter addressed by the 

requested formal advisory opinion shall be immune from all of the following: 

(1) Investigation by the Commission, except for an inquiry under G.S. 138A-12(b)(3). 

(2) Any adverse action by the employing entity. 

(3) Investigation by the Secretary of State. 

(b) At the request of a legislator, the Commission shall render advice on specific questions 

involving the meaning and application of this Chapter and Part 1 of Article 14 of Chapter 120 of 

the General Statutes, and the legislator's compliance therewith. Requests for advice and advice 

rendered in response to those requests shall relate prospectively to real or reasonably anticipated 

fact settings or circumstances. 

(b1) A request by a legislator for a recommended formal advisory opinion shall be in writing, 

electronic or otherwise. The Commission shall issue recommended formal advisory opinions 

having prospective application only. Until action is taken by the Committee under G.S. 120-104, 

a legislator who relies upon the advice provided to that legislator on a specific matter addressed 

by the requested recommended formal advisory opinion shall be immune from all of the 

following: 

(1) Investigation by the Committee or Commission, except for an inquiry under G.S. 

138A-12(b)(3). 

(2) Any adverse action by the house of which the legislator is a member. 

(3) Investigation by the Secretary of State. 
Attachment 2 

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Any recommended formal advisory opinion issued to a legislator under this subsection shall 

immediately be delivered to the chairs of the Committee, together with a copy of the request. 

Except for the Lieutenant Governor, the immunity granted under this subsection shall not apply 

after the time the Committee modifies or overturns the advisory opinion of the Commission in 

accordance with G.S. 120-104. 

(b2) At the request of the Auditor, the Commission shall render advisory opinions on specific 

questions involving the meaning and application of this Chapter, Article 14 of Chapter 120 of the 

General Statutes, and Chapter 120C of the General Statutes and an affected person's compliance 

therewith. The request shall be in writing, electronic or otherwise, and relate to real fact settings 

and circumstances. Except when the question involves a question governed by subsection (b) or 

(b1) of this section, the Commission shall issue an advisory opinion under this subsection within 

60 days of the receipt of all information deemed necessary by the Commission to render an 

opinion. If the question involves a question governed by subsection (b) or (b1) of this section, the 

Commission shall comply with the provisions of that section prior to responding to the Auditor 

by delivering the recommended advisory opinion to the Committee within 60 days of the receipt 

of all information deemed necessary by the Commission to render an opinion. The Committee 

shall act on the opinion within 30 days of receipt and the Commission shall deliver the opinion to 

the Auditor. If the Committee fails to act on a recommended advisory opinion under this 

subsection with 30 days of receipt, the Commission shall deliver its recommended advisory 

opinion to the Auditor. Notwithstanding G.S. 138A-13(e), the Auditor may only release those 

portions of the advisory opinion necessary to comply with the requirements of G.S. 

147-64.6(c)(1). 

(c) Staff to the Commission may issue advice, but not formal or recommended formal 

advisory opinions, under procedures adopted by the Commission. 

(d) The Commission shall publish its formal advisory opinions within 30 days of issuance. 

These formal advisory opinions shall be edited for publication purposes as necessary to protect 

the identities of the individuals requesting formal advisory opinions. When the Commission 

issues a recommended formal advisory opinion to a legislator under subsection (b1) of this 

section, the Commission shall publish only the edited formal advisory opinion of the Committee 

within 30 days of receipt of the edited opinion from the Committee. 

(e) Except as provided under subsections (b2), (d) and (e1) of this section, a request for 

advice, any advice provided by Commission staff, any formal or recommended formal advisory 

opinions, any supporting documents submitted or caused to be submitted to the Commission or 

Commission staff, and any documents prepared or collected by the Commission or Commission 

staff in connection with a request for advice are confidential. The identity of the individual 

making the request for advice, the existence of the request, and any information related to the 

request may not be revealed without the consent of the requestor. An individual who requests 

advice or receives advice, including a formal or recommended formal advisory opinion, may 

authorize the release to any other person, the State, or any governmental unit of the request, the 

advice, or any supporting documents. 

For purposes of this section, "document" is as defined in G.S. 120-129. Requests for advice, 

any advice, and any documents related to requests for advice are not "public records" as defined 

in G.S. 132-1. 

(e1) Staff to the Commission may share all information and documents related to requests for 

advice, made by legislators under this section with staff to the Committee. The information and 
Attachment 2 

July 20, 2012 

Page 18 

documents in the possession of staff to the Committee are confidential and are not public 

records. 

(f) This section shall apply to judicial officers only for advice related to Article 3 of this 

Chapter. 

(g) Requests for advice may be withdrawn by the requestor at any time prior to the issuance 

of the advice. (2006-201, s. 1; 2007-348, s. 31; 2008-213, ss. 2(b), 91.5; 2008-215, s. 6; 

2009-570, s. 17; 2010-169, s. 17(p).) 

§ 138A-14. Ethics education program. 

(a) The Commission shall develop and implement an ethics education and awareness 

program designed to instill in all covered persons and their immediate staffs, and legislative 

employees, a keen and continuing awareness of their ethical obligations and a sensitivity to 

situations that might result in real or potential conflicts of interest. 

(b) The Commission shall offer basic ethics education and awareness presentations to all 

public servants and their immediate staffs, upon their election, appointment, or employment, and 

shall offer periodic refresher presentations as the Commission deems appropriate. Every public 

servant shall participate in an ethics presentation approved by the Commission within six months 

of the public servant's election, reelection, appointment, or employment, and shall attend 

refresher ethics education presentations at least every two years thereafter in a manner as the 

Commission deems appropriate. 

(b1) A public servant appointed to a board determined and designated as nonadvisory under 

G.S. 138A-10(a)(3) shall attend an ethics presentation approved by the Commission within six 

months of notification of the designation by the Commission and at least every two years 

thereafter in a manner as the Commission deems appropriate. 

(c) The Commission, jointly with the Committee, shall make basic ethics education and 

awareness presentations to all legislators and legislative employees upon their election, 

reelection, appointment, or employment and shall offer periodic refresher presentations as the 

Commission and the Committee deem appropriate. Every legislator shall participate in an ethics 

presentation approved by the Commission and Committee within two months of either the 

convening of the General Assembly to which the legislator is elected or within two months of the 

legislator's appointment, whichever is later. Every legislative employee shall participate in an 

ethics presentation approved by the Commission and Committee within three months of 

employment, and shall attend refresher ethics education presentations at least every two years 

thereafter, in a manner as the Commission and Committee deem appropriate. 

(d) Upon request, the Commission shall assist each agency in developing in-house education 

programs and procedures necessary or desirable to meet the agency's particular needs for ethics 

education, conflict identification, and conflict avoidance. 

(e) Each agency head shall designate an ethics liaison who shall maintain active 

communication with the Commission on all agency ethical issues. The ethics liaison shall attend 

ethics education and awareness programs as provided under this section and lobbying education 

and awareness programs as provided under G.S. 120C-103 and continuously assess and advise 

the Commission of any issues or conduct which might reasonably be expected to result in a 

conflict of interest and seek advice and rulings from the Commission as to their appropriate 

resolution. 
Attachment 2 

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(f) The Commission shall publish a newsletter containing summaries of the Commission's 

opinions, policies, procedures, and interpretive bulletins as issued from time to time. The 

newsletter shall be distributed to all covered persons and legislative employees. Publication 

under this subsection may be done electronically. 

(g) The Commission shall assemble and maintain a collection of relevant State laws, rules, 

and regulations that set forth ethical standards applicable to covered persons. This collection 

shall be made available electronically as resource material to public servants, and ethics liaisons, 

upon request. 

(h) Repealed by Session Laws 2009-549, s. 12, effective August 28, 2009. 

(i) This section shall not apply to judicial officers. (2006-201, s. 1; 2007-347, s. 9(a); 

2008-213, ss. 59, 60; 2009-10, s. 4; 2009-549, s. 12; 2010-169, s. 22(a).) 

§ 138A-15. Duties of heads of State agencies. 

(a) The head of each State agency, including the chair of each board subject to this Chapter, 

shall take an active role in furthering ethics in public service and ensuring compliance with this 

Chapter. The head of each State agency and the chair of each board shall make a conscientious, 

good-faith effort to assist public servants within the agency or on the board in monitoring their 

personal, financial, and professional affairs to avoid taking any action that results in a conflict of 

interest. 

(b) The head of each State agency, including the chair of each board subject to this Chapter, 

shall maintain familiarity with and stay knowledgeable of the reports, opinions, newsletters, and 

other communications from the Commission regarding ethics in general and the interpretation 

and enforcement of this Chapter. The head of each State agency and the chair of each board shall 

also maintain familiarity with and stay knowledgeable of the Commission's reports, evaluations, 

opinions, or findings regarding individual public servants in that individual's agency or on that 

individual's board, or under that individual's supervision or control, including all reports, 

evaluations, opinions, or findings pertaining to actual or potential conflicts of interest. 

(c) When an actual or potential conflict of interest is cited by the Commission under G.S. 

138A-24(e) with regard to a public servant sitting on a board, the conflict shall be recorded in the 

minutes of the applicable board and duly brought to the attention of the membership by the 

board's chair as often as necessary to remind all members of the conflict and to help ensure 

compliance with this Chapter. 

(d) The head of each State agency, including the chair of each board subject to this Chapter, 

shall periodically remind public servants under that individual's authority of the public servant's 

duties to the public under the ethical standards and rules of conduct in this Chapter, including the 

duty of each public servant to continually monitor, evaluate, and manage the public servant's 

personal, financial, and professional affairs to ensure the absence of conflicts of interest. 

(e) At the beginning of any meeting of a board, the chair shall remind all members of their 

duty to avoid conflicts of interest under this Chapter. The chair also shall inquire as to whether 

there is any known conflict of interest with respect to any matters coming before the board at that 

time. 

(f) The head of each State agency, including the chair of each board subject to this Chapter, 

shall ensure that legal counsel employed by or assigned to their agency or board are familiar with 

the provisions of this Chapter, including the Ethical Standards for Covered Persons set forth in 

Article 4 of this Chapter, and are available to advise public servants on the ethical considerations 
Attachment 2 

July 20, 2012 

Page 20 

involved in carrying out their public duties in the best interest of the public. Legal counsel so 

engaged may consult with the Commission, seek the Commission's assistance or advice, and 

refer public servants and others to the Commission as appropriate. 

(g) Taking into consideration the individual autonomy, needs, and circumstances of each 

agency and board, the head of each State agency, including the chair of each board subject to this 

Chapter, shall consider the need for the development and implementation of in-house educational 

programs, procedures, or policies tailored to meet the agency's or board's particular needs for 

ethics education, conflict identification, and conflict avoidance. This includes the periodic 

presentation to all agency heads, their chief deputies or assistants, other public servants under 

their supervision or control, and members of boards, of the basic ethics education and awareness 

presentation outlined in G.S. 138A-14 and any other workshop or seminar program the agency 

head or board chair deems necessary in implementing this Chapter. Agency heads and board 

chairs may request reasonable assistance from the Commission in complying with the 

requirements of this subsection. 

(h) As soon as reasonably practicable after the designation, hiring, or promotion of their chief 

deputies, assistants, or other public servants under their supervision or control, or learning of the 

appointment or election of other public servants to a board covered under this Chapter, all 

agency heads and board chairs shall (i) notify the Commission of such designation, hiring, 

promotion, appointment, or election and (ii) provide these public servants with copies of this 

Chapter and all applicable financial disclosure forms, if these materials and forms have not been 

previously provided to these public servants in connection with their designation, hiring, 

promotion, appointment, or election. In order to avoid duplication of effort, agency heads and 

board chairs shall coordinate this effort with the Commission's staff. (2006-201, s. 1; 2007-347, 

s. 9(b); 2008-213, ss. 61, 62.) 

§ 138A-16. Reserved for future codification purposes. 

§ 138A-17. Reserved for future codification purposes. 

§ 138A-18. Reserved for future codification purposes. 

§ 138A-19. Reserved for future codification purposes. 

§ 138A-20. Reserved for future codification purposes. 

Article 3. 

Public Disclosure of Economic Interests. 

§ 138A-21. Purpose. 

The purpose of disclosure of the financial and personal interests by covered persons is to 

assist covered persons and those who appoint, elect, hire, supervise, or advise them identify and 

avoid conflicts of interest and potential conflicts of interest between the covered person's private 

interests and the covered person's public duties. It is critical to this process that current and 

prospective covered persons examine, evaluate, and disclose those personal and financial 

interests that could be or cause a conflict of interest or potential conflict of interest between the 

covered person's private interests and the covered person's public duties. Covered persons must 

take an active, thorough, and conscientious role in the disclosure and review process, including 

having a complete knowledge of how the covered person's public position or duties might impact 
Attachment 2 

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Page 21 

the covered person's private interests. Covered persons have an affirmative duty to provide any 

and all information that a reasonable person would conclude is necessary to carry out the 

purposes of this Chapter and to fully disclose any conflict of interest or potential conflict of 

interest between the covered person's public and private interests, but the disclosure, review, and 

evaluation process is not intended to result in the disclosure of unnecessary or irrelevant personal 

information. (2006-201, s. 1; 2008-213, s. 63.) 

§ 138A-22. Statement of economic interest; filing required. 

(a) Every covered person subject to this Chapter who is elected, appointed, or employed, 

including one appointed to fill a vacancy in elective office, except for public servants (i) included 

under G.S. 138A-3(30)b., e., f., or g. whose annual compensation from the State is less than sixty 

thousand dollars ($60,000), or (ii) who are ex officio student members under Chapters 115D and 

116 of the General Statutes, shall file a statement of economic interest with the Commission 

prior to the covered person's initial appointment, election, or employment and no later than April 

15 of every year thereafter, except as otherwise filed under subsections (c1) and (d) of this 

section. A prospective covered person required to file a statement under this Chapter shall not be 

appointed, employed, or receive a certificate of election, prior to submission by the Commission 

of the Commission's evaluation of the statement in accordance with this Article. The requirement 

for an annual filing under this subsection also shall apply to covered persons whose terms have 

expired but who continue to serve until the covered person's replacement is appointed. Once a 

statement of economic interest is properly completed and filed under this Article, the statement 

of economic interest does not need to be supplemented or refiled prior to the next due date set 

forth in this subsection. 

(b) Notwithstanding subsection (a) of this section, individuals hired by, and appointees of, 

constitutional officers of the State may file a statement of economic interest within 30 days after 

their appointments or employment when the appointment or employment is made during the first 

60 days of the constitutional officer's initial term in that constitutional office. 

(c) Notwithstanding subsection (a) of this section, public servants, under G.S. 138A-3(30)j. 

and k., who have submitted a statement of economic interest under subsection (a) of this section, 

may be hired, appointed, or elected provisionally prior to submission by the Commission of the 

Commission's evaluation of the statement in accordance with this Article, subject to dismissal or 

removal based on the Commission's evaluation. 

(c1) A public servant reappointed to a board between January 1 and April 15 shall file a 

current statement of economic interest prior to the reappointment. 

(c2) A public servant appointed to a board determined and designated as nonadvisory under 

G.S. 138A-10(a)(3) shall file the initial statement of economic interest within 60 days of 

notification of the designation by the Commission and as provided in this section thereafter. 

(d) A candidate for an office subject to this Article shall file the statement of economic 

interest at the same place and in the same manner as the notice of candidacy for that office is 

required to be filed under G.S. 163-106 or G.S. 163-323 within 10 days of the filing deadline for 

the office the candidate seeks. An individual who is nominated under G.S. 163-114 after the 

primary and before the general election, and an individual who qualifies under G.S. 163-122 as 

an unaffiliated candidate in a general election, shall file a statement of economic interest with the 

county board of elections of each county in the senatorial or representative district. An individual 

nominated under G.S. 163-114 shall file the statement within three days following the 
Attachment 2 

July 20, 2012 

Page 22 

individual's nomination, or not later than the day preceding the general election, whichever 

occurs first. An individual seeking to qualify as an unaffiliated candidate under G.S. 163-122 

shall file the statement of economic interest with the petition filed under that section. An 

individual seeking to have write-in votes counted for that individual in a general election shall 

file a statement of economic interest at the same time the candidate files a declaration of intent 

under G.S. 163-123. A candidate of a new party chosen by convention shall file a statement of 

economic interest at the same time that the president of the convention certifies the names of its 

candidates to the State Board of Elections under G.S. 163-98. 

(d1) In addition to subsections (a) and (d) of this section, a covered person holding elected 

office or a former covered person who held elected office subject to this Article shall file a 

statement of economic interest in all of the following instances, as specified: 

(1) Filed on or before April 15 of the year following the year a covered person or 

former covered person does not file a notice of candidacy or petition for 

election, or does not receive a certificate of election, to the position making 

that individual a covered person, with all information provided in the 

statement of economic interest current as of the last day of December of the 

preceding year. 

(2) Filed on or before April 15 of the year following the year the covered person or 

former covered person resigns from the position making that individual a 

covered person, with all information provided in the statement of economic 

interest current as of the last day in the position. 

(e) The State Board of Elections shall provide for notification of the statement of economic 

interest requirements of this Article to be given to any candidate filing for nomination or election 

to those offices subject to this Article at the time of the filing of candidacy. 

(f) Within 10 days of the filing deadline for office of a covered person, the executive director 

of the State Board of Elections shall send to the State Ethics Commission a list of the names and 

addresses of each candidate who have filed as a candidate for office as a covered person. A 

county board of election shall forward any statements of economic interest filed with the board 

under this section to the State Board of Elections. The executive director of the State Board of 

Elections shall forward a certified copy of the statements of economic interest to the Commission 

for evaluation upon its filing with the State Board of Elections under this section. 

(g) The Commission shall issue forms to be used for the statement of economic interest and 

shall revise the forms from time to time as necessary to carry out the purposes of this Chapter. 

Except as otherwise set forth in this section and in G.S. 138A-15(h), upon notification by the 

employing entity, the Commission shall furnish to all other covered persons the appropriate 

forms needed to comply with this Article. (2006-201, s. 1; 2007-29, s. 2; 2007-348, ss. 32, 33; 

2008-213, s. 64; 2009-549, s. 13; 2010-169, ss. 12, 22(b).) 

§ 138A-23. Statements of economic interest as public records. 

(a) The statements of economic interest filed by prospective public servants under this 

Article for appointed or employed positions and written evaluations by the Commission of these 

statements are not public records until the prospective public servant is appointed or employed 

by the State. All other statements of economic interest and all other written evaluations by the 

Commission of those statements are public records. 
Attachment 2 

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Page 23 

(b) The statements of economic interest filed by prospective public servants, and the written 

evaluations by the Commission of those statements, for individuals elected by the General 

Assembly shall be provided to the chair of the standing committee handling the legislation 

regarding the election and made available to all members of the General Assembly. The 

statements of economic interest filed by public servants elected to positions by the General 

Assembly, and written evaluations by the Commission of those statements, are not public records 

until the prospective public servant is sworn into office. 

(c) The statements of economic interest filed by prospective public servants, and the written 

evaluations by the Commission of those statements, for individuals confirmed for appointment as 

a public servant by the General Assembly shall be provided to the chair of the standing 

committee handling the legislation regarding the appointment. The statements of economic 

interest filed by prospective public servants for confirmation for appointment by the General 

Assembly, and written evaluations by the Commission of those statements, are public records at 

the time of the announcement of the appointment. (2006-201, s. 1; 2007-347, s. 10; 2008-213, ss. 

65, 66.) 

§ 138A-24. Contents of statement. 

(a) Any statement of economic interest filed under this Article shall be on a form prescribed 

by the Commission. Answers must be provided to all questions. The form shall include the 

following information about the filing person and the filing person's immediate family: 

(1) Except as otherwise provided in this subdivision, the name, current mailing 

address, occupation, employer, and business of the filing person. Any 

individual holding or seeking elected office for which residence is a 

qualification for office shall include a home address. A judicial officer may 

use a current mailing address instead of the home address on the form 

required in this subsection. The filing person may also use the initials instead 

of the name of any unemancipated child of the filing person who also resides 

in the household of the filing person. If the filing person provides the initials 

of an unemancipated child, the filing person shall concurrently provide the 

name of the unemancipated child to the Commission. The name of an 

unemancipated child provided by the filing person to the Commission shall 

not be a public record under Chapter 132 of the General Statutes and is 

privileged and confidential. 

(2) A list of each asset and liability included in this subdivision of whatever nature 

(including legal, equitable, or beneficial interest) with a value of at least ten 

thousand dollars ($10,000) owned by the filing person and the filing person's 

immediate family, except assets or liabilities held in a blind trust. This list 

shall include the following: 

a. All real estate located in the State owned wholly or in part by the filing 

person or the filing person's immediate family, including descriptions 

adequate to determine the location by city and county of each parcel. 

b. Real estate that is currently leased or rented to or from the State. 

c. Personal property sold to or bought from the State within the preceding two 

years. 

d. Personal property currently leased or rented to or from the State. 
Attachment 2 

July 20, 2012 

Page 24 

e. The name of each publicly owned company. For purposes of this 

sub-subdivision, the term "publicly owned company" shall not include 

a widely held investment fund, including a mutual fund, regulated 

investment company, or pension or deferred compensation plan, if all 

of the following apply: 

1. The filing person or a member of the filing person's immediate 

family neither exercises nor has the ability to exercise control 

over the financial interests held by the fund. 

2. The fund is publicly traded, or the fund's assets are widely 

diversified. 

f. The name of each nonpublicly owned company or business entity, including 

interests in sole proprietorships, partnerships, limited partnerships, 

joint ventures, limited liability companies, limited liability 

partnerships, and closely held corporations. 

g. For each company or business entity listed under sub-subdivision f. of this 

subdivision, if known, a list of any other companies or business 

entities in which the company or business entity owns securities or 

equity interests exceeding a value of ten thousand dollars ($10,000). 

h. Repealed by Session Laws 2010-169, s. 13(a), effective January 1, 2011, 

and applicable to statements of economic interest filed on or after that 

date. 

i. Recodified as subdivision (a)(16) by Session Laws 2010-169, s. 13(c), 

effective January 1, 2011, and applicable to statements of economic 

interest filed on or after that date. 

j. For a vested trust created, established, or controlled by the filing person of 

which the filing person or the members of the filing person's 

immediate family are the beneficiaries, excluding a blind trust, the 

name and address of the trustee, a description of the trust, and the 

filing person's relationship to the trust. 

k. A list of all liabilities, excluding indebtedness on the filing person's primary 

personal residence, by type of creditor and debtor. 

l. Repealed by Session Laws 2007-348, s. 34. See Editor's note for effective 

date. 

m. A list of all stock options in a company or business not otherwise disclosed 

on this statement. 

(3) The name of each source (not specific amounts) of income of more than five 

thousand dollars ($5,000) received during the previous year by business or 

industry type, if that source is not listed under subdivision (2) of this 

subsection. Income shall include salary, wages, professional fees, honoraria, 

interest, dividends, rental income, and business income from any source other 

than capital gains, federal government retirement, military retirement, or 

social security income. 

(4) If the filing person is a practicing attorney, an indication of whether the filing 

person, or the law firm with which the filing person is affiliated, earned legal 
Attachment 2 

July 20, 2012 

Page 25 

fees during the past year in excess of ten thousand dollars ($10,000) from any 

of the following categories of legal representation: 

a. Administrative law. 

b. Admiralty law. 

c. Corporate law. 

d. Criminal law. 

e. Decedents' estates law. 

f. Environmental law. 

g. Insurance law. 

h. Labor law. 

i. Local government law. 

j. Negligence or other tort litigation law. 

k. Real property law. 

l. Securities law. 

m. Taxation law. 

n. Utilities regulation law. 

(5) Except for a filing person in compliance under subdivision (4) of this subsection, 

if the filing person is a licensed professional or provides consulting services, 

either individually or as a member of a professional association, a list of 

categories of business and the nature of services rendered, for which payment 

for services were charged or paid during the past year in excess of ten 

thousand dollars ($10,000). 

(6) An indication of whether the filing person, the filing person's employer, a member 

of the filing person's immediate family, or the immediate family member's 

employer is licensed or regulated by, or has a business relationship with, the 

board or employing entity with which the filing person is or will be 

associated. This subdivision does not apply to a legislator, a judicial officer, or 

that legislator's or judicial officer's immediate family. 

(7) A list of societies, organizations, or advocacy groups, pertaining to subject matter 

areas over which the public servant's agency or board may have jurisdiction, 

in which the public servant or a member of the public servant's immediate 

family is a director, officer, or governing board member. This subdivision 

does not apply to a legislator, a judicial officer, or that legislator's or judicial 

officer's immediate family. 

(8) A list of all things with a total value of over two hundred dollars ($200.00) per 

calendar quarter given and received without valuable consideration and under 

circumstances that a reasonable person would conclude that the thing was 

given for lobbying, if such things were given by a person not required to 

report under Chapter 120C of the General Statutes, excluding things given by 

a member of the filing person's extended family. The list shall include only 

those things received during the 12 months preceding the reporting period 

under subsection (d) of this section, and shall include the source of those 

things. The list required by this subdivision shall not apply to things of 

monetary value received by the filing person prior to the time the filing person 
Attachment 2 

July 20, 2012 

Page 26 

filed or was nominated as a candidate for office, as described in G.S. 

138A-22, or was appointed or employed as a covered person. 

(9) A list of any felony convictions of the filing person, excluding any felony 

convictions for which a pardon of innocence or order of expungement has 

been granted. 

(10) Any other information that the filing person believes may assist the Commission 

in advising the filing person with regards to compliance with this Chapter. 

(11) A list of any nonprofit corporation or organization with which associated during 

the preceding calendar year, including a list of which of those nonprofit 

corporations or organizations with which associated do business with the State 

or receive State funds and a brief description of the nature of the business, if 

known or with which due diligence could reasonably be known. 

(12) A statement of whether the filing person or the filing person's immediate family 

is or has been a lobbyist or lobbyist principal registered under Chapter 120C 

of the General Statutes within the preceding 12 months. 

(13) A list of all contributions as defined in G.S. 163-278.6(6) with a cumulative total 

of more than one thousand dollars ($1,000) made by the filing person only, 

during the preceding calendar year, to the candidate or candidate campaign 

committee of the covered person as defined in G.S. 138A-3(30)a. appointing 

the filing person to the covered board. 

(14) A statement indicating "Yes" or "No" as to whether the filing person engaged in 

each of the following activities during the preceding calendar year, with 

respect to or on the behalf of the candidate or candidate campaign committee 

of the covered person as defined in G.S. 138A-3(30)a. appointing the filing 

person: (i) collected contributions from multiple contributors, took possession 

of such multiple contributions, and transferred or delivered those collected 

multiple contributions, (ii) hosted a fund-raiser in the filing person's residence 

or place of business, or (iii) volunteered for campaign-related activity. This 

subdivision only applies to filing persons in the following categories: 

a. A public servant, or a prospective appointee to, as defined in G.S. 

138A-3(30)c. 

b. A judicial officer that serves on, or a prospective appointee to, the Supreme 

Court, the Court of Appeals, the superior court, or the district court. 

c. A covered person serving on, or a prospective appointee to, one of the 

following panels or boards: 

1. Alcoholic Beverage Control Commission. 

2. Coastal Resources Commission. 

3. State Board of Education. 

4. State Board of Elections. 

5. Division of Employment Security. 

6. Environmental Management Commission. 

7. Industrial Commission. 

8. State Personnel Commission. 

9. Rules Review Commission. 

10. Board of Transportation. 
Attachment 2 

July 20, 2012 

Page 27 

11. Board of Governors of the University of North Carolina. 

12. Utilities Commission. 

13. Wildlife Resources Commission. 

(15) The name of each business with which associated that the filing person or a 

member of the filing person's immediate family is an employee, director, 

officer, partner, proprietor, or member or manager. 

(16) For any company or business entity listed under subdivision (15) of this 

subsection and sub-subdivisions f. and g. of subdivision (2) of this subsection, 

if known, a statement whether that company or business entity has any 

material business dealings or business contracts with the State, or is regulated 

by the State, including a brief description of the business activity. 

(b) The Supreme Court, the Committee, constitutional officers of the State, heads of principal 

departments, the Board of Governors of The University of North Carolina, the State Board of 

Community Colleges, other boards, and the appointing authority or employing entity may require 

a filing person to file supplemental information in conjunction with the filing of that filing 

person's statement of economic interest. These supplemental filings requirements shall be filed 

with the Commission and included on the forms to be filed with the Commission. The 

Commission shall evaluate the supplemental forms as part of the statement of economic interest. 

The failure to file supplemental forms shall be subject to the provisions of G.S. 138A-25. 

(c) Each statement of economic interest shall contain a certification by the filing person that 

the filing person has read the statement and that, to the best of the filing person's knowledge and 

belief, the statement is true, correct, and complete. The filing person's certification also shall 

provide that the filing person has not transferred, and will not transfer, any asset, interest, or 

other property with the intent to conceal it from disclosure while retaining an equitable interest 

therein. 

(c1) Reserved for future codification purposes. 

(c2) Recodified as G.S. 138A-22(c2) by Session Laws 2010-169, s. 22(b), effective August 

2, 2010. 

(d) All information provided in the statement of economic interest shall be current as of the 

last day of December of the year preceding the date the statement of economic interest was due. 

(e) The Commission shall prepare a written evaluation of each statement of economic interest 

relative to conflicts of interest and potential conflicts of interest. This subsection does not apply 

to statements of economic interest of legislators and judicial officers. The Commission shall 

submit the evaluation to all of the following: 

(1) The filing person who submitted the statement. 

(2) The head of the agency in which the filing person serves. 

(3) The Governor for gubernatorial appointees and employees in agencies under the 

Governor's authority. 

(4) Repealed by Session Laws 2008-213, s. 74, effective August 15, 2008. 

(5) The appointing or hiring authority for those public servants not under the 

Governor's authority. 

(6) The State Board of Elections for those filing persons who are elected. 

(7) Repealed by Session Laws 2008-213, s. 74, effective August 15, 2008. 

(f) The Commission shall prepare a written evaluation of each statement of economic interest 

for nominees of the Board of Governors of The University of North Carolina elected pursuant to 
Attachment 2 

July 20, 2012 

Page 28 

G.S. 116-6, and nominees of the State Board of Community Colleges elected pursuant to G.S. 

115D-2.1 within seven days of the submission of the completed statement of economic interest 

to the Commission. (2006-201, s. 1; 2007-29, s. 1; 2007-348, s. 34; 2008-187, s. 32; 2008-213, 

ss. 67-72(a), 73, 74, 74.5, 91; 2009-549, s. 14; 2009-570, s. 45; 2010-169, ss. 13(a)-(d), 17(q), 

22(b); 2011-401, s. 3.18.) 

§ 138A-25. Failure to file. 

(a) Within 30 days after the date due under G.S. 138A-22, the Commission shall notify filing 

persons who have failed to file or filing persons whose statement has been deemed incomplete. 

For a filing person currently serving as a covered person, the Commission shall notify the filing 

person and the ethics liaison that if the statement of economic interest is not filed or completed 

within 30 days of receipt of the notice of failure to file or complete, the filing person shall be 

subject to a fine as provided for in this section. 

(b) Any filing person who fails to file or complete a statement of economic interest within 30 

days of the receipt of the notice, required under subsection (a) of this section, shall be subject to 

a fine of two hundred fifty dollars ($250.00), to be imposed by the Commission. 

(c) Failure by any filing person to file or complete a statement of economic interest within 60 

days of the receipt of the notice, required under subsection (a) of this section, shall be deemed to 

be a violation of this Chapter and shall be grounds for disciplinary action under G.S. 138A-45. 

(2006-201, s. 1; 2008-213, s. 75; 2009-549, s. 15.) 

§ 138A-26. Concealing or failing to disclose material information. 

A filing person who knowingly conceals or knowingly fails to disclose information that is 

required to be disclosed on a statement of economic interest under this Article shall be guilty of a 

Class 1 misdemeanor and shall be subject to disciplinary action under G.S. 138A-45. (2006-201, 

s. 1.) 

§ 138A-27. Penalty for false information. 

A filing person who provides false information on a statement of economic interest as 

required under this Article knowing that the information is false is guilty of a Class H felony and 

shall be subject to disciplinary action under G.S. 138A-45. (2006-201, s. 1.) 

§ 138A-28: Reserved for future codification purposes. 

§ 138A-29: Reserved for future codification purposes. 

§ 138A-30: Reserved for future codification purposes. 

Article 4. 

Ethical Standards for Covered Persons. 

§ 138A-31. Use of public position for private gain. 

(a) Except as permitted under G.S. 138A-38, a covered person or legislative employee shall 

not knowingly use the covered person's or legislative employee's public position in an official 

action or legislative action that will result in financial benefit to the covered person or legislative 

employee, a member of the covered person's or legislative employee's extended family, or 

business with which the covered person or legislative employee is associated. This subsection 

shall not apply to financial or other benefits derived by a covered person or legislative employee 
Attachment 2 

July 20, 2012 

Page 29 

that the covered person or legislative employee would enjoy to an extent no greater than that 

which other citizens of the State would or could enjoy, or that are so remote, tenuous, 

insignificant, or speculative that a reasonable person would conclude under the circumstances 

that the covered person's or legislative employee's ability to protect the public interest and 

perform the covered person's or legislative employee's official duties would not be compromised. 

(b) A covered person shall not mention or authorize another person to mention the covered 

person's public position in nongovernmental advertising that advances the private interest of the 

covered person or others. The prohibition in this subsection shall not apply to any of the 

following: 

(1) Political advertising. 

(2) News stories and articles. 

(3) The inclusion of a covered person's public position in a directory or a biographical 

listing. 

(4) The inclusion of a covered person's public position in an agenda or other 

document related to a meeting, conference, or similar event when the 

disclosure could reasonably be considered material by an individual attending 

the meeting, conference, or similar event. 

(5) The inclusion of a covered person's public position in a charitable solicitation for 

a nonprofit business entity qualifying under 26 U.S.C. § 501(c)(3). 

(6) The disclosure of a covered person's position to an existing or prospective 

customer, supplier, or client when the disclosure could reasonably be 

considered material by the customer, supplier, or client. 

(c) Notwithstanding G.S. 163-278.16A, no covered person shall use or permit the use of State 

funds for any advertisement or public service announcement in a newspaper, on radio, television, 

magazines, or billboards, that contains that covered person's name, picture, or voice, except in 

case of State or national emergency and only if the announcement is reasonably necessary to the 

covered person's official function. This subsection shall not apply to fund-raising on behalf of 

and aired on public radio or public television. (2006-201, s. 1; 2009-549, s. 16; 2011-393, s. 1.) 

§ 138A-32. Gifts. 

(a) A covered person or a legislative employee shall not knowingly, directly or indirectly, 

ask, accept, demand, exact, solicit, seek, assign, receive, or agree to receive anything of value for 

the covered person or legislative employee, or for another person, in return for being influenced 

in the discharge of the covered person's or legislative employee's official responsibilities, other 

than that which is received by the covered person or the legislative employee from the State for 

acting in the covered person's or legislative employee's official capacity. 

(b) A covered person may not solicit for a charitable purpose any thing of monetary value 

from any subordinate State employee. This subsection shall not apply to generic written 

solicitations to all members of a class of subordinates. Nothing in this subsection shall prohibit a 

covered person from serving as the honorary head of the State Employees Combined Campaign. 

(c) No public servant, legislator, or legislative employee shall knowingly accept a gift from a 

lobbyist or lobbyist principal registered under Chapter 120C of the General Statutes. No 

legislator or legislative employee shall knowingly accept a gift from liaison personnel designated 

under Chapter 120C of the General Statutes. No public servant, legislator, or legislative 

employee shall accept a gift knowing all of the following: 
Attachment 2 

July 20, 2012 

Page 30 

(1) The gift was obtained indirectly from a lobbyist, lobbyist principal, or liaison 

personnel registered under Chapter 120C of the General Statutes. 

(2) The lobbyist, lobbyist principal, or liaison personnel registered under Chapter 

120C of the General Statutes intended for an ultimate recipient of the gift to 

be a public servant, legislator, or legislative employee as provided in G.S. 

120C-303. 

(d) No public servant shall knowingly accept a gift from a person whom the public servant 

knows or has reason to know any of the following: 

(1) Is doing or is seeking to do business of any kind with the public servant's 

employing entity. 

(2) Is engaged in activities that are regulated or controlled by the public servant's 

employing entity. 

(3) Has financial interests that may be substantially and materially affected, in a 

manner distinguishable from the public generally, by the performance or 

nonperformance of the public servant's official duties. 

(d1) No public servant shall accept a gift knowing all of the following: 

(1) The gift was obtained indirectly from a person described under subdivision (d)(1), 

(2), or (3) of this section. 

(2) The person described under subdivision (d)(1), (2), or (3) of this section intended 

for an ultimate recipient of the gift to be a public servant. 

(e) Subsections (c), (d), and (d1) of this section shall not apply to any of the following: 

(1) Food and beverages for immediate consumption in connection with any of the 

following: 

a. An open meeting of a public body, provided that the open meeting is 

properly noticed under Article 33C of Chapter 143 of the General 

Statutes. 

b. A gathering of a person or governmental unit with at least 10 or more 

individuals in attendance open to the general public, provided that a 

sign or other communication containing a message that is reasonably 

designed to convey to the general public that the gathering is open to 

the general public is displayed at the gathering. 

c. A gathering of a person or governmental unit to which the entire board of 

which a public servant is a member, at least 10 public servants, all the 

members of the House of Representatives, all the members of the 

Senate, all the members of a county or municipal legislative 

delegation, all the members of a recognized legislative caucus with 

regular meetings other than meetings with one or more lobbyists, all 

the members of a committee, a standing subcommittee, a joint 

committee or joint commission of the House of Representatives, the 

Senate, or the General Assembly, or all legislative employees are 

invited, and one of the following applies: 

1. At least 10 individuals associated with the person or governmental 

unit actually attend, other than the covered person or legislative 

employee, or the immediate family of the covered person or 

legislative employee. 
Attachment 2 

July 20, 2012 

Page 31 

2. All shareholders, employees, board members, officers, members, or 

subscribers of the person or governmental unit located in North 

Carolina are notified and invited to attend. 

For purposes of this sub-subdivision only, the term "invited" shall 

mean written notice from at least one host or sponsor of the gathering 

containing the date, time, and location of the gathering given at least 

24 hours in advance of the gathering to the specific qualifying group 

listed in this sub-subdivision. If it is known at the time of the written 

notice that at least one sponsor is a lobbyist or lobbyist principal, the 

written notice shall also state whether or not the gathering is permitted 

under this section. 

(2) Informational materials relevant to the duties of the covered person or legislative 

employee. 

(3) Reasonable actual expenditures of the legislator, public servant, or legislative 

employee for food, beverages, registration, travel, lodging, other incidental 

items of nominal value, and entertainment, in connection with (i) a 

legislator's, public servant's, or legislative employee's attendance at an 

educational meeting for purposes primarily related to the public duties and 

responsibilities of the legislator, public servant, or legislative employee; (ii) a 

legislator's, public servant's, or legislative employee's participation as a 

speaker or member of a panel at a meeting; (iii) a legislator's or legislative 

employee's attendance and participation in meetings of a nonpartisan state, 

regional, national, or international legislative organization of which the 

General Assembly is a member or that the legislator or legislative employee is 

a member or participant of by virtue of that legislator's or legislative 

employee's public position, or as a member of a board, agency, or committee 

of such organization; or (iv) a public servant's attendance and participation in 

meetings as a member of a board, agency, or committee of a nonpartisan state, 

regional, national, or international organization of which the public servant's 

agency is a member or the public servant is a member by virtue of that public 

servant's public position, provided the following conditions are met: 

a. The reasonable actual expenditures shall be made by a lobbyist principal, 

and not a lobbyist. 

b. Any meeting must be attended by at least 10 or more participants, have a 

formal agenda, and notice of the meeting has been given at least 10 

days in advance. 

c. Any food, beverages, transportation, or entertainment must be provided to 

all attendees or defined groups of 10 or more attendees as part of the 

meeting or in conjunction with the meeting. 

d. Any entertainment must be incidental to the principal agenda of the 

meeting. 

e. If the legislator, public servant, or legislative employee is participating as a 

speaker or member of a panel, then that legislator, public servant, or 

legislative employee must be a bona fide speaker or participant. 
Attachment 2 

July 20, 2012 

Page 32 

(4) A plaque or similar nonmonetary memento recognizing individual services in a 

field or specialty or to a charitable cause. 

(5) Gifts accepted on behalf of the State for use by the State or for the benefit of the 

State. 

(6) Anything generally made available or distributed to the general public or all other 

State employees by lobbyists or lobbyist principals, or persons described in 

subdivisions (d)(1), (2), or (3) of this section. 

(7) Gifts from the covered person's or legislative employee's extended family, or a 

member of the same household of the covered person or legislative employee. 

(8) Gifts given to a public servant not otherwise subject to an exception under this 

subsection, where the gift is food and beverages, transportation, lodging, 

entertainment or related expenses associated with the public business of 

industry recruitment, promotion of international trade, or the promotion of 

travel and tourism, and the public servant is responsible for conducting the 

business on behalf of the State, provided all the following conditions apply: 

a. The public servant did not solicit the gift, and the public servant did not 

accept the gift in exchange for the performance of the public servant's 

official duties. 

b. The public servant reports electronically to the Commission within 30 days 

of receipt of the gift or of the date set for disclosure of public records 

under G.S. 132-6(d), if applicable. The report shall include a 

description and value of the gift and a description how the gift 

contributed to the public business of industry recruitment, promotion 

of international trade, or the promotion of travel and tourism. This 

report shall be posted to the Commission's public Web site. 

c. A tangible gift, other than food or beverages, not otherwise subject to an 

exception under this subsection shall be turned over as State property 

to the Department of Commerce within 30 days of receipt, except as 

permitted under subsection (f) of this section. 

(9) Gifts of personal property valued at less than one hundred dollars ($100.00) given 

to a public servant in the commission of the public servant's official duties if 

the gift is given to the public servant as a personal gift in another country as 

part of an overseas trade mission, and the giving and receiving of such 

personal gifts is considered a customary protocol in the other country. 

(10) Gifts given or received as part of a business, civic, religious, fraternal, personal, 

or commercial relationship provided all of the following conditions are met: 

a. The relationship is not related to the public servant's, legislator's, or 

legislative employee's public service or position. 

b. The gift is made under circumstances that a reasonable person would 

conclude that the gift was not given to lobby. 

(11) Food and beverages for immediate consumption and related transportation 

provided all of the following conditions are met: 

a. The food, beverage, or transportation is given by a lobbyist principal and 

not a lobbyist. 
Attachment 2 

July 20, 2012 

Page 33 

b. The food, beverage, or transportation is provided during a conference, 

meeting, or similar event and is available to all attendees of the same 

class as the recipient. 

c. The recipient of the food, beverage, or transportation is a director, officer, 

governing board member, employee, or independent contractor of one 

of the following: 

1. The lobbyist principal giving the food, beverage, or transportation. 

2. A third party that received the funds to purchase the food, 

beverages, or transportation. 

(12) Food and beverages for immediate consumption at an organized gathering of a 

person, the State, or a governmental unit to which a public servant is invited to 

attend for purposes primarily related to the public servant's public service or 

position, and to which at least 10 individuals, other than the public servant, or 

the public servant's immediate family, actually attend, or to which all 

shareholders, employees, board members, officers, members, or subscribers of 

the person or governmental unit who are located in a specific North Carolina 

office or county are notified and invited to attend. 

(f) A prohibited gift that would constitute an expense appropriate for reimbursement by the 

public servant's employing entity if it had been incurred by the public servant personally shall be 

considered a gift accepted by or donated to the State, provided the public servant has been 

approved by the public servant's employing entity to accept or receive such things of value on 

behalf of the State. The fact that the employing entity's reimbursement rate for the type of 

expense is less than the value of a particular gift shall not render the gift prohibited. 

(g) A prohibited gift shall be, and a permissible gift may be, promptly declined, returned, 

paid for at fair market value, or donated to charity or the State. 

(h) A covered person or legislative employee shall not accept an honorarium from a source 

other than the employing entity for conducting any activity where any of the following apply: 

(1) The employing entity reimburses the covered person or legislative employee for 

travel, subsistence, and registration expenses. 

(2) The employing entity's work time or resources are used. 

(3) The activity would be considered official duty or would bear a reasonably close 

relationship to the covered person's or legislative employee's official duties. 

An outside source may reimburse the employing entity for actual expenses incurred by a covered 

person or legislative employee in conducting an activity within the duties of the covered person 

or legislative employee, or may pay a fee to the employing entity, in lieu of an honorarium, for 

the services of the covered person or legislative employee. An honorarium permissible under this 

subsection shall not be considered a gift for purposes of subsection (c) of this section. 

(i) Acceptance or solicitation of a gift in compliance with this section without corrupt intent 

shall not constitute a violation of the statutes related to bribery under G.S. 14-217, 14-218, or 

120-86. (2006-201, s. 1; 2007-347, s. 11; 2007-348, ss. 15(b), 35-41(a); 2008-213, ss. 77(a), 

78(a), 79-82, 90; 2009-549, s. 17; 2010-169, ss. 15(b), (c), 17(r).) 

§ 138A-33. Other compensation. 

A public servant or legislative employee shall not solicit or receive personal financial gain, 

other than that received by the public servant or legislative employee from the State, or with the 
Attachment 2 

July 20, 2012 

Page 34 

approval of the employing entity, for acting in the public servant's or legislative employee's 

official capacity, or for advice or assistance given in the course of carrying out the public 

servant's or legislative employee's duties. (2006-201, s. 1.) 

§ 138A-34. Use of information for private gain. 

A public servant or legislative employee shall not use or disclose nonpublic information 

gained in the course of, or by reason of, the public servant's or legislative employee's official 

responsibilities in a way that would affect a personal financial interest of the public servant or 

legislative employee, a member of the public servant's or legislative employee's extended family, 

or a person or governmental unit with whom or business with which the public servant or 

legislative employee is associated. A public servant or legislative employee shall not improperly 

use or improperly disclose any confidential information. (2006-201, s. 1; 2008-213, s. 83.) 

§ 138A-35. Other rules of conduct. 

(a) A public servant shall make a due and diligent effort before taking any action, including 

voting or participating in discussions with other public servants on a board on which the public 

servant also serves, to determine whether the public servant has a conflict of interest. If the 

public servant is unable to determine whether or not a conflict of interest may exist, the public 

servant has a duty to inquire of the Commission as to that conflict. 

(b) A public servant shall continually monitor, evaluate, and manage the public servant's 

personal, financial, and professional affairs to ensure the absence of conflicts of interest. 

(c) A public servant shall obey all other civil laws, administrative requirements, and criminal 

statutes governing conduct of State government applicable to appointees and employees. 

(2006-201, s. 1.) 

§ 138A-36. Public servant participation in official actions. 

(a) Except as permitted by subsection (d) of this section and under G.S. 138A-38, no public 

servant acting in that capacity, authorized to perform an official action requiring the exercise of 

discretion, shall participate in an official action by the employing entity if the public servant 

knows the public servant or a person with which the public servant is associated may incur a 

reasonably foreseeable financial benefit from the matter under consideration, which financial 

benefit would impair the public servant's independence of judgment or from which it could 

reasonably be inferred that the financial benefit would influence the public servant's participation 

in the official action. 

(b) A public servant described in subsection (a) of this section shall abstain from taking any 

verbal or written action in furtherance of the official action. The public servant shall submit in 

writing to the employing entity the reasons for the abstention. When the employing entity is a 

board, the abstention shall be recorded in the employing entity's minutes. 

(c) A public servant shall take appropriate steps, under the particular circumstances and 

considering the type of proceeding involved, to remove himself or herself to the extent 

necessary, to protect the public interest and comply with this Chapter, from any proceeding in 

which the public servant's impartiality might reasonably be questioned due to the public servant's 

familial, personal, or financial relationship with a participant in the proceeding. A participant 

includes (i) an owner, shareholder, partner, member or manager of a limited liability company, 

employee, agent, officer, or director of a business, organization, or group involved in the 
Attachment 2 

July 20, 2012 

Page 35 

proceeding, or (ii) an organization or group that has petitioned for rule making or has some 

specific, unique, and substantial interest in the proceeding. Proceedings include quasi-judicial 

proceedings and quasi-legislative proceedings. A personal relationship includes one in a 

leadership or policy-making position in a business, organization, or group. 

(d) If a public servant is uncertain about whether the relationship described in subsection (c) 

of this section justifies removing the public servant from the proceeding under subsection (c) of 

this section, the public servant shall disclose the relationship to the individual presiding over the 

proceeding and seek appropriate guidance. The presiding officer, in consultation with legal 

counsel if necessary, shall then determine the extent to which the public servant will be permitted 

to participate. If the affected public servant is the individual presiding, then the vice-chair or any 

other substitute presiding officer shall make the determination. A good-faith determination under 

this subsection of the allowable degree of participation by a public servant is presumptively valid 

and only subject to review under G.S. 138A-12 upon a clear and convincing showing of mistake, 

fraud, abuse of discretion, or willful disregard of this Chapter. 

(e) This section shall not allow participation in an official action prohibited by G.S. 14-234. 

(2006-201, s. 1; 2007-347, s. 12; 2007-348, s. 42; 2008-213, s. 84(a).) 

§ 138A-37. Legislator participation in legislative actions. 

(a) Except as permitted under G.S. 138A-38, no legislator shall participate in a legislative 

action if the legislator knows the legislator or a person with which the legislator is associated 

may incur a reasonably foreseeable financial benefit from the action, and if after considering 

whether the legislator's judgment would be substantially influenced by the financial benefit and 

considering the need for the legislator's particular contribution, including special knowledge of 

the subject matter to the effective functioning of the legislature, the legislator concludes that an 

actual financial benefit does exist which would impair the legislator's independence of judgment. 

(a1) The legislator shall submit in writing to the principal clerk of the house of which the 

legislator is a member the reasons for the abstention from participation in the legislative matter. 

(b) If the legislator has a material doubt as to whether the legislator should act, the legislator 

may submit the question for an advisory opinion to the State Ethics Commission in accordance 

with G.S. 138A-13 or the Legislative Ethics Committee in accordance with G.S. 120-104. 

(2006-201, s. 1; 2007-347, s. 13; 2008-213, s. 84(b); 2010-169, s. 22(c).) 

§ 138A-38. Permitted participation exception. 

(a) Notwithstanding G.S. 138A-36 and G.S. 138A-37, a covered person may participate in an 

official action or legislative action under any of the following circumstances except as 

specifically limited: 

(1) The only interest or reasonably foreseeable benefit or detriment that accrues to the 

covered person, the covered person's extended family, business with which 

the covered person is associated, or nonprofit corporation or organization with 

which the covered person is associated as a member of a profession, 

occupation, or general class is no greater than that which could reasonably be 

foreseen to accrue to all members of that profession, occupation, or general 

class. 

(2) When an official or legislative action affects or would affect the covered person's 

compensation and allowances as a covered person. 
Attachment 2 

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(3) Before the covered person participated in the official or legislative action, the 

covered person requested and received from the Commission or Committee a 

written advisory opinion that authorized the participation. In authorizing the 

participation under this subdivision, the Commission or Committee shall 

consider the need for the legislator's particular contribution, such as special 

knowledge of the subject matter, to the effective functioning of the General 

Assembly. 

(4) Before participating in an official action, a public servant made full written 

disclosure to the public servant's employing entity which then made a written 

determination that the interest or benefit would neither impair the public 

servant's independence of judgment nor influence the public servant's 

participation in the official action. The employing entity shall file a copy of 

that written determination with the Commission. 

(5) When action is ministerial only and does not require the exercise of discretion. 

(6) When a public or legislative body records in its minutes that it cannot obtain a 

quorum in order to take the official or legislative action because the covered 

person is disqualified from acting under G.S. 138A-36, G.S. 138A-37, or this 

section, the covered person may be counted for purposes of a quorum, but 

shall otherwise abstain from taking any further action. 

(7) When a public servant notifies the Commission in writing that the public servant, 

or someone whom the public servant appoints to act in the public servant's 

stead, or both, are the only individuals having legal authority to take an 

official action, and the public servant discloses in writing the circumstances 

and nature of the conflict of interest. 

(b) This section shall not allow participation in an official action prohibited by G.S. 14-234. 

(c) Notwithstanding G.S. 138A-37, if a legislator is employed or retained by, or is an 

independent contractor of, a governmental unit, and the legislator is the only member of the 

house elected from the district where that governmental unit is located, then the legislator may 

take legislative action on behalf of that governmental unit provided the legislator discloses in 

writing to the principal clerk the nature of the relationship with the governmental unit prior to, or 

at the time of, taking the legislative action. 

(d) Notwithstanding G.S. 138A-36, service by the president, chief financial officer, chief 

administrative officer, or voting member of the board of trustees of a community college as an 

officer, employee, or member of the board of directors of a nonprofit corporation established 

under G.S. 115D-20(9) to support the community college shall not constitute a conflict of 

interest under G.S. 138A-36, provided that the majority of the nonprofit corporation's board of 

directors is not comprised of the president, chief financial officer, and chief administrative 

officer, or voting members of the board of trustees of the community college which the nonprofit 

corporation was created to support. (2006-201, s. 1; 2007-347, s. 14; 2008-213, s. 85; 2010-169, 

s. 22(d).) 

§ 138A-39. Disqualification to serve. 

(a) Within 30 days of notice of the Commission's determination that a public servant has a 

disqualifying conflict of interest, the public servant shall eliminate the interest that constitutes the 

disqualifying conflict of interest or resign from the public position. 
Attachment 2 

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(b) Failure by a public servant to comply with subsection (a) of this section is a violation of 

this Chapter for purposes of G.S. 138A-45. 

(c) A decision under this section shall be considered a final decision for contested case 

purposes under Article 3 of Chapter 150B of the General Statutes. 

(d) As used in this section, a disqualifying conflict of interest is a conflict of interest of such 

significance that the conflict of interest would prevent a public servant from fulfilling a 

substantial function or portion of the public servant's public duties. (2006-201, s. 1.) 

§ 138A-40. Employment and supervision of members of covered person's or legislative 

employee's extended family. 

A covered person or legislative employee shall not cause the employment, appointment, 

promotion, transfer, or advancement of an extended family member of the covered person or 

legislative employee to a State office, or a position to which the covered person or legislative 

employee supervises or manages, except for positions at the General Assembly as permitted 

under G.S. 120-32(2). A public servant or legislative employee shall not supervise, manage, or 

participate in an action relating to the discipline of a member of the public servant's or legislative 

employee's extended family, except as specifically authorized by the public servant's or 

legislative employee's employing entity. (2006-201, s. 1; 2007-347, s. 15.) 

§ 138A-41. Other ethics standards. 

(a) Nothing in this Chapter shall prevent the Supreme Court, the Committee, the Legislative 

Services Commission, constitutional officers of the State, heads of principal departments, the 

Board of Governors of The University of North Carolina, the State Board of Community 

Colleges, or other boards from adopting additional or supplemental ethics standards applicable to 

that public agency's operations. 

(b) The Governor, as a constitutional officer of the State, shall have the authority to adopt 

additional and supplemental ethics standards applicable to any appointee of the Governor to any 

State board, commission, council, committee, task force, authority, or similar public body, 

however denominated, created by statute or executive order, whether advisory or nonadvisory in 

authority. If the Governor adopts such ethics standards, the standards shall be published in the 

North Carolina Register and made available to each appointee subject to the ethics standards. 

(c) The Governor, as a constitutional officer of the State, shall have the authority to adopt 

minimum ethics standards applicable to any employee of a State agency. If the Governor adopts 

such standards, the ethics standards shall be published in the North Carolina Register and made 

available to each employee subject to the ethics standards. (2006-201, s. 1; 2010-169, s. 14.) 

§ 138A-42. Reserved for future codification purposes. 

§ 138A-43. Reserved for future codification purposes. 

§ 138A-44. Reserved for future codification purposes. 
Attachment 2 

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Article 5. 

Violation Consequences. 

§ 138A-45. Violation consequences. 

(a) Violation of this Chapter by any covered person or legislative employee is grounds for 

disciplinary action. Except as specifically provided in this Chapter and for perjury under G.S. 

138A-12 and G.S. 138A-24, no criminal penalty shall attach for any violation of this Chapter. 

(b) The willful failure of any public servant serving on a board to comply with this Chapter is 

misfeasance, malfeasance, or nonfeasance. In the event of misfeasance, malfeasance, or 

nonfeasance, the offending public servant serving on a board is subject to removal from the 

board of which the public servant is a member. For appointees of the Governor and members of 

the Council of State, the appointing authority may remove the offending public servant. For 

appointees of the Speaker of the House of Representatives, the Speaker of the House of 

Representatives may remove the offending public servant. For appointees of the General 

Assembly made upon the recommendation of the Speaker of the House of Representatives, the 

Governor at the recommendation of the Speaker of the House of Representatives may remove the 

offending public servant. For appointees of the President Pro Tempore of the Senate, the 

President Pro Tempore of the Senate may remove the offending public servant. For appointees of 

the General Assembly made upon the recommendation of the President Pro Tempore of the 

Senate, the Governor at the recommendation of the President Pro Tempore of the Senate may 

remove the offending public servant. For public servants elected to a board by either the Senate 

or House of Representatives, the electing house of the General Assembly shall exercise the 

discretion of whether to remove the offending public servant. For all other appointees, the 

Commission shall exercise the discretion of whether to remove the offending public servant. 

(c) The willful failure of any public servant serving as a State employee to comply with this 

Chapter is a violation of a written work order, thereby permitting disciplinary action as allowed 

by the law, including termination from employment. For employees of State departments headed 

by a member of the Council of State, the appropriate member of the Council of State shall make 

all final decisions on the manner in which the offending public servant shall be disciplined. For 

public servants who are judicial employees, the Chief Justice shall make all final decisions on the 

matter in which the offending judicial employee shall be disciplined. For legislative employees, 

the Legislative Services Commission shall make or refer to the hiring authority all final decisions 

on the matter in which the offending legislative employee shall be disciplined. For public 

servants appointed or elected for The University of North Carolina or the Community Colleges 

System, the appointing or electing authority shall make all final decisions on the matter in which 

the offending public servant shall be disciplined. For any other public servant serving as a State 

employee, the Governor shall make all final decisions on the manner in which the offending 

public servant shall be disciplined. 

(d) The willful failure of any constitutional officer of the State to comply with this Chapter is 

malfeasance in office for purposes of G.S. 123-5. 

(e) The willful failure of a legislator, other than the Lieutenant Governor, to comply with this 

Chapter is grounds for sanctions under G.S. 120-103.1. 

(f) Nothing in this Chapter affects the power of the State to prosecute any person for any 

violation of the criminal law. 

(g) The Commission may seek to enjoin violations of G.S. 138A-34. (2006-201, s. 1.) 
Attachment 2 

July 20, 2012 

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§ 143-215.107. Air quality standards and classifications.

(a) Duty to Adopt Plans, Standards, etc. – The Commission is hereby directed and 

empowered, as rapidly as possible within the limits of funds and facilities available to it, and 

subject to the procedural requirements of this Article and Article 21:

(1) To prepare and develop, after proper study, a comprehensive plan or plans for the 

prevention, abatement and control of air pollution in the State or in any 

designated area of the State.

(2) To determine by means of field sampling and other studies, including the 

examination of available data collected by any local, State or federal agency 

or any person, the degree of air contamination and air pollution in the State 

and the several areas of the State.

* * * * * * * * * * * * * * * * * * * * * * * * 

(4) To collect information or to require reporting from classes of sources which, in 

the judgment of the Environmental Management Commission, may cause or 

contribute to air pollution. Any person operating or responsible for the 

operation of air contaminant sources of any class for which the Commission 

requires reporting shall make reports containing such information as may be 

required by the Commission concerning location, size, and height of 

contaminant outlets, processes employed, fuels used, and the nature and time 

periods or duration of emissions, and such other information as is relevant to 

air pollution and available or reasonably capable of being assembled.

(5) To develop and adopt emission control standards as in the judgment of the 

Commission may be necessary to prohibit, abate, or control air pollution 

commensurate with established air quality standards. This subdivision does 

not apply to that portion of the National Emission Standards for Hazardous 

Air Pollutants for asbestos that governs demolition and renovation as set out 

in 40 C.F.R. § 61.141, 61.145, 61.150, and 61.154 (1 July 1993 edition).

* * * * * * * * * * * * * * * * * * * * * * * * 

(7) To develop and adopt standards and plans necessary to implement programs for 

the prevention of significant deterioration and for the attainment of air quality 

standards in nonattainment areas.

* * * * * * * * * * * * * * * * * * * * * * * * 

(10) To develop and adopt standards and plans necessary to implement requirements 

of the federal Clean Air Act and implementing regulations adopted by the 

United States Environmental Protection Agency.

 
Attachment 2 

July 20, 2012 

Page 40 

§ 143-215.107D. Emissions of oxides of nitrogen (NOx) and sulfur dioxide (SO2) from 

certain coal-fired generating units.

(a) As used in this section:

(1) "Coal-fired generating unit" means a coal-fired generating unit, as defined by 40 

Code of Federal Regulations § 96.2 (1 July 2001 Edition), that is located in 

this State and has the capacity to generate 25 or more megawatts of electricity.

(2) "Investor-owned public utility" means an investor-owned public utility, as defined 

in G.S. 62-3.

(b) An investor-owned public utility that owns or operates coal-fired generating units that 

collectively emitted more than 75,000 tons of oxides of nitrogen (NOx) in calendar year 2000:

(1) Shall not collectively emit from the coal-fired generating units that it owns or 

operates more than 35,000 tons of oxides of nitrogen (NOx) in any calendar 

year beginning 1 January 2007.

(2) Shall not collectively emit from the coal-fired generating units that it owns or 

operates more than 31,000 tons of oxides of nitrogen (NOx) in any calendar 

year beginning 1 January 2009.

(c) An investor-owned public utility that owns or operates coal-fired generating units that 

collectively emitted 75,000 tons or less of oxides of nitrogen (NOx) in calendar year 2000 shall 

not collectively emit from the coal-fired generating units that it owns or operates more than 

25,000 tons of oxides of nitrogen (NOx) in any calendar year beginning 1 January 2007.

(d) An investor-owned public utility that owns or operates coal-fired generating units that 

collectively emitted more than 225,000 tons of sulfur dioxide (SO2) in calendar year 2000:

(1) Shall not collectively emit from the coal-fired generating units that it owns or 

operates more than 150,000 tons of sulfur dioxide (SO2) in any calendar year 

beginning 1 January 2009.

(2) Shall not collectively emit from the coal-fired generating units that it owns or 

operates more than 80,000 tons of sulfur dioxide (SO2) in any calendar year 

beginning 1 January 2013.

(e) An investor-owned public utility that owns or operates coal-fired generating units that 

collectively emitted 225,000 tons or less of sulfur dioxide (SO2) in calendar year 2000:

(1) Shall not collectively emit from the coal-fired generating units that it owns or 

operates more than 100,000 tons of sulfur dioxide (SO2) in any calendar year 

beginning 1 January 2009.

(2) Shall not collectively emit from the coal-fired generating units that it owns or 

operates more than 50,000 tons of sulfur dioxide (SO2) in any calendar year 

beginning 1 January 2013.

(f) Each investor-owned public utility to which this section applies may determine how it will 

achieve the collective emissions limitations imposed by this section. Compliance with the 

emissions limitations set out in this section does not alter the obligation of any person to comply 

with any other federal or State law, regulation, or rule related to air quality or visibility. This 

subsection shall not be construed to limit the authority of the Commission to impose specific 

limitations on the emission of oxides of nitrogen (NOx) and sulfur dioxide (SO2) from an 

individual coal-fired generating unit owned or operated by an investor-owned public utility.
Attachment 2 

July 20, 2012 

Page 41 

(g) A coal-fired generating unit that is subject to the collective emissions limitations set out 

in this section on 1 July 2002 shall remain subject to the collective emissions limitations whether 

or not it thereafter continues to be owned or operated by an investor-owned public utility.

(h) The Commission shall require that any permit or modified permit issued for a coal-fired 

generating unit that is subject to this section include conditions that provide for testing, 

monitoring, record keeping, and reporting adequate to assure compliance with the requirements 

of this section.

(i) The Governor may enter into an agreement with an investor-owned public utility under 

which the investor-owned public utility voluntarily agrees to transfer to the State any emissions 

allowances acquired or that may be acquired by the investor-owned public utility pursuant to 42 

U.S.C. §§ 7651-7651o, as implemented by 40 Code of Federal Regulations §§ 73.1 through 

73.90 (1 July 2001 Edition); 42 U.S.C. 7410(a)(2)(D)(i)(I), as implemented by 40 Code of 

Federal Regulations § 51.121 (1 July 2001 Edition), related federal regulations, and the 

associated State Implementation Plan; 42 U.S.C. § 7426, as implemented by 40 Code of Federal 

Regulations § 52.34 (1 July 2001 Edition) and related federal regulations; or any similar program 

established under federal law that result from compliance with the emissions limitations set out 

in this section. An agreement entered into pursuant to this subsection shall be binding and shall 

be enforceable by specific performance. If the Governor enters into an agreement that provides 

for the transfer of emissions allowances to the State, the Governor shall file verified copies of the 

agreement with the Attorney General, the Secretary of State, the State Treasurer, the Secretary of 

Environment and Natural Resources, and the Utilities Commission. The State Treasurer shall 

hold all emissions allowances that are transferred to the State as provided in this subsection in 

trust for the people of this State and shall sell, trade, transfer, or otherwise dispose of the 

emissions allowances only as the General Assembly shall provide by law.

(j) An investor-owned public utility that is subject to the emissions limitations set out in this 

section shall submit to the Utilities Commission and to the Department on or before 1 April of 

each year a verified statement pursuant to subsection (i) of G.S. 62-133.6. (2002-4, s. 1.)

§ 143-215.108. Control of sources of air pollution; permits required. 

(a) Except as provided in subsections (a1) and (a2) of this section, no person shall do any of 

the following things or carry out any of the following activities that contravene or will be likely 

to contravene standards established pursuant to G.S. 143-215.107 or set out in G.S. 

143-215.107D unless that person has obtained a permit for the activity from the Commission and 

has complied with any conditions of the permit: 

(1) Establish or operate any air contaminant source, except as provided in G.S. 

143-215.108A. 

(2) Build, erect, use, or operate any equipment that may result in the emission of an 

air contaminant or that is likely to cause air pollution, except as provided in 

G.S. 143-215.108A. 

(3) Alter or change the construction or method of operation of any equipment or 

process from which air contaminants are or may be emitted. 

(4) Repealed by Session Laws 2003-428, s. 1, effective August 19, 2003. 

(a1) The Commission may by rule establish procedures that meet the requirements of section 

502(b)(10) of Title V (42 U.S.C. § 7661a(b)(10)) and 40 Code of Federal Regulations § 
Attachment 2 

July 20, 2012 

Page 42 

70.4(b)(12) (1 July 1993 Edition) to allow a permittee to make changes within a permitted 

facility without requiring a revision of the permit. 

(a2) The Commission may adopt rules that provide for a minor modification of a permit. At a 

minimum, rules that provide for a minor modification of a permit shall meet the requirements of 

40 Code of Federal Regulations § 70.7(e)(2) (1 July 1993 Edition). If the Commission adopts 

rules that provide for a minor modification of a permit, a permittee shall not make a change in 

the permitted facility while the application for the minor modification is under review unless the 

change is authorized under the rules adopted by the Commission. 

(b) The Commission shall act upon all applications for permits so as to effectuate the 

purposes of this Article by reducing existing air pollution and preventing, so far as reasonably 

possible, any increased pollution of the air from any additional or enlarged sources. 

(c) The Commission shall have the power: 

(1) To grant and renew a permit with any conditions attached that the Commission 

believes necessary to achieve the purposes of this Article or the requirements 

of the Clean Air Act and implementing regulations adopted by the United 

States Environmental Protection Agency; 

(2) To grant and renew any temporary permit for such period of time as the 

Commission shall specify even though the action allowed by such permit may 

result in pollution or increase pollution where conditions make such 

temporary permit essential; 

(3) To terminate, modify, or revoke and reissue any permit upon not less than 60 

days' written notice to any person affected; 

(3a) To suspend any permit pursuant to the provisions of G.S. 150B-3(c); 

(4) To require all applications for permits and renewals to be in writing and to 

prescribe the form of such applications; 

(5) To request such information from an applicant and to conduct such inquiry or 

investigation as it may deem necessary and to require the submission of plans 

and specifications prior to acting on any application for a permit; 

(5a) To require that an applicant satisfy the Department that the applicant, or any 

parent, subsidiary, or other affiliate of the applicant or parent: 

a. Is financially qualified to carry out the activity for which a permit is 

required under subsection (a); and 

b. Has substantially complied with the air quality and emission control 

standards applicable to any activity in which the applicant has 

previously engaged, and has been in substantial compliance with 

federal and state laws, regulations, and rules for the protection of the 

environment. 

As used in this subdivision, the words "affiliate," "parent," and "subsidiary" 

have the same meaning as in 17 Code of Federal Regulations 240.12b-2 (1 

April 1990 Edition); 

(6) To adopt rules, as it deems necessary, establishing the form of applications and 

permits and procedures for the granting or denial of permits and renewals 

pursuant to this section; and all permits, renewals and denials shall be in 

writing; 
Attachment 2 

July 20, 2012 

Page 43 

(7) To prohibit any stationary source within the State from emitting any air pollutant 

in amounts that will prevent attainment or maintenance by any other state of 

any national ambient air quality standard or that will interfere with measures 

required to be included in the applicable implementation plan for any other 

state to prevent deterioration of air quality or protect visibility; and 

(8) To designate certain classes of activities for which a general permit may be 

issued, after considering the environmental impact of an activity, the 

frequency of the activity, the need for individual permit oversight, and the 

need for public review and comment on individual permits. 

(d) (1) The Commission may conduct any inquiry or investigation it considers necessary 

before acting on an application and may require an applicant to submit plans, 

specifications, and other information the Commission considers necessary to 

evaluate the application. A permit application may not be deemed complete 

unless it is accompanied by a copy of the request for determination as 

provided in subsection (f) of this section that bears a date of receipt entered by 

the clerk of the local government and until the 15-day period for issuance of a 

determination has elapsed. 

(2) The Commission shall adopt rules specifying the times within which it must act 

upon applications for permits required by Title V and other permits required 

by this section. The times specified shall be extended for the period during 

which the Commission is prohibited from issuing a permit under subdivisions 

(3) and (4) of this subsection. The Commission shall inform a permit applicant 

as to whether or not the application is complete within the time specified in 

the rules for action on the application. If the Commission fails to act on an 

application for a permit required by Title V or this section within the time 

period specified, the failure to act on the application constitutes a final agency 

decision to deny the permit. A permit applicant, permittee, or other person 

aggrieved, as defined in G.S. 150B-2, may seek judicial review of a failure to 

act on the application as provided in G.S. 143-215.5 and Article 4 of Chapter 

150B of the General Statutes. Notwithstanding the provisions of G.S. 

150B-51, upon review of a failure to act on an application for a permit 

required by Title V or this section, a court may either: (i) affirm the denial of 

the permit or (ii) remand the application to the Commission for action upon 

the application within a specified time. 

(3) If the Administrator of the United States Environmental Protection Agency 

validly objects to the issuance of a permit required by Title V within 45 days 

after the Administrator receives the proposed permit and the required portions 

of the permit application, the Commission shall not issue the permit until the 

Commission revises the proposed permit to meet all objections noted by the 

Administrator or otherwise satisfies all objections consistent with Title V and 

implementing regulations adopted by the United States Environmental 

Protection Agency. 

(4) If the Administrator of the United States Environmental Protection Agency 

validly objects to the issuance of a permit required by Title V after the 

expiration of the 45-day review period specified in subdivision (3) of this 
Attachment 2 

July 20, 2012 

Page 44 

subsection as a result of a petition filed pursuant to section 505(b)(2) of Title 

V (42 U.S.C. § 7661d(b)(2)) and prior to the issuance of the permit by the 

Commission, the Commission shall not issue the permit until the Commission 

revises the proposed permit to meet all objections noted by the Administrator 

or otherwise satisfies all objections consistent with Title V and implementing 

regulations adopted by the United States Environmental Protection Agency. 

(d1) No Title V permit issued pursuant to this section shall be issued or renewed for a term 

exceeding five years. All other permits issued pursuant to this section shall be issued for a term 

not to exceed eight years. 

(e) A permit applicant or permittee who is dissatisfied with a decision of the Commission 

may commence a contested case by filing a petition under G.S. 150B-23 within 30 days after the 

Commission notifies the applicant or permittee of its decision. If the permit applicant or 

permittee does not file a petition within the required time, the Commission's decision on the 

application is final and is not subject to review. 

(f) An applicant for a permit under this section for a new facility or for the expansion of a 

facility permitted under this section shall request each local government having jurisdiction over 

any part of the land on which the facility and its appurtenances are to be located to issue a 

determination as to whether the local government has in effect a zoning or subdivision ordinance 

applicable to the facility and whether the proposed facility or expansion would be consistent with 

the ordinance. The request to the local government shall be accompanied by a copy of the draft 

permit application and shall be delivered to the clerk of the local government personally or by 

certified mail. The determination shall be verified or supported by affidavit signed by the official 

designated by the local government to make the determination and, if the local government states 

that the facility is inconsistent with a zoning or subdivision ordinance, shall include a copy of the 

ordinance and the specific reasons for the determination of inconsistency. A copy of any such 

determination shall be provided to the applicant when it is submitted to the Commission. The 

Commission shall not act upon an application for a permit under this section until it has received 

a determination from each local government requested to make a determination by the applicant. 

If a local government determines that the new facility or the expansion of an existing facility is 

inconsistent with a zoning or subdivision ordinance, and unless the local government makes a 

subsequent determination of consistency with all ordinances cited in the determination or the 

proposed facility is determined by a court of competent jurisdiction to be consistent with the 

cited ordinances, the Commission shall attach as a condition of the permit a requirement that the 

applicant, prior to construction or operation of the facility under the permit, comply with all 

lawfully adopted local ordinances, including those cited in the determination, that apply to the 

facility at the time of construction or operation of the facility. If a local government fails to 

submit a determination to the Commission as provided by this subsection within 15 days after 

receipt of the request, the Commission may proceed to consider the permit application without 

regard to local zoning and subdivision ordinances. This subsection shall not be construed to 

affect the validity of any lawfully adopted franchise, local zoning, subdivision, or land-use 

planning ordinance or to affect the responsibility of any person to comply with any lawfully 

adopted franchise, local zoning, subdivision, or land-use planning ordinance. This subsection 

shall not be construed to limit any opportunity a local government may have to comment on a 

permit application under any other law or rule. This subsection shall not apply to any facility 
Attachment 2 

July 20, 2012 

Page 45 

with respect to which local ordinances are subject to review under either G.S. 104E-6.2 or G.S. 

130A-293. 

(g) Any person who is required to hold a permit under this section shall submit to the 

Department a written description of his current and projected plans to reduce the emission of air 

contaminants under such permit by source reduction or recycling. The written description shall 

accompany the payment of the annual permit fee. The written description shall also accompany 

any application for a new permit, or for modification of an existing permit, under this section. 

The written description required by this subsection shall not be considered part of a permit 

application and shall not serve as the basis for the denial of a permit or permit modification. 

(h) Expedited Review of Applications Certified by a Professional Engineer. – The 

Commission shall adopt rules governing the submittal of permit applications certified by a 

professional engineer, including draft permits, that can be sent to public notice and hearing upon 

receipt and subjected to technical review by personnel within the Department. These rules shall 

specify, at a minimum, any forms to be used; a checklist for applicants that lists all items of 

information required to prepare a complete permit application; the form of the certification 

required on the application by a professional engineer; and the information that must be included 

in the draft permit. The Department shall process an application that is certified by a professional 

engineer as provided in subdivisions (1) through (7) of this subsection. 

(1) Initiation of Review. – Upon receipt of an application certified by a professional 

engineer in accordance with this subsection and the rules adopted pursuant to 

this subsection, the Department shall determine whether the application is 

complete as provided in subdivision (2) of this subsection. Within 30 days 

after the date on which an application is determined to be complete, the 

Department shall: 

a. Publish any required notices, using the draft permit included with the 

application; 

b. Schedule any required public meetings or hearings on the application and 

permit; and 

c. Initiate any and all technical review of the application in a manner to ensure 

substantial completion of the technical review by the time of any 

public hearing on the application, or if there is no hearing, by the close 

of the notice period. 

(2) Completeness Review. – Within 10 working days of receipt of the permit 

application certified by a professional engineer under this subsection, the 

Department shall determine whether the application is complete for purposes 

of this subsection. The Department shall determine whether the permit 

application certified by a professional engineer is complete by comparing the 

information provided in the application with the checklist contained in the 

rules adopted by the Commission pursuant to this subsection. 

a. If the application is not complete, the Department shall promptly notify the 

applicant in writing of all deficiencies of the application, specifying 

the items that need to be included, modified, or supplemented in order 

to make the application complete, and the 10-day time period is 

suspended after this request for further information. If the applicant 

submits the requested information within the time specified, the 
Attachment 2 

July 20, 2012 

Page 46 

10-day time period shall begin again on the day the additional 

information was submitted. If the additional information is not 

submitted within the time periods specified, the Department shall 

return the application to the applicant, and the applicant may treat the 

return of the application as a denial of the application or may resubmit 

the application at a later time. 

b. If the Department fails to notify the applicant that an application is not 

complete within the time period set forth in this subsection, the 

application shall be deemed to be complete. 

(3) Time for Permit Decision. – For any application found to be complete under 

subdivision (2) of this subsection, the Department shall issue a permit decision 

within 30 days of the last day of any public hearing on the application, or if 

there is no hearing, within 30 days of the close of the notice period. 

(4) Rights if Permit Decision Not Made in Timely Fashion. – If the Department fails 

to issue a permit decision within the time periods specified in subdivision (3) 

of this subsection, the applicant may: 

a. Take no action, thereby consenting to the continued review of the 

application; or 

b. Treat the failure to issue a permit decision as a denial of the application and 

appeal the denial as provided in subdivision (2) of subsection (d) of 

this section. 

(5) Power to Halt Review. – At any time after the permit application certified by a 

professional engineer has been determined to be complete under subdivision 

(2) of this subsection, the Department may immediately terminate review of 

that application, including technical review and any hearings or meetings 

scheduled on the application, upon a determination of one of the following: 

a. The permit application is not in substantial compliance with the applicable 

rules; or 

b. The applicant failed to pay all permit application fees. 

(6) Rights if Review Halted. – If the Department terminates review of an application 

under subdivision (5) of this subsection, the applicant may take any of the 

following actions: 

a. Revise and resubmit the application; or 

b. Treat the action as a denial of the application and appeal the denial under 

Article 3 of Chapter 150B of the General Statutes. 

(7) Option; No Additional Fee. – The submittal of a permit application certified by a 

professional engineer to be considered under this subsection shall be an option 

and shall not be required of any applicant. The Department shall not impose 

any additional fees for the receipt or processing of a permit application 

certified by a professional engineer. 

(i) Rules for Review of Applications Other Than Those Certified by a Professional Engineer. 

– The Commission shall adopt rules governing the times of review for all permit applications 

submitted pursuant to this section other than those certified by a professional engineer pursuant 

to subsection (h) of this section. Those rules shall specify maximum times for, among other 

things, the following actions in reviewing the permit applications covered by this subsection: 
Attachment 2 

July 20, 2012 

Page 47 

(1) Determining that the permit application is complete; 

(2) Requesting additional information to determine completeness; 

(3) Determining that additional information is needed to conduct a technical review of 

the application; 

(4) Completing all technical review of the permit application; 

(5) Holding and completing all public meetings and hearings required for the 

application; 

(6) Completing the record from reviewing and acting on the application; and 

(7) Taking final action on the permit, including granting or denying the application. 

(1973, c. 821, s. 6; c. 1262, s. 23; 1979, c. 545, ss. 2, 3; 1987, c. 461, s. 2; c. 

827, ss. 154, 206; 1989, c. 168, s. 30; c. 492; 1989 (Reg. Sess., 1990), c. 1037, 

s. 2; 1991, c. 552, s. 5; c. 629, s. 1; c. 761, s. 27(a)-(c); 1993, c. 400, s. 8; 

1995, c. 484, s. 2; 1995 (Reg. Sess., 1996), c. 728, s. 1; 2002-4, s. 2; 

2003-340, s. 1.8(b); 2003-428, ss. 1, 2; 2011-398, s. 60(a).) 

§ 143-215.3. General powers of Commission and Department; auxiliary powers.

(a) Additional Powers. – In addition to the specific powers prescribed elsewhere in this 

Article, and for the purpose of carrying out its duties, the Commission shall have the power:

(1) To make rules implementing Articles 21, 21A, 21B, or 38 of this Chapter.

(1a) To adopt fee schedules and collect fees for the following:

a. Processing of applications for permits or registrations issued under Article 

21, other than Parts 1 and 1A, Articles 21A, 21B, and 38 of this 

Chapter;

b. Administering permits or registrations issued under Article 21, other than 

Parts 1 and 1A, Articles 21A, 21B, and 38 of this Chapter including 

monitoring compliance with the terms of those permits; and

c. Reviewing, processing, and publicizing applications for construction grant 

awards under the Federal Water Pollution Control Act.

No fee may be charged under this provision, however, to a farmer who submits an 

application that pertains to his farming operations.

(1b) The fee to be charged pursuant to G.S. 143-215.3(a)(1a) for processing an 

application for a permit under G.S. 143-215.108 and G.S. 143-215.109 of 

Article 21B of this Chapter may not exceed five hundred dollars ($500.00). 

The fee to be charged pursuant to G.S. 143-215.3(a)(1a) for processing a 

registration under Part 2A of this Article or Article 38 of this Chapter may not 

exceed fifty dollars ($50.00) for any single registration. An additional fee of 

twenty percent (20%) of the registration processing fee may be assessed for a 

late registration under Article 38 of this Chapter. The fee for administering 

and compliance monitoring under Article 21, other than Parts 1 and 1A, and 

G.S. 143-215.108 and G.S. 143-215.109 of Article 21B shall be charged on an 

annual basis for each year of the permit term and may not exceed one 

thousand five hundred dollars ($1,500) per year. Fees for processing all 

permits under Article 21A and all other sections of Article 21B shall not 

exceed one hundred dollars ($100.00) for any single permit. The total 
Attachment 2 

July 20, 2012 

Page 48 

payment for fees that are set by the Commission under this subsection for all 

permits for any single facility shall not exceed seven thousand five hundred 

dollars ($7,500) per year, which amount shall include all application fees and 

fees for administration and compliance monitoring. A single facility is defined 

to be any contiguous area under one ownership and in which permitted 

activities occur. For all permits issued under these Articles where a fee 

schedule is not specified in the statutes, the Commission, or other commission 

specified by statute shall adopt a fee schedule in a rule following the 

procedures established by the Administrative Procedure Act. Fee schedules 

shall be established to reflect the size of the emission or discharge, the 

potential impact on the environment, the staff costs involved, relative costs of 

the issuance of new permits and the reissuance of existing permits, and shall 

include adequate safeguards to prevent unusual fee assessments which would 

result in serious economic burden on an individual applicant. A system shall 

be considered to allow consolidated annual payments for persons with 

multiple permits. In its rulemaking to establish fee schedules, the Commission 

is also directed to consider a method of rewarding facilities which achieve full 

compliance with administrative and self-monitoring reporting requirements, 

and to consider, in those cases where the cost of renewal or amendment of a 

permit is less than for the original permit, a lower fee for the renewal or 

amendment.

(1c) Moneys collected pursuant to G.S. 143-215.3(a)(1a) shall be used to:

a. Eliminate, insofar as possible, backlogs of permit applications awaiting 

agency action;

b. Improve the quality of permits issued;

c. Improve the rate of compliance of permitted activities with environmental 

standards; and

d. Decrease the length of the processing period for permit applications.

(1d) The Commission may adopt and implement a graduated fee schedule sufficient 

to cover all direct and indirect costs required for the State to develop and 

administer a permit program which meets the requirements of Title V. The 

provisions of subdivision (1b) of this subsection do not apply to the adoption 

of a fee schedule under this subdivision. In adopting and implementing a fee 

schedule, the Commission shall require that the owner or operator of all air 

contaminant sources subject to the requirement to obtain a permit under Title 

V to pay an annual fee, or the equivalent over some other period, sufficient to 

cover costs as provided in section 502(b)(3)(A) of Title V. The fee schedule 

shall be adopted according to the procedures set out in Chapter 150B of the 

General Statutes.

a. The total amount of fees collected under the fee schedule adopted pursuant 

to this subdivision shall conform to the requirements of section 

502(b)(3)(B) of Title V. No fee shall be collected for more than 4,000 

tons per year of any individual regulated pollutant, as defined in 

section 502(b)(3)(B)(ii) of Title V, emitted by any source. Fees 
Attachment 2 

July 20, 2012 

Page 49 

collected pursuant to this subdivision shall be credited to the Title V 

Account.

b. The Commission may reduce any permit fee required under this section to 

take into account the financial resources of small business stationary 

sources as defined under Title V and regulations promulgated by the 

United States Environmental Protection Agency.

c. When funds in the Title V Account exceed the total amount necessary to 

cover the cost of the Title V program for the next fiscal year, the 

Secretary shall reduce the amount billed for the next fiscal year so that 

the excess funds are used to supplement the cost of administering the 

Title V permit program in that fiscal year.

(1e) The Commission shall collect the application, annual, and project fees for 

processing and administering permits, certificates of coverage under general 

permits, and certifications issued under Parts 1 and 1A of this Article and for 

compliance monitoring under Parts 1 and 1A of this Article as provided in 

G.S. 143-215.3D and G.S. 143-215.10G.

(2) To direct that such investigation be conducted as it may reasonably deem 

necessary to carry out its duties as prescribed by this Article or Article 21A or 

Article 21B of this Chapter, and for this purpose to enter at reasonable times 

upon any property, public or private, for the purpose of investigating the 

condition of any waters and the discharge therein of any sewage, industrial 

waste, or other waste or for the purpose of investigating the condition of the 

air, air pollution, air contaminant sources, emissions, or the installation and 

operation of any air-cleaning devices, and to require written statements or the 

filing of reports under oath, with respect to pertinent questions relating to the 

operation of any air-cleaning device, sewer system, disposal system, or 

treatment works. In the case of effluent or emission data, any records, reports, 

or information obtained under this Article or Article 21A or Article 21B of 

this Chapter shall be related to any applicable effluent or emission limitations 

or toxic, pretreatment, or new source performance standards. No person shall 

refuse entry or access to any authorized representative of the Commission or 

Department who requests entry for purposes of inspection, and who presents 

appropriate credentials, nor shall any person obstruct, hamper or interfere with 

any such representative while in the process of carrying out his official duties.

(3) To conduct public hearings and to delegate the power to conduct public hearings 

in accordance with the procedures prescribed by this Article or by Article 21B 

of this Chapter.

(4) To delegate such of the powers of the Commission as the Commission deems 

necessary to one or more of its members, to the Secretary or any other 

qualified employee of the Department. The Commission shall not delegate to 

persons other than its own members and the designated employees of the 

Department the power to conduct hearings with respect to the classification of 

waters, the assignment of classifications, air quality standards, air contaminant 

source classifications, emission control standards, or the issuance of any 

special order except in the case of an emergency under subdivision (12) of this 
Attachment 2 

July 20, 2012 

Page 50 

subsection for the abatement of existing water or air pollution. Any employee 

of the Department to whom a delegation of power is made to conduct a 

hearing shall report the hearing with its evidence and record to the 

Commission.

(5) To institute such actions in the superior court of any county in which a violation 

of this Article, Article 21B of this Chapter, or the rules of the Commission has 

occurred, or, in the discretion of the Commission, in the superior court of the 

county in which any defendant resides, or has his or its principal place of 

business, as the Commission may deem necessary for the enforcement of any 

of the provisions of this Article, Article 21B of this Chapter, or of any official 

action of the Commission, including proceedings to enforce subpoenas or for 

the punishment of contempt of the Commission.

(6) To agree upon or enter into any settlements or compromises of any actions and to 

prosecute any appeals or other proceedings.

(7) To direct the investigation of any killing of fish and wildlife which, in the opinion 

of the Commission, is of sufficient magnitude to justify investigation and is 

known or believed to have resulted from the pollution of the waters or air as 

defined in this Article, and whenever any person, whether or not he shall have 

been issued a certificate of approval, permit or other document of approval 

authorized by this or any other State law, has negligently, or carelessly or 

unlawfully, or willfully and unlawfully, caused pollution of the waters or air 

as defined in this Article, in such quantity, concentration or manner that fish 

or wildlife are killed as the result thereof, the Commission, may recover, in 

the name of the State, damages from such person. The measure of damages 

shall be the amount determined by the Department and the North Carolina 

Wildlife Resources Commission, whichever has jurisdiction over the fish and 

wildlife destroyed to be the replacement cost thereof plus the cost of all 

reasonable and necessary investigations made or caused to be made by the 

State in connection therewith. Upon receipt of the estimate of damages 

caused, the Department shall notify the persons responsible for the destruction 

of the fish or wildlife in question and may effect such settlement as the 

Commission may deem proper and reasonable, and if no settlement is reached 

within a reasonable time, the Commission shall bring a civil action to recover 

such damages in the superior court in the county in which the discharge took 

place. Upon such action being brought the superior court shall have 

jurisdiction to hear and determine all issues or questions of law or fact, arising 

on the pleadings, including issues of liability and the amount of damages. On 

such hearing, the estimate of the replacement costs of the fish or wildlife 

destroyed shall be prima facie evidence of the actual replacement costs of 

such fish or wildlife. In arriving at such estimate, any reasonably accurate 

method may be used and it shall not be necessary for any agent of the Wildlife 

Resources Commission or the Department to collect, handle or weigh 

numerous specimens of dead fish or wildlife.

The State of North Carolina shall be deemed the owner of the fish or wildlife killed 

and all actions for recovery shall be brought by the Commission on behalf of 
Attachment 2 

July 20, 2012 

Page 51 

the State as the owner of the fish or wildlife. The fact that the person or 

persons alleged to be responsible for the pollution which killed the fish or 

wildlife holds or has held a certificate of approval, permit or other document 

of approval authorized by this Article or any other law of the State shall not 

bar any such action. The proceeds of any recovery, less the cost of 

investigation, shall be used to replace, insofar as and as promptly as possible, 

the fish and wildlife killed, or in cases where replacement is not practicable, 

the proceeds shall be used in whatever manner the responsible agency deems 

proper for improving the fish and wildlife habitat in question. Any such funds 

received are hereby appropriated for these designated purposes. Nothing in 

this paragraph shall be construed in any way to limit or prevent any other 

action which is now authorized by this Article.

(8) After issuance of an appropriate order, to withhold the granting of any permit or 

permits pursuant to G.S. 143-215.1 or G.S. 143-215.108 for the construction 

or operation of any new or additional disposal system or systems or 

air-cleaning device or devices in any area of the State. Such order may be 

issued only upon determination by the Commission, after public hearing, that 

the permitting of any new or additional source or sources of water or air 

pollution will result in a generalized condition of water or air pollution within 

the area contrary to the public interest, detrimental to the public health, safety, 

and welfare, and contrary to the policy and intent declared in this Article or 

Article 21B of this Chapter. The Commission may make reasonable 

distinctions among the various sources of water and air pollution and may 

direct that its order shall apply only to those sources which it determines will 

result in a generalized condition of water or air pollution.

The determination of the Commission shall be supported by detailed findings of fact 

and conclusions set forth in the order and based upon competent evidence of 

record. The order shall describe the geographical area of the State affected 

thereby with particularity and shall prohibit the issuance of permits pending a 

determination by the Commission that the generalized condition of water or 

air pollution has ceased.

Notice of hearing shall be given in accordance with the provisions of G.S. 150B-21.2.

A person aggrieved by an order of the Commission under this subdivision may seek 

judicial review of the order under Article 4 of Chapter 150B of the General 

Statutes without first commencing a contested case. An order may not be 

stayed while it is being reviewed.

(9) If an investigation conducted pursuant to this Article or Article 21B of this 

Chapter reveals a violation of any rules, standards, or limitations adopted by 

the Commission pursuant to this Article or Article 21B of this Chapter, or a 

violation of any terms or conditions of any permit issued pursuant to G.S. 

143-215.1 or 143-215.108, or special order or other document issued pursuant 

to G.S. 143-215.2 or G.S. 143-215.110, the Commission may assess the 

reasonable costs of any investigation, inspection or monitoring survey which 

revealed the violation against the person responsible therefor. If the violation 

resulted in an unauthorized discharge to the waters or atmosphere of the State, 
Attachment 2 

July 20, 2012 

Page 52 

the Commission may also assess the person responsible for the violation for 

any actual and necessary costs incurred by the State in removing, correcting or 

abating any adverse effects upon the water or air resulting from the 

unauthorized discharge. If the person responsible for the violation refuses or 

fails within a reasonable time to pay any sums assessed, the Commission may 

institute a civil action in the superior court of the county in which the violation 

occurred or, in the Commission's discretion, in the superior court of the 

county in which such person resides or has his or its principal place of 

business, to recover such sums.

(10) To require a laboratory facility that performs any tests, analyses, measurements, 

or monitoring required under this Article or Article 21B of this Chapter to be 

certified annually by the Department, to establish standards that a laboratory 

facility and its employees must meet and maintain in order for the laboratory 

facility to be certified, and to charge a laboratory facility a fee for 

certification. Fees collected under this subdivision shall be credited to the 

Water and Air Account and used to administer this subdivision. These fees 

shall be applied to the cost of certifying commercial, industrial, and municipal 

laboratory facilities.

(11) Repealed by Session Laws 1983, c. 296, s. 6.

(12) To declare an emergency when it finds that a generalized condition of water or 

air pollution which is causing imminent danger to the health or safety of the 

public. Regardless of any other provisions of law, if the Department finds that 

such a condition of water or air pollution exists and that it creates an 

emergency requiring immediate action to protect the public health and safety 

or to protect fish and wildlife, the Secretary of the Department with the 

concurrence of the Governor, shall order persons causing or contributing to 

the water or air pollution in question to reduce or discontinue immediately the 

emission of air contaminants or the discharge of wastes. Immediately after the 

issuance of such order, the chairman of the Commission shall fix a place and 

time for a hearing before the Commission to be held within 24 hours after 

issuance of such order, and within 24 hours after the commencement of such 

hearing, and without adjournment thereof, the Commission shall either affirm, 

modify or set aside the order.

In the absence of a generalized condition of air or water pollution of the type referred 

to above, if the Secretary finds that the emissions from one or more air 

contaminant sources or the discharge of wastes from one or more sources of 

water pollution is causing imminent danger to human health and safety or to 

fish and wildlife, he may with the concurrence of the Governor order the 

person or persons responsible for the operation or operations in question to 

immediately reduce or discontinue the emissions of air contaminants or the 

discharge of wastes or to take such other measures as are, in his judgment, 

necessary, without regard to any other provisions of this Article or Article 

21B of this Chapter. In such event, the requirements for hearing and 

affirmance, modification or setting aside of such orders set forth in the 

preceding paragraph of this subdivision shall apply.
Attachment 2 

July 20, 2012 

Page 53 

(13) Repealed by Session Laws 1983, c. 296, s. 6.

(14) To certify and approve, by appropriate delegations and conditions in permits 

required by G.S. 143-215.1, requests by publicly owned treatment works to 

implement, administer and enforce a pretreatment program for the control of 

pollutants which pass through or interfere with treatment processes in such 

treatment works; and to require such programs to be developed where 

necessary to comply with the Federal Water Pollution Control Act and the 

Resource Conservation and Recovery Act, including the addition of 

conditions and compliance schedules in permits required by G.S. 143-215.1. 

Pretreatment programs submitted by publicly owned treatment works shall 

include, at a minimum, the adoption of pretreatment standards, a permit or 

equally effective system for the control of pollutants contributed to the 

treatment works, and the ability to effectively enforce compliance with the 

program.

(15) To adopt rules for the prevention of pollution from underground tanks containing 

petroleum, petroleum products, or hazardous substances. Rules adopted under 

this section may incorporate standards and restrictions which exceed and are 

more comprehensive than comparable federal regulations.

(16) To adopt rules limiting the manufacture, storage, sale, distribution or use of 

cleaning agents containing phosphorus pursuant to G.S. 143-214.4(e), and to 

adopt rules limiting the manufacture, storage, sale, distribution or use of 

cleaning agents containing nitrilotriacetic acid.

(17) To adopt rules to implement Part 2A of Article 21A of Chapter 143.

(b) Research Functions. – The Department shall have the power to conduct scientific 

experiments, research, and investigations to discover economical and practical corrective 

methods for air pollution and waste disposal problems. To this end, the Department may 

cooperate with any public or private agency or agencies in the conduct of such experiments, 

research, and investigations, and may, when funds permit, establish research studies in any North 

Carolina educational institution, with the consent of such institution. In addition, the Department 

shall have the power to cooperate and enter into contracts with technical divisions of State 

agencies, institutions and with municipalities, industries, and other persons in the execution of 

such surveys, studies, and research as it may deem necessary in fulfilling its functions under this 

Article or Article 21B of this Chapter. All State departments shall advise with and cooperate with 

the Department on matters of mutual interest.

(c) Relation with the Federal Government. – The Commission as official water and air 

pollution control agency for the State is delegated to act in local administration of all matters 

covered by any existing federal statutes and future legislation by Congress relating to water and 

air quality control. In order for the State of North Carolina to effectively participate in programs 

administered by federal agencies for the regulation and abatement of water and air pollution, the 

Department is authorized to accept and administer funds provided by federal agencies for water 

and air pollution programs and to enter into contracts with federal agencies regarding the use of 

such funds.

(d) Relations with Other States. – The Commission or the Department may, with the approval 

of the Governor, consult with qualified representatives of adjoining states relative to the 
Attachment 2 

July 20, 2012 

Page 54 

establishment of regulations for the protection of waters and air of mutual interest, but the 

approval of the General Assembly shall be required to make any regulations binding.

(e) Variances. – Any person subject to the provisions of G.S. 143-215.1 or 143-215.108 may 

apply to the Commission for a variance from rules, standards, or limitations established pursuant 

to G.S. 143-214.1, 143-215, or 143-215.107. The Commission may grant such variance, for fixed 

or indefinite periods after public hearing on due notice, or where it is found that circumstances so 

require, for a period not to exceed 90 days without prior hearing and notice. Prior to granting a 

variance hereunder, the Commission shall find that:

(1) The discharge of waste or the emission of air contaminants occurring or proposed 

to occur do not endanger human health or safety; and

(2) Compliance with the rules, standards, or limitations from which variance is sought 

cannot be achieved by application of best available technology found to be 

economically reasonable at the time of application for such variances, and 

would produce serious hardship without equal or greater benefits to the public, 

provided that such variances shall be consistent with the provisions of the 

Federal Water Pollution Control Act as amended or the Clean Air Act as 

amended; and provided further, that any person who would otherwise be 

entitled to a variance or modification under the Federal Water Pollution 

Control Act as amended or the Clean Air Act as amended shall also be entitled 

to the same variance from or modification in rules, standards, or limitations 

established pursuant to G.S. 143-214.1, 143-215, and 143-215.107, 

respectively.

(f) Notification of Completed Remedial Action. – The definitions set out in G.S. 

130A-310.31(b) apply to this subsection. Any person may submit a written request to the 

Department for a determination that groundwater has been remediated to meet the standards and 

classifications established under this Part. A request for a determination that groundwater has 

been remediated to meet the standards and classifications established under this Part shall be 

accompanied by the fee required by G.S. 130A-310.39(a)(2). If the Department determines that 

groundwater has been remediated to established standards and classifications, the Department 

shall issue a written notification that no further remediation of the groundwater will be required. 

The notification shall state that no further remediation of the groundwater will be required unless 

the Department later determines, based on new information or information not previously 

provided to the Department, that the groundwater has not been remediated to established 

standards and classifications or that the Department was provided with false or incomplete 

information. Under any of those circumstances, the Department may withdraw the notification 

and require responsible parties to remediate the groundwater to established standards and 

classifications. (1951, c. 606; 1957, c. 1267, s. 3; 1959, c. 779, s. 8; 1963, c. 1086; 1967, c. 892, 

s. 1; 1969, c. 538; 1971, c. 1167, ss. 7, 8; 1973, c. 698, ss. 1-7, 9, 17; c. 712, s. 1; c. 1262, ss. 23, 

86; c. 1331, s. 3; 1975, c. 583, ss. 5, 6; c. 655, s. 3; 1977, c. 771, s. 4; 1979, c. 633, ss. 6-8; 1979, 

2nd Sess., c. 1158, ss. 1, 3, 4; 1983, c. 296, ss. 5-8; 1985, c. 551, s. 2; 1987, c. 111, s. 2; c. 767, s. 

1; c. 827, ss. 1, 154, 161, 266; 1987 (Reg. Sess., 1988), c. 1035, s. 2; 1989, c. 500, s. 122; c. 652, 

s. 1; 1991, c. 552, ss. 2, 11; c. 712, s. 2; 1991 (Reg. Sess., 1992), c. 890, s. 16; c. 1039, ss. 14, 

20.1; 1993, c. 344, s. 2; c. 400, ss. 1(c), 2, 3, 15; c. 496, s. 4; 1993 (Reg. Sess., 1994), c. 694, s. 

1; 1995, c. 484, s. 5; 1997-357, s. 6; 1997-496, s. 4; 1998-212, s. 29A.11(b).)

 
Attachment 2 

July 20, 2012 

Page 55 

§ 143B-283. Environmental Management Commission – members; selection; removal; 

compensation; quorum; services.

(a) The Environmental Management Commission shall consist of 13 members appointed by 

the Governor. The Governor shall select the members so that the membership of the Commission 

shall consist of:

(1) One who shall be a licensed physician with specialized training and experience in 

the health effects of environmental pollution;

(2) One who shall, at the time of appointment, be actively connected with the 

Commission for Public Health or local board of health or have experience in 

health sciences;

(3) One who shall, at the time of appointment, be actively connected with or have had 

experience in agriculture;

(4) One who shall, at the time of appointment, be a registered engineer with 

specialized training and experience in water supply or water or air pollution 

control;

(5) One who shall, at the time of appointment, be actively connected with or have had 

experience in the fish and wildlife conservation activities of the State;

(6) One who shall, at the time of appointment, have special training and scientific 

expertise in hydrogeology or groundwater hydrology;

(7) Three members interested in water and air pollution control, appointed from the 

public at large;

(8) One who shall, at the time of appointment, be actively employed by, or recently 

retired from, an industrial manufacturing facility and knowledgeable in the 

field of industrial air and water pollution control;

(9) One who shall, at the time of appointment, be actively connected with or have had 

experience in pollution control problems of municipal or county government;

(10) One who shall, at the time of appointment, have special training and scientific 

expertise in air pollution control and the effects of air pollution; and

(11) One who shall, at the time of appointment, have special training and scientific 

expertise in freshwater, estuarine, marine biological, or ecological sciences.

(b) Members appointed by the Governor shall serve terms of office of six years. 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. The Governor may 

reappoint a member of the Commission to an additional term if, at the time of the reappointment, 

the member qualifies for membership on the Commission under subsection (a) of this section.

(b1) The Governor shall have the power to remove any member of the Commission from 

office for misfeasance, malfeasance, or nonfeasance in accordance with the provisions of G.S. 

143B-13 of the Executive Organization Act of 1973.

(b2) The members of the Commission shall receive per diem and necessary travel and 

subsistence expenses in accordance with the provisions of G.S. 138-5.

(b3) A majority of the Commission shall constitute a quorum for the transaction of business.

(b4) All clerical and other services required by the Commission shall be supplied by the 

Secretary of Environment and Natural Resources.
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(c) Nine of the members appointed by the Governor under this section shall be persons who 

do not derive any significant portion of their income from persons subject to permits or 

enforcement orders under this Chapter. The Governor shall require adequate disclosure of 

potential conflicts of interest by members. The Governor, by executive order, shall promulgate 

criteria regarding conflicts of interest and disclosure thereof for determining the eligibility of 

persons under this section, giving due regard to the requirements of federal legislation, and for 

this purpose may promulgate rules, regulations or guidelines in conformance with those 

established by any federal agency interpreting and applying provisions of federal law.

(d) In addition to the members designated by subsection (a) of this section, the General 

Assembly shall appoint six members, three upon the recommendation of the Speaker of the 

House of Representatives, and three upon the recommendation of the President Pro Tempore of 

the Senate. Appointments by the General Assembly shall be made in accordance with G.S. 

120-121, and vacancies in those appointments shall be filled in accordance with G.S. 120-122. 

Members appointed by the General Assembly shall serve terms of two years. (1973, c. 1262, s. 

20; 1977, c. 771, s. 4; 1979, 2nd Sess., c. 1158, ss. 5, 6; 1981 (Reg. Sess., 1982), c. 1191, s. 19; 

1989, c. 315; c. 727, s. 218(129); 1995, c. 490, s. 18; 1997-381, s. 1; 1997-443, s. 11A.119(a); 

1998-217, s. 17; 2000-172, ss. 4.1, 4.2; 2001-486, s. 2.16; 2007-182, s. 2.)

§ 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-21.2 would be contrary to the public interest and 

that the immediate adoption of the rule is required by one or more of the following: 

(1) A serious and unforeseen threat to the public health, safety, or welfare. 

(2) The effective date of a recent act of the General Assembly or the United States 

Congress. 

(3) A recent change in federal or State budgetary policy. 

(4) A recent federal regulation. 

(5) A recent court order. 

(6) The 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. 

(7) 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). 

(8) 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 
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promoting uniformity of state securities regulation, and to adopt rules 

governing the conduct of hearings pursuant to this Chapter. 

(9) The need for the Commissioner of Insurance to implement the provisions of G.S. 

58-2-205. 

(10) The need for the Chief Information Officer to implement the information 

technology procurement provisions of Article 3D of Chapter 147 of the 

General Statutes. 

(11) 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. 

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, effective July 1, 2002. 

b. Repealed by Session Laws 2000-69, s. 5, effective July 1, 2003. 

(13), (14) Reserved. 

(15) Expired pursuant to Session Laws 2002-164, s. 5, effective October 1, 2004. 

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

(a1) 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, the agency shall: 

(1) At least 30 business days prior to adopting a temporary rule, 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. 

(2) At least 30 business days prior to adopting a temporary rule, 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. 

(3) Accept written comments on the proposed temporary rule for at least 15 business 

days prior to adoption of the temporary rule. 

(4) 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 
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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 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-21.9, 

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. 

(b1) 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 Commission or its designee again 

finds that the statement does not meet the criteria listed in subsection (a) of this section or that 

the rule does not meet the standards in G.S. 150B-21.9, the Commission or its designee must 

immediately notify the head 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) 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 
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section and whether the rule meets the standards in G.S. 150B-21.9. The court shall not grant an 

ex parte temporary restraining order. 

(c1) 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: 

(1) 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), 1(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, ss. 2.3, 5.3; 2001-424, ss. 27.17(b), (c), 27.22(a), (b); 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; 

2011-398, s. 4.) 

§ 150B-21.2. Procedure for adopting a permanent rule. 

(a) Steps. – Before an agency adopts a permanent rule, the agency must comply with the 

requirements of G.S. 150B-19.1, and it must take the following actions: 

(1) Publish a notice of text in the North Carolina Register. 

(2) When required by G.S. 150B-21.4, 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 of 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 following: 

(1) The text of the proposed rule. 
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(2) A short explanation of the reason for the proposed rule and a link to the agency's 

Web site containing the information required by G.S. 150B-19.1(c). 

(3) A citation to the law that gives the agency the authority to adopt the rule. 

(4) The proposed effective date of the rule. 

(5) The date, time, and place of any public hearing scheduled on the rule. 

(6) 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. 

(7) 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 the 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. The agency must accept comments at the public hearing on both the 

proposed rule and any fiscal note that has been prepared in connection with the proposed rule. 

An agency may hold a public hearing on a proposed rule and fiscal note 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 and any fiscal note that has been prepared in connection 

with the proposed rule 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. Prior to 

adoption, an agency shall review any fiscal note that has been prepared for the proposed rule and 

consider any public comments received in connection with the proposed rule or the fiscal note. 
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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 made or considerations urged 

against the adoption of the rule. The agency must issue 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, any fiscal note that has been prepared for 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, c. 5, s. 1; 1991, c. 418, s. 1; 1995, c. 507, s. 27.8(d); 1996, 2nd Ex. Sess., c. 

18, s. 7.10(e); 2003-229, s. 4; 2011-398, s. 5.)