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kfi/KfW/?V?< NORTH CAROLINA REGISTER VOLUME 14 • ISSUE 10 • Pages 737 - 902 RECEIVED NOV 1 2 1999 KATHRINE R. EVERETT LAW LIBRARY November 15, 1999 IN THIS ISSUE Executive Orders Voting Rights Letters Administrative Hearings, Office of Environment and Natural Resources Foresters, Board of Registration for Health and Human Services Insurance Justice Physical Therapy Examiners, Board of Plumbing, Heating & Fire Sprinkler Contractors Real Estate Commission State Personnel Substance Abuse Professional Certification Board Rules Review Commission Contested Case Decisions PUBLISHED BY The Office ofAdministrative Hearings Rules Division 6714 Mail Service Center Raleigh, NC 27699-6714 Telephone (919) 733-2678 Fax (919) 733-3462 This publication is printed on permanent, acid-free paper in compliance with G.S. 125-11.13 For those persons that have questions or concerns regarding the Administrative Procedure Act or any of it components, consult with the agencies below. The bolded headings are typical issues which the givei agency can address, but are not inclusive. Rule Notices, Filings, Register. Deadlines. Copies of Proposed Rules, etc. Office of Administrative Hearings Rules Division Capehart-Crocker House (919) 733-2678 424 North Blount Street (919) 733-3462 FAX Raleich, North Carolina 27601-2817 contact: Molly Masich, Director APA Services Ruby Creech, Publications Coordinator Fiscal Notes & Economic Analysis Office of State Budget and Management 1 16 West Jones Street Raleigh, North Carolina 27603-8005 contact: Warren Plonk, Economist III Rule Review and Legal Issues Rules Review Commission 1307 Glenwood Ave., Suite 159 Raleigh, North Carolina 27605 contact: Joe DeLuca Jr., Staff Director Counsel Bobby Bryan, Staff Attorney mmasich@oah.state, nc. us rcreech@oah. state. nc. us > (919)733-7061 (919) 733-0640 FAX wplonk@osbm.state.nc.us (919) 733-2721 (919) 733-9415 FAX Legislative Process Concerning Rule-making Joint Legislative Administrative Procedure Oversight Committee 545 Legislative Office Building 300 North Salisbury Street (919) 733-2578 Raleigh, North Carolina 27611 (919) 715-5460 FAX contact: Mary Shuping, Staff Liaison marys@ms.ncga.state.nc.us County and Municipality Government Questions or Notification NC Association of County Commissioners 215 North Dawson Street (919)715-2893 Raleigh, North Carolina 27603 contact: Jim Blackburn or Rebecca Troutman NC League of Municipalities 2 1 5 North Dawson Street Raleigh, North Carolina 27603 contact: Paula Thomas (919)715-4000 This publication is printed on permanent, acid-free paper in compliance with G.S. 125-1 1.13 NORTH CAROLINA REGISTER Volume 14, Issue 10 Pages 737 - 902 November 15, 1999 This issue contains documents officially filed through October 22. 1999. Office of Administrative Hearings Rules Division 424 North Blount Street (27601) PO Drawer 27447 Raleigh. NC 2761 1-7447 (919)733-2678 FAX (919) 733-3462 Julian Mann III. Director Camille Winston. Deputy Director Molly Masich. Director of APA Services Ruby Creech. Publications Coordinator Linda Dupree. Editorial Assistant Jessica Flowers. Editorial Assistant II. ill. IV. VI. VII. VIII. I\. IN THIS ISSUE EXECUTIVE ORDERS Executive Orders 162-164 737-738 IN ADDITION Voting Rights Letters 739 741 RULE-MAKING PROCEEDINGS Environment and Natural Resources Environmental Management Commission 743 - 749 Health and Human Services Child Care Commission 742 Social Services 742-743 Licensing Boards Plumbing. Heating & Fire Sprinkler Contractors 749 Substance Abuse Professional Certification Bd 749 PROPOSED RULES Environment and Natural Resources Environmental Management 755 - 757 Health Services 757-767 Health and Human Services Health Services 767 - 77 1 Medical Assistance 750 - 752 Insurance Agent Services Division 752 - 755 Licensing Boards Physical Therapy Examiners. Board of 771 - 772 Real Estate Commission 772 - 797 TEMPORARY RULES Environment and Natural Resources Environmental Management 823 - 838 Health and Human Services Secretary of Health and Human Services 799 - 809 Social Services Commission 798 - 799 Insurance Financial Evaluation Division 811-819 Life and Health Division 819-822 Property and Casualty Division 809 - 81 1 Special Services Division 822 - 823 APPROVED RULES 839-884 Administrative Hearings, Office of Civil Rights Division General Rules Division Environment and Natural Resources Coastal Management Environmental Management Commission Health Services Sedimentation Control Commission Well Contractors Certification Commission Wildlife Health and Human Services Health Services Insurance Life and Health Division Justice Criminal Justice Ed & Training Standards Commission Licensing Boards Foresters. Board of Registration for State Personnel Slate Personnel Commission RULES REVIEW COMMISSION 885 - 892 CONTESTED CASE DECISIONS Index to ALJ Decisions 893-899 Text of Selected Decisions 98 EHR 1735 900 - 902 CUMULATIVE INDEX 1 - 85 North Carolina Register is published semi-monthly for SI 95 per year by the Office of Administrative Hearings. 424 North Blount Streei. Raleigh. NC 27601 (ISSN 15200604) to mail at Periodicals Rates is paid at Raleigh, NC POSTMASTER: Send Address changes to the North Carolina Register, PO Drawer 27447. Raleigh NC 27hl 1-744" NORTH CAROLINA ADMINISTRATIVE CODE CLASSIFICATION SYSTEM The North Carolina Administrative Code (NCAC) has four major subdivisions of rules. Two of these, titles and chapters, are mandatory. The major subdivision of the NCAC is the title. Each major department in the North Carolina executive branch of government has been assigned a title number. Titles are further broken down into chapters which shall be numerical in order. The other two. subchapters and sections are optional subdivisions to be used by agencies when appropriate. TITLE/MAJOR DIVISIONS OF THE NORTH CAROLINA ADMINISTRATIVE CODE TITLE DEPARTMENT LICENSING BOARDS CHAPTER 1 Administration Acupuncture 1 2 Agriculture Architecture 2 3 Auditor Athletic Trainer Examiners 3 4 Commerce Auctioneers 4 5 Correction Barber Examiners 6 6 Council of State Certified Public Accountant Examiners 8 7 Cultural Resources Chiropractic Examiners 10 8 Elections Employee Assistance Professionals 11 9 Governor General Contractors 12 10 Health and Human Services Cosmetic Art Examiners 14 1 1 Insurance Dental Examiners 16 12 Justice Dietetics/Nutrition 17 13 Labor Electrical Contractors 18 I4A Crime Control & Public Safety Electrolysis 19 15A Environment and Natural Resources Foresters 20 16 Public Education Geologists 21 17 Revenue Hearing Aid Dealers and Fitters 2 2 18 Secretary of State Landscape Architects 26 19A Transportation Landscape Contractors 28 20 Treasurer Marital and Family Therapy 31 *21 Occupational Licensing Boards Medical Examiners 32 TT Administrative Procedures (Repealed) Midwifery Joint Committee 33 23 Community Colleges Mortuary Science 34 24 Independent Agencies Nursing 36 2? State Personnel Nursing Home Administrators 37 26 Administrative Hearings Occupational Therapists 38 27 NC State Bar Opticians 40 Optometry 42 Osteopathic Examination & Reg. (Repealed) 44 Pastoral Counselors. Fee-Based Practicing 45 Pharmacy 46 Physical Therapy Examiners 48 Plumbing. Heating & Fire Sprinkler Contractors 50 Podiatry Examiners 52 Professional Counselors 53 Psychology Board 54 Professional Engineers & Land Surveyors 56 Real Estate Appraisal Board 57 Real Estate Commission 58 Refrigeration Examiners 60 Sanitarian Examiners 62 Social Work Certification 63 Soil Scientists 69 Speech & Language Pathologists & Audiologists 64 Substance Abuse Professionals 68 Therapeutic Recreation Certification 65 Vetennarv Medical Board 66 Note: Title 21 contains the chapters of the various occupational licensing boards. 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B 3 IE ^ '-* rP • P Si 3 — U ca S in a —sC u J3 3 ur, Si B CJ 3 O Oi , •5 o < o — 3 — "2 S vJ •3; y •0 3 cH >, OS = g « ftS 5 £ -^ d 1 CO u U u cj x: H ft fc S r^ 3; -o _, g CJ -C3 <« « X) <u F ft -j - ft _ > — co 5 O a z li ^ g y =iOr- | 3 so _>. o - £ 'E -2 " - o O P '— C/3 C CJ = "3 5 5 3 -5 "Of s ^ 1 1 ? 1 1 I I H .E 5 I I i 1 1 ~ 1 2 2 i J 1 1 1 ^ i g* g 3 el ^ cj - >> ~ >> i ft a 5 "5 uc<— ro 3 — 3 pi — ft o oi -S z— si CJ OS 5 w I -S S Cj '" —3 T3 Q CJ w ' 3 ._ >, y >, U "3 3 X cE C/-; EXECUTIVE ORDERS EXECUTIVE ORDER NO. 162 EXTENDING EXECUTIVE ORDER NO. 159 EMERGENCY RELIEF FOR DAMAGE CAUSED BY HURRICANE FLOYD provided by North Carolina General Slatute § 89C-19. 1(h)(2). Done in the Capital City of Raleigh. North Carolina, this the 18lh day of October, 1999. By the power and authority vested in me as Governor by the Constitution and laws of the State of North Carolina. IT IS ORDERED: Executive Order Number 1 59. Emergency Relief for Damage Caused by Hurricane Floyd, is re-instituted and the provisions therein shall remain in full force and effect through November 15, 1999. Done in the Capital City of Raleigh. North Carolina, this the 18th day of October. 1999. EXECUTIVE ORDER NO. 163 EXTENDING QUALIFIED IMMUNITY OF PROFESSIONAL ENGINEERS WHEREAS, North Carolina General Statute § 89C-19.1 grants qualified immunity to professional engineers who voluntarily, without compensation, provide structural, electrical, mechanical, or other engineering services at the scene of a declared disaster or emergency under circumstances more fully described in the said statute; and WHEREAS, professional engineers have been providing such voluntary services in the aftermath of Hurricane Floyd; and WHEREAS, under North Carolina General Statute § 89C- 1 9. 1 the qualified immunity terminates forty five days after the declaration of the emergency or disaster, unless the qualified immunity period is extended by an executive order issued by the Governor under the Governor's emergency executive powers; and WHEREAS, it is necessary and appropriate to extend the qualified immunity period. NOW. THEREFORE, by the power vested in me as Governor by the laws and Constitution of the State of North Carolina, IT IS ORDERED: Section 1 . Qualified Immunity Period Extended In accordance with the provisions of North Carolina General Statute § 89C- 1 9. 1 . the statutorily allowed qualified immunity to professional engineers who arc voluntarily, without compensation, providing structural, electrical, mechanical, or other engineering services at the scene of Hurricane Floyd declared disaster or emergency areas is hereby extended for forty five days. Section Effective Date of Extension This extension period shall begin immediately upon the expiration of the initial forty five day qualified immunity period EXECUTIVE ORDER NO. 164 DELEGATION OF AUTHORITY TO ATTORNEY GENERAL TO ASSIST LOCAL GOVERNMENTS IN HURRICANE FLOYD RECOVERY EFFORTS WHEREAS. I have proclaimed, pursuant to G.S. 1 66A-6 and G.S. 14-288.15, that a state of disaster and state of emergency exists in North Carolina due to Hurricane Floyd and resultant flood damage; and WHEREAS, thousands of victims of Hurricane Floyd and the resultant Hooding in eastern North Carolina have incurred severe damages to their homes, businesses and other property; and WHEREAS, the victims of such damages are in great need of legitimate, honest, and competent contractors and other service providers to perform necessary repairs, reconstruction, cleanup and other remedial services; and WHEREAS, based on prior experience. I am concerned that homeowners and business owners contracting for such services may be taken advantage of by unscrupulous contractors and service providers, and that it is the responsibility of the State of North Carolina to minimize such risk to the citizens of the State; and WHEREAS, there is a need for the establishment of contractor and service provider monitoring programs to assist the victims of Hurricane Floyd in obtaining the timely services of legitimate, honest and skilled professionals while avoiding victimization by unscrupulous practices: and WHEREAS, local governments may have insufficient resources in this time of crisis to adequately protect their citizens from unscrupulous practices; and WHEREAS, the Attorney General has offered the services of his office to support local government efforts to monitor contracting practices and to provide other legal assistance in severely impacted counties; and WHEREAS. I have determined that the interests of local governments and citizens in severely impacted counties will benefit from the assistance of the Attorney General in this effort. NOW. THEREFORE, pursuant to the authority vested in me as Governor by the Constitution and laws of the State of North Carolina. IT IS ORDERED: 1. The Attorney General shall, as soon as reasonably 14:10 NORTH CAROLINA REGISTER November 15, 1999 737 EXECUTIVE ORDERS possible, contact local officials in severely impacted counties and offer the assistance of his office in establishing local programs to monitor and deter unscrupulous contracting practices in connection with Hurricane Floyd recovery efforts. The Attorney General is authorized to utilize such law enforcement and other personnel within his department as may be necessary, in his judgment, to provide assistance requested by local governments. Local governments may establish and, if requested by local governments the Attorney General may assist in the establishment of contractor monitoring programs in flood or hurricane damaged areas which may include: a. Verification of any professional or other business licenses issued to contractors by their state of residence or principal place of business. b. Information verifying compliance with such insurance requirements as may be mandated by North Carolina laws. c. A background check of state and national criminal history records upon submission of appropriate fingerprint cards. d. Execution of a sworn affidavit by the contractor certifying that all work performed shall be for a price reasonable under the circumstances and consistent with the quality generally expected of that particular trade or profession. e. Procedures for revocation of the authority to do business in flood or hurricane damaged areas upon evidence that unacceptable practices or other violations of the program have occurred f. Procedures for referral of unlawful activities or violations of this Executive Order to appropriate authorities for expeditious prosecution g. Random or systematic monitoring and identity checks of contractors and service providers by law enforcement authorities to further program compliance and the minimization of unethical practices. 4. All state and local law enforcement authorities are directed to provide such assistance, including enforcement activities, as the Attorney General may request in implementing this program. 5. Contractor monitoring programs established by local governments in accordance with this Order shall not be subject to conflicting rules or regulations issued by any state or local governmental entity. 6. The Attorney General is further authorized, in his discretion, to provide such other legal or law enforcement services as may be requested by local governments or determined by the Attorney General to be in the best interest of the State of North Carolina. 7. This Executive Order is effective immediately, and shall remain in effect until rescinded. Done in the Capital City of Raleigh. North Carolina this the 18lhdav of October, 1999. 738 NORTH CAROLINA REGISTER November 15, 1999 14:10 IN ADDITION This Section contains public notices that are required to he published in the Register or have been approved by the Codifier of Rules for publication. U.S. Department of Justice Civil Rights Division JDR:DHH:NT:jdh Voting Section DJ 166-012-3 P.O. Box 66128 99-2408 Washington, DC. 20035-6128 October 4. 1999 Richard J. Rose Poyner & Spruill P.O. Box 353 Rocky Mount, North Carolina 27802 Dear Mr. Rose: This refers to two annexations (Ordinance Nos. 0-99-19 and 0-99-40) to the city of Rocky Mount in Edgecombe County and Nash Counties. North Carolina, submitted to the Attorney General pursuant to Section 5 of the Voting Rights Act, 42 U.S.C. 1973c. We received your submission on April 19. 1999. The Attorney General does not interpose any objection ot the specified changes. However, we note that Section 5 expressly provides that the failure of the Attorney General to object does not bar subsequent litigation to enjoin the enforcement of the changes. Sec the Procedures for the Administration of Section 5 ( 28 C.F.R. 51.41 i. Sincerely, Joseph D. Rich Acting Chief Votine Section 14:10 NORTH CAROLINA REGISTER November 15, 1999 739 IN ADDITION I JDR:DHH:NT:par DJ 166-012-3 99-2425 Washington, DC. 20035-6128 U.S. Department of Justice Civil Ritihts Division Voting Section P.O. Box 66 J 28 October 6, i 999 Donald I. McRee. Jr.. Esq. County Attorney P.O. Box 39 Elizabeth City, North Carolina 27907-0039 Dear Mr. McRee: This refers to the polling place change (Nixonton Precinct) for Pasquotank County, North Carolina, submitted to the Attorney General pursuant to Section 5 of the Voting Rights Act. 42 U.S.C. 1973c. We received your submission on April 20. 1999. The Attorney General does not interpose any objection to the specified changes. However, we note that Section 5 expressly provides that the failure of the Attorney General to object does not bar subsequent litigation to enjoin the enforcement of the change. See the Procedures for the Administration of Section 5 (28 C.F.R. 5 1 .41 ). Sincerely, Joseph D. Rich Acting Chief Voting Section 740 NORTH CAROLINA REGISTER November 15, 1999 14:10 I\ ADDITION U.S. Department of Justice Civil Rights Division JDR:DHH NT:par Voting Section DJ 1 66-0 1 2-3 P O. Box 66128 1999-2487 Washington, DC. 201)35-6128 Octobers. 1999 David Holec. Esq. City Attorney P.O. Box 7207 Greenville. North Carolina 27835-7207 Dear Mr. Holec: This refers to eight annexations (Ordinance Nos. 99-64 through 99-71 ) and their designation to council districts of the City of Greenville in Pitt County. North Carolina, submitted to the Attorney General pursuant to Section 5 of the Voting Rights Act. 42 U.S.C. 1973c. We received your submission on August 25. 1999. The Attorney General does not interpose any objection to the specified changes. However, we note that Section 5 expressly provides that the failure of the Attorney General to object does not bar subsequent litigation to enjoin the enforcement of the changes. See the Procedures for the Administration of Section 5 (28 C.F.R. 51.41 ). Sincerely, Joseph D. Rich Acting Chief Voting Section 14:10 NORTH CAROLINA REGISTER November 15, 1999 741 RULE-MAKING PROCEEDINGS A Notice ofRule-making Proceedings is a statement of subject matter of the agency's proposed rule making. The agency must publish a notice of the subject matter for public comment at least 60 days prior to publishing the proposed text of a rule. Publication of a temporary rule serves as a Notice of Rule-making Proceedings and can be found in the Register under the section heading of Temporary Rules. A Rule-making Agenda published by an agency serves as Rule-making Proceedings and can be found in the Register under the section heading of Rule-making Agendas. Statutory reference: G.S. 150B-21.2. TITLE 10 - DEPARTMENT OF HEALTH AND HUMAN SERVICES CHAPTER 3 - FACILITY SERVICES SUBCHAPTER 3U - CHILD DAY CARE STANDARDS iy jntice of Rule-making Proceedings is hereby given by the i V North Carolina Child Care Commission in accordance with G.S. 150B-21 .2. The agency shall subsequently publish in the Register the text of the rules it proposes to adopt as a result of this notice of rule-making proceedings and any comments received on this notice. Citation to Existing Rules Affected by this Rule-Making: 10 NCAC 3D .071)0. Other rules may be proposed in the course of the rule-making process. Authority for the rule-making: G.S. 143B-168.3 Statement of the Subject Matter: Child care rules regarding in-service training for child care providers Reason for Proposed Action: The Child Care Commission proposes rulemaking in order to clarify the approval or disapproval of agencies or individuals to offer in-senice training for child care providers. Comment Procedures: Questions or written comments regarding this matter max be directed to Janice Fain. APA Coordinator, Division of Child Development. 319 Chapanoke Road. PO Box 29553. Raleigh. NC 27526-0553; (919} 662- 4543. received on this notice. Citation to Existing Rules Affected by this Rule-Making: 10 NCAC 4IH; 41 P. Other rules max he proposed in the course of the rule-making process. Authority for the rule-making: G.S. 48; 131D-10.5; 143B- 153 Statement of the Subject Matter: The Social Sendees Commission intends to amend rules in 10 NCAC 41H to reflect technical citation changes and history note changes made previously. Additionally, the Commission intends to amend 10 NCAC 41 P to reflect changes in federal law regarding the recruitment of adoptive homes. Reason for Proposed Action: An amendment to the Multiethnic Placement Act, necessitates the need to amend the rules. The Interethnic Provision prohibits the consideration of race, color, or national origin as a basis for the placement of a child for adoption. Amendment ofAPA rules is necessarx to ensure that county departments of social services and private child-placing agencies licensed for adoption adhere to the provisions of both the 1994 MEPA and the 1996 additions to MEPA. Comment Procedures: Anyone wishing to comment should contact Sharnese Ransome, APA Coordinator, Social Sen-ices Commission. NC Division of Social Sen ices, 325 N. Salisbury Street. 2401 Mail Service Center. Raleigh, NC 27699-2401. phone 919-733-3055. %:$:%%%;%;%:$:%;%;%:$:$:%;$:%%.$:$;%: CHAPTER 42 - INDIVIDUAL AND FAMILY SUPPORT CHAPTER 41 - CHILDREN'S SERVICES SUBCHAPTER 41 H - ADOPTION STANDARDS SUBCHAPTER 41P - CHILD-PLACING AGENCIES: ADOPTION \jotice of Rule-making Proceedings is hereby given by the 1 V Social Sendees Commission in accordance with G.S. 150B-21.2. The agency shall subsequently publish m the Register the text of the rules it proposes to adopt as a result of this notice of rule-making proceedings and any comments SUBCHAPTER 42E - ADULT DAY CARE STANDARDS FOR CERTIFICATION SUBCHAPTER 42Z - ADULT DAY HEALTH STANDARDS FOR CERTIFICATION -\ mtice of Rule-making Proceedings is hereby given by the i V Social Services Commission in accordance with G.S. 150B-21.2. The agency shall subsequently publish in the Register the text of the rules it proposes to adopt as a result of this notice of rule-making proceedings and any comments received on this notice. 742 NORTH CAROLINA REGISTER November 15, 1999 14:10 RULE-MAKING PROCEEDINGS Citation to Existing Rules Affected by this Rule-Making: 10 NCAC 42E; 42Z. Other rules max be proposed in the course of the rule-making process. Authority for the rule-making: G.S. 131D-6; I43B-153. Statement of the Subject Matter: 10 NCAC 42E and 10 NCAC 42Z govern the provision ofAdult Day Care and Adult Day Health seniles as mandated by G.S. I3ID-6. Reason for Proposed Action: S.L 1999-334 requires adult day care programs that provide, advertise, market or otherwise promote themselves as providing special care sen ices for persons with Alzheimer's disease or other dementias, a mental health disability or other special needs disease or condition to develop written disclosures. The disclosure of their policies and procedures on "special care" shall be made available to the Department and to individuals seeking services. Additional rules have been developed to assure quality implementation of the disclosure of specialized care in the area of facility, enrollment, individual senice plans, staff training and programming. Comment Procedures: Anyone wishing to comment should contact Sharnese Ransome. APA Coordinator, Social Services Commission, NC Division of Social Services. 325 N. Salisbury Street. Raleigh. NC 2760.1 phone 919-733-3055. TITLE ISA - DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES CHAPTER 2 - ENVIRONMENTAL MANAGEMENT SUBCHAPTER 2C - WELL CONSTRUCTION STANDARDS •k jotice of Rule-making Proceedings is hereby given by the i V Environmental Management Commission in accordance with G.S. J50B-2I.2. The agency shall subsequently publish in the Register the text of the rules it proposes to adopt as a result of this notice of rule-making proceedings and any comments received on this notice. Citation to Existing Rules Affected by this Rule-Making: ISA NCAC2C .0102-.0103, .0105, .0107-.0108, .0110-.0U4, .01 17-. 01 18. Other rules may be proposed in the course of the rule-making process. Authority for the rule-making: G.S. 87-85; 87-87; 87-88; 143-214.2; 143-215.1; 143-215.3; 143-355(e); 150B-23. Statement of the Subject Matter: The proposed amendments to the I5A NCAC 2C .0100 Well Construction Standards are summarized as follows: Specifies new definitions and amends others definitions in Rule .0101 to communicate requirements more clearly. The amendment adds definitions for "clay", "formation material", "vent" and "yield". Repeals the registration requirements for well contractors by January 1. 2000 in Rule .0103. Well driller registration is to be replaced by well contractor certification requirements under title 15A NCAC 27 (Temporary Rules effective on 12/15/99; Permanent Rules approved by the Rules Review Commission for Legislative Review on 09/30/99). No changes are proposed to the requirements governing pump installer registration. Clarifies permitting requirements under Rule .0105. Removes permitting requirements for wells intended for the recovery of minerals and ores. Removes permitting requirements for oil and gas exploratory and recovery wells. Requires that monitoring wells be installed by a permit. Rule .0107 clarifies minimum horizontal separation requirements, casing requirements, well grouting requirements, requirements for gravel-and-sand packed wells, well development requirements, and applicable identification plate requirements. The rule clarified minimum separation requirements for certain types ofsolid waste landfills, building foundations, sulfate water bodies. Specifies a new minimum separation requirement of 50 feet for petroleum tanks used for heating equipment, boilers, or furnaces. Clarifies that the minimum horizontal distances for locating a well are those that exist at the time of well construction. The proposed rules also specift that if thermoplastic casing is used in well construction, that it not be driven into consolidated rock. The rule is amended to specify' that when wells are constructed in a consolidated rock formation, casing must be firmly seated five feet into rock instead of one foot. Rule .0108 clarifies standards for well usedfor purposes other than water supply and removes unnecessary requirements. Specifies that the upper most three feet of grout below land sulfate must be a "concrete" or "cement-type grout" so as to provide well casing stability. Specifies that these kinds of wells are to be secured with a locking cap. The proposed changes remove requirements for groundwater level measuring wells. Minor editorial revisions and a few clarifications are proposed for Rule .0110 (Well Tests for Yield). Rule .0111 (Disinfection of Water Well Supplies), Rule .0112 (Well Maintenance: Repair: Groundwater Resources), anil Rule .0114 (Data and Records Required). A change to Rule .0112 requires the well owner maintain the well in such a manner that it will conserve and protect groundwater resources. An amendment to Rule .01 14 specifies that, if the Division makes a request for samples of formation cuttings, the well contractor will provide those samples to the Division prior the completion of drilling or boring activities. Rule .01 13 specifies changes to abandonment procedures for permanently abandoned wells, temporary wells, monitoring wells, and wells that are bored or hand dug into unconsolidated material. The proposed changes allow for the use of various grouts, dry clay or material excavated during drilling as abandonment fill material for well abandonment at 14:10 NORTH CAROLINA REGISTER November 15, 1999 743 RULE-MAKING PROCEEDINGS temporary wells, monitoring wells, or wells that are bored or hand dug. The rule also specifies that disinfection of abandoned wells he performed using a 70% hypochlorite solution and in accordance with the requirements of 15A NCA C2C .0111. The use of commercial household bleach will no longer be allowed under this rule. Changes to Rule .01 17 (Designated Areas: Wells Cased to Minimum Depth of 35 Feet) redefines the designated areas where wells are to be cased to a minimum depth of 35 feet. Changes to variance requirements in Rule .0118 specifies that the Director will respond to a requestfor a variance in writing within 30-day upon receipt. Reason for Proposed Action: 15A NCAC 2C M102-.0103, .0105, .0107-.0108, .0110:0114, .0117-.0118 - The last set of amendments to the 15A NCAC 2C .0100 (Well Construction Standards) went into effect on December 1 , 1992. Since that time, the Groundwater Section has found that it is necessary to clarify specifications for some wells, strengthen other requirements, and remove unnecessary requirements. From mid-1997 through August 1999 the Groundwater Section developed rule changes and met with stakeholders on changes to these rules. In addition, well driller registration requirements are being removed to be consistent with Session Law 1997-358. This law amended the registration requirement in GS. 143-355(e) by requiring the funds collected under this program be placed in a non-reverting Well Construction Fund adopted under G.S. 87-98.9. Monies collected in this fund are to be used for the administration of Well Contractor Certification. Changes to the Well Construction Standards in 15A NCAC 2C .0100 will need to be done through rulemaking pursuant to G.S. 1 50B. Comment Procedures: All persons interested in this proposed amendment are encouraged to submit written comments or questions to David Fiance, ENR-DEM: Groundwater Section, PO Box 29578, Raleigh, North Carolina, 27626-0578. Comments may also be sent b\ fax transmission to Mr. Fiance at (919) 715-0588 or via electronic mail to David.Ha.nce@ncmail.net. CHAPTER 2 - ENVIRONMENTAL MANAGEMENT SUBCHAPTER 2L - GROUNDWATER CLASSIFICATION AND STANDARDS x mtice of Rule-making Proceedings is hereby given by the Environmental Management Commission in accordance with G.S. 1 V 150B-21 .2. The agency shall subsequently publish in the Register the text of the rules it proposes to adopt as a result of this notice of rule-making proceedings and any comments received on this notice. Citation to Existing Rules Affected by this Rule-Making: 15A NCAC 2L .0202. Other rules may be proposed in the course of the rule-making process. Authority for the rule-making: G.S. 143-214.1: 143B-282(a)(2) Statement of the Subject Matter: The amendment to 15A NCAC 2L .0202 proposes changes to thirty-six of the current Groundwater Quality Standards for these substances in Class GA and Class GSA groundwaters. Groundwater Quality Standards that are shown in bold typeface are proposed to have the concentration level lowered (i. e. made more restrictive and protective). Groundwater Quality Standards for which the numeric concentrations are proposed to be increased (i.e. made less restrictive) are displayed in normal typeface. These substances are shown with their current Groundwater Quality Standard and the proposed change. Unless otherwise noted, numeric standards for these substances are shown in milligrams per liter as follows as follows: SUBSTANCE Acrylamide Arsenic Boron Bromoform Cadmium Carbofuran Carbon Tetrachloride CURRENT CONCENTRATION (milligrams per liter or mg/L) 0.00001 0.05 0.32 0.0019 0.005 0.036 0.0003 NEW CONCENTRATION (milligrams per liter or mg/L) 0.000008 0.00002 0.315 0.00443 0.00175 0.035 0.000269 744 NORTH CAROLINA REGISTER November 15, 1999 14:10 RULE-MAKING PROCEEDINGS Chlordane Chloroform 2-Chlorophenol Chromium Cyanide 1 ,2-Dichlorobenzene 1 ,3-Dichlorobenzene 1 ,4-Dichlorobenzene 1,1- Dichloroethane 1 , 1 -Dichloroethylene 1,2-Dichloropropane Di( 2-ethy Ihexyl Iphthalate 1,4-Dioxane Ethylbenzene Ethylene Glycol Fluoride Heptachlor Heptachlor Epoxide Heptane Mercury Methylene Chloride Methyl Ethyl Ketone Methyl Tert Butyl Ether (MTBE) Pentachlorophenol *» Radium-226 * Radium-228 Silver trans- 1 ,2-Dichloroethylene Zinc 2.7 x 10-' 0.00019 0.001 0.05 0.154 ((.62 0.62 0.075 0.7 0.007 0.00056 0.003 0.007 0.029 7.0 2.0 8.0 x 10 " 4.0 x 10 " 2.1 0.0011 0.005 0.17 0.200 0.0003 5pCi/L 5pCi/L 0.018 0.07 2.1 2.69 x 10 ' 0.0057 0.035 0.00175 0.07 0.024 0.63 0.011 0.07 5.8 x 10 s 0.00051 0.0025 0.00318 0.70 14.0 1.0 7.8 x 10-6 3.8 x 10" 0.42 0.00105 0.0046 4.20 0.070 ((.00029 0.160 pCi/L 0.192 pCi/L 0.0175 0.10 1.05 - The current Groundwater Quality Standard for Chromium is listed in 15A NCAC 2L .0202(g)( 17). The recommended Groundwater Quality Standard for Chromium is two valances of Chromium which, will be proposed as "Total Chromium (III and IVr. *P - The current Groundwater Quality Standards of Radium is a combined total of Radium-226 and Radium-228. The recommended Groundwater Quality Standard to be proposed in the amendment will specif}' the Groundwater Quality Standards for Radium-226 and Radium-228 as separate substances. Groundwater Quality Standards for these radioisotopes are expressed as units of picocuries per Liter. A curie Id) is the unit of activity of a radioactive substance that corresponds to 3.7 x 10 disintegrations per second and is approximately equal to 1 gram of radium. A picocurie (pCi) is one/one-trillionth part of a curie. Reason for Proposed Action: The amendment to 15A NCAC 2L .0202. Groundwater Quality Standards, will revise the current groundwater standards for Acnlamide, Arsenic, Boron. Bromoform. Cadmium. Carbofuran. Carbon Tetrachloride. Chlordane. Chloroform. 2-Chlorophenol. Total Chromium (III and IV), Cyanide, 1 ,2-Dichlorobenzene, 1 ,3-Dichlorobenzene. 1,4- Dichlorobenzene, 1 ,1 -Dichloroethane, 1 ,1 -Dichloroethylene. 1,2-Dichloropropane, Di(2-ethylhexy iphthalate. 1,4-Dioxane, Ethylbenzene. Ethylene Glycol. Fluoride. Heptachlor, Heptachlor Epoxide, Heptane, Mercury, Methylene Chloride, Methyl Ethyl Ketone. Methyl-Tert Butyl Ether (MTBE). Pentachlorophenol. Radium-226, Radium-228. Silver, trans- 1 ,2Dichloroethylene, and Zinc. Action to amend the concentration levels for the 36 substances listed in 15A NCAC 2L .0202 is the result ofa request for biennial review of Groundwater Quality Standards pursuant to 15A NCAC 2L .0202(f). The proposed rule changes are being made to incorporate the most updated health information and concentration levels as Groundwater Quality Standards in 15A NCAC 2L .0202. The 15A NCAC 2L .0202 Groundwater Quality Standards must be revised in accordance with the requirements of G.S. 150B. Comment Procedures: All persons interested in this proposed amendment are encouraged to submit written comments or 14:10 NORTH CAROLINA REGISTER November 15, 1999 745 RULE-MAKING PROCEEDINGS questions to David Hance, ENR-DEM: Groundwater Section. PO Box 29578. Raleigh. NC. 27626-0578. Comments may also be sent by fax transmission to Mr. Hance at (919) 715-0588 or via electronic mail to David.Hance@ncmail.net. CHAPTER 2 - ENVIRONMENTAL MANAGEMENT SUBCHAPTER 2L - GROUNDWATER CLASSIFICATION AND STANDARDS tice of Rule-making Proceedings is hereby given by the Environmental Management Commission in accordance with G.S. The agency shall subsequently publish in the Register the text of the rules it proposes to adopt as a result of this * jotice Ki 1\ I50B-21.2 notice of rule-making proceedings and any comments received on this notice. Citation to Existing Rules Affected by this Rule-Making: ISA NCAC 2L .0202. Other rules may be proposed in the course of the rule-making process. Authority for the rule-making: G.S. 143-214.1; 143B-282(a)(2) Statement of the Subject Matter: ( The amendment addresses two separate issues under Roman Numeral I and Roman Numeral 11); I. Establishing Groundwater Quality Standards in title 15A NCAC 2L .0202: The amendment to 15A NCAC 2L .0202 proposes the establishment of Groundwater Quality Standards for thirty-eight substances in Class GA and Class GSA groundwaters. Numeric standards for these substances are shown in milligrams per liter as follows: SUBSTANCE §-=Alkane Carbon Fraction Class C5-C8 XAlkane Carbon Fraction Class C9-C18 s-=Alkane Carbon Fraction Class C19-C32 I Aromatics Carbon Fraction Class C9-C32 Benzo(b)fluoranthcnc Benzo( k Ifluoranthene Benzol a )pyrene sec-Butylbenzene tert-Butylbenzene n-Butylbenzene Chloromethanc 2-Chlorotoluene Dibenz(a.h (anthracene P.P'- Dichlorodiphenyl Dichloroethane (DDD) P.P'-Dichlorodiphenyl Tnchloroethane (DDT) Dieldrin 2,4-Dimethylphenol ( m-xylenol ) Disulfoton ** Endosulfan II © Endrin Hexachlorocyclohexane Indenoi l,2,3-cd)pyrene Isophorone Isopropylbenzene 2-Methvlnaphthalene 3-Methylphenol (m-cresol) 4-Methylphenol (p-cresol) N-Nitrosodimethylamine CONCENTRATION 0.42 4.20 42.0 0.210 4.7 x 10 ' 4.7 x 10'4 4.7 x 10" 0.070 0.070 0.070 2.6 x 10"3 0.14 4.7x 10" 1.4 x 10 4 1.0 x K)- 4 2.2 x 10 h 0.14 2.8 x 10 4 0.0420 2.1 x 10 3 1.9 x 10 s 4.7 x 10"5 0.0368 0.070 0.0280 0.0350 0.00350 7.0 x 10' • 746 NORTH CAROLINA REGISTER November 15, 1999 14:10 1 RULE-MAKING PROCEEDINGS Petroleum Aliphatic Carbon Fraction Class C5-C8 0.42 Petroleum Aliphatic Carbon Fraction Class C9-C 1 X 4.20 Petroleum Aliphatic Carbon Fraction Class C 1 9-C36 42.0 Phorate 1.4x 10' n-Prop\lben/ene 0.070 2,3,4,6-Tetrachlorophenol 0.2 1 1,2,3-Trichloropropane 5.0 x 10" I,l,2-Trichloro-l,2,2-trifluoroethane(CFC-113) 210.0 1.2,4-Trimethylbenzene 0.350 1 ,3,5-Trimethylbenzene 0.350 - Interim Maximum Allowable Concentrations for these thirty-eight substances are currently in effect pursuant to title 15A NCAC 2L .0202(c). These concentrations will remain in effect until changes are made to 15A NCAC 2L .0202 in accordance with the rulemaking requirements of North Carolina General Statute 150B. Permanent rulemaking to implement Groundwater Quality Standards for these substances is necessary pursuant to the requirements of 15A NCAC 2L .0202. £<- The three alkane carbon fraction classes were established as interim maximum allowable concentrations under 15A NCAC 2L .0202 in order to implement risk based corrective action for petroleum underground storage tanks. ISA NCAC 2L .0202 requires that once an interim maximum allowable concentration is established . the Director of the Division of Water Quality must take action to initiate rulemaking to provide a permanent Groundwater Quality Standard for that substance. The Division of Public Health (formerly the Division of Epidemiology) recommended concentrations for these substances on January 26. 1998 pursuant to I'SEPA guidance. After the concentrations were established, the US EPA provided updated guidance for the use of carbon fraction classes in risk based assessments and corrective action. On February 5. 1998. the Division of Public Health recommended that petroleum aliphatic carbon fraction classes be used to replace these substances. The Division of Public Health was concerned that specifying only the alkane carbon fraction classes was not inclusive of other aliphatic carbon fractions such as alkenes and alkynes associated with petroleum releases. The amendment to the Groundwater Quality Standards in I5A NCAC 2L .0202 that will be presented to the public at hearing will provide the alkane carbon fraction classes with the petroleum aliphatic carbon fraction classes. The public notice of these new standards will specif} that the Division of Water Quality anticipates that the alkane carbon fraction classes will no longer appear in the text of the rule after public hearing is held. Pursuant to I5A NCAC 2L .0202. interim maximum allowable concentrations for the alkane carbon fraction classes will remain in place until final rules are adopted pursuant to North Carolina General Statute I5()B. The final text ofthe rule will cither show-that the alkane carbon fraction classes have either been adopted or deleted from the amendment. > - The Aromatics Carbon Fraction Class C9-C32 was established as an interim maximum allowable concentration under I5A NCAC 2L .0202 in order to implement risk based corrective action for petroleum underground storage tanks. I5A NCAC 2L .0202 requires that once an interim maximum allowable concentration is established . the Director of the Division of Water Quality must take action to initiate rulemaking to provide a permanent Groundwater Quality Standard for that substance. The Division of Public Health recommended a concentration for this substance on January 26. 1998 pursuant to USEPA guidance. After the concentrations were established, the US EPA provided updated guidance for the use of carbon fraction classes in risk based assessments and corrective action. On February 5, 1998. the Division of Public Health recommended an interim maximum allowable concentration and Groundwater Quality Standard for the Petroleum Aromatics Carbon Fraction Class C9-C22. This recommendation was made because aromatic carbon fractions above C22 are not generally associated with petroleum releases. The Division of Public Health and the Division of Waste Management-Underground Storage Tank Section has informed us that the current interim maximum allowable concentration for the Aromatics Carbon Fraction Class C9-C32 was of a class and carbon range inclusive of the proposed Petroleum Aromatics Carbon Fraction Class C9-C22. Based on discussions and a recommendation by the North Carolina Attorney General's Office, the Division did not establish an interim maximum allowable concentration for the Petroleum Aromatics Carbon Fraction Class C9-C22. The amendment to the Groundwater Quality Standards in ISA NCAC 2L .0202 that will be presented to the public at hearing will provide the Aromatics Carbon Fraction Class C9-C32. The public notice of this new standard will specif) that the Division of Water Quality anticipates that the Aromatics Carbon Fraction Class C9-C32 will be deleted and replaced by Petroleum Aromatics Carbon Fraction Class C9-C22 in the text of the rule after the hearing has been held. The proposed concentration level for the Petroleum Aromatics Carbon Fraction Class C9-C22 will be 0.2 10 milligrams per liter. This concentration is the same as the interim maximum allowable concentration for the Aromatics Carbon Fraction Class C9-C32. Pursuant to 15A NCAC 2L .0202. interim maximum allowable concentrations for the Aromatics Carbon Fraction Class C9-C32 will remain in place until final rules are adopted pursuant to North Carolina General Statute I50B. The final text of the rule will show the Aromatics Carbon Fraction Class C9-C32. the Petroleum Aromatics Carbon Fraction Class C9-C22. or both the Aromatics Carbon Fraction Class C9-C32 and the Petroleum Aromatics Carbon Fraction Class C9-C22 with the appropriate concentration level. **- The Endosufan II specified here is the technical grade of the substance also known as beta-endosulfan. 14:10 NORTH CAROLINA REGISTER November 15, 1999 747 RULE-MAKING PROCEEDINGS O - The concentration level for Endrin represents total Endrin consisting of endrin, endrin aldehyde, and endrin ketone. A - The concentration level for Hexachlorocyclohexane represents total Hexachlorocyclohexane consisting of alpha, beta, delta. gamma, and epsilon isomers. II. Change the Biennial Review Requirement in I5A NCAC 2L .0202(f) to a Triennial Review Requirement : The Groundwater Section proposes that the biennial review I two years) required under 15A NCAC 2L .0202(f) for substances listed under ISA NCAC 2L .0202(g) and interim maximum allowable concentrations be amended in this rulemaking to specif,- a triennial review (three years). These reviews are conducted to make sure proposed amendments and additions to the standards in 15A NCAC 2L .0202 are based on the most current health and toxicological information, to assist the Division in prioritizing rulemaking, and to make changes to ISA NCAC 2L .0202. It is proposed that the review period be extended to three years based on legislative revisions to the rulemaking process that were made in 1995. In 1995 the North Carolina General Assembly adopted changes to the rulemaking process contained in North Carolina General Statute (NCGS) I SOB. Among these revisions was a new requirement that rules undergo legislative review prior to becoming effective. Pursuant to the requirements of North Carolina General Statute 150B-21 .3(b), a permanent rule becomes effective "... on the earlier of the thirty-first legislative day or the day of adjournment of the next regular session of the General Assembly that begins qt_ least 25 days after the date the Commission (Rules Review Commission) approved the rule, ". If a rule does not complete the rulemaking procedures up through approval by the Rules Review Commission tRRC), pursuant to NCGS I SOB 21.11. on or before the 2S' h day from when the General Assembly convenes, that rule will not be presented to the General Assembly for final action during that session. The rule max be acted upon by the General Assembly at the following session during the next year, provided that the proposed rule has met these requirements by the date specified in NCGS 150B. If a rulemaking completes RRC review shortly after a legislative session has begun, NCGS 1 SOB does not permit General Assembly review of the rule until the next session. This may result in significant delays in getting new Groundwater Quality Standards and changes to standards enacted. Iffinal action by the North Carolina General Assembly on changes to the standards in ISA NCAC 2L .0202 is delayed to the later session, the necessary rule changes may not go into effect before another biennial review of the Groundwater Quality Standards is required pursuant to 15A NCAC 2L .0202(f). If this biennial review reveals no new information, then there would be no additional need for rulemaking and the rules before the North Carolina General Assembly would most likely be approved. However, if this biennial review reveals the need to change the numeric concentrations again or add new standards while the Groundwater Quality Standards are under review by the North Carolina General Assembly, the General Assembly would be placed in the position of approving amendments and adoptions to Groundwater Quality Standards that are based on outdated health and toxicological information. Under NCGS 150B-2 1.3(b) the legislature max introduce bills and act on bills to approve or disapprove rules, however, they are not allowed to amend rules or numeric standards. The current requirement for maintaining a biennial review of Groundwater Quality Standards in ISA NCAC 2L .0202 will likely result in continuous rulemaking under NCGS 150B while Groundwater Qualify Standards. Continued reliance on biennial review of Groundwater Quality Standard will cause confusion on the cleanup levels responsible parties need to meet in order to comply with the requirements of rules and the concentration levels that are protective for drinking water supplies. Please note that a triennial review period is consistent with the manner that surface water standards are developed in the title 15A NCAC 2B rules Reason for Proposed Action: The amendment to ISA NCAC 2L .0202, Groundwater Quality Standards, will establish groundwater standards for are Alkane Carbon Traction Class C5-C8, Alkane Carbon Fraction Class C9-C18, Alkane Carbon Fraction Class C19-C32, Amniotics Carbon Fraction Class C9-C32, Benzol b)fluoranthene. Benzol klfluoranthene Benzol a Ipyrene, sec-Butylbenzene. tert-Butylbenzene. n-Butylbenzene. Chloromethane, 2-Chlorotoluene. Dibenzla.h)anthracene. p.p'-Dichlorodiphenyl Dichloroethane IDDD). p.p'- Dichlorodiphenyltrichloroethane (DDT). Dieldrin, 2.4-Dimethylphenol (m-xylenol), Disulfoton, Endosulfan II (beta-endosulfan). Endrin (Total Endrin: includes endrin, endrin aldehyde, and endrin ketone). Hexachlorocyclohexanef Total Hexachlorocyclohexane: includes alpha, beta, delta, gamma, and epsilon isomers), Indenof 1 ,2.3-cd)pyrene. lsophorone, Isopropxlbenz.ene. 2-Methyluaphthalene, 3-Methylphenol (m-cresol), 4-Methylphenol (p-cresol), N-Nitrosodimethylamine. Petroleum Aliphatic Carbon Fraction Class CS-C8, Petroleum Aliphatic Carbon Fraction Class C9-C18, Petroleum Aliphatic Carbon Fraction Class CI9-C36, Phorate, n-Propylbenzene, 2,3,4,6-Tetrachlorophenol, 1,2,3-Trichloropropane. 1 . 1 ,2-Trichloro-l ,2.2-trifluoroethane (CFC-1 1 3), 1 ,2,4-Trimethylbenzene. and 1 ,3,5-TrimethyIbenz.ene. The proposed rule changes are being made to incorporate the most updated health information and concentration levels as Groundwater Quality Standards in ISA NCAC 2L .0202. A change in I5A NCAC 2L .0202(f) to replace the present biennial review period (two years) to a triennial review (three years) will: allow adequate time for Groundwater Quality Standards to he updated: allow revisions to standards to he made effective by the legislature within time frames that are realistic with respect to the rulemaking requirements ofNCGS 150B: and enable staff to better prioritize work requirements with respect to the development of standards. Comment Procedures: All persons interested in this proposed amendment are encouraged to submit written comments or questions to David Hance. ENR-DEM: Groundwater Section. PO Box 29578. Raleigh, NC 27626-0578. Comments max also be 748 NORTH CAROLINA REGISTER November 15, 1999 RULE-MAKING PROCEEDINGS sent by fax transmission to Mr. Hance at (919) 715-0588 or via electronic mail to David. Hance<s ncmail.net. TITLE 21 - OCCUPATIONAL LICENSING BOARDS CHAPTER 50 - BOARD OF EXAMINERS OF PLUMBING. HEATING AND FIRE SPRINKLER CONTRACTORS -\ jotice of Rule-making Proceedings is hereby given by the 1 V State Board of Examiners, of Plumbing, Heating and Fire Sprinkler Contractors in accordance with G.S. 150B-2L2. The agency shall subsequently publish in the Register the text of the rule it proposes to adopt as a result of this notice of rule-making proceedings and any comments received on this notice. Citation to Existing Rules Affected by this Rule-Making: 21 NCAC 50 .0501. .1004. .1006. Other rules may be proposed in the course of the rule-making process. Authority for the rule-making: G.S. 87-18; 87-21(a)(3) Statement of the Subject Matter: Rules relative to clarification of Licensure requirements, minor repair exemptions and administrative hearing procedures. Reason for Proposed Action: Grant of Recent Petitions for Rule-making has occasioned review of rules, which m /// likewise be the subject of comment at an upcoming public hearing. Comment Procedures: Comment may be provided to the Board by mailing to the Board at 3801 Wake Forest Road. Suite 201, Raleigh. NC 27609. addressed to Rule-making Coordinator. CHAPTER 68 - CERTIFICATION BOARD FOR SUBSTANCE ABUSE PROFESSIONALS -\ jotice of Rule-making Proceedings is hereby given by the 1 V NC Substance Abuse Professional Certification Board in accordance with G.S. I50B-21.2. The agency shall subsequently publish in the Register the text of the rule(s) it proposes to adopt as a result of this notice of rule-making proceedings and any comments received on this notice. Citation to Existing Rules Affected by this Rule-Making: 21 NCAC 68 Authority for the rule-making: G.S. 90. Article 5C Statement of the Subject Matter: Rules governing the certification of Substance Abuse Professionals Reason for Proposed Action: Legislation enacted by the 1999 Session of the General Assembly amends Article 5C of Chapter 90 which regulates the certification of Substance Abuse Professionals. The Board will revise rules on hearing procedures and make further revisions of definitions, rules regarding substantive certification matters, and other clarifications of the current law and those prescribed by the new legislation. Comment Procedures: Written comments should be directed to Jim Scarborough. Board Administrator. PO Box 1026. Raleigh. NC 27605. 14:10 NORTH CAROLINA REGISTER November 15, 1999 749 PROPOSED RILES This Section contains the text of proposed rules. At least 60 days prior to the publication of text, the agency published a Notice of Rule-making Proceedings. The agency must accept comments on the proposed rule for at least 30 days from the publication date, or until the public hearing, or a later date if specified in the notice by the agency. The required comment period is 60 days for a rule that has a substantial economic impact of at least five million dollars ($5,000,000). Statutory reference: G.S. 150B-21.2. TITLE 10 - DEPARTMENT OF HEALTH AND HUMAN SERVICES Notice is hereby given in accordance with G.S. 150B-21 .2 that the DHHS - Division of Medical Assistance intends to amend rules cited as 10 NCAC 50B .0102, .0313. Notice of Rule-making Proceedings was published in the Register on March 15, 1999. Proposed Effective Date: August 1, 2000 A Public Hearing will he conducted at 1:30 pm on December 16, 1999 at the Kirby Building. Room 132. 1985 Kirby Drive, Raleigh. NC. Reason for Proposed Action: 10 NCAC 50B .0102 Designates groups of individuals below the poverty level who shall be eligible for Medicaid. 10 NCAC 50B .0313 - Designates the income level for categorically needy. Comment Procedures: Written comments concerning this rule-making action must be submitted by January 14, 1999, to Portia Rochelle. Rule-making Coordinator, Division of Medical Assistance. 1985 Uinstead Drive. 2504 Mail Service Center, Raleigh. NC 27699-2504. Fiscal Impact State Local Sub. / / / None CHAPTER 50 MEDICAL ASSISTANCE SUBCHAPTER 50B - ELIGIBILITY DETERMINATION SECTION .0100 - COVERAGE GROUPS .0102 OPTIONAL The following optional groups of individuals described by 42 U.S.C. 1396a(a)(10)(A)(ii)and42U.S.C. 1396a(a)(10)(C) shall be eligible for Medicaid: ( 1 ) Children: (a) Children under age one whose family income is more than the amount established under Item (14). Rule .0101 of this Section and not more than a percent of the federal poverty level established by the General Assembly; (b) Children under aee 21 who meet the (c) (d) (2) (3) (4) (5) eligibility requirements of this Subchapter; Qualified children under age 19 as described in Item (4). Rule .0101 of this Section, who were born on or before September 30. 1983, and whose income is not more than 1007c of the federal poverty level: Adopted children under age 18 with special needs, as described at 42 U.S.C. 1396a(a)(10)(A)(ii)CvTH). Individuals receiving optional state supplemental payment. Caretaker relatives of eligible dependent children. Pregnant women: (a) Whose countable income is more than the amount established under Item (13). Rule .0101 of this Section and not more than a percent of the federal poverty level established by the General Assembly, or (b) Who. if their countable income exceeds the percent of the federal poverty level, established in Sub-item (4)(a) of this Rule, meet the eligibility criteria for medically needy set forth in this Subchapter. Aaed, blind and disabled individuals whose income is at or below 1 007 of the Federal Poverty Level. adjusted each April _L and who meet the income and resource requirements of SSI. but who do not receive cash assistance. Authority G.S 108A-54; 42 U.S.C 1396(a)(10)(A)(ii); 42 U.S.C. 1396a(a)(10)(C);42 C.FR. 435.210; 42 CF.R. 435.222: 42 CF.R. 435.230: 42 CF.R. 435.301:42 CF.R. 435.308; 42 CF.R. 435.322; 42 CF.R. 435.330; S.L. 1983, c. 1034. s. 62.2; S.L. 1987. c. 738. s. 69 and 70; S.L. 1989, c. 752. s. 133. SECTION .0300 - CONDITIONS FOR ELIGIBILITY .0313 INCOME (a) For family and children's cases, income from following sources shall be counted in the calculation financial eligibility: ( 1 ) Unearned. (A) RSDI. (B) Veteran's Administration, (C) Railroad Retirement, ( D ) Pensions or retirement benefits. (E) Workmen's Compensation, (F) Unemployment Compensation. (G) Support Payments. the of 750 NORTH CAROLINA REGISTER November 15, 1999 14:10 PROPOSED RULES Contributions. Dividends or interest from stocks, bonds, and other investments. Trust fund income. Private disability or employment compensation. That portion of educational loans, grants, and scholarships for maintenance. Work release. Lump sum payments. Military allotments. Brown Lung Benefits. Black Lung Benefits. Trade Adjustment benefits. SSI when the client is in long term care. VA Aid and Attendance when the client is in long term care. Foster Care Board payments in excess of state maximum rates for M-AF clients who serve as foster parents. Income allocated from an institutionalized spouse to the client who is the community spouse as stated in 42 U.S.C. 1396r-5(d). Income allowed from an institutionalized spouse to the client who is a dependent family member as stated in 42 U.S.C. 1396r-5(d). Sheltered Workshop Income. Loans if repayment of a loan and not counted in reserve. Income deemed to Family and Children's clients. (2) Earned Income. (A) Income from wages. salaries. and commissions. Farm Income. Small business income including self-employment. Rental income. Income from roomers and boarders. Earned income of a child client who is a part-time student and a full-time employee, Supplemental payments in excess of state maximum rates for Foster Care Board payments paid by the county to FamiK and Children's clients who serve as foster parents. VA Aid and Attendance paid to a budget unit member who provides the aid and attendance. (3) Additional sources of income not listed in Subparagraphs (a)(1) or (2) of this Rule will be considered available unless specifically excluded by Paragraph (b) of this Rule, or b\ regulation or statute. (b) For family and children's cases, income from the following sources shall not be counted in the calculation of financial eligibility: (H) (I) (J) (K) (L) (M) (N) (O) (P) (Q) (R) (Si (T) (U) (V) (W (X) (Y) (Z) (B) (C) (D) (E) (F) (G) (H) ( 1 ) Earned income of a child who is a part-time student but is not a full-time employee; (2) Earned income of a child who is a full-time student: (3) Incentive payments and training allowances made to WIN training participants: (4) Payments for supportive services or reimbursement of out-of-pocket expenses made to volunteers serving as VISTA volunteers, foster grandparents, senior health aides, senior companions. Service Corps of Retired Executives, Active Corps of Executives. Retired Senior Volunteer Programs. Action Cooperative Volunteer Program, University Year for Action Program, and other programs under Titles I. II. and III of Public Law 93-1 13; (5) Foster Care Board payments equal to or below the state maximum rates for Family and Children's clients who serve as foster parents: (6) Income that is unpredictable, i.e.. unplanned and arising only from time to time. Examples include occasional yard work and sporadic babysitting: ( 7 Relocation payments: (8) Value of the coupon allotment under the Food Stamp Program: (9) Food (vegetables, dairy products, and meat) grown by or given to a member of the household. The amount received from the sale of home grown produce is earned income: (10) Benefits received from the Nutrition Program for the Elderly: (11) Food Assistance under the Child Nutrition Act and National School Lunch Act; (12) Assistance provided in cash or in kind under any governmental, civic, or charitable organization whose purpose is to provide social services or vocational rehabilitation. This includes V.R. incentive payments for training, education and allowance for dependents, grants for tuition, chore services under Title XX of the Social Security Act. VA aid and attendance or aid to the home bound if the individual is in a private living arrangement: (13) Loans or grants such as the GI Bill, civic, honorary and fraternal club scholarships, loans, or scholarships granted from private donations to the college, etc.. except for any portion used or designated for maintenance; (14) Loans, grants, or scholarships to undergraduates for educational purposes made or insured under any program administered by the U.S. Department of Education; (15) Benefits received under Title VII of the Older Americans Act of 1965: ( 16) Payments received under the Experimental Housing Allowance Program (EHAP); (17) In-kind shelter and utility contributions paid directly to the supplier. For Family and Children's cases, shelter, utilities, or household furnishings made 14:10 NORTH CAROLINA REGISTER November 15, 1999 751 PROPOSED RULES available to the client at no cost; (IX) Food/clothing contributions in Family and Children's cases (except for food allowance for persons temporarily absent in medical facilities up to 12 months); (19) Income of a child under 21 in the budget unit who is participating in JTPA and is receiving as a child; (20) Housing Improvement Grants approved by the N.C. Commission of Indian Affairs or funds distributed per capital or held in trust for Indian tribe members under P.L. 92-254, P.L. 93- 1 34 or P.L. 94-540; (21) Payments to Indian tribe members as permitted under P.L. 94-114; (22) Payments made by Medicare to a home renal dialysis patient as medical benefits; (23) SSI except for individuals in long term care: (24) HUD Section 8 benefits when paid directly to the supplier or jointly to the supplier and client; (25) Benefits received by a client who is a representative payee for another individual who is incompetent or incapable of handling his affairs. Such benefits must be accounted for separate from the payee's own income and resources: (26) Special one lime payments such as energy, weatherization assistance, or disaster assistance that is not designated as medical: (27) The value of the U.S. Department of Agriculture donated foods (surplus commodities): (28) Payments under the Alaska Native Claims Settlement Act. Public Law 92-203; (29) Any payment received under Title II of the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970; (30) HUD Community Development Block Grant funds received to finance the renovation of a privately owned residence: (31) Reimbursement for transportation expenses incurred as a result of participation in the Community Work Experience Program or for use of client's own vehicle to obtain medical care or treatment; (32) Adoption assistance; (33) Incentive payments made to a client participating in a vocational rehabilitation program; ( 34 ) Title XX funds received to pay for services rendered by another individual or agency; ( 35 ) Any amount received as a refund of taxes paid: (36) The first fifty-dollars ($50) of each child support/spousal obligation or military allotment paid monthly to the budget unit in a private living arrangement. (c) For aged, blind, and disabled cases, income counted in the determination of financial eligibility is based on standards and methodologies in Title XVI of the Social Security Act. (d) For aged, blind, and disabled cases, income from the following sources shall not be counted: ( 1 ) Any Cost of Living Allowance (COLA) increase or receipt of RSDI benefit which resulted in the loss of SSI for those individuals described in Item (17) of Rule .0101 of this Subchapter. (2) Earnings for those individuals who have a plan for achieving self-support (PASS) that is approved by the Social Security Administration, (e) Income levels for purposes of establishing eligibility are those amounts approved by the N.C. General Assembly and stated in the Appropriations Act for categorically needy and medically needy classifications, except for the following: ( 1 ) The income level shall be reduced by one-third when an aged, blind or disabled individual lives in the household of another person and does not pay his proportionate share of household expenses. The one-third reduction shall not apply to children under nineteen years of age who live in the home of their parents: (2) An individual living in a long term care facility or other medical institution shall be allowed as income level a deduction for personal needs described under Rule .0314 (Personal Needs Allowance) of this Subchapter: (3) The categorically needy income level for an aged, blind, and disabled individual or couple is the SSI individual or couple amount.—This is the current Fede ral Benefit Rate (FBR). 100% of the Federal Poverty Level: (4) The income level to be applied for Qualified Medicare Beneficiaries described in 42 U.S.C. 1396d and individuals described in 42 U.S.C. 1396e is based on the income level for one: or two for a married couple who live together and both receive Medicare. Authority G.S. 108A-25(b); 108A-61; 42 C.F.R. 435.135; 42 C.F.R. 435.731; 42 C.F.R. 435.732; 42 C.F.R 435.733; 42 C.F.R. 435.811: 42 C.F.R. 435.812: 42 C.F.R. 435.831; 42 C.F.R. 435.832; 42 C.F.R. 435.1007; 42 U.S.C. 1383c(b); 42 U.S.C. 1383c(d): 45 C.F.R. 233.20; P.L. 99-272. TITLE 11 - DEPARTMENT OF INSURANCE Notice is herein given in accordance with G.S. 150B-21 .2 that the NC Department of Insurance intends to repeal the rules cited as 11 NCAC 6B .0201 -.0205. .0301 -.0304. .0401- .0405. Notice of Rule-making Proceedings was published in the Register on November 3. 1997. Proposed Effective Date: July 1. 2000 Instructions on How to Demand a Public Hearing (must be requested in writing within 15 days of notice): Make a request in writing to Ellen K. Sprenkel. NC Department of Insurance, PO Box 26387. Raleigh. NC 27611. Reason for Proposed Action: The statutes under which these 752 NORTH CAROLINA REGISTER November 15, 1999 14:10 PROPOSED RULES rules were adopted have been repealed. Comment Procedures: Written comments may be sent to Ellen K. Sprenkel. NC Department of Insurance, PO Box 26387, Raleigh, NC 27611. Written comments must he received by the Department on or before December 15, 1999. Fiscal Impact State Local Sub. None CHAPTER 6 - AGENT SERVICES DIVISION SUBCHAPTER 6B - THIRD PARTY ADMINISTRATOR SECTION .0200 - REGISTRATION .0201 CONTENTS OF FULL APPLICATION AH—applications—tni—an — administrator—c ert i fie ate—of registration must i n clude : t~b an—application—for — administrator 's—registration (TPA-1-87) signed by a n office r , i t ' a c orporation, or every partner, if a partne rsh ip , or t he owner and ope rat in g ma n ager, if a sole prop r ieto rs hi p: (2) bi ograph ical—form(s)—(TPA-2-87)—rRcr — 6tWi compl e ted by every office r , par t n er, or owner and operating — manager as indicated.—forms may—be du p licated to meet needs; t3l copies of each type of service con tract utilized for be n efit plan s mhTrmistc red cove rin g North Carolina res i dents: H~) fi nancial statements must include a balance sheet, a statement of i ncome and a statement of cas h flows yean Financ of an audit, a review, o prepared by an—independent — certified—pub l ic—accountant. Financial statements of a n admi n istrato r 's -parent company—are — acceptable—ff — such—pre se n t consolidating schedules for the ad mini st rato r , and if the certified pub l ic - acc oun tant's orArioirietterdoes not disc l a im association—wrth — the conso l i dating schedules; f5l a surety bo n d in an amount of on e hu nd red thousand dollar s ( SI OO.OOO) or more issued in the name of the administrator wri tten by a company l i ce n sed to do business in North Carolina.—The sure ty bond is conditioned upon the performance by ad mini st rator s of their obl i gati on to insurers, se l f-tluunnddecrs -and partic ip ants tinder the ir service contracts, a nd the i r c ompl i ance with the requiremen t o f Ai tick- 41 of Chaptei 58 of the General—S tat u tes—rrt — North Caroli a , ron n as we l l as any applicable rul e s. A copy or the—surety—bond—form—fs — enclosed—with—the applicat i o n tm d renewal package ; (6) all basic organization al documents of the third party administrator, suc h as the art i cles of i ncorporatio n , bylaws, partnership ag reeme nts a nd all other similai documen ts and all amendme nt s to those documents: fft a narrat i ve description spec i fy i ng- adminisliatoi's services performed i n Nort h Carolina; rRt- rted — ~a—power—of bx—the — attorney—duty — execu ted—try—me ad mini strato r , if n ot dom i ciled in North Caro l ina, appoi nt i ng the Commi ssion er of Insuran ce, and the Commission er's—chrry — authoriz ed—deputies—as attorneys - for the administ rator in and for this slate. upon — whom—process—m—any—legal — action—or proceedi ng against t h e admi n istrato r on a cause of action arisi n g i n this state may be served: (form enc l osed in application a nd re newal pack ag e) . (9) a company check or money order in the amount of twenty dollars (520.00). reg i s tration fee. payable to t h e North Carolina Departme n t of I n surance, and r+01 suc h other informati on as re asona b ly require. the department—may Authority G.S. 58-9; 58-525; 58-527; 58-529; 58-532; 58-536. .0202 MODIFICATION OF APPLICATION Within 36 days following a sig n ifi cant modificat i on of a n v -the — inloi illation—or—trie—imormatioii—su b mitted s ti n mittea—WTtfi—an- application—for— a certificate of registration, the admi n is trato r shall file a notice of the mod il ication(s) with t h e Agen t Ser vice s Division. Authority G.S. 58-9; 58-525; 58-527; 58-529; 58-532; 58-536. .0203 DURATION OF INITIAL CERTIFICATE OF REGISTRATION The i n itial ce rtificate of registration wi l l aut horize the admin i strator to operate in North Carolina from the date of issue unt i l August 3 1 next following the dale of i ssue . The fee of twe nty dol l a r s (S20.00) will not be p ro-rated. Authority G.S. 58-536; 59-9. .0204 APPLICATION FOR RENEWAL OF A CERTIFICATE OF REGISTRATION All app l i cat ions for renewal of a certificate of regist ratio n must i nclude : r+i app licat i on for admi n ist rato r 's re newal registration t2l ah — changes—to—the—in format i on — contained— m biograph i cal form(s) (TPA-2-87) (Re v. 6/89); all c h a n ges or additions to owne rsh i p, organ izationa l st ructu re or location of the admi n ist rato r; tfH r4i all changes or addition s to the s e rvic e contracts ente red into by th e admi n istrator : t5l financ i al statements must i nclude a balance sheet. stateme n t of -income and a stateme n t of cash flows l or me administ rators most rece nt lu l l tiscal year . Fin ancial statements must be pres e nte d m t h e form 14:10 NORTH CAROLINA REGISTER November 15, 1999 753 PROPOSED RULES of an audit, a review, or a compilat i on prepared by an — i n de pendent—certified—public—accountant. Fi n an c i al -stateme n ts of an admi nistrator's parent com p a n y—are — acceptable—rf—STjrh — present .0302 DETERMINATION OF FINANCIAL RESPONSIBILITY In determini ng the fina n c i al re sponsibility of an applicant consol :hedules for the administ r ator, and i f i dati n g schedules lo r tne aamin i s the certified public accou n tant's op in io n letter does not — disclaim asso . schedul e s ; at ion—wTth—the — consolidating tor a c erl i licate of registratio n , the departmen t requires that an applican t be solvent. In addition, the departme nt will conside r , amon g other things: Hi liquidity, and ei- t6) a su rely bond in an amou n - h u ndred thousand t of one nundrec do l lars (SI 00.000) or more issued in the name of the any internal controls the applicant may have in place to afford protection for benefit plans, which may tmrh admin i stiator writte n-hv-a compan y duly licensseed to do business in North Carol i na. The surety bond is co n d i tioned upon the performance by administrator s of th e i r obligation to i nsui e is. s e lf-funders and participants under their s ervice contracts, and thei r .0303 complian c e with the requi rement of Article 41 of Chapter 58 of the Gen eral S tatutes of Nort h Carol in a a s wel l as an y applicable rul e s. A copy of the su rety—bond—form—rs — enc l osed—with—the application a nd renewal pac kage; and include , but are not limit ed to. the manner in wnn be ne fi t plan fu nd accounts are e stab li s hed. Authority G.S. 58-9; 58-532; 58-536. FINANCIAL INFORMATION PUBLIC RECORDS All financial inhumation filed in su pport of an application for init i al issuance or re newal of a certifi cate of registration wil l be su bject to th e public records law of North Caroli n a. Suc h in formation wi ll n ot be r e l eased by the depar tment until m a compan y check or money orde r i n tne twenty dollars (S20.00). renewal registration fee payable—to—the — North—Caroli n a—Department—ol Insurance. Authority G.S. 58-9; 58-525; 58-527; 58-529; 58-532; 58-536. the amount of" reg i st ration is accompl i shed a n d a certificate issued.—In the .0205 The RENEWAL CERTIFICATE OF REGISTRATION c ertiticate issue event thai the application is withdrawn from consideration by the applicant, then i t will not be deemed public in l'uimation. Authority G.S. 58-9; 58-11; 132-6. .0304 SURETY BOND ISSUED BY LICENSED COMPANY The surety bon d required by G.S. 58-5361 b ) must be issued ie re newal date for all cert i ficates of regist ration will be hv an in surance compan y licensed to do busi ness in North September 1 ; — Renewal packages will be sent to reg i stered Can -the administrators on July—1 and should be re tu rned to the Department of I n su ranc e . Agen t Services Divisi on. Registrar. P.O. Box 26387, Raleigh. N.C. 276 1 1. no late r than August -hO: Authority G.S. 58-9; 58-536. SECTION .0300 - FINANCIAL REQUIREMENTS .0301 FINANCIAL STATEMENTS All applicants for a c ertificat e of registrat i on must til e fi nanc i al statements with their in i tial and rene wal applications. Financial stateme n ts must include a ba l a n c e sheet, a statement of income and a s t atement of cash Hows for the admi ni st rator ' s most recent full fiscal year .—Financial statements must be prese nted in the form of an aud i t, a review, or a compilation prepared by an—ind e pe ndent c e rtified publ i c—accountant. Fi n ancial statements of an administrator 's parent company are acc eptabl e if such present consolidating sc hedu l es for the ad mi n i st rato r , a nd i f the c ert i fied public accou n tant's opinion letter does not disclaim association with the consolidati n g schedules. Authority G.S. 58-9; 58-536; Eff. November 1. 1988. ml ma. The — surety—bond—is — conditioned—upon performan c e by administ rators of thei r obligation to insurers. self-funders and partic i pan ts under the ir sen ice c o n tr acts, and the ir c ompliance with the requi rement of Art i cle 41 of Chapter 58 of the General Statutes of North Carolina as well as any applicable rules. Authority G.S. 58-9: 58-15; 58-29; 58-536. SECTION .0400 - GENERAL PROVISIONS .0401 SERVICE CONTRACTS WITH INSURANCE COMPANIES All se rvice cont racts with insurance compani e s must be with insu rers licensed to ope rate in North Carolina. Authority G.S. 58-9; 58-15; 58-527. .0402 ADJUSTING CLAIMS BY ADMINISTRATORS No ad j uste r 's lic e nse will be re q uir ed of persons acting tor ad mi nistrato r s i n ad i ust i ng claims for life, accident and health and annui t y claims or self-funded health benefit plans. Authority G.S. 58-9: 58-529; 58-533; 58-61 Kb). 754 NORTH CAROLINA REGISTER November 15, 1999 14:10 PROPOSED RULES .0403 VIOLATIONS: PENALTIES The department shall follow the provisions of G.S. 58-9.7 for the imposi ti on of c i vil pe nalt i es against any admi n ist rator that does not obtai n a certificate of registrat i on pr i or to beginning i ts operations in this st ale in accordance with Chapter 58. Articl e 41 of the North Carolina General Statutes. Authority G.S. 58-9; 58-9.7; 58-536. .0404 DEFINITIONS (a) "Related party" means principal owner of the i n suranc e company: members of the insurance company's management: members of the immediate fami l ies of the principal owners of the insurance company and its management: members of a party wi t h which the insurance company may deal if one party con t rols or can s ig ni fica n tly influence th e - management or ope rati n g policies of t he other t o a n e xte nt t hat one of the t ran sacti n g parties mi ght be pre ven t ed from fully pursuing i ts own — separat e — inte rests : — member s—of—a—party—that—can s i gni ficant l y mt luencc th e management or ope rati ng po li c i es of any tran sact i ng parties: members with an owners hi p i nte rest in one of t he tra n sact in g parties and who can significant ly influ e nce th e ot her part y so that o n e or more of the transacting parti es may be preve n t ed from fu l ly pursuing i ts own separate interests:—i ndiv i duals—legally—or—be neficially—owning—any outstand i ng voting slock : fir) — "Su re ty bond" means cove rage for the subscribers of a self-funde d or ful l y-i n su red plan issued by a company licensed to do business in this State. Authority G.S. 58-9; 58-530; 58-536. .0405 PAYMENT OF CLAIMS rai — Evidence of competency of an administrator shall include, but will n ot be l imi ted to. processing and payment of claims in a timely man ne r . (h) If ccllaaiimmss ftiled vwviitt hn an adm i nistrator have not or insurer bee n paid with i n 30 days after rec eip t of the initial claim by the admi n i strator or the in surer , the admin i strator or the insu rer shall at t hat lime mail a cla i m s tatu s report to the cla i mant . Authority G.S. 58-9; 58-530. TITLE 15A - DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES Notice is hereby given in accordance with G.S. 150B-21 .2 that the DENR - Environmental Management Commission intends to adopt the rules cited as ISA NCAC 2S .0101 -.0102. .0201 -.0202. Notice of Rule-making Proceedings was published in the Register on August 16. 1999. Proposed Effective Date: August 1. 2000 A Public Hearing will be conducted at 7:00 p.m. on November 30. 1999 at the Archdale Building. Groundfloor Hearing Room, 512 N. Salisbury Street. Raleigh, NC. Reason for Proposed Action: The Dry-Cleaning Solvent Cleanup Act IAct) of1997 (G.S. 143-21 5. 104A et seq. ) created the Dry-Cleaning Solvent Cleanup Fund Program (Program) and directed the Environmental Management Commission (EMC) to engage in rulemaking necessary to administer the Program. The Act was sponsored by the dry-cleaning industry-through a lobbying effort by the North Carolina Association of Launderers and Cleaners, a trade association. Traditional solvent handling procedures practiced by the industry have proven to be inadequate to prevent solvent releases to the environment. As a result, groundwater has been contaminated at a considerable but unknown percentage of these facilities. The proposed rules govern safe solvent-handling procedures (Minimum Management Practices) for diy-cleaning facilities and wholesale distributors of dry-cleaning solvent. The proposed rules set forth dry-cleaning solvent handling practices that will minimize the risk of future releases of solvent to the environment. Therefore, these rules may be considered pollution prevention requirements. Comment Procedures: The purpose of this announcement is to encourage those interested in this proposal to provide comments. You may attend the public hearing and make verbal comments or submit written comments by December 15, 1999. The Hearing Officer may limit the length of time that you may speak at the public hearing if necessary, so that all who wish to speak may have the opportunity to do so. The EMC is interested in all comments pertaining to the proposal. Comments should be mailed to: Lisa Tuber. NC Division of Waste Management. 401 Oberlin Road, Suite 150. Raleigh, NC 27605-1350. Fiscal Impact State Local Sub. None / CHAPTER 2 - ENVIRONMENTAL MANAGEMENT SUBCHAPTER 2S - RULES AND CRITERIA FOR THE ADMINISTRATION OF THE DRY-CLEANING SOLVENT CLEANUP FUND SECTION .0100 - GENERAL CONSIDERATIONS AND DEFINITIONS .0101 AUTHORIZATION [a] G.S. 143-2 15. HMD authorizes and directs the Commission to develop and adopt rules as are necessary m the administration of the Drv-Clcaning Solvent Cleanup Fund. These Rules: 1 1 ) Establish minimum management practices lor the handling of drv-clcaning solvent at dry-cleaning facilities and wholesale distribution facilities. 14:10 NORTH CAROLINA REGISTER November 15, 1999 755 PROPOSED RULES ill Ql £4) (5} Establish a risk-hased approach applicable to the assessment, prioritization, and remediation of drv-cleaning solvent contamination resulting from releases at certified facilities or certified abandoned sites. Establish the terms and conditions of dry-cleaning solvent Assessment Agreements and Remediation Agreements. Determine whether assessment or remediation is necessary at certified dry-cleaning facilities, certified wholesale distribution facilities, or certified abandoned dry-cleaning facility sites. Prioritize certified dry-cleaning facilities, certified wholesale distribution facilities, or certified abandoned dr\ -cleaning facility sites lor the reimbursement from the Fund of assessment or remediation activities. (6) m £8} Establish strategies for the assessment and remediation of drv-cleaning solvent contamination. Schedule funding of assessment and remediation activities. Determine that all necessary assessment and remediation have been completed at a contamination site, (b) All rules adopted bv the Commission shall be consistent with G.S 143-2 15. 1 04 A et seq., the Drv-Cleaning Solvent Cleanup Act of 1997 and rules adopted bv the Commission for Health Services pursuant to G.S. 130A. Article 9. Authority G.S. 150B-21.2; I43-215.104D(b). .0102 DEFINITIONS The definition of any word or phrase used in these Rules shall be the same as given in G.S. 143-2 1 5. 1 04B except that the following words and phrases shall have the following meanings: ( 1 ) "Number of fuH time employees" is equivalent to the total hours worked by aj] persons employed by a company or corporation in the previous vear divided by 40 hours per week. (2) "Impervious" means a material that is specifically manufactured tor the containment of dr\ -cleaning solvent. (3) "Spill containment" means a structure constructed of steel with welded seams or a product specifically manufactured to prevent the release of dr\ -cleaning solvent. Authority G.S. 150B-21.2; 143-215.104D(b). SECTION .0200 - MINIMUM MANAGEMENT PRACTICES .0201 APPLICABILITY The provisions contained in this Subchapter set forth the minimum management practices for the storage and handling of dr\ -cleaning solvents required to be implemented at al] drv-cleaning facilities and dry-cleaning solvent wholesale distribution facilities in order for those facilities to be eligible for certification into the Drv-Cleaning Solvent Cleanup Program. These Rules are applicable only to owners and operators of drv-cleaning facilities or drv-cleaning solvent wholesale distribution facilities. Authority G.S. 150B-21.2; 143-215. 104D(b), .0202 REQUIRED MINIMUM MANAGEMENT PRACTICES (a) Any abandoned site, as defined by G.S. 143- 215.1 ()4(B )(h>( 1 ). wishing to enter into the Drv-Cleaning Solvent Cleanup Program shall demonstrate, at ah times after this Rule becomes effective, compliance with Minimum Management Practice Subparagraph (h)(5) of thus Rule. (b) All currently operating dr\ -cleaning, or wholesale distribution facilities wishing to enter into the Drv-Cleaning Solvent Cleanup Program shall demonstrate, at ah times after this Rule becomes effective, compliance with the following minimum management practices: ( 1 ) At no time shall any drv-cleaning solvent, wastes containing drv-cleaning solvent, or water containing dry-cleaning solvent be discharged onto land or into waters of the State, sanitary sewers, storm drains, floor drains, septic systems, boilers, or cooling-towers. All receipts generated as a result of disposal of aH drv-cleaning solvent waste shall be made available for review by the Program, including but not limited to. costs associated with equipment used to dispose of any hazardous waste, such as evaporators or atomizers, and any service contracts for disposal of solvent wastes. ^> Spill containment shall be constructed in areas around drv-cleaning machines, filters, stills, vapor adsorbers, solvent storage areas, and waste solvent storage areas by January ]_, 2002. The spill containment shall be constructed of or sealed with materials that are impervious to the applicable dry-cleaning solvent with a capacity of 1 10 percent of the largest vessel, tank, or container within the spi Ql containment area. All floor drains within the containment shall be removed or permanently sealed with materials impervious to dry-cleaning solvents. Emergency adsorbent spill clean-up materials shall be on the premises. Facilities must maintain an emergency response plan that is in compliance with federal, state and local requirements. All perchloroethviene drv-cleaning machines installed at a drv-cleaning facility after the effective date of this Rule shall meet air emissions that are equal to or less than the emissions from a drv-to-drv perchloroethviene drv-cleaning machine with an integrated refrigerated condenser. Perchloroethviene drv-cleaning facilities must be in compliance with the EPA Perchloroethviene Dry Cleaner NESHAP: 40 CFR. Subpart M to be 756 NORTH CAROLINA REGISTER November 15, 1999 14:10 PROPOSED RULES eligible for the Program. (4) Facilities that use perchloroethvlenc shall use a closed container solvent transfer system by January 1. 2002. (5) Within six months of the effective date of this Rule no drv-cleaning facility shall use underground storage tanks for solvents or waste storage. Within one year of the effective date of the rule, all underground solvent and waste tanks and associated underground pipes shall be removed jjn accordance with the North Carolina Underground Storage Tank (UST) Regulations. defines what is considered a manifest discrepancy. 15A NCAC 13A .0110 - Adds 40 CFR 265.121 "Post-closure requirements for facilities that obtain enforceable documents in lieu of post-closure permits" to (Subpart G). "Closure and Post Closure. " New provisions allow facilities flexibility during interim-status post-closure clean-ups. 15A NCAC 13A .0112 - The proposed amendment will add 40 CFR 268.49 to (Subpart D). "Treatment Standards", to provide alternative land disposal treatment standards for contaminated soil. ISA NCAC 13A .0113 - These are technical corrections. 15A NCAC 13A .0118 - These are technical corrections. Authority G.S. 150B-21.2; 143-215. 104D(b). Notice is hereby given in accordance with G.S. 150B-21 .2 that the DENR - Commission for Health Sendees intends to amend the rules cited as 15A NCAC 13A .0I0I-.0I04, .0106. .0108. .0110. .01I2-.0II3. .0118. Notice of Rule-making Proceedings was published in the Register on August 16. 1999 and September I. 1999. Proposed Effective Date: August 1. 2000 Comment Procedures: Written comments will be accepted through December 15. 1999 and should he mailed to Harold McCarty, NC Hazardous Waste Section. 401 Oberlin Road. Suite 150. Raleigh. NC 27605-1350. telephone (919) 733- 2178. ext 247. Fiscal Impact State Local Sub. / None 15A NCAC 13A 0101 / ISA NCAC 13A 0102-0104. .0106 / 15A NCAC 13A .0108. .0110. / ISA NCAC 13A 0II2-O115. .0118 A Public Hearing will be conducted at 9:00 a.m. on December 1. 1999 at the Archdale Building. Groundfloor Hearing Room. 512 N. Salisbury Street. Raleigh, NC. Reason for Proposed Action: 15A NCAC 13A .0101 - To properly identify the Department; to properly identify definitions that are exempt in certain rules; and to eliminate the Annual Report requirements as required by Section 27.10 ofHouse Bill 53 of the Second Extra Session of the 1996 North Carolina Legislature. 15A NCAC 13A .0102 - All revisions are of technical nature. 15A NCAC 13A .0103 - Has been revised to accurately reflect the procedure that must be followed to Petition for Modification or Revocation of rules. 15A NCAC 13A .0104 - Changes to .0104(a)(1) are to accurately reflect those Federal Regulations that are included in Subpart A. .0104(a)(2) has been revised to correct the address of the Division of Waste Management; .0104(a)(2) has been deleted. The definitions that were in this Subparagraph are included elsewhere in this Section or are no longer required. .0104(b) has been revised to properly exclude those Federal Regulations that North Carolina is not adopting. 15A NCAC 13A .0106 - This Paragraph has been expanded to include new EPA requirements. These requirements provide an exemption from hazardous waste regulations for certain comparable/syngas fuels. 15A NCAC 13A .0108 - The revisions to this rule do two things: Sets a time frame in which a non-resolved manifest discrepancy must be reported to the Department; and clearly CHAPTER 13 - SOLD WASTE MANAGEMENT SUBCHAPTER 13A - HAZARDOUS WASTE MANAGEMENT SECTION .0100 - HAZARDOUS WASTE .0101 GENERAL (a) The Hazardous Waste Section of the Division of Waste Management shall administer the hazardous waste management program for the State of North Carolina. (b) In applying the federal requirements incorporated by reference throughout this Subchapter, the following substitutions or exceptions shall apply: ( 1 ) "Department of En viron me nt Health . Environment and Natural Resources" shall be substituted for "Environmental Protection Agency" except in 40 CFR 262.51 through 262.54. 262.56. 262.57 262.57. and Part 124 where references to the Environmental Protection Agency shall remain without substitution; (2) "Secretary of the Department of Environment. Health. Environment and Natural Resources" shall be substituted for "Administrator," "Region al Administrator1 ' "Regional Administrator." "Assistant Administrator" and "Director" except for 40 CFR 262.55 through 262.57. 264.12(a). 268.5. 268.6. 268.42(b) 268.42(h). and 26*44 268.44. and Part 124 where the references to the Administrator. Regional Administrator. "Assistant Administrator" and Director shall remain without substi tut i on: and 14:10 NORTH CAROLINA REGISTER November 15, 1999 757 PROPOSED RULES substitution. f+) An — "ann ual— r eport"—shafl—be — required—for—atr h azardous waste generator s, trealers. storers, and disposer s rattier than a "bienn ial report". (c) In the event that there are inconsistencies or duplications in the requirements of those Federal rules incorporated by reference throughout this Subchapter and the State rules set out in this Subchapter, the provisions incorporated by reference shall prevail except where the State rules are more stringent. (d) 40 CFR 260.1 through 260.3 (Subpart A), "General." are incorporated by reference including subsequent amendments and editions. (e) 40 CFR 260.11, "References", is incorporated by reference including subsequent amendments and editions. (f) Copies of all materials in this Subchapter may be inspected or obtained as follows: ( 1 ) Persons interested in receiving rule-making notices concerning the North Carolina Hazardous Waste Management Rules must submit a written request to the Hazardous Waste Section, PO Box 29603, Raleigh. N.C. 2761 1-9603. A check in the amount of fifteen dollars ($15.00) made payable to The Hazardous Waste Section must be enclosed with each request. Upon receipt of each request, individuals will be placed on a mailing list to receive notices for one year. (2) Material incorporated by reference in the Federal Register may be obtained from the Superintendent of Documents, U.S. Government Printing Office. Washington. DC. 20402 at a cost of five hundred and forty four dollars ($544.00) per year. Federal Register materials are codified once a year in the Code of Federal Regulations and may be obtained at the above address for a cost of: 40 CFR 1-51 forty dollars ($40.00). 40 CFR 260-299 forty dollars ($40.00) and 40 CFR 87-149. forty one dollars ($41.00), total one hundred twenty one dollars ($121.00). (3) The North Carolina Hazardous Waste Management Rules, including the incorporated by reference materials, may be obtained from the Hazardous Waste Section at a cost of twenty five dollars ($25.00). (4) All material is available for inspection at the Department of Environment, Health, Environment and Natural Resources, Hazardous Waste Section, 401 Oberlin Road, Raleigh, NC. Authority G.S. 130A-294(c); 150B-21.6. .0102 DEFINITIONS (a) The definitions contained in G.S. 130A-290 apply to this Subchapter. (b) 40 CFR 260.10 (Subpart B), Definitions, is has been incorporated by reference, including subsequent amendments and editions except that the Definitions for "Disposal", "Landfill", "Management or hazardous waste management", "Person", "Sludge", "Storage", and "Treatment" are defined by G.S. 1 30A-290 and are not incorporated by reference (c) The following additional definitions shall apply throughout this Subchapter: ( 1 ) "Section" means the Hazardous Waste Section, in the Division of Solid Waste Management, Department of Environment, Health. Environment and Natural Resources. (2) The "Department" means the NCr Department of Envi ronment.— H eal t h. Environment and Natural Resources ( DEHNR ) (DENR) (3) "Division" means the Division of Waste Management Solid Waste (DWM h SWMD) . (4) "Long Term Storage" means the containment of hazardous waste for an indefinite period of time in a facility designed to be closed with the hazardous waste in place. (5) "Off-site Recycling Facility" means any facility that receives shipments of hazardous waste from off-site to be recycled or processed for recycling through any process conducted at the facility, but does not include any facility owned or operated by generator of hazardous waste solely to recycle their own waste. Authority G.S. 130A-294(c); 150B-21.6. .0103 PETITIONS - PART 260 (a) All rulemaking petitions for changes in this Subchapter shall be made in accordance with 15A NCAC 24B .0001 (b) In applying the federal requirements incorporated by reference in this Rule. "15A NCAC 24B .0101" shall be substituted for references to 40 CFR 260.20. ic] tb) 40 CFR 260.21 through 260.41 (Subpart C), "Rulemaking Petitions." are have—been incorporated by reference including subsequent amendments and editions Authority G.S. 130A-294(c); 150B-21.6. .0104 PUBLIC INFORMATION - PART 2 fa) The prov i sions concerni ng requests for information in 40 CFR 2.100 to 2 . 12 —2.120 (Subpart A)—have been incorporated by reference including su bsequent amendments and editions, except that 40 CFR 2.100 (a) is not incorporated by reference. (a) The provisions concerning requests for information in 40 CFR 2.100 to 2.121 (Subpart Aj are incorporated by reference including subsequent amendments and editions. except that 40 CFR 2.106(b), 2.112(f). and 2.120 are not incorporated by reference. (b) The following address for the Freedom of Information Officer is substituted for the address "A- 101, 401 M Street, SW, Washington. DC 20460" in 40 CFR 2. 106(a) and 2.213(a): "Division of Waste Management, P.O. Box 29603, Raleigh, NC 2761 1-9603." 758 NORTH CAROLINA REGISTER November 15, 1999 14:10 PROPOSED RULES (H m The follow i ng shall be su bstituted for the provisions of 40 CFR 2.100 (a) which arc not incorporat ed by reference : (Ar) "EPA" me a n s the United States Env i ronmen tal Prot e ctio n Agency. rBi "Department of Environmen'i7"Health. and Nat ural Resou rces" shall be* substituted for "Envi ron menta l—Protection—Agency"—and "Hazardous Waste Section Chi ef i n t he Solid W3Ste — Man agement—D i v i sio n—01 — the Department—of Envi ronmen t.—Health.—and Natural Resources" shall be subst ituted for "Admini st rator ",—"Re giona l — Administrator" amendments and editions. (b) 40 CFR 261.10 through 261.1 1 (Subpart B). "Criteria for Identifying the Characteristics of Hazardous Waste and for Listing Hazardous Waste", are incorporated by reference including subsequent amendments and editions. (c) 40 CFR 261.20 through 261.24 (Subpart C), "Characteristics of Hazardous Waste" are incorporated by reference including subsequent amendments and editions. (d) 40 CFR 261.30 through 26 1.35 261.38 (Subpart D). "Lists of Hazardous Wastes" are incorporated by reference including subsequent amendments and editions. (e) The Appendices to 40 CFR Part 261 are incorporated by reference including subsequent amendments and editions. and "Di rector ", exc ept in those situations Authority G.S. 130A-294(c); 150B-21.6. where author ity h as n ot been delegated to the S tat e of N.C. or un it different mean ing less the context requires a fCi "Section " me a n s the N.C. Hazardous Wr aste Section .—m — the Di vis i on of Solid—Wtrsir Management. Department of Environment. Health, and Natu r al Resou rces. m- "Sect i on act i v i ty. Offi cer" means—the — person the Sec t ion — Chi ef to—thfs (Li "Section — Attor ney"—metrrrs—the person desi gn ated by th e Sec ti on Ch ie f to do this act i v i ty. tFl S ection Officer s h all be subs t ituted for the freedom of info r mat i on offi cer . r6l ^NrC^ — Hazardou s — Waste—Sect i on — Pu b l i c- Affai r s Director " shall he subst i tuted fo r t he EPA Director of the Offi ce of Pub lic Affai r s. tHi "N.C. Hazardous Waste Sect i on Offic e " shall be — subst i tu ted—frrr — Region al—EPA — Office ffr "Depa rtme n t"— m eans—NtG—Department of Envi ron ment. Healt h , and Natural Resou rces. tJl "Sec t ion Employee" shal l be subst i tu ted for t"K~) " Sec ti on Legal Offi ce" shall be th e S ect i on Attorney. tH (_cj The provisions concerning confidentiality of business information in 40 CFR 2.201 to 2.311 2t3W (Subpart B) are hare—r>ern incorporated by reference including subsequent amendments and editions, except that 40 CFR 2.209 (b) and (c), 2.301. 2.302. 2.303, 2.304. 2.306. 2.307, 2.308. 2.308 and 2.3 9 2.309. 2.310 and 2.311 are not incorporated by reference. .0108 STDS APPLICABLE TO TRANSPORTERS OF HAZARDOUS WASTE - PART 263 (a) 40 CFR 263.10 through 263.12 (Subpart A). "General". are have be en incorporated by reference including subsequent amendments and editions. (b) 40 CFR 263.20 through 263.22 (Subpart B). "Compliance With the Manifest System and Record keeping". are have been incorporated by reference including subsequent amendments and editions. (c) Upon discovering a significant manifest discrepancy, the transporter must attempt to reconcile the discrepancy with the w aste general or (e.g. with telephone conversations). If the discrepancy rs not resohed within 1 5 days after receiving the waste, the transporter must immediately submit to the Department a letter describing the discrepancy and attempts to reconcile h with a copy of the manifest or shipping paper at issue. (d) Manifest discrepancies are differences between the quantity or tvpc of hazardous waste designated on the manifest or shipping paper, and the quantity or type of hazardous waste a transporter actually transports. Significant discrepancies m quantity are; for bulk waste, variations greater than 10 percent in weight; and, for hatch waste, any variation i_n piece count (e.g. a discrepancy of one drum m a truck load). Significant discrepancies m type are obvious differences which can be discovered by inspection or waste analysis le.g. waste solvent substituted for waste acid, or toxic constituents not reported on the manifest or shipping paper). (e) to 40 CFR 263.30 through 263.31 (Subpart C). "Hazardous W7 aste Discharges", are h ave bee n incorporated by reference including subsequent amendments and editions. Authority G.S. 130A-294(c); 150B-21.6. Authority G.S. 130A-294(c); 150B-21.6. .0106 IDENTIFICATION AND LISTING OF HAZARDOUS WASTES - PART 261 (a) 40 CFR 261.1 through 261.9 (Subpart A). "General", are incorporated by reference including subsequent .01 10 INTERIM STATUS STDS FOR OWNERS-OP OF HWTSD FACILITIES - PART 265 (a) 40 CFR 265.1 through 265.4 (Subpart A). "General", are incorporated by reference including subsequent amendments and editions. (b) 40 CFR 265.10 through 265.19 (Subpart B), "General 14:10 NORTH CAROLINA REGISTER November 75, 1999 759 PROPOSED RULES Facility Standards", are incorporated by reference including subsequent amendments and editions. (c) 40 CFR 265.30 through 265.37 (Subpart C), "Preparedness and Prevention", are incorporated by reference including subsequent amendments and editions. (d) 40 CFR 265.50 through 265.56 (Subpart D), "Contingency Plan and Emergency Procedures", are incorporated by reference including subsequent amendments and editions. (e) 40 CFR 265.70 through 265.77 (Subpart E). "Manifest System. Recordkeeping, and Reporting", are incorporated by reference including subsequent amendments and editions. (f) 40 CFR 265.90 through 265.94 (Subpart F), "Ground-Water Monitoring", are incorporated by reference including subsequent amendments and editions. (g) 40 CFR 265.1 10 through 265.121 265. 120 (Subpart G). "Closure and Post-Closure", are incorporated by reference including subsequent amendments and editions. (h) 40 CFR 265.140 through 265.151 (Subpart H). "Financial Requirements", are incorporated by reference including subsequent amendments and editions, except that 40 CFR 265.143(a)(3). (a)(4). (a)(5). (a)(6). and 40 CFR 265.145(a)(3). (a)(4). (a)(5). are not incorporated by reference. ( 1 ) The following shall be substituted for the provisions of 40 CFR 265.143(a)(3) which were not incorporated by reference: The owner or operator shall deposit the full amount of the closure cost estimate at the time the fund is established. Within one year of the effective date of these Rules, an owner or operator using a closure trust fund established prior to the effective date of these Rules shall deposit an amount into the fund so that its value after this deposit at least equals the amount of the current closure cost estimate, or shall obtain other financial assurance as specified in this Section. (2) The following shall be substituted for the provisions of 40 CFR 265.143(a)(6) which were not incorporated by reference: After the trust fund is established, whenever the current closure cost estimate changes, the owner or operator shall compare the new estimate with the trustee's most recent annual valuation of the trust fund. If the value of the fund is less than the amount of the new estimate, the owner or operator within 60 days after the change in the cost estimate, shall either deposit an amount into the fund so that its value after this deposit at least equals the amount of the current closure cost estimate, or obtain other financial assurance as specified in this Section to cover the difference. (3) The following shall be substituted for the provisions of 40 CFR 265.145(a)(3) which were not incorporated by reference: (A) Except as otherwise provided in Part (h)(3)(B) of this Rule, the owner or operator shall deposit the full amount of the post-closure cost estimate at the time the fund is established. (B) If the Department finds that the owner o: operator of an inactive hazardous wast( disposal unit cannot provide financia assurance for post-closure through any othe: option (e.g. surety bond, letter of credit, o: corporate guarantee), a plan for annua payments to the trust fund during the interirr status period may be established by the Department by use of an Administrative Order. (i) 40 CFR 265.170 through 265.178 (Subpart I). "Use anc Management of Containers", are incorporated by reference including subsequent amendments and editions. Additionally the owner or operator shall keep records and results o: required inspections for at least three years from the date o: the inspection. (j) 40 CFR 265.190 through 265.202 (Subpart J). "Tank Systems", are incorporated by reference including subsequen amendments and editions. (k) 40 CFR 265.220 through 265.231 (Subpart K). "Surface Impoundments", are incorporated by reference including subsequent amendments and editions. (1) 40 CFR 265.250 through 265.260 (Subpart L). "Wasti Piles", are incorporated by reference including subsequent amendments and editions. (mi 40 CFR 265.270 through 265.282 (Subpart M). "Lane Treatment", are incorporated by reference including subsequent amendments and editions. (n) 40 CFR 265.300 through 265.316 (Subpart N) "Landfills", are incorporated by reference including subsequent amendments and editions. (o) 40 CFR 265.340 through 265.352 (Subpart O), "Incinerators", are incorpe>rated by reference includin subsequent amendments and editions. (p) 40 CFR 265.370 through 265.383 (Subpart P). "Thermal Treatment", are incorporated by reference including subsequent amendments and editions. (q) 40 CFR 265.400 through 265.406 (Subpart Q) "Chemical. Physical, and Bioleigical Treatment", are incorporated by reference including subsequent amendments and editions. (r) 40 CFR 265.440 through 265.445 (Subpart W). "Drip Pads", are incorporated by reference including subsequent amendments and editions. (s) 40 CFR 265.1030 through 265.1049 (Subpart AA). "Air Emission Standards for Process Vents", are incorporated by reference including subsequent amendments and editions. (t) 40 CFR 265.1050 through 265.1079 (Subpart BB). "Air Emission Standards for Equipment Leaks", are incorporated by reference including subsequent amendments and editions (u) 40 CFR 265.1080 through 265.1091 (Subpart CO. "Air Emission Standards for Tanks. Surface Impoundments, and Containers", are incorporated by reference including subsequent amendments and editions. (v) 40 CFR 265.1100 through 265.1102 (Subpart DD "Containment Buildings", are incorporated by reference 760 NORTH CAROLINA REGISTER November 15, 1999 14:10 PROPOSED RULES including subsequent amendments and editions. (w) 40 CFR 265.1200 through 265.1202 (Subpart EE), "Hazardous Waste Munitions and Explosives Storage", are incorporated by reference including subsequent amendments and editions. (x) Appendices to 40 CFR Pail 265 are incorporated by reference including subsequent amendments and editions. Authority G.S. 130A-294(c); 150B-21.6. .01 12 LAND DISPOSAL RESTRICTIONS - PART 268 (a) 40 CFR 268.1 through 268.14 (Subpart A). "General", are incorporated by reference including subsequent amendments and editions. (b) 40 CFR 268.30 through 268.39 (Subpart C). "Prohibitions on Land Disposal", are incorporated by reference including subsequent amendments and editions. (c) 40 CFR 268.40 through 268.49 268.48 (Subpart D), "Treatment Standards", are incorporated by reference including subsequent amendments and editions. (d) 40 CFR 268.50 (Subpart E), "Prohibitions on Storage", is incorporated by reference including subsequent amendments and editions. (e) Appendices to 40 CFR Part 268 are incorporated by reference including subsequent amendments and editions. Authority G.S. 130A-294(c); I50B-21.6. .0113 THE HAZARDOUS WASTE PERMIT PROGRAM - PART 270 (a) 40 CFR 270.1 through 270.6 (Subpart A). "General Information", are have—been incorporated by reference including subsequent amendments and editions. For the purpose of this incorporation by reference, "January 26. 1983" shall be substituted for "July 26. 1982" contained in 40 CFR 270.1(c). (b) 40 CFR 270.10 through 270.29 (Subpart B). "Permit Application", are have—been incorporated by reference including subsequent amendments and editions. (c) The following are additional Part B information requirements for all hazardous waste facilities: ( 1 ) Description and documentation of the public meetings as required in 15A NCAC 1 3A 0109(r)(7): 15ANCAC 13A .0009(r)(7): (2) A description of the hydrologieal and geological properties of the site including, at a minimum, flood plains, depth to water table, ground water travel time, seasonal and long-term groundwater level fluctuations, proximity to public water supply watersheds, consolidated rock, soil pH, soil cation exchange capacity, soil characteristics and composition and permeability, existence of cavernous bedrock and seismic activity, slope, mines, climate, location and withdrawal rates of surface water users within the immediate drainage basin and well water users within a one mile radius of the facility; water quality information of both surface and groundwater within 1000 ft. of the facility, and a description of the local air quality; (3) A description of the facility's proximity to and potential impact on wetlands, endangered species habitats, parks, forests, wilderness areas, historical sites, mines, and air quality; (4) A description of local land use including residential, industrial, commercial, recreational, agricultural and the proximity to schools and airports; (5) A description of the proximity of the facility to waste generators and population centers; a description of the method of waste transportation; the comments of the local community and state transportation authority on the proposed route, and route safety. Comments should include proposed alternative routes and restrictions necessary to protect the public health; (6) A description of facility aesthetic factors including visibility, appearance, and noise level; and (7) A description of any other objective factors that the Department determines are reasonably related and relevant to the proper siting and operation of the facility. (d) In addition to the specific Part B information requirements for hazardous waste disposal facilities, owners and operators of hazardous waste landfills or long term storage facilities shall provide the following information: ( 1 ) Design drawings and specifications of the leachate collection and removal system; (2) Design drawings and specifications of the artificial impervious liner; (3) Design drawings and specifications of the clay or clay-like liner below the artificial liner, and a description of the permeability of the clay or clay-like liner; and (4) A description of how hazardous wastes will be treated prior to placement in the facility. (e) In addition to the specific Part B information requirements for surface impoundments, owners and operators of surface impoundments shall provide the following information: { 1 ) Design drawings and specifications of the leachate collection and removal system; (2) Design drawings and specifications of all artificial impervious liners; (3) Design drawings and specifications of all clay or clay-like liners and a description of the clay or clay-like liner; and (4) Design drawings and specifications that show that the facility has been constructed in a manner that will prevent landsliding, slippage, or slumping. (f) 40 CFR 270.30 through 270.33 (Subpart C). "Permit Conditions", are h ave—been incorporated by reference including subsequent amendments and editions. 14:10 NORTH CAROLINA REGISTER November 15, 1999 761 PROPOSED RULES (g) 40 CFR 270.40 through 270.43 (Subpart D), "Changes to Permit", are have been incorporated by reference including subsequent amendments and editions. (h) 40 CFR 270.50 through 270.51 (Subpart E). "Expiration and Continuation of Permits", are have been incorporated by reference including subsequent amendments and editions. (i) 40 CFR 270.60 through 270.66 (Subpart F). "Special Forms of Permits", are have been incorporated by reference including subsequent amendments and editions. (j) 40 CFR 270.70 through 270.73 (Subpart G). "Interim Status", are have been incorporated by reference including subsequent amendments and editions. For the purpose of this incorporation by reference, "January 1, 1986" shall be substituted for "November 8, 1985" contained in 40 CFR 270.73(c). (k) The following are additional permitting requirements concerning operating record of other facilities. ( 1 ) An applicant applying for a permit for a hazardous waste facility shall submit a disclosure statement to the Department as a part of the application for a permit or any time thereafter specified by the Department. The disclosure statement shall be supported by an affidavit attesting to the truth and completeness of the facts asserted in the statement and shall include: (A) A brief description o\' the form of the business (e.g. partnership, sole proprietorship, corporation, association, or other); (B) The name and address of any hazardous waste facility constructed or operated after October 21, 1976 by the applicant or any parent or subsidiary corporation if the applicant is a corporation; and (C) A list identifying any legal action taken against any facility identified in Part (k)( 1 )(B) of this Rule involving: (i) any administrative ruling or order issued by any state, federal or local authority relating to revocation of any environmental or waste management permit or license, or to a violation of any state or federal statute or local ordinance relating to waste management or environmental protection: (ii) any judicial determination of liability or conviction under any state or federal law or local ordinance relating to waste management or environmental protection; and (iii) any pending administrative or judicial proceeding of the type described in this Part. (D) The identification of each action described in Part (kK 1 )(Ci of this Rule shall include the name and location of the facility that the action concerns, the acency or court that heard or is hearing the matter, the title, docket or case number, and the status of the proceeding. (2) In addition to the information set forth in Subparagraph (k)(l) of this Rule, the Department may require from any applicant such additional information as it deems necessary to satisfy the requirements of G.S. 130A-295. Such information may include, but shall not be limited to: (A) The names, addresses, and titles of all officers, directors, or partners of the applicant and of any parent or subsidiary corporation if the applicant is a corporation; (B) The name and address of any company in the field of hazardous waste management in which the applicant business or any of its officers, directors, or partners, hold an equity interest and the name of the officer, director, or partner holding such interest; and (C) A copy of any administrative ruling or order and of any judicial determination of liability or conviction described in Part (k)(l)(C) of this Rule, and a description of any pending administrative or judicial proceeding in that item. (3) If the Department finds that any part or parts of the disclosure statement is not necessary to satisfy the requirements of G.S. 130A-295, such information shall not be required. (1) An applicant for a new. or modification to an existing, commercial facility permit, shall provide a description and justification of the need for the facility. (m) Requirements for Off-site Recycling Facilities. ( 1 ) The permit requirements of this Rule apply to owners and operators of off-site recycling facilities. (2) The following provisions of 40 CFR Part 264, as incorporated by reference, shall apply to owners and operators of off-site recycling facilities: (A) Subpart B - General Facility Standards (B) Subpart C - Preparedness and Prevention (C) Subpart D - Contingency Plan and Emergency Procedures (D) Subpart E - Manifest System. Recordkeeping and Reporting (E) Subpart G - Closure and Post-closure (F) Subpart H - Financial Requirements (G) Subpart I - Use and Management of Containers (H) Subpart J - Tank Systems (I) 264.101 - Corrective Action for Solid Waste Management Units (J) Subpart X - Miscellaneous Units (K) Subpart DD - Containment Buildings (3) The requirements listed in Subparagraph (m)(2) of this Rule apply to the entire off-site recycling facility, including all recycling units, staging and process areas, and permanent and temporary storage 762 NORTH CAROLINA REGISTER November 75, 1999 14:10 PROPOSED RULES areas for wastes. (4) The following provisions of 1 5A NCAC 13A .0109 +5A NCAC 1 3A .0009 shall apply to owners and operators of off-site recycling facilities: (A) The substitute financial requiremenls of Rule 0009(i)(l). .0109(i)(lU 2)and(4). (B) The additional standards of Rule 0009(r)( 1 ), 0109(r)(l). (2). (3), (6) and (7). (5) The owner or operator of an off-site recycling facility shall keep a written operating record at his facility. (6) The following information must be recorded, as it becomes available, and maintained in the operating record until closure of the facility: (A) A description and the quantity of each hazardous waste received, and the method(s) and date(s) of its treatment, storage, or recycling at the facility. (B ) The location of all hazardous waste within the facility and the quantity at each location. This information must include cross-references to specific manifest document numbers if the waste was accompanied by a manifest. (C) Documentation of the fate of all hazardous wastes received from off-site or generated on-site. This shall include records of the sale. reuse, off-site transfer, or disposal of all waste materials. (n) Permit Fees for Commercial Hazardous Waste Facilities. (\) An applicant for a permit modification for a commercial hazardous waste facility shall pay an application fee as follows: (A) Class I permit modification - S100 (B) Class 2 permit modification - SI.000 (C) Class 3 permit modification - $5,000 {Note: Class 1 permit modifications which do not require prior approval of the Division Director are excluded from the fee requirement.) (2) The application fee for a new permit, permit renewal, or permit modification must accompany the application, and is non-refundable. The application shall be considered incomplete until the fee is paid. Checks should be made payable to: Division of Solid Waste Management. Authority G.S. 130A-294(c); 130A-294.1 ; 130A-295(a)(l),(2),(c); 150B-21.6. .0118 STANDARDS FOR THE MANAGEMENT OF USED OIL (a) 40 CFR 279.1 (Subpart A). "Definitions", is has been incorporated by reference including subsequent amendments and editions, except that the Definition for "Used Oil" is defined by G.S. 130A-290(b) and is not incorporated by reference. (b) 40 CFR 279.10 through 279.12 (Subpart B). "Applicability", are have been incorporated by reference including subsequent amendments and editions. (c) 40 CFR 279.20 through 279.24 (Subpart C). "Standards for Used Oil Generators", are have been incorporated by reference including subsequent amendments and editions. (d) 40 CFR 279.30 through 279.32 (Subpart D). "Standards for Used Oil Collection Centers and Aggregation Points", are have bee n incorporated by reference including subsequeni amendments and editions. (e) 40 CFR 279.40 through 279.47 (Subpart E). "Standards for Used Oil Transporter and Transfer Facilities", are hare been incorporated by reference including subsequeni amendments and editions. (f) 40 CFR 279.50 through 279.59 (Subpart F). "Standards for Used Oil Processors and Re-Refiners", are have hem incorporated by reference including subsequent amendments and editions. (g) 40 CFR 279.60 through 279.67 (Subpart G). "Standards for Used Oil Burners Who Burn Off-Specification Used Oil for Energy Recovery", are have—been incorporated by reference including subsequent amendments and editions. (h) 40 CFR 279.70 through 279.75 (Subpart H). "Standards for Used Oil Fuel Marketers", arc have been incorporated by reference including subsequent amendmenis and editions. (i) 40 CFR 279. 80 through 279. SI (Subpart I). "Standards for Use as a Dusi Suppressant and Disposal of Used Oil" are have been incorporated by reference including subsequent amendments and editions. {Note: 40 CFR 279.82, which addresses used oil as a dust suppressant, is specifically not incorporated by reference. See also G.S. 130A-309.15 for prohibited acts regarding used oil }. (j) Additional State Requirements. ( 1 ) By July 1 of each year the following persons shall notify the Department by submitting an annual report listing the type and quantity of used oil transported, collected, and recycled during the preceding calendar year, on Department forms: (A) Persons transporting more than 500 gallons of used oil per week over public highways. (B) Collection facilities that annually receive more than 6.000 gallons of used oil excluding the volume of used oil collected from individuals that change their own personal motor oil. (C) Facilities that annually recycle more than 10.000 gallons of used oil. (D) Public used oil collection centers. (2) The following persons are not required to comply with JJvA NCAC 13A .0118(0(1) 1 5A NCAC 1 3 A 0018(j)(l) : (A) An electric utility that generates used oil which is re
Object Description
Description
Title | North Carolina register |
Date | 1999-11-15 |
Description | Vol. 14, issue 10 (November 15, 1999) |
Digital Characteristics-A | 260 p.; 20.4 MB |
Digital Format | application/pdf |
Pres File Name-M | pubs_serial_ncregister19991115.pdf |
Pres Local File Path-M | \Preservation_content\StatePubs\pubs_serial_ncregister\images_master |
Full Text |
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NORTH CAROLINA
REGISTER
VOLUME 14 • ISSUE 10 • Pages 737 - 902
RECEIVED
NOV 1 2 1999
KATHRINE R. EVERETT
LAW LIBRARY
November 15, 1999
IN THIS ISSUE
Executive Orders
Voting Rights Letters
Administrative Hearings, Office of
Environment and Natural Resources
Foresters, Board of Registration for
Health and Human Services
Insurance
Justice
Physical Therapy Examiners, Board of
Plumbing, Heating & Fire Sprinkler Contractors
Real Estate Commission
State Personnel
Substance Abuse Professional Certification Board
Rules Review Commission
Contested Case Decisions
PUBLISHED BY
The Office ofAdministrative Hearings
Rules Division
6714 Mail Service Center
Raleigh, NC 27699-6714
Telephone (919) 733-2678
Fax (919) 733-3462
This publication is printed on permanent, acid-free paper in compliance with G.S. 125-11.13
For those persons that have questions or concerns regarding the Administrative Procedure Act or any of it
components, consult with the agencies below. The bolded headings are typical issues which the givei
agency can address, but are not inclusive.
Rule Notices, Filings, Register. Deadlines. Copies of Proposed Rules, etc.
Office of Administrative Hearings
Rules Division
Capehart-Crocker House (919) 733-2678
424 North Blount Street (919) 733-3462 FAX
Raleich, North Carolina 27601-2817
contact: Molly Masich, Director APA Services
Ruby Creech, Publications Coordinator
Fiscal Notes & Economic Analysis
Office of State Budget and Management
1 16 West Jones Street
Raleigh, North Carolina 27603-8005
contact: Warren Plonk, Economist III
Rule Review and Legal Issues
Rules Review Commission
1307 Glenwood Ave., Suite 159
Raleigh, North Carolina 27605
contact: Joe DeLuca Jr., Staff Director Counsel
Bobby Bryan, Staff Attorney
mmasich@oah.state, nc. us
rcreech@oah. state. nc. us
>
(919)733-7061
(919) 733-0640 FAX
wplonk@osbm.state.nc.us
(919) 733-2721
(919) 733-9415 FAX
Legislative Process Concerning Rule-making
Joint Legislative Administrative Procedure Oversight Committee
545 Legislative Office Building
300 North Salisbury Street (919) 733-2578
Raleigh, North Carolina 27611 (919) 715-5460 FAX
contact: Mary Shuping, Staff Liaison marys@ms.ncga.state.nc.us
County and Municipality Government Questions or Notification
NC Association of County Commissioners
215 North Dawson Street (919)715-2893
Raleigh, North Carolina 27603
contact: Jim Blackburn or Rebecca Troutman
NC League of Municipalities
2 1 5 North Dawson Street
Raleigh, North Carolina 27603
contact: Paula Thomas
(919)715-4000
This publication is printed on permanent, acid-free paper in compliance with G.S. 125-1 1.13
NORTH CAROLINA
REGISTER
Volume 14, Issue 10
Pages 737 - 902
November 15, 1999
This issue contains documents officially filed
through October 22. 1999.
Office of Administrative Hearings
Rules Division
424 North Blount Street (27601)
PO Drawer 27447
Raleigh. NC 2761 1-7447
(919)733-2678
FAX (919) 733-3462
Julian Mann III. Director
Camille Winston. Deputy Director
Molly Masich. Director of APA Services
Ruby Creech. Publications Coordinator
Linda Dupree. Editorial Assistant
Jessica Flowers. Editorial Assistant
II.
ill.
IV.
VI.
VII.
VIII.
I\.
IN THIS ISSUE
EXECUTIVE ORDERS
Executive Orders 162-164 737-738
IN ADDITION
Voting Rights Letters 739 741
RULE-MAKING PROCEEDINGS
Environment and Natural Resources
Environmental Management Commission 743 - 749
Health and Human Services
Child Care Commission 742
Social Services 742-743
Licensing Boards
Plumbing. Heating & Fire Sprinkler Contractors 749
Substance Abuse Professional Certification Bd 749
PROPOSED RULES
Environment and Natural Resources
Environmental Management 755 - 757
Health Services 757-767
Health and Human Services
Health Services 767 - 77
1
Medical Assistance 750 - 752
Insurance
Agent Services Division 752 - 755
Licensing Boards
Physical Therapy Examiners. Board of 771 - 772
Real Estate Commission 772 - 797
TEMPORARY RULES
Environment and Natural Resources
Environmental Management 823 - 838
Health and Human Services
Secretary of Health and Human Services 799 - 809
Social Services Commission 798 - 799
Insurance
Financial Evaluation Division 811-819
Life and Health Division 819-822
Property and Casualty Division 809 - 81
1
Special Services Division 822 - 823
APPROVED RULES 839-884
Administrative Hearings, Office of
Civil Rights Division
General
Rules Division
Environment and Natural Resources
Coastal Management
Environmental Management Commission
Health Services
Sedimentation Control Commission
Well Contractors Certification Commission
Wildlife
Health and Human Services
Health Services
Insurance
Life and Health Division
Justice
Criminal Justice Ed & Training Standards Commission
Licensing Boards
Foresters. Board of Registration for
State Personnel
Slate Personnel Commission
RULES REVIEW COMMISSION 885 - 892
CONTESTED CASE DECISIONS
Index to ALJ Decisions 893-899
Text of Selected Decisions
98 EHR 1735 900 - 902
CUMULATIVE INDEX 1 - 85
North Carolina Register is published semi-monthly for SI 95 per year by the Office of Administrative Hearings. 424 North Blount Streei. Raleigh. NC
27601 (ISSN 15200604) to mail at Periodicals Rates is paid at Raleigh, NC POSTMASTER: Send Address changes to the North Carolina Register,
PO Drawer 27447. Raleigh NC 27hl 1-744"
NORTH CAROLINA ADMINISTRATIVE CODE CLASSIFICATION SYSTEM
The North Carolina Administrative Code (NCAC) has four major subdivisions of rules. Two of these, titles and chapters,
are mandatory. The major subdivision of the NCAC is the title. Each major department in the North Carolina executive
branch of government has been assigned a title number. Titles are further broken down into chapters which shall be
numerical in order. The other two. subchapters and sections are optional subdivisions to be used by agencies when
appropriate.
TITLE/MAJOR DIVISIONS OF THE NORTH CAROLINA ADMINISTRATIVE CODE
TITLE DEPARTMENT LICENSING BOARDS CHAPTER
1 Administration Acupuncture 1
2 Agriculture Architecture 2
3 Auditor Athletic Trainer Examiners 3
4 Commerce Auctioneers 4
5 Correction Barber Examiners 6
6 Council of State Certified Public Accountant Examiners 8
7 Cultural Resources Chiropractic Examiners 10
8 Elections Employee Assistance Professionals 11
9 Governor General Contractors 12
10 Health and Human Services Cosmetic Art Examiners 14
1 1 Insurance Dental Examiners 16
12 Justice Dietetics/Nutrition 17
13 Labor Electrical Contractors 18
I4A Crime Control & Public Safety Electrolysis 19
15A Environment and Natural Resources Foresters 20
16 Public Education Geologists 21
17 Revenue Hearing Aid Dealers and Fitters 2 2
18 Secretary of State Landscape Architects 26
19A Transportation Landscape Contractors 28
20 Treasurer Marital and Family Therapy 31
*21 Occupational Licensing Boards Medical Examiners 32
TT Administrative Procedures (Repealed) Midwifery Joint Committee 33
23 Community Colleges Mortuary Science 34
24 Independent Agencies Nursing 36
2? State Personnel Nursing Home Administrators 37
26 Administrative Hearings Occupational Therapists 38
27 NC State Bar Opticians 40
Optometry 42
Osteopathic Examination & Reg. (Repealed) 44
Pastoral Counselors. Fee-Based Practicing 45
Pharmacy 46
Physical Therapy Examiners 48
Plumbing. Heating & Fire Sprinkler Contractors 50
Podiatry Examiners 52
Professional Counselors 53
Psychology Board 54
Professional Engineers & Land Surveyors 56
Real Estate Appraisal Board 57
Real Estate Commission 58
Refrigeration Examiners 60
Sanitarian Examiners 62
Social Work Certification 63
Soil Scientists 69
Speech & Language Pathologists & Audiologists 64
Substance Abuse Professionals 68
Therapeutic Recreation Certification 65
Vetennarv Medical Board 66
Note: Title 21 contains the chapters of the various occupational licensing boards.
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