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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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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