Cf"
NORTH CAROLINA
REGISTER
VOLUME 13 • ISSUE 20 • Pages 1714 - 1765
April 15, 1999
IN THIS ISSUE
Voting Rights Letter
Agriculture
Commer<se
Environment and Natural Respurces
Rules Review Commission
Contested Case Decisions
PUBLISHED BY <:;
The Office ofAdministrative Hearings
Rules Division
PC Drawer 27447
Raleigh, NC 27611-7447
Telephone (919) 733-2678
Fax (919) 733-3462
RECEiVED
APR 1 5 1999
KA'i i-iRiN£ R. EVERETT
LAW LIBRARY
This publication is printed on permanent, acid-free paper in compliance with G.S. 125-1 1. 13
For those persons tiiat have questions or concerns regarding the Administrative Procedure Act or any of its
components, consult with the agencies below. The bolded headings are typical issues which the given^
agency can address, but are not inclusive.
Rule Notices, Filings, Register Deadlines, Copies ofProposed Rules, etc.
Office of Administrative Hearings
Rules Division
Capehart-Crocker House
424 North Blount Street
Raleigh, N(»th Carolina 27601-2817
#li9^J33-2678*^..^,,^
(919) 733-3462 FAX
contact: Molly Masich, Director APA Services nimasich@oah.state.nc.us
RiAy Creech, Publications Coordinator rcreech@oah.state.nc.us
Fiscal Notes & Economic Analysis
' Office of State Budget and Management
116 West Jones Street
Raleigh, North Carolina 27603-8005
contact: j^arren Plonk, Ecoik)niist III
(919)733-7061
(919) 733-0640 FAX
wplonk@osbm.statejic.us
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
(919)733-!il2T^''^"''
(919) 733-9415 FAX
.>Xt«*«-»K«»««««««»Wio(»w-**«M»J«»^^ .-.
Legislative Process Concerning Rule-making
Joint Legislative Administrative Procedure Oversight Committee
545 Legislative Office Building
300 North Sahsbury Street (9 1 9) 733-2578
Raleigh, North Carolina 276 1
1
(9 19) 715-5J|^ M^ %'.
contact: Mary Shuping, Staff Liaison nwys(^ros.ncga.state.nc:iis
County and Municipality Government Questions or Notification
NC Association of County Commissioners
2 1 5 North Dawson Street (9 1 9) 7 1 5-2893
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. 125-11.13
NORTH CAROLINA
REGISTER
IN THIS ISSUE
»
I. IN ADDITION
Voting Rights Letter
II.
III.
Volume 13, Issue 20
Pages 1714 -1765
April 15, 1999
1714
RULE-MAKING PROCEEDINGS
Environment and Natural Resources
Environmental Management 1715- 1716
PROPOSED RULES
Agriculture
Consumer Services - Grant Programs 1718-1719
Food and Drug Protection 1717-1718
Markets 1718
Commerce
Commerce Finance - Departmental Rules 1719 - 1727
Environment and Natural Resources
Environmental Management 1727 - 1737
Health Services 1 738 - 1 739
Wildlife Resources Commission 1737 - 1738
I
This issue contains documents officially filed
through March 24. 1999.
IV. TEMPORARY RULES
Environment and Natural Resources
Health Services 1740
Office of Administrative Hearings
Rules Division
424 North Blount Street (27601
)
PC Drawer 27447
Raleigh. NC 2761 1-7447
(919)733-2678
FAX (919) 733-3462
Julian Mann 111. Director
Camille Winston. Deputv Director
Molly Masich, Director of APA Services
Ruby Creech. Publications Coordinator
Jean Shirle>. Editorial Assistant
Linda Dupree, Editorial Assistant
Jessica Flowers, Editorial Assistant
V. RULES REVIEW COMMISSION 1741-1743
VI. CONTESTED CASE DECISIONS
Index to ALJ Decisions 1 744 - 1 755
Text of Selected Decisions
98EHR0703 1756- 1761
98 EHR 0776 1 762 - 1 765
98 EHR 0777 1 762 - 1 765
VII. CUMULATIVE INDEX 1-84
»
Sorth Carolina Register is published semi-monthK tor $1''5 per \car b\ the Office of Adminislralue Hearings. 424 North Blount Street. Raleigh. NX.
2760f (ISSN 15200604) to mail at Penodicals Rates is paid at Raleigh. NC. POSTMASTER Send .Address changes to the Sonh Carolina Register.
PC Drawer 27447. Ralemh NC 27611-7447
NORTH CAROLINA ADMINISTR.4TIVE CODE CLASSIFICATION SYSTEM
The North Carolina Administrative Code (NCAC) has four major subdivisions ofrules. Two ofthese, titles and chapters,
are mandatory. The major subdivision ofthe 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 Awo, 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 Certilled Public Accountant Examiners 8
7 Cultural Resources Chiropractic Examiners 10
8 Elections Employee Assistance Professionals 11
9 Goxemor General Contractors 12
10 Health and Human Services Cosmetic Art Examiners 14
11 Insurance Dental Examiners 16
12 Justice Dietetics/Nutrition 17
13 Labor Electrical Contractors 18
14A Crime Control & Public Safety Electrolvsis 19
ISA Environment and Natural Resources Foresters 20
16 Public Education Geologists 21
17 Revenue Hearing Aid Dealers and Fitters 22
18 Secretarv of State Landscape Architects 26
19A Transportation Landscape Contractors 28
20 Treasurer Marital and Famih Therapy 31
*21 Occupational Licensing Boards Medical Examiners 32
22 Administrative Procedures (Repealed) Midwifery Joint Committee 33
23 Community Colleges Mortuar) Science 34
24 Independent Agencies Nursing 36
25 State Personnel Nursing Home Administrators 37
26 Administrative Hearings Occupational Therapists 38
27 NC State Bar Opticians 40
Optometrv 42
Osteopathic Examination & Reg. (Repealed) 44
Pastoral Counselors. Fee-Based Practicing 45
Pharmacv 46
Phvsical Therapv Examiners 48
Plumbing. Heating & Fire Sprinkler Contractors 50
Podiatrv Examiners 52
Professional Counselors 53
Psvchologv 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
Veterinarv Medical Board 66
Note: Title 21 contains the chapters of the various occupational licensing boards.
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INADDITION
This Section contains public notices that are required to he published in the Register or have been approved by tljc Codijier
of Rules for publication.
U.S. Department of Justice
Civil Rights Division
EJ:GS:KIF:cly Voting Section
DJ 1 66-0 1
2-3' PO. Box 66128
99-0 1 83 Washington. D. C. 20035-6128
99-0452
99-0568
March 19, 1999
Linda A. Miles, Esq.
City Attorney
P.O. Box 3 136
Greensboro. NC 27402-3136
Dear Ms. Miles:
This refers to the three annexations (Ordinance Nos. 98-2, 99-1 1, and 99-17) and their designation to districts of the City
of Greensboro in Guilford 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 submissions on .lanuary 27, February 19, and March 2, 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. In addition, as authorized by Section 5. we reserve the right to reexamine these submissions if additional information
that would otherwise require an objection comes to our attention during the remainder of the sixty-day review period. See the
Procedures for the Administration of Section 5 (28 C.F.R. 51.41 and 51.43).
Sincerely,
Elizabeth Johnson
Chief, Voting Section
13:20 NORTH CAROLINA REGISTER April 15,1999 1714
RULE-MAKING PROCEEDINGS
A Notice oj Rule-making Pruceedings is a siatemeiu oj subject matter of the agency's proposed rule making. The agency
must publish a notice ofthe subject matterfor public comment at least 60 days prior to publishing the proposed text ofa 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 ser\-es as Rule-making Proceedings and
can be found in the Register under the section heading of Rule-making Agendas. Statutoiy reference: G.S 1 50B-2I.2.
TITLE 15A - DEPARTMENT OF ENVIRONMENT
AND NATURAL RESOURCES
CHAPTER 2 - ENVIRONMENTAL MANAGEMENT
A Totice of Rule-making Proceedings is hereby given by the
J. V DE.\'R-Environmental Management Commission in
accordance with (J.S. 150B-21.2. The ageticy shall
subsequently publish in the Resister 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:
I5A NCAC 2E .0102:0103. .0106-.0I07. .0201-.0202, .0205.
. 050 1-. 0504. Other rules may be proposed in the course ofthe
rule-making process.
Authority for the rule-making:
1 43-2 1 5.
h
G.S 143-2 1 5. 1 1 through
Statement of the Subject Matter: The Water Use Act ofl967
allows for the Environmental .Managetnent Commission to
declare a capacity use area and prepare rules where
aggregate water uses exceed the source's safe yield. There is
evidence ofpresent and future groundwater supply shortages
within the Central Coastal Plain of North Carolina. Within
this l5-counry area, groundwater from the Black Creek and
Upper Cape Tear aquifers is being withdrawn at a rate that
exceeds the available recharge. The Central Coastal Plain
Capacit}' Use .4rea rule would regulate water use through
permitting.
Reason for Proposed Action: There is increasing evidence
ofpresent andfuture grounchiater supply shortages within the
area encompassed by the following 15 North Carolina
counties: Beaifort, Carteret. Craven. Duplin. Edgecombe.
Greene. Jones. Lenoir Martin. Onslow. Pamlico. Pitt.
Washington. Wayne and Ullson. Within these counties
groundwater from the Black Creek and Upper Cape Fear
aquifers is being withdrcrwn at a rate that exceeds the
available recharge. To address threatened groundv.ater
supplies in the region the North Carolina Division of Water
Resources requests the Environmental Managetnent
Commission to create a capacity use area. The Central
Coastal Plain Capacit}- Use Area would regulate water use
through permitting to avoid damage to the groundwater
resources and to maintain those sources of water indefinitely.
The proposed regulation is a major rule and would affect both
state funds and local government expenditures.
Water levels in the Black Creek and Upper Cape Fear
aquifers hcn'e been declining since the late 1960s as
documented by Division of Water Resources databases. The
Division has anecdotal information from the 1920s that water
flowed from artesian wells at the time they were constructed.
This continued decline, from free-flowing wells to water levels
as much as 195 feet below land surface, indicates that current
withdrawals ofwater from these aquifers exceed the available
supply that can be used on a sustainable basis. Regulating the
use of water in this area fulfills the intent ofthe Water Use Act
of 1967 to protect the resource and to allow water uses that
can be sustained into the future. Water users in this area have
overused the resoitrce since it has provided the highest quality
water for their uses at the lowest costs. Growth in demand
and the physical limits of the hydrogeologic system have
resulted in the present situation.
Demands for water exceed the safe yields of the Black
Creek and Upper Cape Fear aquifers such that other sources
of water must be brought on line by water supply systems.
Suiface water and other aquifers will be used to meet this
deficit. The cn'ailability of surface water sources in these
counties is affected by Mater quality issues. Therefore, the
proposed capacity use area includes regulation of both
surface and groundwater withdrawals. The high yielding
Castle Hayne aquifer is available in the eastern portion of the
affected area. This capacity use area is proposed to include
those eastern counties to control the exchange of water and
promote controlled development of alternative supplies.
Because the proposed capacit}' use area encompasses all
areas within the exiling Capacity Use .Area No. I that require
continued regulation, the existing Capacity Use .Area No. 1
declaration and Rule (15A NCAC 2E.0201. .0202. and .0205)
should be repealed when this proposed rule becomes effective.
The Water Use Act of 196" allows for the
Environmental Management Commission to "declare and
delineate from time to time, and may modify, capacity use
areas of the State where it finds that the use ofgroundwater or
suiface water or both require coordination and limited
regulation for protection of the interests and rights of
residents or property owners of such areas or of the public
interest. " The Act further states that a capacity use area "is
one where the Commission finds that the aggregate uses of
groundwater or surface water, or both, in or affecting said
area (i) hcn-e developed or threatened to develop to a degree
which requires coordination and regulation, or fii) exceed or
threaten to exceed, or otherwise threaten or impair the
renewal or replenishment ofsuch waters or any part ofthem.
"
The most threatened portions of the Black Creek and
Upper Cape Fear aquifers lie beneath the following fifteen
North Carolina counties: Beaufort. Carteret, Crcn-en, Duplin.
Edgecombe, Greene, Jones. Lenoir Martin. OnsloM: Pamlico.
1715 NORTH CAROLINA REGISTER April 15, 1999 13:20
RULE-MAKING PROCEEDINGS
Pitt. Washington, Wayne and Wilson. The Division
recommends water use regulation take place in these counties.
The Division 's recommendation is based on the
following concerns:
a. Water level drawdowns. Monitoring wells
specifically designed to track water levels in the
Black Creek and Upper Cape Fear aquifers
show water level drawdown trends ranging from
declines of one to eight feet per year Those
monitoring wells are distributed throughout an
8000 square mile portion of the Central Coastal
Plain.
b. Dewateritis. Water levels from water supply
systems in several of these counties show
draM'downs below the top of the aquifer by as
much as 150feet. DeM'atering is known to cause
irreparable harm to the aquifer 's abilin- to yield
water
c. Current and projected water use. Current and
projected water use reported through the Local
Water Supply Planning process jG.S. 143-355(1)
<& (m)l plus water use by other users have been
compared to the estimated safe yield from the
Black Creek and Upper Cape Fear aquifers.
Projections through the year 2020 indicate a
growing deficit in water supply It is clear that
other sources of water must be developed to
make up this deficit,
d. .Alternate water sources. The location and
nature of alternate water supply sources for this
region of North Carolina, including surface
water and the Castle Hayne aquifer make
solutions to this problem more complex and
extend the area affected by the problem. These
other sources of water are limited due to water
quality concerns in the lower Neuse and Pamlico
River basins and inadequate access to the Castle
Hayne aquifer for many of the affected water
systems.
Comment Procedures: The purpose ofthis announcement is
to encourage those interested in this proposal to provide
written comments. It is veiy important that all interested and
potential affected parties make their views known to the
Environmental Management Commission whether in favor or
opposed to any and all provisions of the proposal being
noticed. Written comments may be submitted to Nat Wilson.
DENR Division of Water Resources. PO Box 2^68^. Raleigh.
NC 27611. telephone (919) 715-5445.
13:20 NORTH CAROLINA REGISTER April 15, 1999 1716
PROPOSED RULES
This Section contains the text oj proposed rules. At least 60 days prior to the publication oj 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 ifspecified in the notice by the agency The required comitieni
period is 60 days for a rule that has a substantial economic impact of at least five million dollars ($5,000,000). Statutory
ref'rence: G.S 1 50B-21.2.
I
TITLE 2 - DEPARTMENT OF AGRICULTURE
Notice is hereby given in accordance with G.S. 150B-21.2
that the North Carolina Board of Agriculture intends to
amend rule cited as 2 NCAC 9K . 02 1 4. Notice of Rule-making
Proceedings was published in the Register on January 15.
1999.
Proposed Effective Date: July I. 2000
Instructions on How to Demand a Public Hearing (must be
requested in writing within 15 days ofnotice): Any person may
request a public hearing on the proposed rule by submitting a
request in writing no later than May 1. 1999, to Dcnnd S.
McLeod, Secretary, North Carolina Board ofAgiculture, P. O.
Box 27647, Raleigh, NC 27611.
Reason for Proposed Action: Since the adoption of this
Rule. Congress has pre-empted state standards of identity for
food products that differ from federal standards. The portions
of this Rule which establish standards of identity for lowfat
and nonfat yogurt differ from federal standards and are thus
pre-empted.
Comment Procedures: Written comments may be submitted
no later than May 17. 1999. to David S. McLeod, Secretary,
North Carolina Board of Agriculture, P.O. Box 27647.
Raleigh. NC 27611.
Fiscal Note: This Rule does not affect the expenditures or
revenues of state or local government funds. This Rule does
not have a substantial economic impact of at least five million
dollars (S5, 000. 000) in a 1 2-month period.
CHAPTER 9 - FOOD AND DRUG
PROTECTION DIVISION
SUBCHAPTER 9K - SAMPLING AND
TESTING OF MILK AND CREAM:
FROZEN DESSERTS
SECTION .0200 - FROZEN DESSERTS
.0214 STANDARDS OF IDENTITY
FOR FROZEN YOGURT
fa) Frozen yogurt is the food which is prepared by freezing
while stirring, a pasteurized mix consisting of the ingredients
provided for in ice cream and which ma\ contain other safe
and suitable ingredients. Ail dair> ingredients are cultured
after pasteurization by one or more strains of Lactobacillus
bulgaricus and Streptococcus thermophilus. provided,
however, fruits, nuts, or other flavoring materials may be
added before or after the mix is pasteurized or cultured.
Frozen yogurt, exclusive of any flavoring, contains not less
than 3.25 percent milk fat, not less than 8.25 percent milk
solids not fat, except that when bulky characterizing
ingredients are used the percentage of milk fat is not less than
2.5 percent. The finished frozen yogurt shall weigh not less
than five pounds per gallon. The titratable acidity of frozen
yogurt is not less than 0.5 percent, calculated as lactic acid,
except if the frozen yogurt primary flavor is a non-fruit
characterizing ingredient(s). This characteristic acidity is
developed by the bacterial activity and no heat or bacteriostatic
treatment, other than refrigeration, which may result in
destruction or partial destruction of the organisms, shall be
applied to the product after culturing. The product, when in
package form, should be labeled according to applicable
Sections of 2 NCAC, Chapter 9B, Subsection .0022(2) (21
CFRPart 101).
(b) Frozen lowfat yogurt i s the food which i s prepared by
freezing whil e stirring, a pasteurized mix consisting of th e
ingredi ents provided for in ic e cream and which max contain
oth er safe and suitable ingredi ents. All dairy ingredi ents are
cultured—afte r paste urization—by one or more—
s
trains of
Lactobacillus bulgaricus and—Streptococcus thermophilus,
provided, however, fruits, nuts, or other flavoring material s
may be added before or after the mix is pasteurized or
cultured.—Frozen low fat yogurt, exclusive of any flavoring,
contain s not l ess than 0.5 percent nor more than 2 percent milk
fat, not l e ss than 8.25 perc ent milk solids not fat. The finish ed
yogurt s hall we igh not l ess than fiv e pounds per gallon. The
titratabl e acid i ty of frozen lowfat yogurt is not l ess than 0.5
percent, calculat ed as lactic acid, except if the frozen yogurt
primarv flavor is a non fruit characterizing ingredi o nt( 5 ). The
characteristic acidity is developed by th e bacterial activity and
no h eat or bacteriostatic treatment, other than re frigeration,
which may re sult in de struction or part i al destruction of th e
organism s , shall be appli ed to th e product after culturing. The
product, when in package form, should be label ed according to
applicable sections of 2 NCAC, Chapter OB, Subsection
.0022(2) (21 CFRPart 101).
(-e4 Frozen nonfat yogurt is the food which is prepared by
freezing whi le stirring, a past eurized mix consi sting of th e
ingredi ents provided for in ic e cream and which may conta i n
oth er safe and s uitabl e ingredients. All dairy ingredients are
cultured aft er pasteurization by one or more strains of
Lactobacillus—bulgaricus—artd
—
Streptococcu s
—
thermophilus,
provided, however, fru i ts, nuts, or other flavoring material s
may be added before or aft er the mix is pasteurized or
cultured.—Frozen nonfat yogurt, exclusive of any flavoring.
7777 NORTH CAROLINA REGISTER April 15, 1999 13:20
PROPOSED RULES
contains l ess than 0.5 percent milk fat, not less than 8 .25
pe rcent milk solid s not fat. The finished frozen yogurl shall
w e igh not l es s than five pounds per gallon.—The titratable
aciditv' of frozen yogurt is not less than 0.5 percent, calculat ed
as lactic acid, except if the frozen nonfat yogurt primary flavor
is a non fruit characterizing ingredi ent(s). This characteristic
acidity is developed by th e bacterial activity and no heat or
bacteriostatic treatment, other than refrigeration, which may
result in destruction or partial destruction of the organism s ,
s hall be appli ed to th e product aft er culturing.—The product,
when—in package form, should be
—
labeled according to
applicable section s of Chapter 9B. Subsection .0022(2) (21
CFRPart 101).
Authority G.S. 106-128: 106-253: 106-267.
it'k'k-k'kitit'k'k'k-k'k'k'k'k'k-k'k'k'k
Notice is hereby given in accordance with G.S. 150B-21.2
that the North Carolina Board of Agriculture intends to
amend rule cited as 2 NCAC 43L .0309. Notice of Rule-making
Proceedings Mas published in the Register on January
15. 1999.
Proposed Effective Date: July 1. 2000
Instructions on How to Demand a Public Hearing (must be
requested in writing within 15 days ofriotice): Any person may
request a public hearing on the proposed rule by suhtnitting a
request in writing no later than May 1. 1999, to David S.
McLeod. Secretary. North Carolina Board ofAgiculture. P.O.
Box 27647. Raleigh. NC 27611.
Reason for Proposed Action: To provide additional
revenues to meet increased operating expenses of Mountain
State Fair
Comment Procedures: Written comments men- be submitted
no later than May 17, 1999, to Dm'id S. McLeod, Secretary.
North Carolina Board of Agriculture. P.O. Box 2'647.
Raleigh. NC 27611.
Fiscal Note: This Rule does not affect the expenditures or
revenues of state or local government funds. This Rule does
not have a substantial economic impact ofat leastfive million
dollars (S5. 000.000) in a 12-month period
Agricultural Center grounds during the North Carolina
Mountain State Fair must pay the established admission fee,
except persons holding worker's permits. One-time-only
admissions will be issued to those persons who are employed
by the fair or are asked to appear on the grounds by the fair
management for a specific purpose relative to the operation of
the fair.
(b) The gates of the Western North Carolina Agricultural
Center will open one hour prior to fair time and close one hour
after closing of the fair midway each day of the fair. Opening
of the fair midway and exhibit building may vary each day of
the fair.
(c) The Western North Carolina Agricultural Center
Manager may operate a pass-out system at one or more of the
outside gates during the fair. Persons exiting through these
gates may, upon request, have their hand or vehicle stamped
for readmittance through the same gate without additional
charge. Readmittance must occur before 10:00 p.m. on the
same day as pass-out or the hand stamp will not be honored.
(d) Outside gate admission prices are as follows:
( 1
)
adult/child, 1 3 years of age and over $4:OO$5.00
(2) child, 6 through 12 years of age 2.00
(3) child, under 6 years of age Free
(4) senior citizen (age 65 and over) 2.00
(e) Outside gate admission prices for advance ticket sales
are as follows:
(1
adult/child. 13 years of age and over $3^3#$4.00
(2) child. 6 through 12 years of age 1.50
(3) child, under 6 years of age Free
(4) adult group sales purchasing a
minimum of 40 tickets J^OO3.50
(5) senior citizen (age 65 and over) 1.50
(0 The Western North Carolina Agricultural Center
Manager may offer to exhibitors and concessionaires during
the North Carolina Mountain State Fair a reduced rate for gate
admission. If offered, such discount tickets ma\ be purchased
from the administration office. Each discount ticket shall
allow one admission during each day of the fair. These cards
shall be non-refundable, whether used or not. and shall be used
only by persons involved w ith concessions or exhibits, and not
for general admission. The purchaser of said tickets shall
furnish to the Western North Carolina Agricultural Center
Manager a list of names to whom ticket will be issued.
Authority' G.S. 106-530: 106-6.1.
CHAPTER 43 - MARKETS
SUBCHAPTER 43L - MARKETS
SECTION .0300 - FEES: WESTERN NORTH
CAROLINA HORSE
AND LIVESTOCK FACILITY FEE SCHEDULE
.0309 ADMISSION REGULATIONS
(a) All persons entering the Western North Carolina
Notice is hereby given in accordance with G.S. 150B-21.2
that the North Carolina Department of .Agriculture and
Consumer Sen-ices intends to adopt rides cited as 2 NCAC 54
.0101 - .0105. Notice of Rule-making Proceedings was
published in the Register on January 15. 1999.
Proposed Effective Date: .July 1. 2000
Instructions on How to Demand a Public Hearing (must be
13:20 NORTH CAROLINA REGISTER April 15, 1999 171H
PROPOSED RULES
requested in wriling within 15 days ofnotice): Any person may
request a public hearing on the proposed rules by submitting a
request in writing no later than May 1, 1999. to David S.
McLeod, A PA Coordinator, North Carolina Department of
Agriculture and Consumer Services. Legal Affairs Office. P. O.
Box 27647. Raleigh. NC 27611.
Reason for Proposed Action: Session Law 1998-212.
Section 13 5 created a grant program for purchase of animal
waste management equipment by family-owned dairies. The
legislation requires the Department of Agriculture and
Consumer Services to adopt rules establishing guidelines for
disbursing the funds.
Comment Procedures: Written comments may be submitted
no later than May H. 1999. to David S. McLeod, A PA
Coordinator North Carolina Department of Agriculture and
Consumer Ser\'ices. Legal Affairs Office. P.O. Box 27647.
Raleigh. NC 27611.
Fiscal Note: These Rules do not affect the expenditures or
revenues of state or local government funds. These Rules do
not have a substantial economic impact of at least five million
dollars (S5.000.000l in a 12-month period
CHAPTER 54 - GRANT PROGRAMS
SECTION .0100 - WASTE MANAGEMENT
EQUIPMENT GRANTS FOR DAIRIES
.0101 PURPOSE
The purpose of this Chapter js to estabhsh guidelines for
disbursing grants to famiiv-owned dairy farms for the purchase
of animal waste management equipment, pursuant to Section
13.5 of Session Law 1998-212.
Authority: SL 1998-212. s. 13.5.
.0102 DEFINITIONS
As used in this Chapter.
(a) "Dairy cow" means a cow that js being used for milk
production:
(b) "Family-owned dairy farm" means a dairy farm that
is owned or leased by one or more individuals who
are actively invoked in tfie operation of the farm, or
a dairy farm owned by a business entity which is
controlled by such individuals.
.Authority: SL 1998-212. s. 13.5.
.0103 ELIGIBILITY
Family-owned dairy farms which uere in operation prior to
January f, 1998. and which have fewer than 300 dairy cows
are eligible to apply for grants under this program.
Authority: S. L 1998-212. s. 13.5.
.0104 USE OF GRANTS
Grants shall be used for the purchase of equipment that is a
component of an animal waste management system and that is
used solely for transporting, storing, or distributing animal
waste. This equipment shall be limited to: pumps, spraying
equipment, scrape blades, box blades, storage equipment, and
any transport equipment, including tanks, spreaders, and
applicators. Grants shall not be used to enlarge or maintain
anaerobic lagoons. Grants shall not be used to purchase
equipment in connection with the Agricultural Cost-Share
Program administered by the Soil and Water Conservation
Commission pursuant to G.S. 143-215.74. or in connection
with any other government program.
.Authority-: S L 1998-212. s. 13.5.
.0105 AVAILABILITY AND AMOUNT OF GRANTS
Availabilirv of grants is subject to appropriation of funds by
the General Assembly. The amount of individual grants will
be determined by the Commissioner of Agriculture based upon
availability of funds, number of applications, and other factors
necessary to ensure that funds are distributed in a fair and
equitable manner.
Authority S L 1998-212. s. 13.5.
TITLE 4 - DEPARTMENT OF COMMERCE
Notice is hereby given in accordance with G.S 150B-21.2
that the Commerce Finance Center intends to adopt the
rule cited as 4 NCAC II .0801. amend the rules cited as 4
NCAC 11.0 101 -.01 02. .0201 -.0202. .0301 -.0302. .0402-.0404,
.050I-.0503. .0-01 and repeal the rules cited as 4 NCAC 11
.0303-.0304. .0401. .0405. .0601. Notice of Rule-making
Proceedings was published in the Register on February 1.
1999.
Proposed Effective Date: .August 1. 2000
A Public Hearing will be conducted at 10:00 a.tn. on Ma}- 5.
1999 at the Education Building, Conference Room (#536), 5"'
Floor 301 N. Wilmington. Street. Raleigh. NC.
Reason for Proposed Action: For the Industrial
Development Fund, rule changes arise from recent additions
or changes to the William S. Lee .Act: increase in IDFfunding,
the allowance of2% of the funds for grant administration, the
addition of Tier Area designations, local government matching
requirements specified, editorial changes needed to effect
efficient administration ofthe program.
Comment Procedures: Comments may be submitted
through May 17, 1999 to the North Carolina Department of
Commerce, Commerce Finance Center 301 N. Wilmington
Street, PO Box 29571, Raleigh, North Carolina 27626-0571,
and the contact person is Charles Johnson.
1719 NORTH CAROLINA REGISTER April 15, 1999 13:20
PROPOSED RULES
Fiscal Note: These Rules. 4 NCAC II .0101. .0202. .0302.
.0402. .0501 -.0505. do affect the expenditures or revenues of
local government funds and the expenditure or distribution of
State funds subject to the Executive Budget Act. .Article I of
Chapter 143. These Rules do not have a substantial economic
impact of at least five million dollars ($5,000,000) in a 12-
month period.
Fiscal Note: These Rules. 4 NC.4C II .0102. .0201. .0301.
.0303-.0304. .0401. .0403-.0405. .0601. .0701. .0801. do not
affect the expenditure or distribution of State funds subject to
the Executive Budget Act. Article I of Chapter 143. These
Rules do not have a substantial economic impact of at least
five million dollars (S5.000.000) in a 1 2-month period.
CHAPTER 1 - DEPARTMENTAL RULES
tbj EMERGENCY ECONOMIC DEVELOPMENT
SUBCHAPTER 11 INDUSTRIAL DEVELOPMENT
FUND
SECTION .0100 - PURPOSE AND DEFINITIONS
.0101 BACKGROUND AND OBJECTIVES
(a) BASIC
—
The purpose of the North Carolina Industrial
Development Fund (al so to be known as the Industrial
Building and Renovation Fund) is to assist local town , cit} or
counts' governments with incentive industrial financing l ocated
in the mos t economically depres sed counti es in th e stat e, in
areas ot" the state that have been designated as eligible tier
areas by NC General Statutes. This assistance will be is
intended to help those units of governme nt create new jobs by
providing financing for th e renovation or improvement and
expansion of manufacturing or industrial buildings so a s to
induce "private profit making "
entities to occupy, by lease or
purchase.—and—te
—
operate
—
manufacturing—or
—
industrial
bus inesses , units of government offer to jts new and expanding
industry, new or improved infrastructure, or funds for building
renovation and equipment jn exchange for commitments to
create new, full-time jobs in industries currently eligible under
NC General Statutes. (The fund is not designed to be used for
the acquisition of land and buildings or constructing new
buildings.) If the assistance js used for infrastructure, it shall
be granted to local governments with no repayment: however.
if it is used to purchase equipment or to renovate industrial
buildings, then the funds must be repaid. But whether a grant
or a loan, the amount of funds to be made available for a
project shall be determined by tlie number of new jobs
committed, with a maximum job limit and project limit as
currently authorized for the program by NC General Statutes.
fb)
—
The obj ectiv e of thi s program will be to provide now
full time jobs for North Carolina citizens . The Department will
necessarily detennine that th e renovations and improvements
are a neces sary part of the private finns deci s ion to provide th e
new jobs, if it is det ermined that the private finn would have
(or has already begun to) spend privat e money to make th ese
renovat i ons and create these jobs, no funds from this program
will be expended.
ASSISTANCE—This special assistance from the Industrial
Development Fund, which is used at the discretion of the
Secretary, is available to units ot" government that have, or
shall imminently experience, a loss of 500 or more
manufacturing jobs in the county, or a number of
manufacturing jobs equal to at least ten percent of the
manufacturing workforce in tlie county. Where a unit of
government relies on tlie 500 jobs loss as the threshold for
obtaining this special assistance, it must submit convincing
evidence that the loss seriously impacts the counr^'s economy,
taking into account the county's tier ranking under .0701 of
this Subchapter. The funding obtainable under this emergency
assistance category shall not necessarily be determined bv the
number of new jobs to be created, although the project should
lead to new jobs, or save jobs, or both, and help alleviate a
jobs dislocation problem. The Secretary shall detennine the
amount of funds for a project, ug to tlie maximum currently
authorized for the program by NC General Statutes. This
assistance shall be jn thie form of a low interest loan to the
governmental unit, amortized over five years with repayment
beginning at the end of the second year.
(cj UTILITY ACCOUNT — Within the IDF structure, the
Utility Account provides financing to units of government for
jobs creation and investment jn tlie tier area(s). and for
benefiting firms currently authorized bv NC General Statutes.
Funds may be used for construction or improvements to water,
sewer, gas, or electrical utilit> lines and equipment for existing
or proposed industrial buildings. There is no specific amount
of funding specified for each new job or project, but the
impact of tlie funding should lead to tlie creation of new jobs
and new investment. As with basic IDF financing, if Utility
Account funds are spent for public property, the assistance
shall be a grant; for private property, it shall be a loan.
(dj CLEAN WATER BONDS PROCEEDS - Clean Water
bonds proceeds from the IDF shall be used to make grants to
local government units to gay tlie cost of clean water projects
for economic development with regard to tfie locating of
industry to. and the expansion of' industry in tfie State. These
funds shall be administered in tfie manner permitted in the
Basic IDF and tfie Utility Account except the following
limitations shall apply:
( 1) The funds shall be used for grants: not loans.
(2) Grants shall be made only for projects that will have
a favorable impact on tjie clean water objectives of
the State.
(3) Projects shall be located jn economically distressed
counties or those that have a population of less than
50.000 determined from the data derived at tfie time
of the last December ranking of economically
distressed counties.
(4) Grants may be made only with respect to the
industries specified by tjie Clean Water and Natural
Gas Critical Needs Bond Act of 1 998 as amended.
(5) The water or sewer utility lines or facilities for
which bond funds are disbursed shall not necessarily
be located on tlie sjte of a building or proposed
building at yvhich an industrial activity occurs if the
13:20 NORTH CAROLINA REGISTER April 15, 1999 1720
PROPOSED RULES
utility lines or facilities will further the clean water
objectives of the State.
to ail parts of the Industrial
Authority G.S. 143-437.01.
.0102 DEFINITIONS
These definitions apply
Development Fund including the Basic Emergency Economic
Development Assistance, Utility Account and Clean Water
Bonds for Economic Development:
(a) "Department" means the Department of Economic
and Community' Deve lopm ent, or its Secretary.
(1) "Department" means the North Carolina Department
of Commerce, or its Secretary.
f^ "Act" means Section 1 1 1 Part XXll of th e consolidated
budget act codifi ed as Chapter 830 of the 1987 Sess ion Laws
and amended bv G.S. 143B '137A. 1Q80.
G.S. 105-129.3.
(6) "Unit of Government" means a town, city or county
of the state.
(7) "Full-time Job" means a job that requires at least
1 600 hours of work in a year.
(8) "Infrastructure" means utilities, typically referred to
as "public utilities." or a rai] spur where there is
public ownership of the rail property.
(9) "Grant" means money given to a unit of government
to gay for an economic development project and
does not have to be repaid, if the terms of the grant
are fulfilled, i.e. the jobs commitment is met.
(10) "Loan" means money loaned to a unit of government
to pay for an economic development project, to be
repaid bv the borrower based on an amortization
schedule approved by the Department.
fg) "Proj ect" means one or more activiti e s proposed for
(e) "Applicant" means a unit of city government located in a funding, or for partial funding, under this Rule . Such a proj ect
will be described—in a narrativ e and accompani ed by a
preliminary set of drawings which set out the exact factual
situation and a detailed schedule of costs from a contractor or
engineer. The schedul e must constitute an ability to compl et e
{4^ "Industrial Development Fund" mean s th e appropriation such proj ect with no more than a ten percent contingency. All
of monies given to the Department for these purpose s. This such proj ect material will provide evaluations of potential for
fund will also be known as and re fe rred to as th e Industrial unusual s ite characteristics which might i nfluence con struction
qualifi ed county or a unit of county government which meets
the de finition of a qualified county.
(2) "Applicant" means a North Carolina unit of
government that applies for IDF funds.
Building Renovation and Improvement Fund.
(3) "Industrial Development Fund" as referenced m
G.S. 143B-437.01 means the fund within the
Department's fiscal structure jn which the
appropriation of monies for industrial development
projects is received and disbursed.
(4) "IDF" means the Industrial Development Fund.
(e) "Qualifi ed County"—means one of th e 50 most
economically depressed counti es in th e stat e . The Secretary of
th e Department shall det ermine which counti es are th e most
economically depressed counti es in the state based on: rate of
unemployment, per capita income, and re lative population and
work force growth or lack of growth, as determin ed by the
Secretary. The figures used in making this comparison and the
de lineation of "most" and "l east" will be th e latest available
per capita incom e figures by county, as documented in a
publi shed form by any Stat e or Federal Agency generally
recognized as having experti se and—creditability in these
fi eld s .
ff) "Emergency Ass i stance Qualified Counts" mean s any
count^' which is facing the threat of. or which i s experiencing a
major economic dislocation. A major economic dislocation
would mean the actual or imminent los s of manufacturing jobs
caused by one or more plant clo s ing(s) or one or more
announced plant layoff(s) which affect:
fH at lea s t 500 jobs: or
{¥> a number of jobs which is equal to or exceeds ten
percent of the exi sting manufacturing work forc e .
In the case of Subparagraph (f)(2) of th e Ru le , the numbe r of
jobs impacted mus t exceed 50.
(5) "Eligible tier areas" means the aggregation of North
Carolina counties into groups m uhich certain
economic benefits apply, as currently authorized by
or operating costs. In each case, the proj ect description will
document th e direct relationship between the proj ect and th e
jobs created.
(11) "Project" means an activity proposed for IDF
funding, h shall be described narratively jn an
application and accompanied by a preliminary set of
drawings, or sketches. _or other data that present the
project in factual detail, together with a schedule or
itemization of costs from an engineer or contractor.
The schedule of costs shall constitute the ability to
complete a project with no more than a K) percent
contingency.
{i) Proj ect expenditures for existing buildings may include :
(12) Project expenditures may include:
(a) For basic IDF
—
(i) the construction of. or improvements to
existing water, sewer, gas or electrical
utility systems, distribution lines, or
required storage facilities, or a raji spur
when either is publicly ovsned and
operated, and or:
(ii) the renovation of buildings to include
including structural repairs, structura l
improvements—sueh—as roof repair,
repairs, addition of docks, er—the
erection of walls, or special structural
supports to support cranes for heavy
equipment, electrical upgrades, or
HVAC upgrades;
(iii) improvements to th e building that are
necessary to make the a building
suitable for the occupancy of th e
building by the
—
occupant—awd the
1721 NORTH CAROLINA REGISTER April IS, 1999 13:20
PROPOSED RULES
operator of the project. Such
improvements may include mechanical
equipment such as heating er and air
conditioning equipment, plumbing,
pipes or trenching to handle effluents
or process water, special electrical
additions necessary for ovens, furnaces
or other processors and lighting. If a
renovation—er an improvement is
critical to the operation of a particular
manufacturing or industrial businesses
business, or. if such improvements are
or is critical to the decision making
process pertinent to the creation of
suehjobs. the actual improvement need
not be located on the site of the
industrial main project building. If,
however, a grant of funds js involved,
the improvement must be constructed
on public right-of-ways or on property
which the unit of eovemmeni has an
easement to treat as U normally would
do as if it oowwnneedd the property.
However. when extending
infrastructure to a flnn. IDF assistance
ends at the private property line. SttH
In either situation , the application must
document the exact relationship ef
between the jobs and the project. An
example of a fundable project would
be the case where a the unit of
government must construct an elevated
water tank and service water lines to
provide water to a building so as to
provide sprinkler water to a building
where such service is directly required
to operate the an industrial er
manufacturing business. An example
of an unfundable project would be
where a unit of government seeks to
expand or to repair its water utility (or
other infrastructure) system and where
the relationship to the creation of jobs
is fairly general or indirect vague. The
project wtH shall be described m from
the perspective of employment to be
created in the and its impact area of to
the project. Direct and indirect jobs
wtW—be
—
treated—separateK—m—the
di scuss ion. The operator of the proj ect
will provide detail s as to the nature of
direct jobs creat ed, including the s ki l ls
required, work conditions, wages paid
and seasonal influences on the number
of work days per year.
fD) the installat i on ef—e>r purchase ef
manufacturing equipment er proce ss
production s equipment.
(iv) the purchase and installation of
equipment that is associated with the
industrial classification of the project.
(34 In the case of counties designated as "severely
depressed".—proj ect—
e
xpenditures
—
meff—include
con struction of or improvement to new or existing
water, sewer, gas. or e l ectrical utility distribution
lin es—or equipment to—serve new—or proposed
industria l buildings to be used for manufacturing
and industrial operations. Such infrastructure shall
be located on the site of th e bui l ding or directly
related to the specific manufacturing activity.
(b) For Emergency Economic Development
Assistance—Loans to local units of
government for economic development
projects designed to create jobs, lead to the
creation of jobs, or save jobs, and to assist m
alleviating the economic dislocation created
by the loss of jobs.
(c) For the Utility Account
—
li) the construction of. or improvements to
water, sewer, gas or electrical utility
systems, distribution lines, or required
storage facilities, or a rail spur or rail
line when either js publicly owned and
operated, and or:
(ii) equipment for existing or proposed
industrial buildings for operations m
the industrial classifications that are
currently eligible to receive Utility
Account funding within the tier area.
(e) "Renovation" shall have the same meaning as proj ect, as
described in Paragraph (g) of this Rule.
{f) "S ecretary " means th e Secretary of the Department, or
his designee.
(g) "State" means the State of North Carolina.
(d) For Clean Water Bonds
(i) the construction of or improvements to
new or existing water or sewer
distribution lines or equipment,
the construction or improvements to
new or existing wastewater treatment
facilities, or
improvements that will expand the
capacity of existing wastewater
treatment facilities or water supply
systems.
"State" means the State of North Carolina.
(ii)
(iii)
(13)
fk) "Severely Depressed" counties means those counti es so
designated under G.S. 105 130.10(c) or G.S. 105 l51.17(c)or
unit s of governments within those counti es.
( 14) "Application" means the pages of documents [n
which an applicant for IDF funds identifies itself
describes a project, specifies the funds required,
provides a breakdown of project costs, and submits
the benefiting firm's commitment to create jobs and
evidence of its credit worthiness.
(15) "Local Matching Funds" means funds of a unit of"
13:20 NORTH CAROLINA REGISTER April 15, 1999 1722
PROPOSED RULES
government contributed to an economic
development project for the purpose of assisting in a
total financing package and earning (or winning)
other funds bv doing so. Matching js usually
expressed as a ratio, i.e. one local dollar for three
state dollars, or one for three.
(16) "Local Matching Requirement." The Department
requires local matching in grant projects except for
Emergency Economic Development Assistance
projects and those located in a tier area that has been
exempted from matching by NC General Statutes.
The required rate shall be one for three, or one local
dollar for each three state dollars.
(17) "Participation Loan" means a loan between at least
three parties, to wit: A bank or financial institution.
the private firm, and the unit of government. The
essence of a participation loan js that the bank, or
financial institution, and the unit of government
shall share at least equally in the lending
arrangements, meaning the money loaned and the
risk involved and collateral shared.
(18) "Borrower" means the private firm identified in a
participation loan for building improvement or
equipment in ttie basic IDF, or thie unit of
government when the money is spent for emergency
economic dislocation assistance or when the money
is reloaned in a utility account project. AdditionalK.
the unit of government shall be the borrower when
IDF is used to assist local matching, or rn other
cases when the Department believes the project can
be more prudently structured as a loan rather than a
grant.
(19) "Preapplication Conference" means a meeting held
at thie Department to discuss a proposed IDF
application and includes: a representative of
Commerce Finance Center; the applicant; an official
of the benefiting firm; and a banker, if a
participation loan is involved. A preapplication
conference may be waived when the total IDF
expenditures are expected to be fifty thousand
dollars (S50.000.00> or less.
(20)fH "Clean Water Objectives of the State" include:
moans providing cl ean water in North Carolina by:
Reducing the reliance on wells, septic tanks
and similar facilities;
Allowing residences, businesses, or local
governments not otherwise served bs water or
sewer or wastewater infrastructure to connect
into a distribution line or system (for water
supply, sewer, or wastewater) being furnished
in an economic development project for new
or expanding industry.
Authority G.S. 105-129.3. N3B-I37.0I.
SECTION .0200 - GENERAL REQUIREMENTS
.0201 DATE OF RECEIPT OF APPLICATIONS
The Department of Commerc e will shall receive applications
after November 15, 1987 on a first-come, first-serve basis. An
application Applications w+H shall be assigned a processing
ease number when that application it is received and is judged
to be sufficiently complete for consideration. Where When
possible, applications will shall be processed in the order of
the processing numbers assigned.
Authority G.S. 143B-43'7.01.
.0202 APPLICATION CATEGORIES AND
REQUIREMENTS
fa) Applicants can apply for funding under different grant
categori es, including the categori es of
(44 utility improvements or additions owned by public
bodi e s;
(5) utility improvements or additions owned by private
entiti es ;
(44 industrial facilities ovNTied by public bodies but
being l ea sed or being improved for immediate or
de layed sale to private operators, or to private
"arms length" landlords ;
(4) industrial and manufacturing faciliti es owned by
privat e "non profit" entiti e s such as "Community
Developm ent Corporation s
" or Committees of 100"
funded andor endorsed by th e elect ed l eadership of
the unit of Government; and
(4) industrial and manufacturing facilities owned by
"for profit" entiti es to be improved by funds loaned
to the private "profit making" entity by a unit of city
or county government .
(a) Applicants ean ma\ appK for funding under different
categories, including: the following categories:
ID Basic IDF;
(2) EmergencN' Economic Development Assistance;
(3) The Utiliu Account;
(4) Clean Water Bonds Proceeds.
(b) There is no set minimum grant amount of funding which
applicants may request er to be awarded. If there are practical
difficulties about a small amount or cost disadvantages, these
\Nill be discussed with the applicant in a preapplication
conference. Grant IDF awards shall not exceed the total
amount specifi ed appropriated by the General Assembly in its
appropriation process. Chapter 8 30 of the 1987 Session Laws,
in Section 111, Paragraph (2), limit ed th e maximum grant to a
sum not to exceed th e lesser amount the two hundred fifty
thousand dollars (S250,000). or a total of twelve hundred
dollars (SI.200) for each job created. For basic IDF.
Emergency Economic Development Assistance, and Clean
Water Bonds Proceeds, per job or per project maximum
funding limitation will l^e thie amounts established under
current law. There js no maximum set for Utility Account
funding; but the amount ot' awards will be determined by the
Secretar\. For th e purpose of thi s S e ction basic IDF. the per
job limitation shall be imposed applied on the basis of
requiring a commitment from the occupying industrial or
manufacturing firm operator of tlie business as to the number
of jobs it will create that shall be created over a reasonable
1723 NORTH CAROLINA REGISTER April!5, 1999 13:20
PROPOSED RULES
period of time, not to exceed three years. The number of jobs
created will include only those peopl e directly employed i n
permanent or seasonal jobs by the operator who occupies th e
facility; indirect and temporary jobs will not be included.
Those will be permanent, full-time jobs; no temporary or
contract jobs.
(c) When a proj ect renovation or improvement i s to be
accomplished to a building or on a site owned by a private
entity, wheth er th e private entity is conducted on a "for profit"
or on a "not for profit" basis, th e proj ect will be financed by a
loan to that private entity. This loan vs il l be made to the private
entity by the local unit of government with funds made
avai labl e from this program. In each case, the local unit of
government will—establish—its own—authority' to—do that
financing. The applicant will require and provide to th e
Department of Commerce sati s factory documentation that all
costs are reasonable and that all funds are to be expended with
regard to th e conflict of interest statutes regulating bus iness
transactions between government officials and othe r involved
parti es.—The
—
applicant—wtW
—
propose—a—pten
—
of proj ect
administration which k satisfactory for th e Department of
Commerce.
(d) All funds expended which directly ass ist participating
privat e entities mus t be repaid to grant recipients and then
returned to th e Department of Commerce as such repayments
are rece ived. Such repaid funds will not be returned to the
General Fund, but set as id e to fund new proj ects approved
under this Subchapter. Generally, proj ect grants cla s sifi ed
under Ru le .0202 (a) (I) will not be repaid. Repayment for
proj ect s
—
otherwise
—
classifi ed—may—be
—
giv en—subord i nate
collat e ral positions, int erest costs which are at l ess than market
rat es, or amortization which de fers cash flow, in so long as
requests are documented as necessary to th e creation of jobs
and th e success of the proj ect.
( e ) A proj ect will be subject to review b> the Department of
Commerc e at any time during the first three years after the
proj ect begins. For a proj ect clas sified under Rul e .0202 (a) (2)
(3) ( 4 ) and (5) of this Rul e , any repayment balance that it owes Authoril}' G.S. 143B-437.01.
this means that if the bank takes a certain collateral position,
the unit of government shall share m that position. If either an
out-of-state bank or a financial institution other than a bank js
used in a participation loan, that must be approved by the
Department.
(e) IDF funds may be provided to a unit of government to
meet matching funds requirements. In this case the
Department shall furnish a loan repayment schedule to the
mayor, city manager or county manager, which, m addition to
the award letter and application, will establish the
responsibility for repayment, and times and amounts of
repayment.
(f) Loans for Emergency Economic Development projects
shall be accomplished as in Paragraph (d) of this Rule.
(g) Loans for Utility Account projects will be accomplished
as in Paragraph (d) of this Rule.
(h) With either grants or loans, the Department shall require
financial information from the project owner or operator to
establish financial capability. The usual requirement will be
the preceding three years' financial and operating statements;
for new businesses, at least three years pro forma statements
and a business plan. In any case, the Department may use
credit reports, bank information, or other data that it deems
appropriate to establish the credit worthiness of the borrower.
tij A project will be subject to review by the Department at
any time during the first three years after the project begins.
y ) The Department may require a unit of" government to
partially or fully accelerate loan repayments if the operator's
business has closed, moved, or if thie company has not made
reasonable progress toward its jobs creation commitment. The
Department may require repayment of a grant, partially or
fully, if thie operating company has moved, closed, or hias not
made satisfactory progress towards its jobs creation
commitment; and, in tfie case of Emergency Economic
Development Assistance or the Utilits' Account, if funds are
not spent in the manner for which they were approved.
the—
l
ocal unit of government may be partii -ftiHy
acce l erat ed if the bus ines s has closed, or if the operating
company has not made reasonable progres s towards its jobs
creation goal.
(c) The Department may authorize a local unit of
government that receives IDF funds to use up to two percent
of the funds to verify that expenditures are made fn accordance
with the law and rules and to otherwise administer the IDF
project.
(d) Under basic IDF, improvements to building properties
and equipment purchases (either of which becomes private
property) shall be loan projects and will be accomplished with
participation loans. The three parties to a participation loan
shall be: the borrower's North Carolina bank, the borrower,
and the unit of government. The bank and the unit of
government (using I DF funds) shall be at least equal
participants, sharing equally jn the funds provided and in the
risk and collateral involved. The bank, however, rnay supply
more money than just matching IDF; in thus case, the bank's
pro rata share is larger. Also, in tlie matter of sharing equally.
SECTION .0300 - SELECTION PROCESS
.0301 REVIEW OF APPLICATIONS AND FUNDING
(a) Applications w+H shall be submitted in a manner
prescribed by the Department. Selection of applications for
funding wtH shall be based primarily on information contained
in the application. Thusly the application application, yvhich
must provide sufficient information so as to allow the
Department to rate it against the se l ection approval criteria.
When an application is deemed complete, it w4H shall be
assigned a processing ease number.
(b) Applications for funding of Emergency As si stance
proj ects may be submitted directly to the Secretar> of the
Department. They may also be submitted to the Department's
Commerce Finance Center. Room 2171. Dobbs Building. 430
N. Sali sbury Street. Post Office Box 29571. 301 North
Wilmington Street. Raleigh. North Carolina 2761 1. 27626-
0571. The Department will maintain a pol i cy that appl i cation s
Applications shall be approved or denied by the last day of the
13:20 NORTH CAROLINA REGISTER April 15, 1999 1724
PROPOSED RULES
calendar month following assignment of a processing ease
number as set out in Rule .0201(a). number. When possible,
applications wiH shall be processed in the order that ease
processing numbers are assigned.
Authorit}' G.S. 143B-437.0I.
.0302 ELIGIBILITY REQUIREMENTS
Applications wtW shall show that:
(1)
(2)
(3)
(4)
(5)
16]
m
18]
That this funding is a vital part of the proposal to
create the jobs set out and that the jobs wtH shall not
be created if the project goes unfunded, and
That the project is completely funded or financed,
except for the particular funds sought in the
application, and
The the involvement of the local unit of government
is formally authorized by its elected board under
specific resolution and by specific State Statute, and
The the participating private entity m«st provide
provides a 4etter statement of commitment relating to
the project. That l etter commitment wtW shall state
that the project is to be carried out as described in
the application, with specificity as to time schedules
and to the parties involved, involved, and
the expenditure of private money on the project has
not begun, and
the project has not yet begun, i.e. money spent on
the project, or public announcements made that the
benefiting firm plans to do the project before the
Department has been requested to participate with
IDF.
For Emergency Economic Development Assistance
Projects, there exists an emergenc\ in the economy
large enough to be considered an economic
dislocation as set out m OS, 143B-437.01 (a)(la).
and
The project for which funding js sought might help
to alleviate the economic emergency described m
Subparagraph (7) of this Rule.
Authority G.S. 143B-43'.0I.
.0303 REVIEW: APP/FUNDING/EMGCY ASST
PROJ DEFINED/RULE .0102(h)
Rule .0102(h) will show that:
{M the economic emergency exists, or is imminent, and
(2j the
—
proj ect will, or will tend to. alleviate the
especially s evere economic emergency caused by the
described economic dislocation.
Authority Section LX of Chapter 754, 1989 S.L
SECTION .0400 - APPROVAL CRITERIA
.0401 GENERAL
In order for th e Department to approve a proj ect, or an
"Emergency Ass istonce proj ect", the Secretary is required to
make
—
certain—findings
—
necessary—te
—
document—that—(he
Department i s conducting the duti es specifical l y given to it in
Chapter 830 of the 19 8 7 Session Laws, those duti es expressed
m—oth er General—Statut e s, and in—Rul e .0^102 of these
procedures, in a responsibl e and prudent manner.
Authority Section 111 of Part XXII Chapter 830. 1987 Session
La\ss: Section LX ofChapter 754. 1989 S.L.
.0402 REQUIRED FINDINGS
(a) Before the Department ean shall begin to make the
approval as specified in G.S. Chapter 830. approve a project, a
finding must be made that the project:
(1
)
Will w+h shall assist a unit of Government in one of
the most economically depressed counti es eligible
tier areas of the State State: as measured by median
per capita income , and
(2) The the funds wih shall be used for renovation of
buildings buildings or infrastructure or equipment te
be used in manufacturing and industrial operations
currently e ligibl e under NC General Statutes by
firms that have industry classifications currently
eligible for tax incentives under G.S. 105-129.4.
(b) The secretary Department wih shall document,
document a finding based on data provided to him either in the
application or by staff research, that the jobs to be created by
this a proj ect project, over no more than a three year period,
w+tt shall be large enough in number to have a measurable
favorable impact on the area immediately surrounding the
project and wih shall be commensurate with the size and cost
of the grant to the project. The Departm ent will use as a
Applications for funding for proj ects defined in Rule .0102 guide lin e , a standard of requiring one job saved or generated
(h) will show that:
f-H There exi sts an emergency in th e economy large
enough to be considered an economic dislocation as
set out in G.S. 113B 4 37(d) and.
(3-) That th e proj ect for which funding is sought might
he lp to alleviat e the economic emergency described
in Subparagraph (1) of this Rul e.
Authority Chapter 754. 1989 SL
.0304 ELIGIBILITY REQ/EMGY ASST PROJ
DEFINED/RULE .0102(h)
Application for Emergency Assistance proj ect s defin ed in
for each one thousand two hundred dollars (SI.200) in grant
financing. The applicant has the burden of demonstrating that
the jobs wtH shall have a measurable impact on the county.
The applicant must show by clear and convincing evidence the
number and type of such jobs generated.
(c) The secretarv' Department w4h shall make a finding that
the operator of the proposed project has demonstrated the
capabilities to operate such a facility. The applicant has the
burden of showing that capability exists in the operator to
operate and maintain the facility efficiently and effectively.
Financial strength and prior related experience by the operator
shall be given great we ight, evaluated. Where little or no pri or
experience can be demonstrated, the qualifications of
)
1725 NORTH CAROLINA REGISTER April 15, 1999 13:20
PROPOSED RULES
management, including production or engineering staff, as
applicable, shall be of great prime significance.
(d) The secretary Department wi+l shall make a finding that
the IDF financing of such for a project by th e authorit\ w+U
shall not cause or result in the abandonment of an existing
similar industrial or manufacturing facility of the proposed
operator of an affiliate elsewhere in the State unless the facility
is to be abandoned because of obsolescence, lack of available
labor, or site limitations. The Department shall consider an
abandonment statement as prima facie proof of lack of
abandonment.
(e) For EmergencN Economic Development projects, the
Department shall make a finding that:
(1
)
the economic emergency exists, or is imminent, and
(2) the project shall, or shall tend to, alleviate the
especially severe economic emergenc\' caused by the
described economic dislocation.
(f) For Utility Account projects, the Department shall make
a finding that the proposed funding should create new jobs or
reasonably be expected to lead to the creation of neu jobs m
the industries currently eligible for Utility Account financing
assistance as specified in G.S. 143B-437.01 (bl).
fe) The Department shall use th e definitions of terms found
in Section .0200 of thi s Subchapter to make th e se findings .
(g) For Clean Water Bonds projects, the Department shall
make a finding that the proposed project will have a favorable
impact on the Clean Water Objectives of" the State.
(h) The Department shall use the definitions of terms found
in Rule .0102 ot" this Subchapter to make these findings.
Authority G.S. 143B-437.01.
.0403 FORMAL APPLICATIONS PROCEDURES:
DENIAL
(a) Unless the applicant has met its various burdens of
proof, the secretary Department shall not make his ttie required
findings.
(b) All findings shall be in writing and where Where
adverse findings are made, they shall specifically indicate in
detail which elements of proof were weak, the required
conclusions which could not be made made, and any
suggestions for amending the application.
DEFINED/RULE .0102(h)
fa-) Be fore the Department can begin to make the approval
of and to fund an Emergency proj ect as de fined in Rul e
.0102(h). th e S ecretary will det ermine that th e economic
di s location described has cau sed an economic emergency and
that th e emergency is of such size that extraordinary measures
are required to h e lp all eviate th e emergency.
fh) That the funding for Emergency proj ects during the
current budget has not.
(e^ Even with the funding for the Emergency proj ect so
approved, will not exceed one hundred thousand dollars
($100,000.00).
.Authority Section IX ofChapter '^54. 1989 S.L.
SECTION .0500 - RESERVATION OF FUNDS
.0501 GENERAL
Units of government may apply for a "450 45 day
reservation" of funds, relating to a particular building
renovation.—se—as IDF project te
—
allow—leeal
—
units—ef
govommont to induce prospective private sector employers to
locate or expand and thusly. to create new jobs. The Secretary
Department may accept and approve the requests where local
units of government can document that :
(1
)
Document that they have the potential for a project of
strong merit;
(2) Where a particular employer is interested in a proposed
industrial building;
(3) Where strong competitive offers have been made to the
a client m by other states or where more comparative
proposals have been made to the potential employer by
communities located in the l east distre ssed counties, tier
areas not currently eligible for IDF funding. VenA
application would bo A request shall be prepared along
the lines of the application for approval described in
Rule .0302 of this Subchapter, except that the data
normally obtained from the client or potential
employees would not he necessarily be prepared by the
client and would not be required in such detail.
.4uthorit^ G.S 1438-43^.01.
.4ulhorit\G.S. 143B-43~.01.
.0404 FORMAL APPLICATION PROCEDURES:
APPROVAL
(a) Where the Secretary Department makes all the findings
necessary, he it w4h shall do so in writing to the applicant at
the earliest possible date after follow ing the procedures as set
forth in this Subchapter.
(b) The Secretary Department wi+l shall prepare a letter of
approval in which all hi s findings a s set forth and cause this
letter to be mailed to the applicant.
.Authority- G.S. I43B-43''.0I.
.0405 FINDINGS REQ/APPROVAL/EMGCY PROJ
.0502 LIMITATIONS
Such approvals Approvals to requests may be made in so
long as that the "reservation of funds" for that a project w+JI
shall not cause the total program funds "reser\ed" m that
manner to exceed a sum not larger than an amount equal to
on e third one-half of the total of program funds available and
not previousK committed, comm i tt ed in th e regular approval
process . The total of programs funds not previously committed
wiH shall include appropriated funds, those funds received in
repayment from recipients, interest earned, accrual in escrow
accounts and funds not used and reverted from either approved
projects or from "reserved" funds.
.Authorit\-G.S. 1438-43'. 01.
13:20 NORTH CAROLINA REGISTER April 15, 1999 1726
PROPOSED RULES
.0503 REVERSION OF FUNDS
An approval for "reservation" of funds for projects wi+t shall
not predicate approval or funding ef a project. When a formal
and complete application for approval of a project has not been
filed by the applicant that requested the reservation of funds,
before the expiration date of the "reservation of funds", the
Department may revert those funds back to the program
without any obligation to the unit of goverrmient. Such
revers ion of funds will be communicated to th e unit of
government in writing. The unit of government shall keep
track of when the reservation of funds expires.
SECTION .0800 - ENVIRONMENTAL COMPLIANCE
.0801 COMPLIANCE WITH NORTH CAROLINA
ENVIRONMENTAL RULES
Any local unit of government or grantee receiving Industrial
Development Funds (IDF), including Basic IDF. Utility
Account funds. Emergency Economic Assistance funds or
Clean Water Bonds proceeds shall comply with North
Carolina Environmental Policy Rules as cited in the North
Carolina Administrative Code unless the project activity js a
non-major activity, as cited in I5A NCAC QIC .0504.
Authorin- G.S. 143B-437.0L G.S. 143B-437.01.
SECTION .0600 - REPORTING REQUIREMENTS
.0601 REPORTING REQUIREMENTS
(a)
The Department of Commerce will report annually to
th e General Assembly concerning the applications made to the
fund and th e payments made from the fund and th e impact of
the payments in the targeted counties. This report will bo filed
annually with th e General As sembly e ith er at th e expressed
conven ience of th e House and th e Senate or by March I of
each year at the offic es of th e Lt. Governor and the Speaker of
th e House .
f^^
—
The Department of Commerc e will also fil e monthly
reports with the Joint Legi s lative Commission and th e Fi s cal
Research—Divi s ion.—These
—
reports—w4H
—
commence—en
November 30. 1987 and shall name the part\(s) to whom
payments were made.—in what amounts, and.—for what
purposes.
Authority Section HI of Part XXII Chapter 830, 1987 Session
Laws.
SECTION .0700 - DESIGNATION OF ELIGIBLE
TIERS AND COUNTIES
.0701 ANNUAL DESIGNATION
Each year, on or before December 31. the Secretary of the
Departm ent of Economic and Community Development shall
des ignat e th e 50 most economically depressed counties in the
state : this designation shall be for the following calendar year
Each year, on or before December 31. the Secretary of the
Department of Commerce shall rank each of the one hundred
counties of the state according to criteria currently set by NC
General Statutes. The highest numerically ranked county shall
reflect the most adverse economic data, whereas the lowest
ranked county shall refiect the most favorable data. This
listing of all counties shall then be divided into groups or tier
areas. The Secretary shall designate at that time those counties
and their tier areas that are eligible to participate jn the
Industrial Development Fund using the priority specified under
current statutes. This designation is effective for the following
year; however, a Tier One county retains its designation for at
least two consecutive years.
Aiithorit\G.S. 105-129. 3.
TITLE ISA - DEPARTMENT OF AND
ENVIRONMENT NATURAL RESOURCES
Notice is hereby given in accordance with G.S. 150B-21.2
that the DENR - Environmental Management
Commission intends to amend rules cited as I5A NCAC 28
.0303-. 0304. Notice of Rule-making Proceedings was
published in the Register on Januaiy 15. 1999.
Proposed Effective Date: August I, 2000
A Public Hearing will be conducted at 6:00 p.m. on May
25.1999 at the Hapvood Count}' Commissioner's Boardroom,
2 1 5 North Main Street. Waynesville, NC.
Reason for Proposed Action: 15A NCAC 2B .0303 - The
Environmental Management Commission is proposiiig to
reclassify- iVesser Creek in Swain Count}- (Little Tennessee
River Basin) to iticlude the Trout (Trj supplemental
classification. Wesser Creek is proposed for reclassification
from its source to Connelly Creekfrom Class C to Class C Tr
A portion of Wesser Creek near its confluence with Connelly
Creek currently carries the Trout classification. Studies
conducted on Wesser Creek show that the stream supports a
naturally reproducing rainbow trout population and thus meet
the criteria for supplemental classification as Trout waters. If
reclassified, wastewater dischargers to Wesser Creek will be
required to comply with water qualit}- standards for Trout
waters as set forth in 15A NCAC 2B .0200. Some ofthe water
qualit}- standards applied to Trout waters, such as the
dissolved oxygen standard, are more stringent than the water
quality standards applied to Class C waters.
15A NCAC 28 .0304 - The Environmental Management
Commission is proposing to reclassify Rough Creek in
Ha}-wood County (French Broad River Basin) to include the
Trout (Tr) and Outstanding Resource Waters (ORW)
supplemental classifications. Rough Creek, from its source to
the Canton Reservoir including tributaries, is proposed for
reclassification from Class WS-I to Class WS-I Tr ORW. The
Town of Canton has requested that Rough Creek he
reclassified to include the supplemental ORW classification.
In order to be classified as ORW, a water body must be of
1727 NORTH CAROLINA REGISTER April 15, 1999 13:20
PROPOSED RULES
exceptional state or national recreational or ecological
significance and the waters must have exceptional water
quality: In addition, the waters must also exhibit one or more
ofthefollowing resource values or uses:
111 there are outstanding fish (or commercially important
aquatic species) habitat andfisheries:
(2) there is an unusually high level of M'ater-based
recreation or the potentialfor such recreation:
(3) the waters ha\'e already received some special
designation such as a North Carolina or National U ild
and Scenic River Native of Special Native Trout
Waters. National Wildlife Refuge, etc. which do not
provide any water quality protection:
(4l the waters represent an important component ofa slate
or national park orforest: or
(5) the waters are of special ecological or scientific
significance such as habitat for rare or endangered
species or as areas for research and education.
Water quality analyses show that Rough Creek has excellent
water quality. Several outstanding resource values were
identified, including: a reproducing brook trout population:
the watershed is a designated Natural Heritage .Area: there
are plans to establish an educationalfacility underM'ay: and a
rare wetland bog community which supports several rare
plant species was identified in the headwaters area. Special
protection measures that apply to North Carolina ORWs are
set forth in 15.4 NC.4C 2B .0225. At a minimum, no new
wastewater discharges or expansions to existing discharges
are permitted, and stormwater controls for most new
development are required.
Comment Procedures: The purpose of this announcement is
to encourage those interested in this proposal to provide
comments. You may either attend the public hearing and
make relevant verbal comments or submit written comments,
data or other relevant information by June 24. 1999. The
Hearing Officer may limit the length of time that you may
speak at the public hearing, ifnecessaiy. so that all those who
wish to speak may have an opportunity' to do so. We
encourage you to submit written comments as well. The EMC
is very interested in all comments pertaining to the proposed
reclassifications. It is very important that all interested and
potentially affected persons or parties make their views known
to the EMC whether in fa\'or of or opposed to any and all
provisions ofthe proposed reclassification. The EMC may not
adopt a rule that differs substantially from the text of the
proposed rules published in the North Carolina Register
unless the EMC publishes the text of the proposed different
rule and accepts comments on the new text (see 150B-21.2lg)).
.411 interested and potentially affected persons are strongly
encouraged to read the entire announcement and supporting
information, and make appropriate comments on the proposal.
Written comments may be submitted to: Liz Kovasckitz. DENR
- Division of Water Quality. 512 N. Salisbun' Street, Raleigh,
NC 27611. Phone: 733-5083. Ext. 572.
Fiscal Note: These Rules do not affect the expenditures or
revenues of state or local government funds. These Rules do
not have a substantial economic impact ofat least five million
dollars ($5. 000, 000) in a 12-month period
CHAPTER 2 - ENVIRONMENTAL
MANAGEMENT
SUBCHAPTER 2B - SURFACE WATER AND
WETLAND STANDARDS
SECTION .0300 - ASSIGNMENT OF STREAM
CLASSIFICATIONS
.0303 LITTLE TENN RIVER BASIN AND
SAVANNAH RIVER DRAINAGE AREA
(a) The schedule may be inspected at the following places:
(1) Clerk of Court:
Clay County
Graham County
Jackson County
Macon County
Swain County
Transylvania County
(2) North Carolina Department of Environment and
Natural Resources
Asheville Regional Office
Interchange Building
59 Woodtm Place
Asheville, North Carolina.
(b) Unnamed Streams. Such streams entering Georgia or
Tennessee shall be classified "C Tr." Such streams in the
Savannah River drainage area entering South Carolina shall be
classified "B Tr."
(c) The Little Tennessee River Basin and Savannah River
Drainage Area Schedule of Classifications and Water Quality
Standards was amended effective:
(1) February 16, 1977;
(2) March 1, 1977;
(3) July 13, 1980;
(4) Februap, 1, 1986;
(5) October 1, 1987;
(6) March 1, 1989;
(7) January' 1, 1990;
(8) July 1,1990;
(9) August 1, 1990;
(10) March I, 1991;
(11) August 3, 1992;
(12) February 1, 1993;
(13) August 1.1994;
(14) September 1, 1996;
(15) August I, 1998;
(16) August 1, 2000.
(d) The Schedule of Classifications of Water Quality
Standards for the Little Tennessee Basin and Savannah River
Drainage Area was amended effective March 1, 1989 as
follows:
( 1 ) Nantahala River (Index No. 2-57) from source to the
backwaters of Nantahala Lake and all tributary
13:20 NORTH CAROLINA REGISTER April 15, 1999 1728
PROPOSED RULES
waters were reclassified from Class B-trout. Class
C-trout and Class C to Class B-trout ORW. Class
C-trout ORW and Class C ORW.
(2) Chattooga River (Index No. 3) including Scotsman
Creek. Overflow Creek, Big Creek, Talley Mill
Creek and all tributarv' waters were reclassified from
Class B-trout. Class C-trout and Class C to Class
B-trout ORW, Class C-trout ORW and Class C
ORW and Clear Creek and all tributary waters were
reclassified from Class C-trout and Class C to Class
B-trout and Class B.
(e) The Schedule of Classifications and Water Quality
Standards for the Little Tennessee River Basin and Savannah
River Drainage Area was amended effective January 1. 1^90
as follows:
(1) North Fork Coweeta Creek (Index No. 2-10-4) and
Falls Branch (Index No. 2-10-4-1 ) were reclassified
from Class C to Class B.
(2) Burningtown Creek (Index No. 2-38) was
reclassified from C-trout to B-trout.
(f) The Schedule of Classifications and Water Quality
Standards for the Little Tennessee River Basin and Savannah
River Drainage Area was amended effective July 1, 1990 b\
the reclassification of Alarka Creek (Index No. 2-69) from
source to Upper Long Creek (Index No. 2-69-2) including all
tributaries ft^om Classes C and C Tr to Classes C HQW and C
Tr HQW.
(g) The Schedule of Classifications and Water Quality
Standards for the Little Tennessee River Basin and Savannah
River Drainage Area was amended effective March 1, 1991 as
follows:
(1) Cartoogechaye Creek [Index Nos. 2-19-(l) and
2-19-(16)] from Gibson Cove Branch to bridge at
U.S. Hwy. 23 and 441 and from the bridge at U.S.
Hwy\ 23 and 441 to the Little Tennessee River was
reclassified from Classes WS-lII Tr and C Tr to
Classes WS-111 and B Tr and B Tr respectively.
(2) Coweeta Creek (Index Nos. 2-10) from its source to
the Little Tennessee River including all tributaries
except Dryman Fork (Index No. 2-10-3) and North
Fork Coweeta Creek (Index No. 2-10-4) was
reclassified from Classes C and C Tr to Classes B
and B Tr.
(h) The Schedule of Classifications and Water Quality
Standards for the Little Tennessee River Basin and Savannah
River Drainage Area was amended effective August 3. 1992
with the reclassification of all water supply waters (waters
with a primary classification of WS-I. WS-II or WS-Ill).
These waters were reclassified to WS-I. WS-II, WS-Ill. WS-IV
or WS-V as defined in the revised water supply protection
rules. (ISA NCAC 2B .0100. .0200 and .0300) which became
effective on August 3, 1992. In some cases, streams with
primary classifications other than WS were reclassified to a
WS classification due to their proximity and linkage to water
supply waters. In other cases, waters were reclassified from a
WS classification to an alternate appropriate priman.
classification after being identified as downstream of a water
supply intake or identified as not being used for water suppK
purposes.
(i) The Schedule of Classifications and Water Quality
Standards for the Little Tennessee River Basin and Savannah
River Drainage Area has been amended effective February 1
.
1993 as follows:
(1) Bearwallow Creek from its source to 2.3 miles
upstream of the Toxaway River [Index No. 4-7-(l)]
was revised to indicate the application of an
additional management strategy (referencing 15A
NCAC 2B .0201(d) to protect downstream waters;
and
(2) the Tuckaseegee River from its source to Tennessee
Creek [Index No. 2-79-(0.5)] including all
tributaries was reclassified from Classes WS-III&B
Tr HQW. WS-III HQW and WS-III to Classes WS-Ill
Tr ORW and WS-III ORW.
(j) The Schedule of Classifications and Water Quality
Standards for the Little Tennessee River Basin and Savannah
River Drainage Area was amended effective August 1. 1994
with the reclassification of Deep Creek [Index Nos. 2-79-63-
(1) and 2-79-63-(16)] from its source to the Great Smokey
Mountains National Park Boundary including tributaries from
Classes C Tr. B Tr and C Tr HQW to Classes WS-II Tr and
WS-II TrCA.
(k) The Schedule of Classifications and Water Quality
Standards for the Little Tennessee River Basin and Savannah
River Drainage Area was amended effective September 1.
1996 as follows:
( 1
)
Deep Creek from the Great Smok"y Mountains
National Park Boundary to the Tuckasegee River
[Index no. 2-79-63-(2 1 )] was reclassified from Class
C Tr to Class B Tr; and
(2) the Tuckasegee River from the West Fork
Tuckasegee River to Savannah Creek and from
Macks Tov\n Branch to Cochran Branch [Index
Nos. 2-79-(24). 2-79(29.5) and 2-79-(38)] was
reclassified from Classes WS-III Tr, WS-III Tr CA
and C to Classes WS-IIl&B Tr, WS-III&B Tr CA
andB.
(I) The Schedule of Classifications and Water Quality
Standards for the Little Tennessee River Basin and Savannah
River Drainage Area was amended effective August 1, 1998
with the reclassifications of Thorpe Reservoir (Lake
Glenville). Hurricane Creek, and Laurel Branch [Index Nos. 2-
79-23-(l). 2 -79-23-2, and 2-79-23-2-1 respectively] from
classes WS-III&B, WS-III Tr and WS-III to classes WS-III&B
HQW, WS-III Tr HQW, and WS-III HQW.
(m) The Schedule of Classifications and Water Quality
Standards for the Little Tennessee River Basin and Savannah
River Drainage Area was amended August 1. 2000 with the
reclassification of Wesser Creek [Index No. 2-79-52-5-11 from
its source to Williams Branch from Class C to Class C Tr.
Authority G.S. 143-214.1: 143-215.1: 143-21 5. 3(aj(l).
.0304 FRENCH BROAD RIVER BASIN
(a) The schedule ma\ be inspected at the following places:
(1) Clerk of Court:
•
t
7729 NORTH CAROLINA REGISTER April 15, 1999 13:20
PROPOSED RULES
Aver>' County
Buncombe County
Haywood County
Henderson County
Madison County
Mitchell County'
Transylvania County
Yancey County
(2) North Carolina Department of Environment and
Natural Resources
Asheville Regional Office
Interchange Building
59 Woodfin Place
Asheville, North Carolina.
(b) Unnamed Streams. Such streams entering Tennessee
will be classified "B."
(c) The French Broad River Basin Schedule of
Classifications and Water Quality' Standards was amended
effective:
(1) September 22. 1976:
(2) March 1. 1977:
(3) August 12, 1979;
(4) April 1. 1983:
(5) August I. 1984:
(6) August 1. 1985;
(7) Februarv I. 1986;
(8) May I, 1987;
(9) March 1,1989;
(10) October 1. 1989;
(11) Januar>' 1. 1990;
(12) August 1. 1990;
(13) August 3, 1992;
(14) October 1. 1993;
(15) July I, 1995:
(16) November 1. 1995:
(17) Januan,' I. 1996;
(18) April l', 1996;
(19) August I,+99«t 1998;
(20) August 1. 2000.
(d) The Schedule of Classifications and Water Quality'
Standards for the French Broad River Basin was amended
effective March 1, 1989 as follows:
(1) Cataloochee Creek (Index No. 5-41) and all
tributan, waters were reclassified from Class C-trout
and Class C to Class C-trout ORW and Class C
ORW.
(2) South Fork Mills River (Index No. 6-54-3) down to
Queen Creek and all tributaries were reclassified
from Class WS-I and Class WS-III-trout to Class
WS-I ORW and Class WS-III-trout ORW.
(e) The Schedule of Classifications and Water Quality
Standards for the French Broad River Basin was amended
effective October I. 1989 as follows: Cane River (Index No.
7-3) from source to Bow lens Creek and all tributaries were
reclassified from Class C trout and Class C to Class WS-III
trout and Class WS-111.
(f) The Schedule of Classifications and Water Quality'
Standards for the French Broad River Basin was amended
effective January 1, 1990 as follows: North Toe River (Index
No. 7-2) from source to Cathis Creek (Christ Branch) and all
tributaries were reclassified from Class C trout and Class C to
Class WS-III trout and Class WS-III.
(g) The Schedule of Classifications and Water Quality
Standards for the French Broad River Basin was amended
effective August 3, 1992 with the reclassification of all water
supply waters (waters with a primary classification of WS-I,
WS-II or WS-III). These waters were reclassified to WS-I,
WS-II. WS-III, WS-IV or WS-V as defined in the revised
water supply protection rules, (15A NCAC 2B .0100, .0200
and .0300) which became effective on August 3, 1992. In
some cases, streams with primarv' classifications other than
WS were reclassified to a WS classification due to their
proximity and linkage to water supply waters. In other cases,
waters were reclassified from a WS classification to an
alternate appropriate primarv classification after being
identified as downstream of a water supply intake or identified
as not being used for water supply purposes.
(h) The Schedule of Classifications and Water Quality
Standards for the French Broad River Basin was amended
effective October I. 1993 as follows: Reasonover Creek
[Index No. 6-38- 14-( 1 )] from source to Reasonover Lake Dam
and all tributaries were reclassified from Class B Trout to
Class WS-V and B Trout, and Reasonover Creek [Index No.
6-38-14-(4)] from Reasonover Lake Dam to Lake Julia Dam
and all tributaries were reclassified from Class C Trout to
Class WS-V Trout.
(i) The Schedule of Classifications and Water Quality
Standards for the French Broad River Basin was amended
effective Juh 1, 1995 with the reclassification of Cane Creek
[Index Nos. 6-57-(l) and 6-57-(9)] from its source to the
French Broad River from Classes WS-IV and WS-IV Tr to
Classes WS-V, WS-V Tr and WS-IV.
(j) The Schedule of Classifications and Water Quality
Standards for the French Broad River Basin was amended
effective November I, 1995 as follows: North Toe River
[Index Numbers 7-2-(0.5) and 7-2-(37.5)] from source to a
point 0.2 miles downsfream of Banjo Branch, including
tributaries, has been reclassified from Class WS-III. WS-III
Trout and WS-III Trout CA (critical area) to Class WS-IV
Trout, WS-IV, WS-IV Trout CA, and C Trout.
(k) The Schedule of Classifications and Water Quality
Standards for the French Broad River Basin was amended
effective January 1, 1996 as follows: Stokely Hollow [Index
Numbers 6-121. 5-(l) and 6-121. 5-(2)] from source to mouth
of French Broad River has been reclassified from Class WS-II
and Class WS-II CA to Class C.
(I) The Schedule of Classifications and Water Quality
Standards for the French Broad River Basin was amended
April 1, 1996 with the reclassification of the French Broad
River [Index No. 6-( 1 )] from a point 0.5 miles downstream of
Little River to Mill Pond Creek to Class WS-IV: French Broad
River [Index No. 6-(51.5)] from a point 0.6 miles upstream of
Mills River to Mills River to Class WS-IV CA (Critical Area),
from Mills River to a point 0. 1 miles upstream of Boring Mill
Branch to Class C: and the Mills River [Index No. 6-54-(5)]
was reclassified from City of Hendersonville water suppl_\
13:20 NORTH CAROLINA REGISTER April 15, 1999 1730
PROPOSED RULES
intake to a point 0.7 miles upstream of mouth of Mills River to
Class WS-lIl, and from a point 0.7 miles upstream of mouth of
Mills River to French Broad River to Class WS- HI CA
(Critical Area).
(m) The Schedule of Classifications and Water Oualit>'
Standards for the French Broad River Basin was amended
August I, 1998 with the revision to the primary classification
for portions of the French Broad River [Index No. 6-(38.5)]
and the North Toe River 7-2-(l0.5) from Class IV to Class C.
(n) The schedu le Schedule of Classifications and Water
Quality Standards for the French Broad River Basin was
amended August 1, 1998 with the reclassification of Clear
Creek [Index No. 6-55-(l)] from its source to Lewis Creek
from Class C Tr to Class B Tr.
(o) The Schedule of Classifications and Water Quality
Standards for the French Broad River Basin was amended
August _L 2000 with the reclassification of Rough Creek
[Index No. 5-8-4-( 1 )]. including all tributaries, from its source
to the Canton Reservoir from Class WS-1 to Class WS-I Tr
ORW.
Authority G.S. 143-214.1: 143-215.1: 143-21 5. 3(al(l).
Notice is hereby given in accordance with G.S. 150B-21.2
that the DENR - Environmental Management
Commission intends to ametid rule cited as 1 5.4 NCAC 2B
.0306. Notice of Rule-making Proceedings was published in
the Register on January 15, 1999.
Proposed Effective Date: August 1. 2000
A Public Hearing will be conducted at 6:00 p.m. on May 10.
1999 at the East Henderson High School Auditorium. 1 10
Upward Road. East Flat Rock. NC.
the area affected by the proposed HQW reclassification in the
Green River watershed will have additional treatment
requirements. Projects which require a Sedimentation and
Erosion Control Plan and which drain to and are within one
mile of HQW streams will have more stringent land use
developttient criteria as defined in ISA NCAC 2H . 1006. The
criteria for designation to High Quality Waters as defined in
15A NCAC 2B .0201 includes those waters which are rated as
excellent based on biological and physical/chemical
clraracteristics through Division monitoring or special studies,
native and special native trout waters designated by the
Wildlife Resources Coitimission. primaiy nursen' areas
designated by the Marine Fisheries Commission and other
functional nursery areas designated by the Wildlife Resources
Coitimission. critical habitat areas designated by the Wildlife
Resources Commission or the Department of .Agriculture, all
water supply watersheds which are either classified as WS-I
or WS-II or those for which a formal petition for
reclassification as WS-I or WS-II has been receivedfrom the
appropriate local government and accepted by the Division of
Water Quality, and all Class SA waters. The B Classification
is assigned to waters that are used for primary recreational
purposes. Primaiy recreation is defined in Division rules as
"swimming, skin diving, skiing, and similar uses involving
human body contact with water where such activities take
place in an organized or on a frequent basis." Under North
Carolina rules, several criteria must be met before waters can
be classified for primary recreational. These are: I) the area
must be of sufficient size and depth to support primary
recreation: 2) fecal coliform concentrations must be less than
200 colonies per 100 milliliters based on a geometric mean
derived from five samples taken within a 30 day period: 3)
there must be no sources ofwater pollution which could result
in a hazard to public health in close proximit}- to areas where
recreation occurs: and 4) primary recreation must take place
in an organized or on afrequent basis.
Reason for Proposed Action: 15A NCAC 2B .0306 - The
Environmental Management Commission is proposing to
reclassify the Green River in Henderson Count}' (Broad River
Basin) for primaiy recreation (Class B> and to include the
High Quality Waters (HQW) supplemental classification. The
Green River and its tributaries are proposed for
reclassification from their source to. and including. Rock
Creek from Class C Tr to Class B Tr HQW. The Green River
and its tributaries, from Rock Creek to Lake Summit, are
proposed for reclassification from Class C Tr to Class B Tr
Requests for reclassification of the Green River were
submitted by a local property' owner's association,
independent property owners and boy's camp. Water qualiv,'
studies conducted on the Green River and its tributaries show
that the streams meet the criteria for Classes B and HQW in
the areas proposed for reclassification as defined above. If
reclassified, wastewater dischargers to the Green River will be
required to comply with reliability standards set forth in 15A
NCAC 2H .0124. Reliability standards require facilities to
insure continued treatment of wastewater during instances of
power failure. New and expanding wastewater dischargers to
Comment Procedures: The purpose of this announcement is
to encourage those interested in this proposal to provide
comments. You may either attend the public hearing and
make relevant verbal comments or submit written comments,
data or other relevant information by June 10. 1999. The
Hearing Officer may limit the length of time that you may
speak at the public hearing, if necessan: so that all those who
wish to speak may have an opportunity to do so. We
encourage you to submit written comments as well. The EMC
is very interested in all comments pertaining to the proposed
reclassifications. It is very important that all interested and
potentially affected persons or parties make their views known
to the EMC whether in favor of or opposed to any and all
provisions of the proposed reclassification. The EMC may
not adopt a rule that differs substantially from the text of the
proposed rule published in the North Carolina Register unless
the EMC publishes the text of the proposed different rule and
accepts comments on the new text (see 150B-21.2(g)). All
interested and potentially affected persons are strongly
encouraged to read the entire announcement and supporting
information, and make appropriate comments on the proposal.
1731 NORTH CAROLINA REGISTER April 15, 1999 13:20
PROPOSED RULES
Written comments may he submitted to: Liz Kovasckitz. DENR
- Division of Water Qualir\: 512 N. Salisbuiy Street. Raleigh.
NC 27611. Phone: 733-5083. Ext. 572.
Fiscal Note: 777/s Ride does not affect the expenditures or
revenues of state or local government funds. This Rule does
not have a substantial economic impact ofat least five million
dollars ($5,000,000) in a 12-month period
CHAPTER 2 - ENVIRONMENTAL MANAGEMENT
SUBCHAPTER 2B - SURFACE WATER AND
WETLAND STANDARDS
SECTION .0300 - ASSIGNMENT OF STREAM
CLASSIFICATIONS
.0306 BROAD RIVER BASIN
(a) The schedule may be inspected at the following places:
(1) Clerk of Court:
Buncombe County
Cleveland County
Gaston County
Henderson County
Lincoln County
McDowell County
Polk County
Rutherford County
(2) North Carolina Department of Environment and
Natural Resources:
(A) Mooresville Regional Office
919 North Main Street
Mooresville. North Carolina
(B) Asheville Regional Office
Interchange Building
59 Woodfm Place
Asheville, North Carolina.
(b) Unnamed Streams. Such streams entering South
Carolina are classified "C."
(c) The Broad River Basin Schedule of Classifications and
Water Quality Standards was amended effective:
(1) March 1. 1977;
(2) Februap,' 12, 1979;
(3) August 12, 1979;
(4) April 1, 1983;
(5) February 1, 1986;
(6) August 3, 1992;
(7) September 1, 1994;
(8) August 1 , +W^ 1998;
(9j August 1, 2000.
(d) The Schedule of Classifications and Water Quality
Standards for the Broad River Basin was amended effective
August 3, 1992 with the reclassification of all water supply
waters (waters with a primary classification of WS-I, WS-II or
WS-lll). These waters were reclassified to WS-I, WS-Il, WS-
111, WS-IV or WS-V as defined in the revised water supply
protection rules. (15A NCAC 2B .0100. .0200 and .0300)
which became effective on August 3. 1992. In some cases.
streams with primary classifications other than WS were
reclassified to a WS classification due to their proximity and
linkage to water supply waters. In other cases, waters were
reclassified from a WS classification to an alternate
appropriate primary classification after being identified as
downstream of a water supply intake or identified as not being
used for water supply purposes.
(e) The Schedule of Classifications and Water Quality
Standards for the Broad River Basin was amended effective
September 1. 1994 with the reclassification of the Second
Broad River [Index No. 9-41 -(0.5)] from its source to
Roberson Creek including associated tributaries was
reclassified from Class WS-V to Classes WS-V, WS-IV and
WS-IV CA.
(f) The Schedule of Classifications and Water Quality
Standards for the Broad River Basin was amended effective
August 1, 1998 with the revision to the primary classification
for portions of the Broad River [Index No. 9-(23.5)] from
Class WS-IV to Class C and Second Broad River [Index Nos.
9-4I-(I0.5) and 9-4I-(I4.5)] and First Broad River [Index No.
9-50-( 1 1 )] from Class WS-IV to Class WS-V.
(g) The Schedule of Classifications and Water Quality
Standards for the Broad River Basin was amended August _L
2000 with the reclassification of the Green River [Index No. 9-
29-( 1 )]. including aH tributaries, from its source to the
downstream side of the mouth of Rock Creek from Class C Tr
to Class B Tr HQW. and the Green River from the
downstream side ot" the mouth of Rock Creek to jts mouth in
Lake Summit at elevation 20 1 1 from Class C Tr to Class B Tr.
.Authorities. 143-214.1: 143-215.1: 143-21 5. 3(all 1).
Notice is hereby given in accordance with G.S. 150B-21.2
that the DENR - Environmental Management
Commission intends to amend rule cited as 15.4 NCAC 2B
. 0308. Notice of Rule-making Proceedings was published in
the Register on Janua)y 15. 1999.
Proposed Effective Date: August 1, 2000
A Public Hearing will be conducted at 6:00 p.m. on May 11,
1999 ui the .Avery Count}' Courthouse, 1 Avety Square,
Newland. NC.
Reason for Proposed Action: The Environmental
Management Commission is proposing to reclassifi- Little
Grassy Creek in .Avery Count}' (Catawba River Basin) to
Include the (Outstanding Resource Haters (ORW)
supplemental classification. Little Grassy Creek, from its
source to the Linville River, including tributaries, is proposed
for reclassification from Class C Tr to Class C Tr ORW. A
request for reclassification of the headv,'aters of the Linville
River to High Quality (HOW) was submitted by a local golf
club to the Division Water Quality in 1997. The Linville River
did not qualifi for reclassification to HQW. However during
13:20 NORTH CAROLINA REGISTER April 15, 1999 1732
PROPOSED RULES
the water quality- investigation it was determined that Little
Grassy Creek, a tributary stream to the Linxille River
qualified for supplemental classification as Outstanding
Resource Waters. In order to he classified as ORW, a water
body must be of exceptional state or national recreational or
ecological significance and the waters must have exceptional
water quality-. In addition, the waters must also exhibit one or
more ofthefollowing resource values or uses:
(1) there are outstanding fish for commercially important
aquatic species) habitat and fisheries:
(2) there is an unusually high level of water-based
recreation or the potentialfor such recreation:
(3) the waters have already received some special
designation such as a North Carolina or National Wild
and Scenic River Native of Special Native Trout
Waters, National Wildlife Refuge, etc. which do not
provide any water quality protection:
(4) the waters represent an important component ofa state
or national park orforest: or
(5) the waters are of special ecological or scientific
significance such as habitat for rare or endangered
species or as areas for research and education.
Water quality analyses show that Little Grassy Creek has
excellent water quality and supports a reproducing brook
trout population, therefore qualifying this stream for ORW
designation. Special protection measures that apply to North
Carolina ORWs are set forth in 15.4 NCAC 2B .0225. At a
minimum, no new wastewater discharges or expansions to
existing discharges are permitted, and stormwater controls for
most new development are required.
Comment Procedures: The purpose of this announcement is
to encourage those interested in this proposal to provide
comments. You may either attend the public hearing and
make relevant verbal comments or submit written comments.
data or other relevant information by June 10. 1999. The
Hearing Officer may limit the length of time that you may
speak at the public hearing, ifnecessaiy. so that all those who
wish to speak may have an opportunity to do so. We
encourage you to submit written comments as well. The EMC
is very interested in all comments pertaining to the proposed
reclassifications. It is very important that all interested and
potentially affected persons or parties make their views known
to the EMC whether in favor of or opposed to any and all
provisions of the proposed reclassification. The EMC may
not adopt a rule that differs substantially from the text of the
proposed rule published in the North Carolina Register unless
the EMC publishes the text of the proposed different rule and
accepts comments on the ncM- text (see 150B-21.2(g)). All
interested and potentially affected persons are strongly
encouraged to read the entire announcement and supporting
information, and make appropriate comments on the proposal.
Written comments may be submitted to: Liz Kovasckit:. DENR
- Division of Water Quality-. 512 N. Salisbuiy Street. Raleigh.
NC 27611. Phone: '33-5083. Ext. 572.
Fiscal Note: This Rule does not affect the expenditures or
revenues of state or local government funds. This Rule does
not have a substantial economic impact ofat least five million
dollars ($5,000,000) in a 12-month period
CHAPTER 2 - ENVIRONMENTAL MANAGEMENT
SUBCHAPTER 2B - SURFACE WATER AND
WETLAND STANDARDS
SECTION .0300 - ASSIGNMENT OF STREAM
CLASSIFICATIONS
.0308 CATAWBA RIVER BASIN
(a) The schedule may be inspected at the following places:
(1) Clerk of Court:
Alexander Countv
Avery County
Burke County
Caldwell County
Catawba County
Gaston County
Iredell County
Lincoln County
McDowell County
Mecklenburg County
Union County
Watauga County
(2) North Carolina Department of Environment and
Natural Resources:
(A) Mooresville Regional Office
919 North Main Street
Mooresville. North Carolina
(B) Asheville Regional Office
Interchange Building
59 Woodfm Place
Asheville. North Carolina.
(b) Unnamed Streams. Such streams entering South
Carolina are classified "C."
(c) The Catawba River Basin Schedule of Classifications
and Water Qualit\' Standards was amended effective:
(1) March 1. 1977:
(2) August 12. 1979;
(3) April 1. 1982:
(4) January 1, 1985:
(5) August 1. 1985:
(6) Februar) 1. 1986;
(7) March f, 1989;
(8) May 1.1989;
(9) March 1. 1990;
(10) August 1, 1990;
(11) Augusts. 1992;
(12) April 1. 1994;
(13) July 1. 1995;
(14) September I. 1996;
(15) August I. 1998:
(16) April l.+999^ 1999;
(17) August 1. 2000.
(d) The Schedule of Classifications and Water Quality
Standards for the Catawba River Basin was amended effective
I
1733 NORTH CAROLINA REGISTER April 15, 1999 13:20
PROPOSED RULES
March I, 1989 as follows:
{ 1 ) Wilson Creek (Index No. 1 1-38-34) and all tributary
waters were reclassified from Class B-trout and
Class C-trout to Class B-trout ORW and Class
C-trout ORW.
(e) The Schedule of Classifications and Water Quality
Standards for the Catawba River Basin was amended effective
May 1. 1989 as follows:
(1) Henr> Fork [Index Nos. 11-129-1-(1) and
ll-129-l-(2)] fi-om source to Laurel Creek,
including all tributaries, were reclassified from
Class WS-1, C and C trout to Class WS-1 ORW, C
ORW and C trout ORW, except Ivy Creek and Rock
Creek which will remain Class C trout and Class C.
(2) Jacob Fork [index Nos. ll-129-2-(l) and
1 1-129-2-(4)] from source to Camp Creek, including
all tributaries, were reclassified from Class WS-111
trout and WS-IIl to WS-lIl trout ORW and WS-IIl
ORW.
(f) The Schedule of Classifications and Water Quality
Standards for the Catawba River Basin was amended effective
March 1, 1990 as follows:
( 1
)
Upper Creek [Index No. 1 1 -35-2-( 1 )] from source to
Timbered Branch including all tributaries except
Timbered Branch (Index No. 11-35-2-9) was
reclassified from Class C Trout to Class C Trout
ORW.
(2) Steels Creek [Index No. 1 1-35-2-12(1)] from source
to Little Fork and all tributaries was reclassified
from Class C Trout to Class C Trout ORW.
(g) The Schedule of Classifications and Water Quality
Standards for the Catawba River Basin was amended effective
August 3, 1992 with the reclassification of all water supply
waters (waters with a primary classification of WS-1, WS-11 or
WS-111). These waters were reclassified to WS-l, WS-Il, WS-
111. WS-IV or WS-V as defined in the revised water supply
protection rules, (15A NCAC 2B .0100, .0200 and .0300)
which became effective on August 3, 1992. In some cases,
streams with primary classifications other than WS were
reclassitled to a WS classification due to their proximity and
linkage to water supply waters. In other cases, waters were
reclassified from a WS classification to an alternate
appropriate primary classification after being identified as
downstream of a water supply intake or identified as not being
used for water supply purposes.
(h) The Schedule of Classifications and Water Quality
Standards for the Catawba River Basin was amended effective
April 1, 1994 as follows:
(1) Friday Lake (Index No. 1 1-125.5) from its source to
Little Paw Creek was reclassified from Class C to
Class B.
(2) The Linville River [Index No. 12-29-(l)] from
Grandmother Creek to Linville Falls was
reclassified from Class C Tr to Class B Tr
(i) The Schedule of Classifications and Water Quality
Standards for the Catawba River Basin was amended effective
JuK I, 1995 with the reclassification of Clark Creek from a
point 0.6 mile downstream of Catawba County SR 2014 to 0.4
mile upstream of Larkard Creek [Index No. 1 1-129-5-(4.5)],
and Howards Creek from its source to 0.7 mile upstream of
Lincoln County State Road 1200 [Index No. 11-129-4],
including associated tributaries from Class WS-IV to Classes
C and WS-IV.
(j) The Schedule of Classifications and Water Quality
Standards for the Catawba River Basin was amended effective
September 1, 1996 as follows:
(1) North Fork Catawba River [Index No. ll-24-(l)]
from Laurel Branch to Armstrong Creek from Class
C Tr to Class B Tr; and
(2) Catawba River (Lake Hickory) from Rhodhiss dam
to highway 321 \ [Index No. 11 -(51)] from Class
WS-IV CA to Class WS-IV&B CA.
(k) The Schedule of Classifications and Water Quality
Standards for the Catawba River Basin was amended effective
August 1, 1998 with the revision to the primary classification
for portions of the South Fork Catawba River [Index No. II-
129-(0.5)] and Hoyle Creek [Index No. 11-I29-15-(1)] from
Class WS-IV to Class WS-V.
(I) The Schedule of Classifications and Water Quality
Standards for the Catawba River Basin was amended effective
August I, 1998 as follows:
(1) Mill Creek [Index No. 11-7] from its source to
Swannanoa Creek, including all tributaries, from
Class C Tr to Class C Tr HQW: and
(2) Toms Creek [Index Nos. 11-2I-(I) and ll-21-(2)]
from its source to Harris Creek, including all
fributaries. from Class C Tr to Class C Tr HQW and
from Harris Creek to McDowell Count> SR 1434,
including all tributaries, from Class C to Class C
HQW.
(m) The Schedule of Classifications and Water Quality
Standards for the Catawba River Basin was amended effective
April 1, 1999 with the reclassification of a portion of the
Catawba River [Index Nos. ll-(27.5) and 1I-(3I) from Class
WS-IV & B and WS-IV to Class WS-V & B and WS-V.
(n) The Schedule of Classifications and Water Quality
Standards for the Catawba River Basin was amended effective
April 1. 1999 with the reclassification of Armstrong Creek
[Index Nos. I l-24-14-(l), 1 1-24-14-( 13.5) and 1 l-24-l4-(14)],
and all tributaries from Classes WS-11 Tr, WS-11, WS-Il CA
and C Tr to Classes C Tr HQW and C HQW.
(o) The Schedule of Classifications and Water Quality
Standards for the Catawba River Basin was amended April 1,
1999 as follows:
(1) Lookout Shoals Lake from Oxford Dam to Island
Creek [Index No. ll-(67)] from Class WS-V to
Class WS-IV CA, from Island Creek to Elk Shoal
Creek [Index No. ll-(70.5)] from Class WS-IV to
Class WS-IV CA and from Elk Shoal Creek to a
point one half mile upstream of Lookout Shoals
Dam [Index No. II -(72)] from Class WS-IV&B to
Class WS-IV&B CA; and
(2) The primary classifications of tributan, streams that
are within t1ve miles and draining to the nomial pool
elevation of Lookout Shoals Lake (Protected Area)
have been revised to Class WS-IV; and
13:20 NORTH CAROLINA REGISTER April 15, 1999 1734
PROPOSED RULES
(3) The primar\ classifications of tributar\' streams that
are within one half mile and draining to the normal
pool elevation of Lookout Shoals Lake (Critical
Area) have been revised to Class WS-IV CA.
(p) The Schedule of Classifications and Water Qualify
Standards for the Catawba River Basin was amended August
_L 2000 with the reclassification of Little Grassy Creek (Index
No. 1 1-29-2). including aU tributaries, from its source to the
Linville River from Class C Tr to Class C Tr ORW.
Authority G.S. 143-2 14. 1: 143-215.1: 143-21 5.3(a)(1).
k-k-k-k-k-k-k-k-k-k-k-k k k k k k -k k
Notice is hereby given in accordance with G.S. 150B-21.2
that the DENR - Environmental Management
Commission to amend rule cited as 15A NCAC 20 .0702.
Notice of Rule-making Proceedings was published in the
Register on December 15. 1998.
Proposed Effective Date: July 1. 2000
A Public Hearing will be conducted at 7:00 p.m. on May 6.
1999 at the Davidson County Governmental Center 913
Greensboro St.. Lexington. NC 27292.
Reason for Proposed Action: 15A NCAC 20 .0702.
Exemptions, of the North Carolina air toxics rules is proposed
for amendment to exempt wood furniture manufacturing
operations that are complying with the federal maximum
achievable control technolog}- (MACT) requirements in 40
CRF Part 63 Subpart JJ from demonstrating compliance with
the state health-based air toxics rules unless an individual
source or facility is brought under the program by call of the
Director of the Division of Air Quality. The amendment is
proposed in response to a request from the .American
Furniture Manufacturers Association (AFM.4) who submitted
a modeling demonstration for the largest emitting furniture
manufacturing facilit}' in the state which showed no
exceedances of any current acceptable ambient level for any
toxic air pollutant currently listed.
Comment Procedures: .411 persons interested in these matters
are invited to attend the public hearing. Any person desiring
tj) comment for more than three minutes is requested to submit
a written statement for inclusion in [he record ofproceedings
Ql the public hearing. The hearing officer may limit oral
presentation lengths to five minutes if many people want to
speak. The hearing record will remain open until May 17,
1999. to receive additional written statements. To be
included, the statement must be received by the Division by
May 17. 1999.
NOTE: In addition to the proposed amendment, the
Environmental Management Commission (EMC) is soliciting
specific comment on the issue ofwhether or not rule language
requiring a five year periodic review by Division of Air
Qualit}- staff of the continuing appropriateness of the
exemption should be incorporated into the final rule
amendment.
INFORMATION: Copies ofthe proposals may be revicM'ed at
the regional offices of the North Carolina Department of
Environment and Natural Resources. Division ofAir Qualit}; I
located at thefollowing cities:
Asheville 828/251-6208
Fayetteville 910/486-1541
Mooresville 704/663-1699
Raleigh 919/571-4700
Washington 252/946-6481
Wilmington 910/395-3900
Winston-Salem 336/771-4600
Comments should be sent to and additional information
concerning the hearing or the proposal may be obtained by
cotitacting: Mr Thomas C Allen. Division of Air Qualitw
PO. Box 29580. Raleigh. North Carolina 27626-0580~Phone:
(919) 733-1489 Fax: (919) 715-7476: E-mail:
thom_allen'ci aq.enr state, nc. us
Fiscal Note: This Rule does not affect the expenditures or
revenues of state or local government funds. This Rule does
not have a substantial economic impact ofat least five million
dollars ($5,000,000) in a 12-month period.
SUBCHAPTER 2Q - AIR QUALITY PERMIT
PROCEDURES
SECTION .0700 - TOXIC AIR POLLUTANT
PROCEDURES
.0702 EXEMPTIONS
(a) A permit to emit toxic air pollutants shall not be
required under this Section for:
( 1
)
residential wood stoves, heaters, or fireplaces;
(2) hot water heaters that are used for domestic
purposes only and are not used to heat process
water:
(3) maintenance, structural changes, or repairs that do
not change capacity of that process, fuel-burning,
refuse-burning, or control equipment, and do not
involve any change in quality or nature or increase
in quantity of emission of any regulated air pollutant
or toxic air pollutant;
(4) housekeeping activities or building maintenance
procedures, including painting buildings, resurfacing
floors, roof repair, washing, portable vacuum
cleaners, sweeping, use and associated storage of
janitorial products, or non-asbestos bearing
insulation removal;
(5) use of office supplies, supplies to maintain copying
equipment, or blueprint machines;
(6) paving parking lots;
(7) replacement of existing equipment with equipment
of the same size. type, and function that does not
result in an increase to the actual or potential ^
emissions of anN regulated air pollutant or toxic air ^
pollutant and that does not affect compliance status
and. with replacement that fits the description of the
1735 NORTH CAROLINA REGISTER April 15, 1999 13:20
PROPOSED RULES
existing equipment in the permit, including the
application, such that the replacement equipment
can be operated under that permit without any
changes to the permit;
(8) comfort air conditioning or comfort ventilation
systems that does not transport, remove, or exhaust
regulated air pollutants to the atmosphere;
(9) equipment used for the preparation of food for direct
on-site human consumption;
(10) non-self-propelled non-road engines. except
generators, regulated b> rules adopted under Title II
of the federal Clean Air Act;
(11) stacks or vents to prevent escape of sewer gases
from domestic waste through plumbing traps;
(12) use of fire fighting equipment;
(13) the use for agricultural operations b> a fanner of
fertilizers, pesticides, or other agricultural chemicals
containing one or more of the compounds listed in
ISA NCAC 2D .1104 if such compounds are
applied according to agronomic practices acceptable
to the North Carolina Department of Agriculture and
the Commission;
(14) asbestos demolition and renovation projects that
comply with 15A NCAC 2D .1110 and that are
being done by persons accredited by the Department
of Health and Human Services under the Asbestos
Hazard Emergency Response Act;
(15) farm and pet incinerators used only to dispose of
dead animals as identified in 15A NCAC 2D
.1201(d) and (e).
( 1 6) refrigeration equipment that is consistent with
Section 601 through 618 of Title VI (Stratospheric
Ozone Protection) of the federal Clean Air Act, 40
CFR Part 82, and any other regulations promulgated
by EPA under Title VI for stratospheric ozone
protection, except those units used as or with air
pollution control equipment;
(17) laboratorv' activities:
(A) bench-scale, on-site equipment used
exclusively for chemical or physical anaKsis
for quality control purposes, staff instruction,
water or wastewater analyses, or non-production
environmental compliance
assessments;
(B) bench scale experimentation, chemical or
physical anahses. training or instruction from
nonprofit. non-production educational
laboratories;
(C) bench scale experimentation, chemical or
physical analyses, training or instruction from
hospital or health laboratories pursuant to the
determination or diagnoses of illnesses; and
(D) research and development laboratory,'
activities that are not required to be permitted
under Section .0500 of this Subchapter
provided the activitv' produces no commercial
product or feedstock material;
(18) combustion sources as defined in 20 .0703 until 18
(19)
20)
21)
p-
(23)
(3^124
months after promulgation of the MACT or GACT
standards for combustion sources. (Within 18
months following promulgation of the MACT or
GACT standards for combustion sources, the
Commissi