North Carolina register, April 1986 - June 1998

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NORTH CAROLINA
REGISTER
VOLUME 11 ISSUE 28 • Pages 211^ - 2177
l^y 15, 1997
Y
PUBLISHED BY
The Office ofAdministrative Hearings
Rules Division
PO Drawer 27447
Raleigh, NC27611-7447
Telephone (919) 733-2678
Fax (919) 733-3462
mTHIS ISSUE
Ex«:ative Orders
NPBES Penrats
WSdIife Resources Comniission Proclam^iott
Auctioneers, Commissioti for
En\%'ODm0Bt; Healthy ami Natural Resources
General Contractors, Licensing Board
Housings Finance Agency
ffui^aa Resources :-i.»..-.»>,»>>,>,>>»>^>
Nursing, Board of
List ofRules Codified
Ru^ Review ConuBisatOn
Contested Case Decisions
This publication is printed on permanent, acid-free paper in compliance with G.S. ]25-11. J
3
NORTH CAROLINA
REGISTER
IN THIS ISSUE
I. EXECUTIVE ORDERS
Executive Orders 109-111 2113
n. IN ADDITION
Environment, Health, and Natural Resources
NPDES Permits
Wildlife Resources Commission Proclamation
III. RULE-MAKING PROCEEDINGS
Licensing Boards
General Contractors, Licensing Board
2115-2116
2114
2117
Volume 11, Issue 28
Pages 2113 - 2177
May 15, 1997
This issue contains documents officially filed
through April 24, 1997.
Office of Administrative Hearings
Rules Division
424 North Blount Street (27601)
PO Drawer 27447
Raleigh, NC 27611-7447
(919) 733-2678
FAX (919) 733-3462
Julian Mann III, Director
James R. Scarcella Sr., Deputy Director
Molly Masich, Director of APA Services
Ruby Creech, Publications Coordinator
Jean Shirley, Editorial Assistant
Linda Richardson, Editorial Assistant
IV. PROPOSED RULES
Environment, Health, and Natural Resources
Environmental Management 2121 - 2123
Water Pollution Control System Operations
Certification Commission 2123 - 2129
Human Resources
Medical Assistance 21 18 - 2121
Independent Agencies
Housing Finance Agency 2132 - 2133
Licensing Boards
Auctioneers, Commission for 2129 - 2130
Nursing, Board of 2130 - 2132
V. LIST OF RULES CODIFIED 2134 - 2143
VI. RULES REVIEW COMMISSION 2144 - 2147
VH. CONTESTED CASE DECISIONS
Index to AU Decisions 2148 - 2164
Text of Selected Decisions
96 ABC 2095 2165 - 2168
96CPS 1211 2169-2170
96 EHR 0649 2171 - 2174
96 EHR 0846 2175 - 2176
Vm. CUMULATIVE INDEX 1-49
Digitized by tine Internet Archive
in 2011 witii funding from
University of Nortii Carolina at Chapel Hill
http://www.archive.org/details/northcarolinareg1128nort
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EXECUTIVE ORDERS
EXECUTIVE ORDER NO. 109
AMENDING EXECUTIVE ORDER NO. 44
NORTH CAROLINA COMMISSION ON BUSINESS
LAWS A>fD THE ECONOMY
EXECUTIVE ORDER NO. Ill
INFORMATION TECHNOLOGY - RELATED
STATE GOVERNMENT FUNCTIONS
TRANSFER OF ADMINISTRATION
By the power vested in me as Governor by the laws and
Constitution of the State of North Carolina, IT IS
ORDERED:
WHEREAS, information technology is a critical building
block in the foundation of North Carolina's future; and.
Section 1.
Provision (a) of Section 1 of Executive Order No. 44 is
hereby amended to read as follows:
(a) Eleven members representing public and private
corporations.
Section 2.
Provision (b) of Section 1 of Executive Order No. 44 is
hereby amended to read as follows:
(b) Five practicing attorneys in the State of North
Carolina, one of whom shall serve as Reporter for the
Commission.
Section 3.
The last sentence of Section 1 of Executive Order No.
is hereby amended to read as follows:
44
The Attorney General and the Secretary of the North
Carolina Department of Commerce shall serve as Co-Chairs
of the Commission.
This Executive Order shall be effective immediately and
shall serve to extend Executive Order No. 44 for two years.
Done in the Capital City of Raleigh, North Carolina, this
the 25th day of March, 1997.
EXECUTIVE ORDER NO. 110
AMENDING EXECUTIVE ORDER NO. 99
CONCERNING EMERGENCY RELIEF FOR
DAMAGE CAUSED BY HURRICANE FRAN
By the power vested in me as Governor by the Constitution
and laws of the State of North Carolina, IT IS ORDERED:
Executive Order No. 99, as previously amended by
Executive Orders 102, 103, and 105, is hereby amended as
follows:
The provisions of Executive Order No. 99, as amended,
which apply to vehicles transporting logs and residual
products shall remain in force until June 27, 1997.
This order shall be effective immediately.
Done in Raleigh, North Carolina, this the 27th day of
March, 1997.
WHEREAS, the need to comprehensively plan for North
Carolina's information technology future efficiently and
effectively is part of planning for the State's future growth;
and
WHEREAS, there is a movement across the nation in both
the public and private sectors to coordinate and consolidate
the strategic resources of information technology under the
oversight of the chief executive officer in order to better
coordinate and link information technology, planning,
services and policies; and,
WHEREAS, the Department of Commerce, which already
houses the North Carolina Alliance for Competitive
Technologies, works to recruit and retain business and
industry; and,
WHEREAS, the use and promotion of information
technology in these efforts can aid the State's economic
development.
NOW, THEREFORE, by the power vested in me as
Governor by the laws and Constitution of the State of North
Carolina, IT IS ORDERED:
Section 1
The following agencies and services, including all
functions, powers and duties of each, are hereby transferred
to the North Carolina Department of Commerce:
a. Information Resource Management Commission;
b. State Information Processing Services; and,
c. State Telecommunications Services.
Section 2
Budgetary responsibilities for the agencies and services
listed above, and all funds available to the agencies and
services, are hereby transferred to the North Carolina
Department of Commerce.
Section 3
This Executive Order shall become effective upon
satisfaction of applicable Constitutional and statutory
requirements.
Done in the Capital City of Raleigh, North Carolina, this
the 14th day of April, 1997.
11:28 NORTH CAROLINA REGISTER May 15, 1997 2113
IN ADDITION
This Section contains public notices that are required to be published in the Register or have been approved by the
Codifier ofRules for publication.
North Carolina Wildlife Resources Commission
512 N. Salisbury Street, Raleigh, North Carolina 27604-1188, 919-733-3391
Charles R. FuUwood, Executive Director
PROCLAMATION
Charles R. Fullwood, Executive Director, North Carolina Wildlife Resources Commission, acting pursuant to North
Carolina General Statute §113-292 (cl) and authority duly delegated by the Wildlife Resources Commission, hereby declares
that the season for harvesting striped bass by hook-and-line shall open in that area of the Roanoke River from the Roanoke
Rapids Reservoir dam downstream to the Edward's Ferry Boating Access Area at the US Highway 258 bridge on Saturday,
April 19, 1997 from 12:00 noon through 6:00 p.m.
Effective 6:01 p.m. on April 19, 1997, the season for harvesting striped bass by hook-and-line is closed in all inland and
joint waters of the Roanoke River Striped Bass Management Area. All striped bass caught after 6:01 p.m. on April 19, 1997,
regardless of condition, shall be immediately returned to the waters where taken.
The Roanoke River Striped Bass Management Area is defined as the inland and joint fishing waters of the Roanoke River
and its tributaries, extending from its mouth to Roanoke Rapids Dam, including the Cashie, Middle, and Eastmost rivers and
their tributaries.
This proclamation shall be effective at 12:00 noon April 19, 1997 and shall remain in effect until a new proclamation
opening described waters or portions thereof for striped bass fishing is issued.
NOTES:
a) This Proclamation is issued under the authority of N.C.G.S. §§113-132; 113-134; 113-292; 113-304; and 113-305.
b) During the open season, the minimimi length limit is 18 inches and the daily creel limit is 3 fish. From April 1 through
May 31, no striped bass between 22 and 27 inches in length may be harvested.
c) From April 1 through June 30, only a single barbless hook or lure with a single barbless hook (or hook with barb bent
down) may be used in the inland waters of the Roanoke River upstream of U.S. Highway 258 bridge.
d) Any person who violates this Proclamation also violates applicable law and is subject to the sanctions provided by law.
NORTH CAROLINA WILDLIFE RESOURCES COMMISSION
by /s/Charles R. Fullwood April 10, 1997
Executive Director Date
2II4 NORTH CAROLINA REGISTER May 15, 1997 11:28
IN ADDITION
STATE OF NORTH CAROLINA
ENVIRONMENTAL MANAGEMENT COMMISSION
POST OFFICE BOX 29535
RALEIGH, NORTH CAROLINA 27626-0535
PUBLIC NOTICE OF INTENT TO ISSUE STATE GENERAL NPDES PERMITS
Public notice of intent to reissue expiring State National Pollutant Discharge Elimination System (NPDES) General
Permits for Point Source Discharges of Stormwater associated with the following activities:
1. NPDES General Permit No. NCG030000 for stormwater point source discharges associated with activities
classified as establishments primarily engaged in the Rolling, Drawing, and Extruding of Nonferrous Metals [standard
industrial classification (SIC) 335], Fabricating of Metal Products (SIC 34), Manufacturing of Industrial and Commercial
Machinery (SIC 35), Manufacturing of Electronic Equipment (SIC 36), Manufacturing of Transportation equipment (SIC 37),
and the manufacturing of measuring and analyzing instruments (SIC 38). The following activities are specifically excluded
from coverage under this General Permit: Ship and boat building and repairing (SIC 373), which is covered by general
stormwater permit NCG 190000.
2. NPDES General Permit No. NCG060000 for stormwater point source discharges associated with activities
classified as establishments primarily engaged in Food and Kindred Products [standard industrial classification (SIC) 20],
Tobacco Products (SIC 21), Soaps, Detergents and Cleaning Preparations; Perfumes, Cosmetics and Other Toilet Preparations
(SIC 284), Drugs (SIC 283), and Public Warehousing and Storage (SIC 4221-4225).
3. NPDES General Permit No. NCG080000 for stormwater point source discharges associated with activities
that have Vehicle Maintenance Areas (including vehicle rehabilitation, mechanical repairs, painting, fueling, lubrication and
equipment cleaning operation areas) associated with activities classified as Rail Transportation [Standard Industrial
Classification (SIC) 40], Local and Suburban Transit and Interurban Highway Passenger Transportation [SIC 41], Motor
Freight Transportation and Warehousing [SIC 42], except Public Warehousing and Storage [SIC 4221-4225], Postal Service
[SIC 43], Petroleum Bulk Stations and Terminals [SIC 5171] with total petroleum storage capacity of less than 1 million
gallons. Other activities which are designated on a case-by-case basis as being required to be permitted for stormwater point
source discharges from oil water separators, secondary containment structures at petroleum storage facilities with total
petroleum storage capacity of less than 1 million gallons, and/or vehicle maintenance areas at any facilities other than those
listed above. The following activities are specifically excluded from coverage under this General Permit: vehicle maintenance
areas at activities classified as Water Transportation [SIC 44] and Transportation by Air [SIC 45] and wash water from steam
cleaning operations or other equipment cleaning operations.
4. NPDES General Permit No. NCG090000 for stormwater point source discharges associated with activities
classified as establishments primarily engaged in Manufacture of Paints, Varnishes, Lacquers, Enamels, and Allied Products
[standard industrial classification (SIC) 285].
5. NPDES General Permit No. NCG 100000 for stormwater point source discharges associated with activities
classified as establishments primarily engaged in Used Motor Vehicle Parts [Standard Industrial Classification (SIC) 5015] and
Automobile Wrecking for Scrap [a portion of SIC 5093].
6. NPDES General Permit No. NCG12(X)00 for stormwater point source discharges associated with activities
classified as Landfills that are permitted by the North Carolina Division of Solid Waste Management under the provisions and
requirements of North Carolina General Statute BOA - 294. The following are specifically excluded from coverage under this
General Permit: Stormwater discharges from open dumps, hazardous waste disposal sites, or discharges of wastes (including
leachate) to the waters of the state.
On the basis of preliminary staff review and application of Article 21 of Chapter 143 of the General Statutes of North
Carolina, Public Law 92-500 and other lawful standards and regulations, the North Carolina Environmental Management
Commission proposes to reissue State NPDES General Permits for the discharges as described above.
11:28 NORTH CAROLINA REGISTER May 15, 1997 2115
IN ADDITION
INFORMATION; Copies of the draft NPDES General Permits and Fact Sheets concerning the draft Permits are
available by writing or calling:
Bradley Bennett
Water Quality Section
N.C. Division of Water Quality
P.O. Box 29535
Raleigh, North Carolina 27626-0535
Telephone (919) 733-5083 ext. 525
Persons wishing to coimnent upon or object to the proposed determinations are invited to submit their comments in
writing to the above address no later than June 16. 1997. All comments received prior to that date will be considered in the
final determination regarding permit issuance. A public meeting may be held where the Director of the Division of Water
Quality finds a significant degree of public interest in any proposed permit issuance.
The draft Permits, Fact Sheets and other information are on file at the Division of Water Quality, 512 N. Salisbury
Street, Room 942 H, Archdale Building. Raleigh, North Carolina. They may be inspected during normal office hours. Copies
of the information of file are available upon request and payment of the costs of reproduction. All such comments and requests
regarding these matters should make reference to the draft Permit Numbers, NCG030000, NCG060000, NCG080000,
NCG090000. NCGIOOOOO, or NCG120000.
Date: April 24, 1997 /s/Bradley Bennett
for/A. Preston Howard, Jr., P.E., Director
Division of Water Quality
2116 NORTH CAROLINA REGISTER May 15, 1997 11:28
RULE-MAKING PROCEEDINGS
A Notice ofRule-making Proceedings is a statement of subject matter of the agency 's proposed rule making. The agency
must publish a notice of the subject matterfor public comment at least 60 days prior to publishing the proposed text of
a rule. Publication of a temporary rule serves as a Notice of Rule-making Proceedings and can befound in the Register
under the section heading of Temporary Rules. A Rule-making Agenda published by an agency serves as Rule-making
Proceedings and can befound in the Register under the section heading of Rule-making Agendas. Statutory reference:
G.S. 150B-21.2.
TITLE 21 - OCCUPATIONAL LICENSING
BOARDS
CHAPTER 12 - LICENSING BOARD FOR
GENERAL CONTRACTORS
'KJotice of Rule-making Proceedings is hereby given by the North Carolina Licensing Board for General Contractors in
1 V accordance with G. S. 1508-21 . 2. The agency shall subsequently publish in the Register the taxt of the rule(s) it proposes
to adopt as a result of this notice of rule-making proceedings and any comments received on this notice.
Citation to Existing Rules Affected by this Rule-Making: 21 NCAC 12 .0204. .0503 - .0504, .0901 - .0912 - Other rules
may be proposed in the course of the rule-making process.
Authority for the rule-making: G.S. 87-1; 87-10; 87-11; 87-13; 87-13.1; 87-15.5 through 87-15.9
Statement of the Subject Matter: The North Carolina Licensing Board for General Contractors (Board) will consider
adopting rules, repealing rules, or amending rules addressing demonstration offinancial responsibility for licensure and
licensure renewal and the Homeowners Recovery Fund.
Reason for Proposed Action: To modify criteria for demonstration offinancial responsibility arui to clarify application of
the Homeowners Recovery Fund.
Comment Procedures: Written comments may be submitted on the subject matter of the proposed rule-making to Mark D.
Selph, Secretary-Treasurer of the Board at the Boards 's office. The Board 's address is P. O. Box 1 7187, Raleigh, NC 27619.
11:28 NORTH CAROLINA REGISTER May 15, 1997 2117
PROPOSED RULES
This Section contains the text ofproposed rules. At least 60 days prior to the publication of text, the agency published
a Notice of Rule-making Proceedings. Tfie agency must accept comments on the proposed rule for at least 30 days from
the publication date, or until the public hearing, or a later date if specified in the notice by the agency. The required
comment period is 60 days for a rule that has a substantial economic impact of at least five million dollars
($5,000,000). Statutory reference: G.S. 150B-21 .2.
TITLE 10 - DEPARTMENT OF HUMAN
RESOURCES
Notice is hereby given in accordance with G.S.
150B-21.2 that the DHR - Division of Medical
Assistance intends to adopt rule cited as 10 NCAC 26B
.0113. Notice of Subject Matter was published in the
Register on November 15, 1995.
Note: Existing rules 10 NCAC 26B .0113 - .0126 will be
renumbered to 10 NCAC 26B .0114 - .0127.
Proposed Effective Date: August 1, 1997
A Public Hearing will be conducted at 1:30 p.m. on June 3,
1997 at the Kirby Building, 1985 Umstead Drive, Room 132,
Raleigh, NC.
Reason for Proposed Action: This rule is being republished
to comply with the directions of the Rules Review
Commission issued on April 17, 1997. This agency was
directed to republish this rule to allow interested parties the
opportunity to review and comment on the fiscal impact of
the rule. The notice published on November 15, 1995 will
serve as a notice of subject matter.
This version of the rule is a result of changes made by the
agency pursuant to public comment received as a result of
public notice and hearing previously published on November
15, 1995. This version also reflects technical changes
requested by the Rules Review Commission.
Comment Procedures: Written comments concerning this
rule-making action must be submitted by June 16, 1997 to
Portia W. Rochelle, Rule-making Coordinator, Division of
Medical Assistance, 1985 Umstead Drive, Raleigh, NC
27603. Oral comments may be presented at the hearing. A
fiscal note statement may be requestedfrom the Rule-making
Coordinator at telephone: (919) 733-6964.
This agency will resubmit the rule to the Rules Review
Conunission on June 20, 1997for review and consideration
at its July 17, 1997 meeting.
Fiscal Note: This Rule affects the expenditure or distribution
of State finds and the expenditures or revenues of local
government funds.
CHAPTER 26 - MEDICAL ASSISTANCE
SUBCHAPTER 26B - MEDICAL
ASSISTANCE PROVIDED
SECTION .0100 - GENERAL
.0113 NC MEDICAID CRITERIA FOR
CONTINUED ACUTE STAY IN AN
INPATIENT PSYCHIATRIC FACILITY
The following criteria apply to children and adolescents
under the age of 21 in a psychiatric hospital or in a
psychiatric unit of a general hospital, and to adults aged 21
through 64 receiving treatment in a psychiatric unit of a
general hospital
.
hospi t al, and to adult s aged 21 through 64
receiving treatment in a psychiatric unit of a general hospital
.
Patient must meet each of the following six conditions :
These criteria shall be applied after the initial admission
period of up to three days. To qualify for continued acute
stay in an inpatient psychiatric facility a patient must meet
each of the conditions specified in Items (1) through (6) of
this Rule. To qualify for continued non-acute stay in an
inpatient psychiatric facility a patient must meet all of the
conditions specified in Item (7) of this Rule.
(1) The patient has one of the following:
W(a) The patient has a A current DSM-IV, Axis
I diagnosis, diagnosis, or
ta)ibl The patient has a A current BSM-fV DSM-IV.
Axis II diagnosis and current
symptoms/behaviors which are characterized
by all of the following:
(i) Symptoms/behaviors are likely to
respond positively to acute inpatient
treatment,
(ii) Symptoms/behaviors are not
characteristic of patient's baseline
functioning,
(iii) Presenting problems are an acute
exacerbation of dysfunctional
behavior patterns which are recurring
and resistive to change.
(2) Symptoms are not due solely to mental retardation.
(3) The symptoms of the patient are characterized by
both of the following:
(a) a A degree of intensity sufficient to classify
for classification at the extreme end of a
symptom continuum.
(b) Require continuum which requires continual
medical/nursing response, management, and
monitoring, monitoring and at l e ast one o f
the following:
(4j The patient's symptoms and related behaviors are
characterized by at least one of the following:
(a) Lethality, dangerousness. or destructiveness
which Actively endangers self or others.
2118 NORTH CAROLINA REGISTER May 15, 1997 11:28
PROPOSED RULES
\
)
)
(b) Grossly bizarre, disruptive and provocative
("feces smearing, disrobing, pulling out hair,
etc.). Presents—with
—
extreme—Icvd—of
subjective distress as indicated by at least
one of the following :
it)—Makes despe rate statements.
(ri)—h
—
significantly—unresponsive—to
envi ronme ntal stimuli.
im)—Is unable to meet basic self care
needs.
^rr)—Is unwilling to comply with treatment
necessary to address life endangering
physiological/medical needs.
i^ Symptom behavior(s) is presented at least 5 times
in a 24 hour period, or limited frequency behavior s
aiT associated with lethality, dangerousne ss, or
destructiveness which endangers self or others.
(c) Related to repetitive behavior disorders
which present at least five times in a 24
hour period.
(d) Directlv result in an inability to maintain
age appropriate roles.
(5) The acute symptoms must be related to factors
other than weaknesses or problems in patient's
environmental support system, system (exceptional
circumstances are addressed in Item (7) of this
Rule.
(6) Inpatient care in the facility and program can
reasonably be expected to measurably improve the
patient's condition aid functioning as evidenced by
one of the following: so that
(a) Patient's treatment can eventually be
continued on an outpatient basis, basis or
patient
£b} Patient needs further monitoring and
evaluation in a hospital as evidenced by at
least one of the following:
ta)£il Requires constant, skilled monitoring
under the direction of a physician, to
clarify treatment needs which can not
cannot be provided in an outpatient
setting.
fb)£ii} Requires constant, skilled monitoring
in a secure setting, under the
direction of a physician, to control
behavior or ensure safety which
cannot be provided in an outpatient
setting.
fcXiii) The patient needs special
neurological or biochemical tests that
cannot be performed on an outpatient
basis.
£7} Except for recipients covered under Carolina
Alternatives and except for state hospitals where
the discharge requirements defined by 10 NCAC
15A ensure the active involvement of the area
program in discharge planning independently of
payor source, in the event that not all of the
requirements specified in Items (1) through (6) of
this Rule are met, reimbursement may be provided
for patients through the age of H for continued
stav in an inpatient psychiatric facility at a non-acute
level of care to be paid at the High Risk
Intervention Residential High (HRl-R High)rate if
the facility and program services are appropriate
for the patient's treatment needs and provided that
all of the following conditions are met:
(a) The psychiatric facility has made an
appropriate referral for case management
and after care services to the area Mental
Health. Developmental Disabilities.
Substance Abuse (MH/DD/SA) program
which serves the patient's county of
residence.
The area MH/DD/SA program has agreed
that no appropriate services exist or are
accessible within a clinically acceptable
waiting time to treat the patient in a
community setting.
The area MH/DD/SA program has agreed
that the patient has a history of sudden
decompensation or significant regression
and experiences weakness in his or her
environmental support system which are
likely to trigger a decompensation or
regression. This history must be
documented by the patient's attending
physician.
The inpatient facility must have a contract
to provide HRI-R. High with the relevant
area MH/DD/SA program as defined in
Item (7)(a) of this Rule.
The area MH/DD/SA program must receive
£b)
{£}
£d}
£e}
m
:
approval from the Child and Family
Services Section of the Division of Mental
Health. Developmental Disabilities.
Substance Abuse Services for the use of
extended HRI-R. High.
The relevant area MH/DD/SA program
provides approval to the psychiatric facility
for the provision of extended HRI-R High,
receives claims from the inpatient facility.
and provides reimbursement to the facility
in accordance with the terms of its contract.
Authority G.S. 108A-25(b); 108A-54; 42 C.F.R. 441,
Subpart D.
******************
Notice is hereby given in accordance with G.S.
150B-21.2 that the DHR - Division of Medical
Assistance intends to amend rules cited as 10 NCAC SOB
.0202, .0404, .0409. Notice of Rule-making Proceedings
11:28 NORTH CAROLINA REGISTER May 15, 1997 2119
PROPOSED RULES
was published in the Register on August 15, 1996.
Proposed Effective Date: August 1, 1998
A Public Hearing will be conducted at 1:00 p.m. on June 3.
1997 at the Kirby Building. 1985 Umstead Drive, Room 132,
Raleigh, NC.
Reason for Proposed Action: The Division of Medical
Assistance proposes to modify t^vo recipient eligibility
methodologies to conform to Work First methodologies. The
modifications are beneficial to recipients and simplify
program administration. In the absence of a change to
administrative procedures, families will have their income
calculated differently and will be subject to different
reporting requirements.
Comment Procedures: Written comments concerning this
rule-making action must be submitted by June 16, 1997 to
Portia W. Rochelle, APA Coordinator, Division of Medical
Assistance, 1985 Umstead Drive, Raleigh, NC 27603. Oral
comments may be presented at the hearing. A fiscal note
statement is available upon written request from the same
address.
Fiscal Note: Rule 10 NCAC 50B .0404 affects the
expenditures of local governmentfunds. Rules 10 NCAC SOB
. 0202 and . 0409 do not affect the expenditures or revenues
of local government funds. These Rules do not affect the
expenditure or distribution of State funds. These Rules do
not have a substantial economic impact of at least five
million dollars ($5,000,000) in a 1 2-month period.
CHAPTER 50 - MEDICAL ASSISTANCE
SUBCHAPTER SOB - ELIGIBILITY
DETERMINATION
SECTION .0200 - APPLICATION PROCESS
.0202 EVITIAL INTERVIEW
(a) The county department of social services shall conduct
an interview with the client or his representative. The client
may have any person or persons of his choice participate in
the interview. During the interview, the Income
Maintenance Caseworker shall explain the application
process, the client's rights and responsibilities, the programs
of public assistance and the eligibility conditions.
(b) The applicant shall be advised of his right to apply in
more than one program category for which he qualifies and
the advantages and disadvantages of the choices shall be
explained.
(c) The client shall be informed of the following:
(1) That information he provides shall be checked for
accuracy. The client shall be told what
information he shall provide, and what sources the
agency shall contact to check the information.
Collateral sources of information shall include
knowledgeable individuals, business organizations,
public records, and documentary evidence. If the
client does not wish necessary collateral contacts to
be made, he can withdraw his application. If he
denies permission to contact necessary collaterals
and all alternative sources of verification, the
application shall be denied due to failure to
cooperate in establishing eligibility.
(2) The client has the right to:
(A) Receive assistance if found eligible;
(B) Be protected against discrimination on the
grounds of race, creed, or national origin by
Title VI of the Civil Rights Act of 1964.
He may appeal such discrimination;
(C) If eligible for Medicaid and Medicare Part
B, have the monthly premium paid in his
behalf under an agreement between the state
and SSA;
(D) Have any information given to the agency
kept in confidence;
(E) Appeal, if he believes the agency's action to
deny, change, or terminate assistance is
incorrect, or his request is not acted on with
reasonable promptness;
(F) Reapply at any time, if found ineligible;
(G) Withdraw from the program at any time;
(H) Request the agency's help in obtaining third
party information which he is responsible to
provide;
(I) Be informed of all alternative sources of
verification for the information he is
responsible to provide.
(3) The client shall be responsible for the following:
(A) Provide the county department, state and
federal officials, the necessary sources from
which to locate and obtain information
needed to determine eligibility;
(B) Report to the county department of social
services any change in situation that may
affect eligibility within fhr 10 calendar
days after it happens. The meaning of fraud
shall be explained. The applicant shall be
informed that he may be suspected of fraud
if he fails to report a change in situation and
that in such situations, he may have to repay
assistance received in error and that he may
also be tried by the courts for fraud;
(C) Inform the county department of social
services of any persons or organization
against whom he has a right to recovery.
When he accepts medical assistance, the
applicant assigns his rights to third party
insurance benefits to the state. He shall be
informed that it is a misdemeanor to fail to
disclose the identity of any person or
organization against whom he has a right to
2120 NORTH CAROLINA REGISTER May 15, 1997 11:28
PROPOSED RULES
recovery;
(D) Immediately report to the county department
the receipt of an I. D. card which he knows
to be erroneous. If he does not report such
and uses the I.D. card, he may be required
to repay any medical expenses paid in error.
Authority G.S. 108A-57; 42 C.F.R. 435.908; Alexander v.
Flaherty, U.S.D.C. W.D.N.C. File No. C-C-74-183,
Consent Order Filed 15 December 1989; Alexander v.
Flaherty Consent Orderfiled February 14, 1992.
SECTION .0400 - BUDGETING PRINCIPALS
.0404 INCOME
(a) Income that is actually available and that which the
client or someone acting in his behalf can legally make
available for support and maintenance shall be counted as
income.
(b) Only income actually available or predicted to be
available to the budget unit for the certification period for
which eligibility is being determined shall be counted as
income.
(c) For aged, blind, and disabled cases allowable
disregards from income are based on Title XVI of the Social
Security Act.
(d) Deductions subtracted after disregards are:
(1) Child or incapacitated adult care not to exceed one
hundred and seventy-five dollars ($175.00) per
child over two years of age or adult or two
hundred dollars ($200.00) per child under two
years of age for Family and Children's related
cases.
(2) A standard deduction of ninety dollars ($90.00)
from the total earned income of each budget unit
member for Family and Children's related cases.
(3) For aged, blind, and disabled cases allowable
deductions from income are based on Title XVI of
the Social Security Act.
(e) Except for M-PW wages, wage deductions and
work-related expenses shall be calculated by converting the
average amount per pay period into a monthly amount:
(1) If paid weekly, multiply by 4.333. 4.3.
(2) If paid bi-weekly, multiply by 2.1666. 2.15.
(3) If paid semi-monthly, multiply by 2.
(4) If paid monthly, use the monthly gross.
(5) If salaried, and contract renewed armually, divide
annual income etc. by 12.
(0 For M-PW cases, the budget unit's actual income for
the calendar month of eligibility shall be verified.
Authority G.S. 108A-25(b); 42 C.F.R. 435.121; 42 C.F.R.
435.401; 42 C.F.R. 435.603; 42 C.F.R. 435.731; 42 C.F.R.
435.732; 42 C.F.R. 435.734; 42 C.F.R. 435.812; 42 C.F.R.
435.831; 45 C.F.R. 435.845; 45 C.F.R. 435.851; 45 C.F.R.
233.20; 45 C.F.R. 233.51.
.0409 CHANGE IN SITUATION
(a) For Medicaid applications, once the county department
of social services learns from any source that there has been
a change in the budget unit's situation they shall notify the
applicant within five work days of the need to verify the
change. A change in situation includes but not limited to:
(1) Change of address, or
(2) Change in living arrangement, or
(3) Adding or deleting a budget unit member, or
(4) Increase or decrease in income, or
(5) Change in reserve, or
(6) Cessation of disability or blindness, or
(7) Parent or parents are no longer incapacitated or
unemployed, or
(8) Change in responsible relative, or
(9) Change in Aid Program Category.
(b) For an ongoing Medicaid case, once the county
department of social services learns from any source that
there has been a change in the budget unit's situation they
shall review the case promptly and appropriate action shall be
completed within 30 calendar days after the agency learns of
the change in situation.
(c) The Medicaid client or his representative shall report
any change in situation that might affect eligibility within
ftrc 10 calendar days to the county department of social
services.
Authority G.S. 108A-54; 42 C.F.R. 435.916.
TITLE ISA - DEPARTMENT OF ENVIRONMENT,
HEALTH, AND NATURAL RESOURCES
Notice is hereby given in accordance with G.S.
150B-21.2 that the EHNR - Environmental Management
Commission intends to amend rule cited as 15A NCAC 2B
.0308. Notice ofRule-making Proceedings was published in
the Register on January 15, 1997.
Proposed Effective Date: August 1, 1998
A Public Hearing will be conducted at 7:00 p.m. on June 3,
1997 at the McDowell County Courthouse. 1 South Main
Street, Marion. NC 28752.
Reason for Proposed Action: The N.C. Department of
Emironment, Health and Natural Resources on behalf of the
Emironmental Management Commission (EMC) will conduct
a public hearing in order to receive public comments on a
proposal to reclassify a portion of Toms, Mill and
Swannanoa Creeks (Catawba River Basin) in McDowell
County to High Quality Waters. These rule-making
proceedings are being held in accordance with N.C. G.S.
143-214.1, 143-215.1, and 143-215. 3(a)(1).
The criteriafor designation to High Quality Waters includes
those waters which are rated as excellent based on biological
and physical/chemical characteristics through Division
11:28 NORTH CAROLINA REGISTER May 15, 1997 2121
PROPOSED RULES
monitoring or special studies, native and special native trout
waters designated by the Wildlife Resources Commission,
primary nursery areas designated by the Marine Fisheries
Commission and otherfunctional nursery areas designated by
the Wildlife Resources Commission, 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.
Several tributary sites of the Upper Catawba River were
identified as potential High Quality Waters streams by the
Division of Water Quality (DWQ) Environmental Sciences
Branch. Toms Creek, Mill Creek and Swannanoa Creek,
three of the qualifying streams, received an excellent
bioclassification and they, including their tributaries, are
recommended for reclassification to High Quality Waters.
The Division of Water Quality is requesting that the EMC
reclassify Mill Creek, and all tributaries, from its source to
Swannanoa Creek from Class C Tr to Class C Tr HQW,
Swannanoa Creek, and all tributaries, from its source to Mill
Creekfrom Class C Tr to Class C Tr HQW, and Toms Creek
from its source to Harris Creekfrom Class C Tr to Class C
Tr HQW, and Toms Creek from Harris Creek to McDowell
County SR 1434 from Class C to Class C HQW.
If reclassified, ne^v and expanding wastewater dischargers to
the area affected by the proposed reclassification in the Toms
Creek and the Mill and Swannanoa Creeks watersheds will
have additional treatment requiremems. Expanded discharges
are those that increase their permitted pollutant loading.
Single family residences would not be permitted to discharge
to surface waters. Land disturbing activities 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 development criteria.
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 rele\unt verbal comments or submit written comments,
data or other relevant information by July 3, 1997. The
Hearing Officer may limit the length of time that you may
speak at the public hearing, if necessary, 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 \ie^vs known to the EMC whether in favor of or opposed
to any and all provisions of the proposed reclassifications.
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 ne^v 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 presented. The
proposed effective date for the final rules pursuant to this
hearing process is August 1, 1998. Written comments may
be submitted by July 3, 1997 to:
Liz Kovasckitz
DEHNR/Division of Water Quality
P.O. Box 29535
Raleigh, NC 27626-0535
(919) 733-5083, extension 572
In the case of inclement weather on the day the public
hearing is scheduled, please contact the above telephone
number for a recorded message on any changes to the
location, day or time of the hearing.
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 ($5,000,000) in a 1 2-month period.
CHAPTER 2 - ENTVmONMENTAL
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 County
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,
Health, and Natural Resources:
(A) Mooresville Regional Office
919 North Main Street
Mooresville, North Carolina
(B) Asheville Regional Office
Interchange Building
59 Woodfin Place
Asheville, North Carolina.
(b) Unnamed Streams. Such streams entering South
Carolina are classified "C".
(c) The Catawba River Basin Schedule of Classifications
2122 NORTH CAROLINA REGISTER May 15, 1997 11:28
PROPOSED RULES
and Water Quality 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) February 1, 1986;
(7) March 1, 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 1 , V^r 1996;
(15) August 1. 1998.
(d) The Schedule of Classifications and Water Quality
Standards for the Catawba River Basin was amended effective
March 1, 1989 as follows:
(1) Wilson Creek (Index No. 11-38-34) 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) Henry Fork [Index Nos. 11-129-1-(1) and
ll-129-l-(2)] from source to Laurel Creek,
including all tributaries, were reclassified from
Class WS-I, C and C trout to Class WS-I 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
ll-129-2-(4)] from source to Camp Creek,
including all tributaries, were reclassified from
Class WS-III trout and WS-III to WS-III trout
ORW and WS-III ORW.
(0 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 l-35-2-(l)] 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. 11-35-2-12(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-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 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.
(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
July 1, 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.
ll-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. 1 l-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-IVCA 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 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 HOW: and
(2) Swannanoa Creek [Index No. 1 1-7-9] from its
source to Mill Creek, including all tributaries,
from Class C Tr to Class C Tr HOW: and
£3} Toms Creek [Index No's. ll-21-(l)and 11 -21 -(2)1
from its source to Harris Creek, including all
tributaries, from Class C Tr to Class C Tr HOW
and from Harris Creek to McDowell County SR
1434. including all tributaries, from Class C to
Class C HOW.
Authority G.S. 143-214.1; 143-215.1: 143-215. 3(a)(1).
Notice is hereby given in accordance with G.S.
150B-21.2 that the EHNR - Water Pollution Control
11:28 NORTH CAROLINA REGISTER May 15, 1997 2123
PROPOSED RULES
System Operations Certification Commission intends to adopt
rules cited as 15A NCAC 8F .0101 - .0102. .0201 - .0203,
.0301, .0401 - .0407. .0501 - .0506. Notice of Rule-making
Proceedings was published in the Register on January 2,
1997.
Proposed Effective Date: August 1. 1998
A Public Hearing will be conducted at 7:00 p.m. on June 3,
1997 at the Groundfloor Hearing Room, Archdale Building,
512 N. Salisbury Street, Raleigh. NC.
Reason for Proposed Action: The purpose of this rule-making
is to establish the certification procedures and
requirements for operators of animal waste management
s^'Stems as required by NCGS 90A-47. The intent of this
certification is to reduce nonpoint source pollution that may
result from the land application of animal waste that is
generated by animal operations as defined at NCGS 143-
215. lOB. The certification program is designed to protect
the public health and to conser\'e and protect the quality of
the State's agricultural land for the production offood and
other agricultural products, and to require the examination
of animal waste management system operators and
certification of their competency to operate or supervise the
operation of those systems.
Comment Procedures: Comments, statements, data and
other information may be submitted in writing prior to,
during, or within 30 days after the date of the final hearing
(July 3, 1997) or may be presented orally at the hearing.
Oral statements may be limited at the discretion of the
hearing officer. Submittal of written copies of oral
statements is encouraged. Copies of the proposed rules and
information package may be obtained by contacting the
Technical Assistance and Certification Group at 919/733-
0026. Written comments may be submitted to Bo McMinn,
Dixision of Water Quality, Water Quality Section, Technical
Assistance and Certification Group, P.O. Box 29535,
Raleigh, NC 27626-0535.
Fiscal Note: 15A NCAC 8F .0201 - .0203, .0301, .0402 -
.0407, .0502 - .0505 affect the expenditure or distribution of
State funds.
15A NCAC 8F .0101 - .0102, .0401, .0501, .0506 do not
affect the expenditure or distribution of state funds. These
Rules do not affect the expenditures or revenues of local
government funds. These Rules do not have a substantial
economic impact of at least five million dollars ($5,000,000)
in a 12-month period.
CHAPTER 8 - WATER POLLUTION
CONTROL SYSTEM OPERATORS
CERTinCATION COMMISSION
SUBCHAPTER 8F - CERTIFICATION
OF OPERATORS OF ANIMAL WASTE
MANAGEMENT SYSTEMS
SECTION .0100 - GENERAL PURPOSE/
DEFINITIONS
.0101 PURPOSE
(a) The purpose of these Rules is to reduce nonpoint
source pollution in order to protect the public health and to
conserve and protect the quality of the State's water
resources, to encourage the development and improvement of
the State's agricultural land for the production of food and
other agriculmral products, and to require the examination of
animal waste management system operators and certification
of their competency to operate or supervise the operation of
those systems.
(b) These Rules apply to all operators of animal waste
management systems that are required to designate an
operator in charge as specified by G.S. 90A-47.2(a). These
animal waste management systems include those systems that
are designed to serve an animal operation involving 250 or
more swine. 100 or more confined cattle. 75 or more horses.
1000 or more sheep, or 30.000 or more confined poultry
with a liquid animal waste management system.
(c) The Certification Commission shall classify animal
waste management systems based on the types of structures
and nonstructural practices serving a feedlot that provide for
the collection, treatment, storage, or land application of
animal waste.
(d) The Certification Commission shall establish
certifications for each type of animal waste management
system so that persons holding these certificates shall be
affirmed competent to operate a specific type of animal waste
management system.
Authority G.S. 90A-37; 90A-38; 90A-47; 143B-300.
.0102 DEFINITIONS
(a) "Animal waste" means liquid residuals, resulting from
an animal operation that are collected, treated, stored, or
applied to the land through ^ animal waste management
system.
(b) "Animal waste management system" means a
combination of strucmres and nonstructural practices serving
a feedlot that provide for the collection, treatment, storage.
or land application of animal waste.
(c) "Animal waste management system operator" means a
person that has been certified by the Certification
Commission as a Type A Animal Waste Management System
Operator or as a Type B Animal Waste Management System
Operator.
(d) "Application of animal waste" means laying, spreading
on. irrigating, or injecting animal waste onto or into the soil.
(e) "Appropriate examination" means an examination that
has been approved by the Certification Commission.
(f) "Approved training program" means a training program
that has been developed and approved by the Certification
Commission in cooperation with the Cooperative Extension
2124 NORTH CAROLINA REGISTER May 15, 1997 11:28
PROPOSED RULES
Service.
(g) "Certified operator" ineans a person who holds a
currently valid certification as an animal waste management
system operator.
(h) "Certification Commission" means the Water Pollution
Control System Operators Certification Commission
(WPCSOCC) created by G.S. 143B-3Q0.
£i} "Contract animal waste management system operator"
means any cenified animal waste operator who contracts with
the owner or person in control of an animal operation
pursuant to G.S. 90A-47.2(b).
{]} "Currently valid certification" means that all training
and certification requirements pursuant to G.S. 90A-47.3(b)
and G.S. 90A-47.4 have been completed.
(k) "Emergency circumstances" means any extraordinary
meteorological event, natural catastrophe, or equipment
failure that threatens the integrity of the animal waste
management system.
(1) "Operator in Charge" means a person who holds a
currently valid certificate to operate an animal waste
management system and who has primary responsibility for
the operation of the system.
(m) "Owner" means the person who owns or controls the
premises of an animal operation having an animal waste
management system.
(n) "Person under the supervision of an Operator in
Charge" means a person who takes directions from the
Operator in Charge and who may only land apply animal
waste when the Operator in Charge is available for
consultation and advice at any time during the application of
animal waste.
Authority G.S. 90A-35; 90A-43; 90A-47; 143B-300.
SECTION .0200 - DUTIES AND REQUIREMENTS
.0201 DUTIES AND REQUIREMENTS OF OWNERS
(a) The owner of each animal operation having an animal
waste management system shall submit a letter to the
Certification Commission. Division of Water Ouality.
Technical Assistance and Certification Group. P.O. Box
29535. Raleigh. North Carolina 27626-0535. which
designates an Operator in Charge with the appropriate type
of certification. This letter shall be signed by the owner and
the certified operator and be submitted to the Certification
Commission by January 1. 1997 for all facilities in operation
as of that date. Otherwise, the Operator in Charge shall be
designated:
(1) before a new animal operation having an animal
waste management system is placed in operation
after January 1^ 1997; or
(2) within 30 days after a new Operator in Charge is
designated.
(b) An owner may voluntarily designate a back-up
Operator in Charge to operate the animal waste management
system during the absence of the primary Operator in
Charge.
Authority G.S. 90A-44; 90A-47; 143B-300.
.0202 DUTIES AND REQUIREMENTS
OF CERTIFIED OPERATORS
Certified Operators shall:
(U notify the Certification Commission. Division of
Water Ouality. Technical Assistance and
Certification Group. P.O. Box 29535. Raleigh.
North Carolina 27626-0535. in writing, within 30
days of any change in address: and
£2} pay an annual renewal fee as specified at G.S.
90A-47.4(b) and complete all additional training
requirements as specified at G.S. 90A-47.3(b).
Authority G.S. 90A-47; 143B-300.
.0203 DUTIES AND REQUIREMENTS
OF AN OPERATOR IN CHARGE
(a) An Operator in Charge of any animal waste
management system shall:
(1) possess a currently valid certification as an Animal
Waste Management System Operator of the
appropriate type:
(2) visit, and inspect each animal waste management
system aj a frequency sufficient to ensure proper
operation of the system: and
£3J be responsible for the proper application of the
animal waste: properly manage, supervise and
document daily operation and maintenance of the
system: certify monitoring and reporting
information as prescribed in the permit: and reside
within reasonable proximity of the system to be
readily available for consultation during
emergency circumstances, regulatory inspections
and similar matters.
(b) The Operator in Charge or a designated back-up
Operator in Charge of a Type A Animal Waste Management
System shall:
(1) ensure that animal waste is applied in accordance
with the animal waste management plan and the
permit issued for the animal operation:
(2) inspect, or a person under the supervision of ^
Operator in Charge shall inspect, the land
application site at least every four hours during the
application of animal waste: and
(3) inspect the land application site within 24 hours of
the application of animal waste if the Operator in
Charge was not present during the application of
animal waste.
(c) The Operator in Charge or a designated back-up
Operator in Charge of a Type B Animal Waste Management
System shall:
(1) ensure that animal waste is applied in accordance
with the animal waste management plan and the
permit issued for the animal operation:
(2) inspect, or a person under the supervision of an
Operator in Charge shall inspect, the land
11:28 NORTH CAROLINA REGISTER May 15, 1997 2125
PROPOSED RULES
application site during the application of animal
waste; and
(3) inspect the land application site within 48 hours of
the application of animal waste if the Operator in
Charge was not present during the application of
animal waste,
(d) Any cenified operator that contracts with an owner to
serve as Operator in Charge shall submit an annual report to
the Certification Commission in accordance with G.S. 90A-
45(c). This repon shall be submitted on or before January 15
of each year and shall include the following information:
(1) the name of the certified operator, mailing address.
phone number, and certificate number(s): and
£2j the name, mailing address, county, and facility
identification number, and type of each animal
waste management system for which the certified
operator has been designated as Operator in
Charge.
systems for the treatment of animal waste. These
systems generally include the following
components i dry stacks: solids and slurry
collection equipment: storage ponds for the
collection of solids and runoff; pumps, pipes and
associated appurtenances that convey the waste
from point of generation to final Type B animal
waste management systems are generally used to
treat waste generated by ruminants and other
animals which produce a high-fiber waste. Animal
waste management systems which include
components that are significantly different than the
system described in Item (1) of this Rule shall be
evaluated by the Commission, or its designee, to
determine if the system is subject to classification
in accordance with Rule 15A NCAC 8C .0002(5).
Authority G.S. 90A-37; 90A-47; 143B-300.
Authority G.S. 90A-47; 143B-300.
SECTION .0300 - CLASSIFICATION
.0301
m
CLASSinCATION OF ANIMAL
WASTE MANAGEMENT SYSTEMS
The Certification Commission shall classify animal waste
management systems based on the types of structures and
nonstructural practices serving a feed lot that provide for the
collection, treatment, storage, or land application of animal
waste.
Type A: animal waste management systems that
may include the following structures and
nonstructural components that provide for the
collection, treatment, storage and land application
of animal waste and primarily rely on an anaerobic
lagoon and soil/plant systems for the treatment of
animal waste. These systems generally include the
following components: anaerobic lagoon; pumps,
pipes and associated appurtenances that convey the
waste from point of generation to final
treatment/disposal site; flushing systems: solids
separation equipment; irrigation equipment; and
land application site and crops. Type A animal
waste management systems are generally used to
treat waste generated by monogastric animals
which produce a low-fiber waste. Animal waste
management systems which include components
that are significantly different than the system
described in this Item of this Rule shall be
evaluated by tlie Commission, or its designee, to
detennme if the system is subject to classification
in accordance with Rule 15A NCAC 8C .0002(b).
Type Bi animal waste management systems that
may include the following structures and
nonstructural components that provide for the
collection, treatment, storage and land application
of animal waste and primarily rely on soil/plant
ill
SECTION .0400 - CERTIFICATION OF
OPERATORS
.0401 QUALIFICATIONS FOR EXAMINATION
(a) Type A Animal Waste Management System Operator.
(1) An applicant for certification as a Type A Animal
Waste Management System Operator shall be
expected to have a general knowledge of animal
operations and Type A animal waste management
systems. The applicant shall have knowledge of
the laws and regulations related to tlie operation of
Type A animal waste management systems, the
equipment usually employed in Type A animal
waste management systems, be able to describe the
general maintenance requirements for such
equipment, have the ability to perform calibrations
and calculations relating to the land application of
the waste, have an understanding of animal waste
management plans, and be able to read and
complete the forms necessary to document the
proper land application of animal waste in
accordance with the animal waste management
plan. The applicant must submit an application to
the Certification Commission showing that the
following requirements have been met in order to
take an examination for certification as a Type A
Animal Waste Management System Operator:
(A) be at least 18 years of age:
(B) completion of a 10 hour training program
on the operation of Type A animal waste
management systems that provides
instruction regarding the collection, storage,
treatment, and land application of animal
waste.
(2) An applicant who has failed to pass the appropriate
examination after three attempts must attend and
satisfactorily complete the approved training
program before being eligible to retake the
2126 NORTH CAROLINA REGISTER May 15, 1997 11:28
PROPOSED RULES
examination,
(b) Type B Animal Waste Management System Operator.
(1) An applicant for certification as a Type B Animal
Waste Management System Operator shall be
expected to have a general knowledge of animal
operations and Type B animal waste management
systems. The applicant shall have knowledge of
the laws and regulations related to the operation of
Type B animal waste management systems,
knowledge of the equipment usually employed in
Type B animal waste management systems, be able
to describe the general maintenance requirements
for such equipment, have the ability to perform
calibrations and calculations relating to the land
application of the waste, have an understanding of
animal waste management plans, and be able to
read and complete the forms necessary to
document the proper land application of animal
waste in accordance with the animal waste
management plan. The applicant must submit an
application to the Certification Commission
showing that the following requirements have been
met in order to take an examination for
certification as a Type B Animal Waste
Management System Operator:
(A) be at least 18 years of age:
(B) completion of a 10 hour training program
on the operation of Type B Animal Waste
Management Systems that provides
instruction regarding the collection, storage,
treatment, and application of animal waste.
(2) An applicant who has failed to pass the appropriate
examination after three attempts must attend and
satisfactorily complete the approved training
program before being eligible to retake the
examination.
Authority G.S. 90A-43; 90A-47: 143B-300.
.0402 APPLICATION FORM
(a) An application form which is designed for requesting
certification as an Animal Waste Management System
Operator by way of examination must be properly and
accurately completed and submitted with the appropriate fee
as stipulated
Commission.
bx G.S. 9QA-47.4 to the Certification
of Water Quality. Technical
P.O. Box 29535.
Division
Assistance and Certification Group.
Raleigh. North Carolina 27626-0535.
(b) Incomplete applications and applications not
accompanied by the appropriate fee and attachments cannot
be processed and will be returned to the applicant.
Authority G.S. 90A-39; 90A-47; 143B-300.
.0403 APPLICATION PROCEDURES
£al An application being filed for examination shall be
postmarked by the United States Postal Service at least 30
days prior to the date upon which the examination is
scheduled to be administered and the appropriate fee must
accompany the application.
(b) Upon receipt of the application by the Certification
Commission, the application will be reviewed by the
designee(s) of the Certification Commission for eligibility to
take the examination. The applicant will be notified by
letter, which will serve as the receipt for the examination fee.
of his/her eligibility and will be advised of the date, time and
place of the examination. In cases where the applicant is
ineligible for examination, the applicant will also be notified
by letter and advised of tlie reason for ineligibility. The
examination fee will be refunded in tlie event that the
applicant is determined to be ineligible for the examination.
Upon notification of ineligibility, the applicant may request
a hearing before the Certification Commission at the next
regularly scheduled meeting, relative to the ineligibility.
Such requests must be in writing and shall be submitted at
least 30 days prior to the next regularly scheduled meeting.
Any applicant who intentionally supplies false information on
the application for certification for the purpose of gaining
eligibility, will be ineligible for the examination and will
forfeit the examination fee. Applicants who have
intentionally supplied false information and who have been
determined to be ineligible who wish to reapply for
certification shall follow the procedure set forth in Rule
.0407(d) of this Section.
Authority G.S. 90A-39; 90A-47; 143B-300.
.0404 EXAMINATION PROCEDURES
The Certification Commission or its designee shall conduct
examinations for certification in accordance with the
following:
(1) The dates, times, and places of examination shall
be determined by the Certification Commission.
Armouncements of the dates, times and places of
examination shall be distributed to the Cooperative
Extension Service office in each county.
(2) Each applicant applying for examination shall be
notified of tlie date, time, and place of the
examination in accordance with Rule .0403(b) of
this Section.
(3) Examinations approved by the Certification
Commission shall be given only to those who,
after filing proper application, have been
determined to be eligible.
(4) When each applicant receives his/her examination
paper, he/she shall identify themselves by way of
a valid driver's license or other form of photo
identification satisfactory to the proctor of the
examination.
(5) Representatives of the Certification Commission or
its designee(s). who are supervising the
examinations may take appropriate action against
applicants. including dismissal from the
examination, if the examination policies and
11:28 NORTH CAROLINA REGISTER May 15, 1997 2127
PROPOSED RULES
procedures are not followed.
(6) An examinaiion score of 70 percent or higher shall
constitute a passing score.
(7) The applicant shall be notified, in writing only, of
the score achieved on the examination by the
Certification Commission or its designee. The
results of the examination shall be mailed to the
address submitted with the application for
examination. If a passing score is made, such
notification constitutes certification by the
Certification Commission that the applicant is
qualified operator of the appropriate type of animal
waste management systems and shall be issued a
certificate b>' the Cenification Commission. After
each examination, a fist of those certified shall be
prepared and made part of the permanent records
of the Cenification Commission.
Authority G.S. 90A-39: 90A-47; 143B-300.
.0405 RENEWAL OF CERTIFICATION
A currently valid certification as an animal waste
management system operator shall be maintained by:
(1) the payment of an annual renewal fee by the date
established by the Certification Commission;
(2) completion of a minimum of six hours of
additional training approved by the Certification
Commission during each three year period
following initial certification: and
(3) a cenified animal waste management system
operator that fails to pay the annual renewal fee
within 30 days of the due date, or fails to complete
the approved additional training within 30 days of
the end of three year period, shall take and pass an
examination approved by the Certification
Commission in order to renew the certificate.
Authority- G.S. 90A-47; 143B-300.
.0406 REVOCATION, RELINQUISHMENT
OR INVALIDATION OF CERTIFICATION
(a) The Certification Commission, in accordance with the
provisions of G.S. 150B. may suspend or revoke the
certificate of a cenified operator, or issue a written
reprimand to an operator if it finds that the operator:
(1) engages in fraud or deceit in obtaining
cenification: or
(2) fails to exercise reasonable care, judgment, or use
of tlie operator's knowledge and ability in the
performance of the duties of an operator in charge:
or
£3} is incompetent or otherwise unable to properly
perform the duties of an operator in charge.
(b) Prior to the Cenification Commission taking action on
a proposed revocation, suspension, or civil penalty
assessment, the operator shall be given an opponunity to
submit a written statement and present oral argument before
the Cenification Commission at a regularly scheduled
meeting. The operator shall be notified by the Cenification
Commission in writing at least 15 days prior to the meeting.
This notification shall be delivered by first class mail to the
operator's address that the Cenification Commission has on
file.
(c) The Cenification Commission may issue a written
reprimand to an operator in accordance with G.S. 90A-41.
The reprimand shall be delivered personally or by cenified
mail. A copy of the letter will be kept in tlie operator's file
and a copy will be sent to tjie operator's employer. The
operator will be given the opponunity to gut a letter of
rebuttal into the file when a reprimand has been issued.
Authont}- G.S. 90A-41; 90A-47; 143B-300; 150B-3; 150B-
23: 150B-38; 150B-52.
.0407 RECERTinCATION FOLLOWING
REVOCATION OR RELINQUISHMENT
(a) After revocation or relinquishment has been effective
for a period of not less than 270 days, a person may apply in
writing for recenification by the Cenification Commission.
The petition must include any relevant facts concerning
changes to conditions under which revocation or
relinquishment occurred. Such facts must show clearly that
the applicant will comply with the laws and regulations
concerning the operation of animal waste management
systems.
£b] Within 120 days following receipt of an application for
recenification. the Cenification Commission will notify the
applicant by letter of its decision to deny or grant
examination eligibility in accordance with procedures set out
in Rule .0403 of this Section. Additional eligibility
requirements including a show cause conference may be
imposed by the Cenification Commission as it deems
appropriate. Eligibility will only be granted if there is
substantial evidence that the conditions leading to the
revocation or relinquishment have been corrected.
(c) Recenification of a person as an operator of animal
waste management systems shall only occur by means of
application and examination. The examination will not be
waived. The applicant shall meet the eligibility requirements
as outlined in Rule .0401 of this Section.
(d) Upon notification of the Cenification Commission's
decision to deny eligibility, the applicant may appeal the
decision pursuant to the procedures contained in G.S. 150B.
Anicle 3.
(e) Prior to recenification the applicant must pay in full all
civil penalties assessed against them by the Cenification
Commission.
Authority G.S. 90A-39; 90A-47; 143B-300; 150B-3; 150B-
38.
SECTION .0500 - CFVIL PENALTIES
.0501 WHO MAY ASSESS
2128 NORTH CAROLINA REGISTER May 15, 1997 11:28
PROPOSED RULES
Civil penalties may be assessed by the Secretary of the
Department of Environment. Health, and Natural Resources
or his designee, for willful violation of the requirements of
G.S. 90A-47 and this Subchapter.
Authority G.S. 90A-47.
.0502 WHEN ASSESSABLE
Civil penalties mav be assessed whenever the Secretary, or
his designee, has determined that an owner of an animal
operation with an animal waste management system, or an
Operator in Charge of an animal waste management system,
willfullv violates the requirements of G.S. 90A-47 and this
Subchapter. Violations that may result in the assessment of
civil penalties include, in addition to matters specially
referenced in G.S. 90A-47.5(a). failure to designate a
properly certified Operator In Charge of the animal waste
management system as required by G.S. 90A-47.2(a).
Authority G.S. 90A-47.
.0503 STANDARDS
In determining the amount of the assessment the Secretary.
or his designee, shall consider the following standards:
(1) duration of the violation;
(2) other violations of tliis Subchapter or G.S. 143-
215.6(a):
(3) effectiveness of preventive or responsive measures
taken by violator:
(4) cost of rectifying any damage caused by the
violation: and
(5) the violator's previous record in complying or not
complying with the requirements of G.S. 143.
Article 21.
Authority G.S. 90A-47.
.0504 ASSESSMENT
£a) For all violations for which a penalty is assessed a
notice of such action shall be sent to tlie respondent by
certified mail. The notice will describe the violation, advise
that the penalty is due, and advise the respondent of the
rights of appeals zs specified in Rule .0505 of this Section.
£b} The Secretary, or his designee, may modify a penalty
to a lower amount upon finding that additional or different
facts should be or should have been considered in
determining the amount of assessment.
Authority G.S. 90A-47.
.0505 PAYMENT AND HEAREMG
(a) Within 30 days after receipt of notification of an
assessment, the assessed person must tender payment, or
submit in writing a request for remission or reduction of the
penalty, or file a petition with the Office of Administrative
Hearings in accordance with the procedures found in G.S.
150B. Article 3.
(b) The Secretary, or his designee, will accept and
acknowledge all tenders of payment on behalf of the
Certification Commission. Requests for remission or
reduction of the penalty will be presented to the Certification
Commission and the respondent will be allowed the
opportunity to present its request only when the respondent
and Chairman stipulate that no facts are in dispute, or where
the respondent waives his right to an administrative hearing.
Authority G.S. 90A-47.
.0506 REFERRALS
If any civil penalty as finally assessed is not paid, the
Secretary, or his designee, on behalf of tlie Cenification
Commission shall request the Attorney General to commence
action to recover the amount of assessment.
Authority G.S. 90A-47.
TITLE 21 - OCCUPATIONAL LICENSING
BOARDS
CHAPTER 4 - COMMISSION FOR
AUCTIONEERS
Notice is hereby given in accordance with G.S.
150B-21.2 that the North Carolina Auctioneers
Commission intends to amend rule cited as 21 NCAC 4B
.0202. Notice of Rule-making Proceedings was published in
the Register on December 16, 1996.
Proposed Effective Date: September 1, 1998
A Public Hearing will be conducted at 2:30 p.m. on June
14, 1997 at the Wilmington Hilton, 301 N. Water Street,
Wilmington, NC.
Reason for Proposed Action: Due to increased operating
costs, additional revenues are necessary. This action would
increase all fees received from applicants and licensees by
raising fees to the maximum amounts allowable by Statute.
Comment Procedures: Written comments concerning this
rule-making action should be submitted to Wayne Woodard,
Executive Director, N.C. Auctioneer Licensing Board, 1313
Navaho Drive, Suite 201. Raleigh, NC 27609-7461.
Comments must be received in the Board's office by June 16,
1997.
Fiscal Note: These Rules do not affect the expenditures or
revermes of state or local government funds. These Rules do
not have a substantial economic impact of at least five
million dollars ($5,000,000) in a 12-month period.
SUBCHAPTER 4B - AUCTIONEER LICENSING
BOARD
n:28 NORTH CAROLINA REGISTER May 15, 1997 2129
PROPOSED RULES
SECTION .0200 - APPLICATION FOR
LICENSE
Rule-making Proceedings was published in the Register on
March 14, 1997.
.0202 HLING AND FEES
(a) Properly completed applications must be filed
(received, not postmarked) in the Board office at least seven
days prior to an established Board meeting date, or in the
case of an application for auctioneer examination, at least 10
days prior to a scheduled examination and must be
accompanied by all required documents.
(b) License fees are as follows:
(1) New auctioneer license for an applicant who did
not serve an apprenticeship $125.00 $175.00
This includes a $ 75.00 $100.00 annual license
fee; S 25.00 $50.00 application fee; and $25.00
examination fee.
(2) New auctioneer license for an apprentice
auctioneer $100.00 $125.00
This includes a $ 75.00 $100.00 annual license
fee; and $25.00 examination fee.
(3) Renewal of auctioneer license $ 75.00 $100.00
(4) New apprentice auctioneer
license S 50.00 $100.00
This includes a $ 25.00 $50.00 license fee and
a $ 25.00 $50.00 application fee.
(5) Renewal of apprentice auctioneer
license S 25.00 $ 50.00
(6) New auction firm license (no
examination) $100.00 $150.00
This includes a $ 75.00 $100.00 annual license
fee; and $ 25.00 $50.00 application fee.
(7) New auction firm license
(examination) $125.00 $175.00
This includes a $ 75.00 $100.00 aimual license
fee; $ 25.00 $50.00 application fee; and $25.00
examination fee.
(8) Renewal of an auction firm
license $75.00 $100.00
(9) Application and processing fee for conversion of
non-resident reciprocal license to
in-state license $ 25.00
(10) Reinstatement of lapsed license fee $25.00
(c) Fees may be paid in the form of a cashier's check,
certified check or money order made payable to the North
Carolina Auctioneer Licensing Board. Checks drawn on
escrow or trust accounts shall not be accepted. Personal
checks may be accepted for payment of renewal fees.
Authority G.S. 85B-4.1; 85B-6.
CHAPTER 36 - BOARD OF NURSING
Notice is hereby given in accordance with G.S.
150B-21.2 that the North Carolina Board of Nursing
intends to amend rule cited as 21 NCAC 36 . 0109. Notice of
Proposed Effective Date: August 1, 1998
A Public Hearing will be conducted at 1:30 p.m. on
September 19. 1997 at the Embassy Suites Hotel, 4700
Creedmoor Road, Raleigh, NC.
Reason for Proposed Action: To incorporate new
technology for selection of Board Members by utilizing
telecommunications.
Comment Procedures: Any person wishing to present oral
testimony relevant to proposed rule may register at the door
before the hearing begins and present hearing officer with a
written copy of testimony. Written comments concerning this
amendment must be submitted by September 19, 1997 to:
North Carolina Board of Nursing, P.O. Box 2129, Raleigh,
NC 27602; Attn: Jean H. Stanley, APA Coordinator.
Fiscal Note: This Rule does not affect the expenditures or
re\'enues of state or local government funds. This Rule does
not have a substantial economic impact of at least five
million dollars ($5,000,000) in a 12-month period.
SECTION .0100 - GENERAL PROVISIONS
.0109 SELECTION AND QUALIFICATIONS
OF NURSE MEMBERS
(a) Vacancies in nurse member positions on the Board that
are scheduled to occur during the next year shall be
announced in the December issue of the North Carolina
Board of Nursing "Bulletin", which shall be mailed to the
address on record for each North Carolina currently licensed
nurse on December 1. The "Bulletin" shall include a petition
form for nominating a nurse to the Board and information on
filing the petition with the Board.
(b) Each petition shall be checked with the records of the
Board to validate that the nominee and each petitioner hold
a current North Carolina license to practice nursing. If the
nominee is found to be not currently licensed, the petition
shall be declared invalid. If any petitioners are found to be
not currently licensed and this finding decreases the number
of petitioners to less than ten, the petition shall be declared
invalid.
(c) On a form provided by the Board, each nominee shall
indicate the category for which nominee is seeking election,
shall attest to meeting the qualifications specified in G.S. 90-
171.21(d) and shall provide written permission to be listed
on the ballot. The form must be postmarked on or before
April 15.
(d) The majority of employment income of registered
nurse members of the Board, must be earned by holding
positions with primary responsibilities in nursing education
or in nursing practice which includes administration,
supervision, planning, delivery or evaluation of nursing care
2130 NORTH CAROLINA REGISTER May 15, 1997 11:28
PROPOSED RULES
as specified in G.S. 90- 17 1.2 1(d). The following apply in
determining qualifications for registered nurse categories of
membership:
( 1
)
Nurse Educator includes any nurse who teaches in
or directs a basic or graduate nursing program; or
who teaches in or directs a continuing education or
staff development program for nurses.
(2) Hospital is defined as any facility which has an
organized medical staff and which is designed,
used, and primarily operated to provide health
care, diagnostic and therapeutic services, and
continuous nursing to inpatients.
(3) Hospital Nursing Service Director is any nurse
who is the chief executive officer for nursing
service.
(4) Employed by a hospital includes any nurse
employed by a hospital.
(5) Employed by a physician includes any nurse
employed by a physician or group of physicians
licensed to practice medicine in North Carolina
and engaged in private practice.
(6) Employed by skilled or intermediate care facility
includes any nurse employed by a long term
nursing facility.
(7) Registered nurse approved to perform medical acts
includes any nurse approved for practice in North
Carolina as a Nurse Practitioner or Certified Nurse
Midwife.
(8) Community health nurse includes any nurse who
functions as a generalist or specialist in areas
including, but not limited to, public health, student
health, occupational health or community mental
health.
(e) The term "nursing practice" when used in determining
qualifications for registered or practical nurse categories of
membership, means any position for which the holder of the
position is required to hold a current license to practice
nursing.
(f) A nominee shall be listed in only one category on the
ballot.
(g) If there is no nomination in one of the registered nurse
categories, all registered nurses who have been duly
nominated and qualified shall be eligible for an at-large
registered nurse position. A plurality of votes for the
registered nurse not elected to one of the specified categories
shall elect that registered nurse to the at-large position.
(h) Separate baHots slates shall be prepared for election of
registered nurse nominees and for election of licensed
practical nurse nominees. Nominees shall be listed in
random order on the ballot slate for licensed practical nurse
nominees and within the categories for registered nurse
nominees. Ballots shall be accompanied by biographical dat a
on nominees and a passport -
type photograph. Ballot s shall
prescribe the method of vot ing. Slates shall be published in
the "Bulletin" following the Spring Board meeting and shall
be accompanied by biographical data on nominees and a
passport-type photograph.
(i) Any nominee may withdraw her/his name at any time
by written notice prior to the date and hour fixed by the
Board as the latest time for return for ballots, voting. Such
nominee shall be eliminated from the contest and any votes
cast for that nominee shall be disregarded.
(j^
—
On or about June 15, the appropr iate ball ot and a
re turn official envelope shall be mailed to the address on
record for each currently licensed nurse on that date, together
with a notice designating the latest day and hour for return f
ballot which shall not be earlier than the tenth day following
the mailing.
(j) The procedure for voting shall be identified in the
"Bulletin" following the Spring Board meeting, together with
a notice designating the latest day and hour for voting.
(k) The Board of Nursing may contract with a computer
or other service for receipt of envelopes with ballots and the
counting of ballots, to receive the votes and tabulate the
results.
(1) The counting of ballots shall be conducted as follows :
t+^ The ce rt ificate number and name of the voter shall
be entered on the perforated section of the ballot
sheet.
(2)
—
The certificate number and name of the voter shall
be matched with the regist ration list. In the event
that th ere is not a match, the entire ballot sheet
shall be se t aside for inspection, validation, or
invalidation by the Board of Nursing.
(3) Those ballots which are not set aside shall have the
perforated sect ion completely separated from the
ball ot portion of the sheet .
(4) Only official ballots shall be counted.
(5) A ballot marked for more names than there are
posi tions to be filled shall not be counted for than
category but shall be counted for all other
categor ie s voted correctly.
(6) If or any reason it is impossible to dettiminc a
voter 's choice for a category of nurse , that ballot
shall not be counted for that category, but shall be
counted for all other categorie s cl early indicated.
(7) Ballots ident ified in 92), (5) and (6) of this
Paragraph shall be set aside fo r inspection and
determination by the Board of Nursing.
("D The tabulation and verification of the tabulation of
votes shall include the following:
(1) The certificate number shall be provided for each
individual voting.
(2) The certificate number shall be matched with the
database from the Board.
(m) A plurality vote shall elect. If more than one person
is to be elected in a category, the plurality vote shall be in
descending order until the required number has been elected.
In any election, if there is a tie vote between nominees, the
tie shall be resolved by a draw from the names of nominees
who have tied.
(n) The results of an election shall be recorded in the
minutes of the next regular meeting of the Board of Nursing
following the election and shall include at least the following:
11:28 NORTH CAROLINA REGISTER May 15, 1997 2131
PROPOSED RULES
(1) the number of nurses eligible to vote;
t2-) the number of return ballots se t a^ide and the
disposition of same.
t^i the number of ballots cast.
(+) the number of ballots declared invalid, and
tfri the numbe r of vot es cast fo r e ach pe rson on the
oaiiot.
(2) the number of votes cast: and
(3) the number of votes cast for each person on the
slate.
(o) The results of the election shall be forwarded to the
Governor and the Governor shall commission those elected
to the Board of Nursing.
(p) All petitions to nominate a nurse, signed consents to
appear on the ballot, slate, verifications of qualifications.
perfo rated sections of the ballot shee t s containing the
c e r t ificate number and name of the voter , and the ballots
shall be prcse ^^^ed and copies of the computerized validation
and tabulation shall be retained for a period of three months
followine the close of an election.
CHAPTER 1 - N.C. HOUSING
FINANCE AGENCY
SUBCHAPTER IP - FIRE PROTECTION
FUND
SECTION .0100 - CENTRAL INFORMATION
.0101 PLUPOSE
The rules in this Subchapter implement the Adult Care
Home. Group Home, and Nursing Home Fire Protection
Fund ("Fire Protection Fund") created by G.S. 122A-5.13.
Authorin G.S. 122A-5; 122A-5.1: 122A-5.13.
.0102 ELIGIBILITY
Prmcipal sponsors or owners of a facility occupied by the
elderly or developmentally disabled and licensed under G.S.
131D-2 and OS, 131E. Anicle 6 shall be eligible to
participate in the Fire Protection Fund program.
Authonn G.S. 90-171.21; 90- 171.23(b). Authoritx G.S. 122A-5; 122A-5.1; 122A-5.13.
TITLE 24 - INT)EPENDENT AGENCIES
Notice is hereby given in accordance with G.S.
150B-21.2 that the North Carolina Housing Finance
Agency intends to adopt rules cited as 24 NCAC IP .0101 -
.0103, .0201 - .0203. Notice of Rule-making Proceedings
was published in the Register on October 15, 1996.
Proposed Effective Date: August 1, 1998
A Public Hearing will be conducted at 10:00 a.m. on May
30, 1997 at the North Carolina Housing Finance Agency,
3801 Lake Boone Trail, Suite 200. Raleigh, NC 27607-2926.
Reason for Proposed Action: The North Carolina Housing
Finance Agency adopted temporary rules which were
published in the North Carolina Register on October 15.
1996. Based on input received during the public comment
period, the Agency has amended Rule .0103 to clarify' the
conditions under which loans will be accelerated.
Comment Procedures: Written comments must be submitted
to the APA coordinator within 30 days of the publication of
this rule in the North Carolina Register. Comments should
be sera to C. William Dowse at the North Carolina Housing
Finance Agencx, 3801 Lake Boone Trail, Raleigh, NC
27607-2926.
Fiscal Note: These Rules affect the expenditure or
distribution of State funds. These Rules do not affect the
expenditure or distribution of local funds . These Rules do not
have a substantial economic impact of at least five million
dollars ($5,000,000) in a 12-month period.
.0103 TYPES OF ASSISTANCE
(a) The North Carolina Housing Finance Agency shall use
program funds to make loans secured by the facility and real
propeny. Loans for smoke detection systems shall have an
interest rate of 3% -6% and a maximum term of 10 years.
Loans for sprinkler systems shall have an interest rate of 3%
and a ma.ximum term of 20 vears. The interest rate for
smoke detection system loans shall be determined based on
the Fund's selection criteria as outlined in Rule .0202 of this
Subchapter.
(b) The maximum loan amounts shall be calculated as
defined in G.S. 122A-5.13.
(c) Loans shall be amortizing and secured by a note and
deed of trust. These loan documents shall provide for the
acceleration of the debt in the event that a facility becomes
subject to a negative administrative action by the North
Carolina Division of Facilitv Services or the United States
Health Care Financing Administration that would cause
revocation of licensure or. in the event that the borrower fails
to make timely payments.
(d) The Nonh Carolina Housing Finance Agencv shall
charge a loan ongination fee and a senicing fee to reimburse
actual costs. The origination fee shall not exceed 1 % of the
individual loan amount. The ser\-icing fee shall not exceed %
of 1 7c of the loan balance.
Authority G.S. 122A-5; 122A-5.1; 122A-5.13.
SECTION .0200 - ADMINISTRATION
.0201 APPLICATION PROCEDURES
A request for proposals shall be published and other forms
of public notice shall be used to solicit applications from
eligible borrowers.
2132 NORTH CAROLINA REGISTER May 15, 1997 11:28
PROPOSED RULES
\
Authority G.S. 122A-5; 122A-5.1; 122A-5.13.
.0202 SELECTION PROCEDURE
Applications for financial assistance shall be evaluated and
selected using the following criteria in order to improve
safety for the greatest number of vulnerable residents:
(1) Financial need; and
(2) Percentage of nonambulatory and disabled
residents: and
(3) Estimated economic life of the facility: and
(4) Reliability of current fire protection systems and
services: and
(5) Degree to which proposed costs are below the
program maximums per square foot: and
(6) Receipt by the facility of any negative
administrative action taken by the North Carolina
Division of Facility Services or the United States
Health Care Financing Administration.
Authority G.S. 122A-5; 122A-5.1; 122A-5.13.
.0203 DISBURSEMENT OF FUNDS
Loan funds shall be disbursed on a reimbursement basis.
Loan funds shall not be disbursed until the installation of the
fire protection system has been approved by the Division of
Facility Services.
Authority G.S. 122A-5; 122A-5.1; 122A-5.13.
11:28 NORTH CAROLINA REGISTER May 15, 1997 2133
UST OF RULES CODIFIED
TX he List of Rules Codified is a listing of rules that were filed with OAH in the month indicated and have been
entered into the Code.
IVey:
Citation = Title, Chapter, Subchapter and Rule (s)
AD = Adopt
AM = Amend
RP = Repeal
With Chgs = Final text differs from proposed text
Con- = Typographical errors or changes that requires no rulemaking
Temp. = Rule was filed as a temporary rule
Ejf. Date ^ Date rule becomes effective
NORTH CAROLINA ADMINISTRAnVE CODE
APRIL 1997
TITLE DEPARTMENT
11 Insurance
15A Environment, Health, and
Natural Resources
19A Transportation
TITLE DEPARTMENT
21 Occupational Licensing Board
46 -Pharmacy
RUix errAnew AD
wrrH
CHGS
CORK TBWP
EFFECTIVE
DATE
AM RP
11 NCAC IIF .0401 / / 01/01/98
.0402 / 01/01/98
.0403 - .0405 / / 01/01/98
12 .1702 / 05/01/97
15A NCAC 2H .0225 / / 05/08/97
2R .0501 - .0504 / / 05/06/97
31 .0107 / 05/01/97
31 .0110 / 05/01/97
31 .0116 / 05/01/97
3J .0104 / 05/01/97
3J .0301 / 05/01/97
3K .0105 / 05/01/97
3K .0204 / 05/01/97
3K .0304 / 05/01/97
3L .0203 / 05/01/97
3L .0205 / 05/01/97
2134 NORTH CAROUNA REGISTER May 15, 1997 11:28
LIST OF RULES CODIFIED
\
RULE CITATION AD AM RP
wrra
CHGS
CORK TEMP
EFFECTIVE
DATE
15A NCAC 3M .0401 / 05/01/97
3N .0103 / / 05/01/97
3N .0104 - .0105 / 05/01/97
30 .0201 - .0202 / / 05/01/97
30 .0205 / / 05/01/97
30 .0208 / / 05/01/97
3R .0101 - .0105 / 05/01/97
3R .0107 / 05/01/97
lOD .0003 / 05/01/97
19A NCAC 2E .0210 / 05/01/97
21 NCAC 46 .1317 / / 05/01/97
46 .1401 / / 05/01/97
46 .1402 -.1404 / 05/01/97
46 .1406 / 05/01/97
46 .1408 / 05/01/97
46 .1410 -.1416 / / 05/01/97
46 .1604 / / 05/01/97
46 .1703 / / 05/01/97
46 .2611 / / 05/01/97
7/.-25 NORTH CAROLINA REGISTER May 15, 1997 2135
UST OF RULES CODIFIED
TM. he following is a list of rules approved by the Rules Review Commission from May 1996 through December 1996.
These rules were reviewed before the thirty-first legislative day of the 1997 Regular Session of the General Assembly
that convened on January 29. 1997. Statutory Reference G.S. 150B-21.3(b).
Key
Citation = Title. Chapter, Subchapter and Rule(s)
AD = Adopt
AM = Amend
RP = Repeal
With Chgs = Final text differs from proposed text
Corr = Typographical errors or changes that requires no rulemaking
Temp. = Rule was filed as a temporary rule
Eff. Date = Date rule becomes effective
'
RULES CODIFIED
INTO THE CODE
TITLE DEPARTMENT
2 Agriculture
4 Commerce
7 Cultural Resources
10 Human Resources
11 Insurance
15A Enviroimient, Health,
and Natural Resources
16 Public Education
17 Revenue
MARCH 1997
IIILE DEPARTMENT
19A Transportation
21 Occupational Licensing Boards
12 - General Contractors
58 - Real Estate Commission
60 - Refrigeration Examiners
63 - Certification Board for Social Work
69 - Soil Scientists
23 Community Colleges
26 Administrative Hearings
RULE crrATicw AD AM RP
WTTH
CHGS
CORR TIMP
EFFECTIVE
DATE
2 NCAC 9C .0701 - .0702 / 04/01/97
.0704 / 04/01/97
48A .1103 / / 04/01/97
.1110 / / 04/01/97
48B .0112 / 04/01/97
.0114 / 04/01/97
.0119 / 04/01/97
.0120 / / 04/01/97
52B .0201 / 04/01/97
4 NCAC 12C .0007 / 04/01/97
7 NCAC 5 .0202 - .0203 • 04/01/97
.0204 / 04/01/97
2136 NORTH CAROUNA REGISTER May 15, 1997 11:28
LIST OF RULES CODIFIED
RULE CITATION AD AM RP
WITH
CHGS
CORR TEMP
EFFECTIVE
DATE
7 NCAC 5 .0207 / 04/01/97
10 NCAC 3R .3001 / / 04/01/97
.3010 / 04/01/97
.3020 / / 04/01/97
.3032 / / 04/01/97
.3040 / / 04/01/97
.3050 / / 04/01/97
3U .0102 / / 04/01/97
.0704 / / 04/01/97
.0710 / / 04/01/97
.2701 - .2704 / / 04/01/97
20B .0204 - .0205 / / 04/01/97
.0206 / 04/01/97
.0208 - .0210 / 04/01/97
.0214 / 04/01/97
.0218 / / 04/01/97
.0222 / / 04/01/97
.0224 / 04/01/97
.0226 - .0227 / 04/01/97
20C .0603 / 04/01/97
20D .0204 / / 07/01/97
26H .0602 / 04/01/97
41F .0705 / / 07/01/97
.0706 / 04/01/97
.0707 / / 04/01/97
.0812 / 04/01/97
.0813- .0814 / / 04/01/97
41P .0102 / / 04/01/97
.0105 / / 04/01/97
.0106 / / 04/01/97
.0108- .0112 / / 04/01/97
.0113 / / 04/01/97
/i;2S NORTH CAROLINA REGISTER May 15, 1997 2137
LIST OF RULES CODIFIED
RULE CITATION AD A.M RP
WITH
CHGS
CORR TEMP
EtEECTTVE
DATE
10 NCAC 42A .0701 / 04/01/97
.0702 / / 04/01/97
.0703 / / 04/01/97
42B .1209 / 05/01/97
.1210-. 1211 / / 05/01/97
.2402 - .2405 / 05/01/97
42C .2010 / 05/01/97
.2011 - .2012 / / 05/01/97
.3701 / 05/01/97
.3702 - .3703 / 05/01/97
.3704 / 05/01/97
42D .1409 / 05/01/97
.1410- .1411 / / 05/01/97
.1827- .1830 / 05/01/97
42V .0201 / / 04/01/97
.0802 - .0803 / / 04/01/97
49A .0102 / 04/01/97
49B .0202 / / 04/01/97
.0310 / / 04/01/97
.0502 04/01/97
11 NCAC 12 .0551 / / 04/01/97
16 .0703 / 04/01/97
15A NCAC 2B .0229 / / 04/01/97
.0237 / / 04/01/97
.0315 / / 04/01/97
2D .0518 / 04/01/97
.0524 / / 04/01/97
.0530 / 07/01/97
.0902 / 04/01/97
.0907 / 04/01/97
.0909 / 04/01/97
.0910- .0911 / 04/01/97
275« NORTH CAROLINA REGISTER May 15, 1997 11:28
LIST OF RULES CODIFIED
RULE CITATION AD AM RP
WITH
CHGS
CORK TEMP
EFFECTIVE
DATE
15A NCAC 2D .0946 / 04/01/97
.0954 / / 04/01/97
.1110 / / 07/01/97
.1111 / / 04/01/97
.1402- .1403 / 04/01/97
2Q .0102 / / 07/01/97
.0104 / / 07/01/97
.0107 / 07/01/97
.0507 / 07/01/97
.0512 / 07/01/97
.0514 - .0515 / 07/01/97
.0517 / 07/01/97
31 .0101 / / 04/01/97
.0105 / / 04/01/97
3L .0201 / / 04/01/97
3M .0202 / 04/01/97
.0503 / 04/01/97
.0504 / / 04/01/97
.0506 / 04/01/97
.0511 / / 04/01/97
3R .0106 - .0107 / 04/01/97
6E .0102 - .0103 / 04/01/97
7H .0104 / / 04/01/97
.0304 / / 04/01/97
7J .0102 / 04/01/97
lOB .0106 / / 07/01/97
.0113 / / 07/01/97
.0115 / 04/01/97
.0123 / 04/01/97
.0203 / / 07/01/97
.0209 / 07/01/97
.0205 / / 07/01/97
ii;2S NORTH CAROLINA REGISTER May 15, 1997 2139
LIST OF RULES CODIFIED
RULE CITATION AD A.M RP
wrra
CHGS
CORK THVff
EFFECTIVE
DATE
15A NCAC IOC .0305 / / 07/01/97
lOD .0003 / / 07/01/97
lOF .0102 - .0104 / / 04/01/97
.0105 / 09/01/96
.0105 -.0107 / / 04/01/97
.0109 / / 04/01/97
.0303 / 04/01/97
.0305 / 04/01/97
.0307 / 04/01/97
.0310 / 04/01/97
.0310 / 04/01/97
.0348 / / 04/01/97
lOG .0102 - .0103 / 04/01/97
.0202 - .0203 / 04/01/97
.0206 / 04/01/97
.0302 - .0303 / 04/01/97
.0401 / 04/01/97
.0402 - .0404 / / 04/01/97
.0501 / / 04/01/97
101 .0001 / 04/01/97
.0002 / / 04/01/97
12B .1206 / / 04/01/97
13C .0301 / / 04/01/97
.0302 / / 04/01/97
.0303 / / 04/01/97
.0304 / / 04/01/97
.0305 / / 04/01/97
.0306 / / 04/01/97
.0307 - .0308 / / 04/01/97
18A .0136 -.0137 / 04/01/97
.0159 / 04/01/97
.0169 / 04/01/97
2740 NORTH CAROLINA REGISTER Mav 15, 1997 11:28
LIST OF RULES CODIFIED
)
RULE CITATION AD AM RP
WIIH
CHGS
CORK TEMP
KHECTIVE
DATE
15A NCAC 18A .0173 / / 04/01/97
.0174 - .0175 / 04/01/97
.0184 / 04/01/97
.0186 / 04/01/97
.0302 / / 04/01/97
.0401 / 04/01/97
.0424 - .0425 / 04/01/97
.0615 - .0616 / 04/01/97
.0617 / / 04/01/97
.0620 / 04/01/97
.1302 / 04/01/97
.1805 / 04/01/97
.2601 / 04/01/97
.2701 / / 04/01/97
16 NCAC lA .0001 / 04/01/97
.0003 / 04/01/97
7 .0101 - .0103 / / 01/01/98
17 NCAC IC .0504 / 04/01/97
.0506 / 04/01/97
5C .2101 / / 04/01/97
7B .0118 / 04/01/97
.1602 / / 04/01/97
.1702 / / 04/01/97
.1802 • / 04/01/97
.3103 / 04/01/97
.3106 / / 04/01/97
.4202 / 04/01/97
.4501 / 04/01/97
19A NCAC 2D .0425 / 04/01/97
.1101 / 04/30/97
.1102 / / 04/30/97
.1103 - .1105 / / 04/30/97
i/;2S NORTH CAROLINA REGISTER May 15, 1997 2141
LIST OF RULES CODIFIED
RULE CITATION AD AM RP
WTTH
CHGS
CORK TEMP
EFFECTIVE
DATE
19A NCAC 2D .1106 -.1107 / 04/30/97
.1108 • / 04/30/97
.1109 - .1110 / / 04/30/97
.1111 / / 04/30/97
.1112 / 04/30/97
3E .0501 - .0502 / / 04/30/97
.0510 / / 04/30/97
.0511 / / 04/30/97
.0512- .0515 / / 04/30/97
.0518 / / 04/30/97
.0519 / 04/30/97
.0522 / / 04/30/97
6B .0401 -.0411 / 04/30/97
.0412 / / 04/30/97
.0413 - .0417 / 04/30/97
21 NCAC 12 .0204 / 04/01/97
.0503 / / 04/01/97
58A .0101 / 04/01/97
.0104 / / 07/01/97
.0105 / 04/01/97
.0109- .0110 / 04/01/97
.0503 - .0504 / 04/01/97
.1601 / 04/01/97
60 .0204 / 04/01/97
.0207 / / 04/01/97
.0314 / / 04/01/97
63 .0306 / / 04/01/97
69 .0101 / 04/01/97
.0102 / / 04/01/97
.0103 - .0104 / 04/01/97
.0201 / / 04/01/97
.0202 / 04/01/97
2742 NORTH CAROLINA REGISTER May 15, 1997 11:28
LIST OF RULES CODIFIED
)
RULE CITATION AD AM RF
WITH
CHGS
CORK TEMP
EFFECTIVE
DATE
21 NCAC 69 .0301 / 04/01/97
.0302 - .0305 / / 04/01/97
.0306 / / 04/01/97
.0307 / / 04/01/97
.0308 / 04/01/97
.0401 - .0402 • / 04/01/97
.0501 / / 04/01/97
23 NCAC 2D .0325 / / 04/01/97
3A .0113 / / 04/01/97
26 NCAC 2C .0102 / 04/01/97
.0103 / / 04/01/97
.0111 / 04/01/97
.0307 / / 04/01/97
.0401 / / 04/01/97
.0502 / / 04/01/97
3 .0301 - .0305 / 04/01/97
7/;2« NORTH CAROLINA REGISTER May 15, 1997 2143
RULES REVIEW COMMISSION
1 his Section contains the agenda for the next meeting of the Rules Review Commission on Thursday. May 15. 1997. 10:00
a.m.. at 1307 Glenwood Ave. , Assembly Room. Raleigh, NC. Anyone wishing to submit written comment on any rule before
the Commission should submit those commems to the RRC staff, the agency, arui the individual Commissioners by Monday.
May 12. 1997. at 5:00 p.m. Specific instructions and addresses may be obtained from the Rules Review Commission at 919-
733-2721. Anyone wishing to address the Commission should notify the RRC staff arui the agency at least 24 hours prior
to the meeting.
RULES REVIEW COMMISSION MEMBERS
Appointed by Senate
Philip O. Redwine - Chairman
Vemice B. Howard
Teresa L. Smallwood
Charles H. Henry
Appointed by House
Bill Graham - Vice Chairman
James Mallory, III
Paul Powell
Anita White
RULES REVIEW COMMISSION MEETING DATES
June 19, 1997
July 17, 1997
August 21, 1997
September 18, 1997
October 16, 1997
November 20, 1997
MEETING DATE: MAY 15, 1997
LOG OF HLINGS
RULES SUBMITTED: MARCH 20, 1997 THROUGH APRIL 20, 1997
AGENCY/DIVISION RULE NAME
Standards for Receptacles
Definitions
Special Requirements
Gate Fees
Retail Buildings
Gate Fees
Farmers and Truckers Sheds
Yearly Delivery Permit
AGRICULTURE/NC BOARD OF AGRICULTURE
Importation Requirements
Calfhood Vaccination
Intrastate Requirements
DHR/COMMISSION FOR MH/DD/SAS
Staff
Operations
Staff
Placement of Clients
Resolution of Differences
DHR/DIVISION OF MEDICAL ASSISTANCE
Case Management
RULE ACTION
LKETEVG AUTHORITY
2 NCAC 43F .0003 Amend
2NCAC43H .0001 Amend
2 NCAC 43H .0007 Adopt
2 NCAC 43L .0202 Amend
2 NCAC 43L .0401 Amend
2 NCAC 43L .0402 Amend
2 NCAC 43L .0403 Amend
2 NCAC 43L .0405 Amend
2NCAC52B .0212 Amend
2 NCAC 52B .0303 Amend
2 NCAC 52C .0701 Adopt
10 NCAC 14V .3402 Amend
10 NCAC 14V .3803 Amend
10 NCAC 14V .5602 Amend
10 NCAC 15A .0128 Repeal
10 NCAC 15A .0129 Repeal
10NCAC26B .0123 Amend
2144 NORTH CAROLINA REGISTER May 15, 1997 11:28
RULES REVIEW COMMISSION
Cost Reporting 10 NCAC 26H .0104 Amend
JUSTICE/STATE BUREAU INVESTIGATION/DIVISION OF CRIMINAL INFORMATION
Advisory Policy Board 12 NCAC 4E .0103 Amend
RULES REVIEW OBJECTIONS
ACUPUNCTURE LICENSING BOARD
21 NCAC 1 .0706 - Continuances RRC Objection
Agency Revised Rule Obj. Removed
21 NCA CI .0707 - Disqualification for Personal Bias RRC Objection
Agency Revised Rule Obj. Removed
ADMINISTRATION
State Construction
; NCA C 30G .0102- Policy RRC Objection
No Response from Agency
1 NCAC JOG .0104- General Procedures RRC Objection
No Response from Agency
COMMUNITY COLLEGES
23 NCAC 2C .0304 - Student Loan Funds for Vocational and Technical Education RRC Objection
Agency Revised Rule Obj. Removed
23 NCAC 2E . 0203 - Standards for Technical- Vocational Curriculums RRC Objection
Agency Revised Rule Obj. Removed
ENVIRONMENT, HEALTH, AND NATURAL RESOURCES
01/16/97
02/20/97
01/16/97
02/20/97
03/20/97
04/17/97
03/20/97
04/17/97
01/16/97
02/20/97
01/16/97
02/20/97
Coastal Management
ISA NCAC 7M .0403 - Policy Statements
Agency Revised Rule
Marine Fisheries
ISA NCAC 30 .0101 - License Agents
HUMAN RESOURCES
Child Day Care Commission
10 NCAC 3U .0707 - In-Senice Training Requirements
Agency Revised Rule
Facility Services
10 NCAC 3R .3030 - Facility and Service Need Determinations
Agency Revised Rule
No Response from Agency
Agency Revised Rule
Agency Revised Rule
10 NCAC 3R .3033 - Open Heart Surgery Services Need Determinations (Rev. Cat. H)
10 NCAC 3R .3034 - Heart-Lung Bypass Mch. Need Del. /New Open Heart Sgy. Svcs
RRC Objection
Obj. Removed
RRC Objection
01/16/97
02/20/97
04/17/97
11:28 NORTH CAROLINA REGISTER
RRC Objection 03/20/97
Obj. Removed 04/17/97
RRC Objection 10/1 7/96
Obj. Cont'd 11/21/96
Obj. Cont'd 12/19/96
Obj. Cont'd 02/20/97
Obj. Removed 03/20/97
ev. RRC Objection 01/16/97
Obj. Cont'd 02/20/97
Obj. Cont'd 03/20/97
Svcs. RRC Objection 01/16/97
Obj. Cont'd 02/20/97
May 15, 1997 2145
RULES REVIEW COMMISSION
Rule Returned to Agency
10 NCAC 3R .3035 - Heart-Lung Bypass Mch. Need Det. /Existing Open Heart Sgy. Svcs.
Rule Returned to Agency
10 NCAC 3R .3036 - Cardiac Catheterization Eqpt Need Det. /New Providers
Rule Returned to Agency
10 NCAC 3R .3037 - Cardiac Catheterization Eqpt Need Det. /Existing Providers
Rule Returned to Agency
10 NCAC 3R .3038 - Cardiac Angioplasty Eqpt Need Det. /New Providers
Rule Returned to Agency
10 NCAC 3R .3039 - Cardiac Angioplasty Eqpt Need Det. /Existing Providers
Rule Returned to Agency
03/20/97
RRC Objection 01/16/97
Obj. Cont'd 02/20/97
03/20/97
RRC Objection 01/16/97
Obj. Cont'd 02/20/97
03/20/97
RRC Objection 01/16/97
Obj. Cont'd 02/20/97
03/20/97
RRC Objection 01/16/97
Obj. Cont'd 02/20/97
03/20/97
RRC Objection 01/16/97
Obj. Cont'd 02/20/97
03/20/97
Medical Assistance
10 NCAC 26B .0113 - Case Mgmt Svcs/Adults/Children/at Risk/Abuse/Neglect/Exploitation
Returned to Agency for Failure to Comply with APA
Mental Health: Other Programs
10 NCAC 18W .0201 - Scope
Agency Revised Rule
10 NCAC 18W .0203 - General Provisions
Agency Revised Rule
10 NCAC 18W .0205 - Emotional, Mental or Neurological Handicap Defined
Agency Revised Rule
10 NCAC 18W.0211 - Needs Assessment
Agency Revised Rule
10 NCAC 18W .0214 - Area Program Requirements
Agency Revised Rule
10 NCAC 18W .0215 - Division Requirements
Agency Revised Rule
10 NCAC 18W .0218 - Contested Case Hearings
Agency Revised Rule
04/17/97
RRC Objection 01/16/97
Obj. Removed 02/20/97
RRC Objection 01/16/97
Obj. Removed 02/20/97
RRC Objection 01/16/97
Obj. Removed 02/20/97
RRC Objection 01/16/97
Obj. Removed 02/20/97
RRC Objection 01/16/97
Obj. Removed 02/20/97
RRC Objection 01/16/97
Obj. Removed 02/20/97
RRC Objection 01/16/97
Obj. Removed 02/20/97
INSURANCE
11 NCAC 12 .1702 - Viatical Settlement Providers
Agency Revised Rule
DEPARTMENT OF JUSTICE
Criminal Justice Education & Training Standards Commission
12 NCAC 98 .0102 - Background Investigation
BOARD OF MJRSENG
21 NCAC 36 .0320 - Students
Agency Revised Rule
BOARD OF PHARMACY
RRC Objection
Obj. Removed
RRC Objection
RRC Objection
Obj. Removed
03/20/97
04/1 7/97
04/17/97
03/20/97
04/17/97
21 NCAC 46 .1317- Definitions
Agency Revised Rule
21 NCAC 46 .1410 - Personnel
RRC Objection
Obj. Removed
RRC Objection
03/20/97
04/17/97
03/20/97
2146 NORTH CAROLINA REGISTER May 15, 1997 11:28
RULES REVIEW COMMISSION
)
Agency Revised Rule Obj. Removed 04/17/97
21 NCAC 46 .1411 - Responsibilities of the Pharmacist-Manager RRC Objection 03/20/97
Agency Revised Rule Obj. Removed 04/17/97
21 NCAC 46 . 1412 - Physical Requirements RRC Objection 03/20/97
Agency Revised Rule Obj. Removed 04/17/97
21 NCAC 46 .1414 - Drug Distribution and Control RRC Objection 03/20/97
Agency Revised Rule Obj. Removed 04/17/97
21 NCAC 46 . 1415 - Medication in Health Care Facility Emergency Departments RRC Objection 03/20/97
Agency Revised Rule Obj. Removed 04/17/97
21 NCAC 46 .1416 - Repackaging RRC Objection 03/20/97
Agency Revised Rule Obj. Removed 04/17/97
21 NCAC 46 . 1604 - Transfer of Permits Allowed RRC Objection 03/20/97
Agency Revised Rule Obj. Removed 04/17/97
21 NCAC 46 .1703 - Drugs to Be Dispensed RRC Objection 03/20/97
Agency Revised Rule Obj. Removed 04/17/97
21 NCAC 46 .2611 - Medical Equipment RRC Objection 03/20/97
Agency Revised Rule Obj. Removed 04/17/97
TRANSPORTATION
Division of Motor Vehicles
19A NCAC 3J .0306 - Course of Instruction
Agency Revised Rule
19A NCAC 3J .0307 - Student Requirements
Rule Returned to Agency
19A NCAC 3J .0308 - Reports to be Submitted
Agency Revised Rule
RRC Objection 02/20/97
Obj. Removed 03/20/97
RRC Objection 02/20/97
03/20/97
RRC Objection 02/20/97
Obj. Removed 03/20/97
11:28 NORTH CAROLINA REGISTER May 15, 1997 2147
CONTESTED CASE DECISIONS
1 his Section contains the full text ofsome of the more significant Administrative Law Judge decisions along with an index
to all recent contested cases decisions which are filed under North Carolina's Administrative Procedure Act. Copies of
the decisions listed in the index and not published are available upon request for a minimal charge by contacting the Office
of Administrative Hearings, (919) 733-2698.
(
OmCE OF ADMINISTRATIVE HEARINGS
Chief Administrative Law Judge
JULIAN MANN, III
Senior Administrative Law Judge
FRED G. MORRISON JR.
ADMINISTRA TIVE LAW JUDGES
Brenda B. Becton
Sammie Chess Jr.
Beecher R. Gray
Meg Scott Phipps
Robert Roosevelt Reilly Jr.
Dolores O. Smith
Thomas R. West
AGENCY
CASE
NUMBER ALJ
DATE OF
DECISION
PUBLISHED DECISION
REGISTER CITATION
ADMINISTRATION
Douglas J. Register v. Deparlmem of Adminislraiion
Purchase and Contract
Budd Seed. Inc. v. Department of Administration
ALCOHOLIC BEVERAGE CONTROL COMMISSION
Osama Arafat Sadar v. AJcoholic Beverage Control Commission
Alcoholic Beverage Control Commission v James Eads Sprowles
Cole Entertainment, Inc. v. Alcoholic Beverage Control Commission
Fuad Saif Murshed v. Ale. Bev, Ctl. Comm. & Durham Mem. Bapt. Ch.
Alcoholic Beverage Control Commission v Tremik. Inc
City of Raleigh v. Alcoholic Beverage Control Commission
and
Marshall Stewart. IH, Robert David Park, and Park Stewart Inc.
Alcoholic Beverage Control Commission v. Maria Virginia Tramontano
Alcoholic Beverage Control Commission v, Huffman Oil Co., Inc
Pinakin P. Talaie v Alcoholic Beverage Control Commission
Alcoholic Beverage Control Commission v Entrepreneur. Inc.
Alcoholic Beverage Control Commission v Zell, Inc.
Alcoholic Beverage Control Commission v Henry Franklin Gurganus
Andrew Parker v. Alcoholic Beverage Control Commission
Barraq Sabri Alquza v. Alcoholic Beverage Control Commission
Alcoholic Beverage Control Comm. v. Partnership T/A T & L Groceries
Alcoholic Beverage Control Commission v Cashion's Food Mart, Inc,
Alcoholic Beverage Control Commission v. E K.'s n. Inc. Carl E. Collins
Bro Bee. Inc. v. Alcoholic Beverage Control Commission
Alcoholic Beverage Control Commission v, Donald Ray Doak
Alcoholic Beverage Control Commission v. Janice Lorraine Jeter
Alcoholic Beverage Control Commission v. Well Informed. Inc.
Alcoholic Beverage Control Commission v. Kubbard, Inc
Alcoholic Beverage Control Commission v. Stemmermans's. Inc.
96DOA0172
96DOA028I
Reilly
Chess
08/16/96
09/19/96
95 ABC 0721 Gray 07/09/96
95 ABC 0883*' Gray 07/10/96
95 ABC 0917 West 08/21/96 I1;I2NCR 1027
95 ABC 0922 Chess 04/24/96
95 ABC 0925 Morrison 03/25/96
95 ABC 1143 Morrison 11/08/96 11:17 NCR 1362
95 ABC 1200 West 04/23/96
95 ABC 1251 West 04/03/96 11:03 NCR 166
95 ABC 1329 West 04/10/96
95 ABC 1363 Reilly 05/02/96
95 ABC 1366 West 06/17/96
95 ABC 1389 West 04/01/96
95 ABC 1402 Phipps 03/27/96
95 ABC 1424 Phipps 04/03/96
95 ABC 1443 West 03/26/96
95 -ABC 1444 Gray 03/13/96
95 />iBC 1458 Chess 08/12/96
95 ABC 1480 West 04/15/96
95 ABC 1488 West 03/29/96
96 ABC 0013 Reilly 04/26/96
96 ABC 0016 Chess 05/28/96
96 ABC 0017 Reilly 05/20/96
96 ABC 0018 Chess 05/28/96
2148 NORTH CAROLINA REGISTER May 15, 1997 11:28
CONTESTED CASE DECISIONS
AGENCY
George Wright and Alice Ramsuer v. Alcoholic Beverage Control Comm.
Alcoholic Beverage Control Commission v. Bayron Green
Alcoholic Beverage Control Commission v. Circle K Stores, Inc.
Alcoholic Beverage Control Commission v. Robert Montgomery McKnight
Alcoholic Beverage Control Commission v. Cadillacs Discotheque, Inc
Gerald Audry Sellars v. Alcoholic Beverage Control Commission
Alcoholic Beverage Control Commission v. Jacqueline Robin Anthony
Alcoholic Beverage Control Commission v. Factory Night Club. Inc.
Alcoholic Beverage Control Commission v. C.N.H. Enterprises, Inc
Alcoholic Beverage Control Commission v, Millicent J. Green
Ghassan Hasan Issa v. Alcoholic Beverage Control Commission
Alcoholic Beverage Control Commission v. Abdelhakeem Muraweh Saleh
Alcoholic Beverage Control Commission v. Triangle Drive-In
Alcoholic Beverage Control Commission v. Beroth Oil Company
Alcoholic Beverage Control Commission v. Beroth Oil Company
Alcoholic Beverage Control Commission v Beroth Oil Company
Alcoholic Beverage Control Commission v Beroth Oil Company
Alcoholic Beverage Control Commission v Giles Rozier
Alcoholic Beverage Control Commission v. Clifton Franklin Smith
Alcoholic Beverage Control Comm. v. Crown Central Petroleum Corp
Dilthra Smith Patton v Alcoholic Beverage Control Commission
Virginia Caporal v. Alcoholic Beverage Control Commission
Alcoholic Beverage Control Commission v James Eads Sprowles
Alcoholic Beverage Control Commission v. Chae Ypo Chong
Alcoholic Beverage Control Conunission v. Albert S. Carter
Alcoholic Beverage Control Commission v. Taleb Abed Rahman
Alcoholic Beverage Control Comm. v. Centergrove Entertainment Ent
Michael L. Harris D/B/A Big House Inc. v. Alcoholic Beverage Control
Joseph Marcel Etienne v Alcoholic Beverage Control Commission
Alcoholic Beverage Control Commission v. Jesse Smith
Alcoholic Beverage Control Commission v. Winn Dixie Charlotte. Inc.
Alcoholic Beverage Control Commission v. Winn Dixie Charlotte, Inc
Louis Corpening v. Alcoholic Beverage Control Commission
Alcoholic Beverage Control Commission v Joyce N. Capra
HARB Inc v. Alcoholic Beverage Control Commission
Alcoholic Beverage Control Commission v. Mutaz Mohammed
Alcoholic Beverage Control Commission v. Warner Enterprises, Inc.
Alcoholic Beverage Control Commission v. James Ramsey, Jr.
Alcoholic Beverage Control Commission v. Russell Bernard Speller
Alcoholic Beverage Control Commission v Anthony Ralph Cecchini, Jr
Alcoholic Beverage Control Comm. v Ptnrshp.T/A Blue Front Groc.
Alcoholic Beverage Control Comm. v. Crown Central Petroleum Corp
Alcoholic Beverage Control Commission v. Anthony Jerome Foster
Alcoholic Beverage Control Comm. v. Park Entertainment, Inc.
Loinax Brooks v. Alcoholic Beverage Control Commission
Alcoholic Beverage Control Comm. v. Larry's Famous Bar, Inc.
COMMISSION FOR AUCTIONEERS
John W. Foster v. Auctioneer Licensing Board
Barry G York v Auctioneer Licensing Board
CASE DATE OF PUBLISHED DECISION
NUMBER ALJ DECISION IIEQISTERCITATIQN
96 ABC 0058 Becton 04/16/96
96 ABC 0097 Becton 08/23/96
96 ABC 0134 Gray 11/06/96
96 ABC 0135 Phipps 05/09/96
96 ABC 0136 Phipps 12/04/96
96 ABC 0160 Becton 06/25/96 1 1 :08 NCR 564
96 ABC 0184 Phipps 05/09/96
96 ABC 0226 Phipps 08/02/96
96 ABC 0232 Becton 07/09/96
96 ABC 0234 Smith 06/13/96
96 ABC 0256 Morrison 05/23/96
96 ABC 0381 Chess 08/27/96
96 ABC 0443 Reilly 06/11/96
96 ABC 0447 Morrison 08/30/96 I1;13NCR 1085
96 ABC 0448 Morrison 08/30/96
96 ABC 0449 Morrison 08/30/96
96 ABC 0450 Morrison 08/30/96
96 ABC 0473 Morrison 09/19/96
96 ABC 0474 Reilly 08/12/96
96 ABC 0482 Morrison 10/18/96
96 ABC 0505 Morrison 08/06/96
96 ABC 0507 Becton 10/04/96
96 ABC 0526*' Gray 07/10/96
96 ABC 0530 Morrison 10/29/96
96 ABC 0534 Morrison 08/05/96
96 ABC 0551 West 11/14/96
96 ABC 0583 Reilly 08/12/96
96 ABC 0680 Phipps 02/12/97
96 ABC 0718 Phipps 10/17/96
96 ABC 0804 Gray 11/19/96
96 ABC 0858 Morrison 11/21/96
96 ABC 0859 Morrison 11/21/96
96 ABC 0985 Gray 09/26/96
96 ABC 1060 Reilly 11/15/96
96 ABC 1124 Phipps 10/23/96
96 ABC 1181 Chess 02/13/97
96 ABC 1315 Gray 01/30/97 11:23 NCR 1801
96 ABC 1317 Gray 02/03/97
96 ABC 1394 Smith 12/20/96
96 ABC 1420 Becton 02/28/97
96 ABC 1469 Smith 12/09/96
96 ABC 1584 Gray 02/12/97
96 ABC 1587 Reilly 01/29/97
96 ABC 1928 Smith 02/06/97
96 ABC 1930 Gray 03/21/97
96 ABC 2095 Phipps 04/21/97 11:28 NCR 2165
96CFA0201 Phipps 05/06/96
96 CFA 0297 Smith 10/18/96
DEPARTMENT OF COMMUNITY COLLEGES
James E. Price, Sr. v. Central Carolina Community College, DCC
DEPARTMENT OF CORRECTION
97 DCC 2035 Morrison 04/15/97
James J. Lewis v Department of Correction
AMERIMARK. Inc. v Department of Correction
Joseph Phillip Smith v. Department of Correction
Maurice Crovell v. Department of Correction
CRIME CONTROL AND PUBLIC SAFETY
Roland Lee Kelly, Jr v United Family Services, Victim Assistance/Crime
Victims Compensation Comm.
Robert F. Bronsdon v. Crime Victims Compensation Commission
Helen B Hunter-Reid v Crime Victims Compensation Commission
Deborah C. Passarelli v. Crime Victims Compensation Commission
Kenneth Saunders v Victims Compensation Commission
Franklin McCoy Jones v. Crime Victims Compensation Commission
Ruby H- Ford v. Crime Victims Compensation Commission
96 DOC 0772 West 09/05/96
97 DOC 0040 Morrison 04/17/97
97 DOC 0109 Morrison 04/15/97
97 DOC 0185 Phipps 04/22/97
95 CPS 0568 Morrison 05/29/96
95 CPS 1216 Chess 05/28/96
95 CPS 1336 Smith 03/29/96 11:02 NCR 93
95 CPS 1399 Reilly 07/18/96 1 1 :09 NCR 814
95 CPS 1445 Chess 03/26/96
96 CPS 0056 Smith 07/03/96
96 CPS 01 10 Reilly 04/18/96
11:28 NORTH CAROLINA REGISTER May 15, 1997 2149
CONTESTED CASE DECISIONS
AGENCY
Manuel Cervantes v. Viciims Compensalion Fund
Sheila Carol Blake v Viciims Compensation Commission
James T- Mungo v Victims Compensation Commission
Jerome Crutchfield v. CPS. Victims Compensation Commission
William Theodore Frazier v. Crime Victims Compensation Commission
Emma Coble v Crime Victims Compensation Commission
Donna Williams v Crime Victims Compensation Commission
Daisy Reid v Crime Victims Compensation Commission
Earlie McLaurin, Jr, Delano McLaurin, Sr v. Crime Victims Comp Comm
Anthony P Dawkins v. Crime Victims Compensation Commission
Judy Worley Milam v. Crime Victims Compensation Commission
James A. Cherry v. Crime Control & Public Safety
Shirley M, King v. Crime Victims Compensation
Mark Matthews for Child Victim v. Crime Victims Compensation Comm.
Clara Durham v Victims Compensation
George Battle, Jr v. Crime Control & Public Safety
Larry McLeod v Crime Victims Compensation Commission
Shawn P Saddler v Victims Compensation Commission
Ricky Cleveland v Crime Victims Compensation Commission
Melvin Lewis Huntley v. Victims Compensation Commission
David Carl Anderson v. Crime Victims Compensation Commission
Ronald Richardson v. Crime Victims Compensation Commission
Douglas Alan West v. Crime Victims Compensation Commission
Sandra Ray Weden v. Victim's Compensation Commission
Alton R. Simmons v. Crime Victims Compensation Commission
CASE DATE OF PUBLISHED DECISION
?««;mber ALJ DECISION REGISTER CITATION
96 CPS 0118 Chess 03/19/96
96 CPS 0280 West 07/10/96
96 CPS 0333 Reilly 07/09/96
96 CPS 0340 Phipps 09/05/96
96 CPS 0435 Chess 08/22/96
96 CPS 0468 Chess 09/25/96
96 CPS 0493 Morrison 06/13/96
96 CPS 0499 West 11/18/96
96 CPS 0639 West 01/21/97
96 CPS 0716 Reilly 08/16/96
96 CPS 0717 Gray 11/21/96
96 CPS 0793 Phipps 01/17/97
96 CPS 0802 West 08/08/96
96 CPS 0832 Becton 08/20/96
96 CPS 0906 Phipps 09/23/96
96 CPS 1006 Phipps 01/17/97
96 CPS 1073 Smith 03/14/97
96 CPS 1109 Morrison 01/02/97
96 CPS 1174 Chess 03/06/97
96 CPS 1211 Gray 04/16/97 11:28 NCR 2169
96 CPS 1409 Smith 11/25/96
96 CPS 1729 Becton 04/16/97
96 CPS 1888 West 01/03/97
97 CPS 0072 Phipps 03/11/97
97 CPS 0091 Becton 04/17/97
(
ENVIRONMENT, HEALTH, AND NATURAL RESOURCES
Gribble & Assoc. & Four Seasons Car Wash v. EHNR
Webster Environmental Inc v, EHNR, Asbestos Hazard Mgmt Branch
Wilton Evans v. Environment. Health, & Natural Resources
David Martin Shelton v, Rockingham County Dept/Public Health, EHNR
Kinston Urological Associates, PA, v. N C. Cancer Program
Kinston Urological Associates, PA. v. N.C. Cancer Program
Elsie & Tony Cecchini v. Environment, Health, & Natural Resources
United Organics Corporation v. Environment, Health, & Natural Res.
Gerald Mac Clamrock v. Environment. Health, & Natural Resources
Phillip T Goetz V. Carteret County Health Center
John Milazzo v Environment, Health, & Natural Resources
Daniel Bordeaux. Coast Wastewater Op. v Env.. Health, & Nat. Resources
Wayne Marshall. Pres. Metro Area Dev . Inc v EHNR
Joel B. Patterson v. Environment, Heallth. & Natural Resources
David J Mohn v. Environment, Health. & Natural Resources
Robert D. Smith v. Brunswick County Health Dept.. Bolivia. NC
Frederick Albritton and wife Peggy S. Albritton v. EHNR
Elizabeth Shepard Covin v. Environment, Health. & Natural Resources
The Papco Group. Inc. v. Forsyth County Environmental Affairs Dept
Reuben Massey v Environment. Health, and Natural Resources
Joseph London v Environment. Health, and Natural Resources
Gregory S, and Kimberly C. Maloney v. Environment. Health. & Nat. Res.
95 EHR 0576 Gray 04/25/96
95 EHR 0647 Becton 01/24/97
95 EHR 0843 Reilly 07/17/96
95 EHR 0941 West 05/01/96
95 EHR 1198*- Smith 03/27/96 1 1 :02 NCR 97
95 EHR 1199*- Smith 03/27/96 11:02 NCR 97
95 EHR 1240 Reilly 04/22/96
96 EHR 0064 Smith 07/01/96
96 EHR 0168 Phipps 05/06/96
96 EHR 0596 Smith 01/23/97
96 EHR 0644 Reilly 08/13/96
96 EHR 0751 Gray 04/21/97
96 EHR 0826 West 10/01/96
96 EHR 0846 Reilly 04/22/97 11:28 NCR 2175
96 EHR 0947 Smith 10/04/96
96 EHR 1057 Chess 02/04/97
96 EHR 1126 Reilly 04/02/97 1 1 :27 NCR 2097
96 EHR 1258 Becton 01/14/97
96 EHR 1293 Chess 02/17/97
96 EHR 1301 Reilly 12/18/96
96 EHR 1397 Reilly 12/10/96
97 EHR 0171 Chess 04/02/97
Coastal Resources
Martin W Synger v Division of Coastal Management
J E, Smith Construction Co. v Division of Coastal Management
Theodore D Barris v. Town of Long Beach. NC & Coastal Mgmt. EHNR
Town of Sunset Beach v. EHNR. Division of Coastal Management
95 EHR 1006 Chess 05/13/96
96 EHR 0074 Smith 02/23/96
96 EHR 0277 West 05/09/96
96 EHR 1112 Becton 03/26/97 11:26 NCR 2045
Environmental Health
Forest Gate Motel v. Environment. Health, and Natural Resources
Paradise Ridge Home Owners by Anne Norburn v. EHNR, Env. Health
Zack Diakogiannis v. EHN'R. Division of Environmental Health
96 EHR 0076 West 06/17/96
96 EHR 0162 Phipps 05/06/96
96 EHR 0768 Gray 01/08/97
Environmental Management
Frank A. Corriher & Sons Well Drilling, Inc. v. Env. Mgmt . EHNR
North Buncombe Assoc of Concerned Citizens v. Env. Mgmt. EHNR
Ford Motor Company v. EHNR, Division of Environmental Management
Herman E. Smith v. Division of Environmental Management
Lake Summit Property Owners Assoc, v. EHNR. Environmental Mgmt.
Conover Lumber Co., Inc. v EHNR, Division of Environmental Mgmt.
City of Reidsville, a Municipal Corp. v. EHNR, Environmenml Mgmt.
95 EHR 0048 Phipps 09/20/96 11:14 NCR 1191
95 EHR 0108 Chess 02/03/97 11:24 NCR 1866
95 EHR 0588 Smith 12/20/96
95 EHR 0962 West 04/30/96
95 EHR 1022 Reilly 12/30/96
95 EHR 1081 Reilly 04/12/96
95 EHR 1335 Gray 10/01/96 11:15 NCR 1249
2750 NORTH CAROLINA REGISTER May 15, 1997 11:28
CONTESTED CASE DECISIONS
AGENCY
Jack West d/b/a Jack West Tree Service v. Environmenial Mgmt. Comm.
The Smiihfield Packing Co., Inc., v. EHNR. Environmental Mgmt.
and
Citizens for Clean Industry. Inc. and Bladen Environment
Commscope. Inc. v. EHNR, Division of Environmental Management
Stephen L. Reedy v. EHNR, Division of Environmental Management
Rayco Utilities, Inc. v. EHNR, Division of Environmental Management
Clover M