North Carolina register, April 1986 - June 1998

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NORTH CAROLINA
REGISTER
VOLUME 10 • ISSUE 3 • Pages 191 -227
May 1, 1995
IN THIS ISSUE
Executive Orders
Decision Letter
Community Colleges
Environment, Health, and Natural Resources
Human Resources
Labor
Nursing Home Administrators, Board of
RRC Objections
Contested Case Decisions
PUBLISHED BY
The Office ofAdministrative Hearings
Rules Division
PO Drawer 27447
Raleigh, NC 27611-7447
Telephone (919) 733-2678
Fax (919) 733-3462
This publication is printed on permanent, acid-free paper in TSmpliance with G.S. 125-1 1.13
INFORMATION ABOIT THF NORTH CAROLINA REGISTER AND ADMINISTRATIVE CODE
NORTH CAROLINA REGISTER
The North Carolina Register is published twice a month and
contains information relating to agency, executive, legislative and
judicial actions required by or affecting Chapter 150B of the
General Statutes. All proposed administrative rules and notices of
public hearings filed under G.S. 150B-21.2 must be published in
the Register. The Register will typically comprise approximately
fifty pages per issue of legal text.
State law requires that a copy of each issue be provided free of
charge to each count)' in the state and to various state officials and
institutions.
The North Carolina Register is available by yearly subscription
at a cost of one hundred and twenty dollars ($120.00) for 24
issues. Individual issues may be purchased for ten dollars
(S10.00).
Requests for subscription to the North Carolina Register should
be directed to the Office of Administrative Hearings. PO Drawer
27447, Raleigh, NC 27611-7447.
ADOPTION, AMENDMENT, AND REPEAL OF RULES
The following is a generalized statement of the procedures to be
followed for an agency to adopt, amend, or repeal a rule. For the
specific statutory authority, please consult Article 2A of Chapter
150B of the General Statutes.
Any agency intending to adopt, amend, or repeal a rule must
first publish notice of the proposed action in the North Carolina
Register. The notice must include the time and place of the public
hearing (or instructions on how a member of the public may
request a hearing): a statement of procedure for public comments:
the text of the proposed rule or the statement of subject matter: the
reason for the proposed action; a reference to the statutory
authority for the action and the proposed effective date.
Unless a specific statute provides otherwise, at least 15 days
must elapse following publication of the notice in the North
Carolina Register before the agency may conduct the public
hearing and at least 30 days must elapse before the agency can take
action on the proposed rule. An agency may not adopt a rule that
differs substantially from the proposed form published as part of
the public notice, until the adopted version has been published in
the North Carolina Register for an additional 30 day comment
period.
When final action is taken, the promulgating agency must file the
rule with the Rules Review Commission fRRC). After approval
by RRC. the adopted rule is filed with the Office of Administrative
Hearings (OAH).
A rule or amended rule generally becomes effective 5 business
days after the rule is filed with the Office of Administrative
Hearings for publication in the North Carolina Administrative
Code (NCAC).
Proposed action on rules may be withdrawn by the promulgating
agency at any time before final action is taken by the agency or
before filing with OAH for publication in the NCAC.
TEMPORARY RULES
Under certain emergency conditions, agencies may issue
temporary rules. Within 24 hours of submission to OAH, the
Codifier of Rules must review the agency's written statement of
findings of need for the temporary rule pursuant to the provisions
in G.S. 150B-21.1. If the Codifier determines that the findings
meet the criteria in G.S. 150B-21.1. the rule is entered into the
NCAC. If the Codifier determines that the findings do not meet
the criteria, the rule is returned to the agency. The agency may
supplement its findings and resubmit the temporary rule for an
additional review or the agency may respond that it will remain
with its initial position. The Codifier, thereafter, will enter the
rule into the NCAC. A temporary rule becomes effective either
when the Codifier of Rules enters the rule in the Code or on the
sixth business day after the agency resubmits the rule without
change. The temporary rule is in effect for the period specified in
the rule or 180 days, whichever is less. An agency adopting a
temporary rule must begin rule-making procedures on the
permanent rule at the same time the temporary rule is filed with
the Codifier.
NORTH CAROLINA ADMINISTRATIVE CODE
The North Carolina Administrative Code (NCAC) is a
compilation and index of the administrative rules of 25 state
agencies and 40 occupational licensing boards. Compilation and
publication of the NCAC is mandated by G.S. 150B-21 .18.
The Code is divided into Titles and Chapters. Each state agency
is assigned a separate title which is further broken down by
chapters. Title 21 is designated for occupational licensing boards.
The NCAC is available in two formats.
(1) Single pages may be obtained at a minimum cost of
two dollars and 50 cents ($2.50) for 10 pages or less,
plus fifteen cents ($0.15) per each additional page.
Requests for pages of rules or volumes of the NCAC
should be directed to the Office of Administrative
Hearings.
(2) The full publication and supplement service is printed
and distributed by Barclays Law Publishers. It is
available in hardcopy, CD-ROM and diskette format.
For subscription information, call 1-800-888-3600.
CITATION TO THE NORTH CAROLINA REGISTER
The North Carolina Register is cited by volume, issue, page
number and date. 10:01 NCR 1-67, April 3, 1995 refers to
Volume 10, Issue 1, pages 1 through 67 of the North Carolina
Register issued on April 3, 1995.
FOR INFORMATION CONTACT: Office of Administrative Hearings. ATTN:
NC 27611-7447. (919) 733-2678, FAX (919) 733-3462.
Rules Division, PO Drawer 27447, Raleigh,
I
NORTH CAROLINA IN THIS ISSUE
I. EXECUTIVE ORDERS
Executive Orders 75 - 76
I
Volume lO, Issue 3
Pages 1 9 1 - 227
May 1, 1995
This issue contains documents officially
filed through April 17, 1995.
191 - 193
n. IN ADDITION
Voting Rights Act
Wildlife Resources Commission Proclamation
194
195
III. PROPOSED RULES
Community Colleges
Community Colleges 208 - 209
Environment, Health, and Natural Resources
Coastal Resources Commission 197 - 206
Human Resources
Social Services 1%
Labor
OSHA 196-197
Licensing Board
Nursing Home Administrators, Board of 206 - 208
IV. RRC OBJECTIONS 210-213
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
Teresa Kilpatrick, Editorial Assistant
Jean Shirley, Editorial Assistant
V. CONTESTED CASE DECISIONS
Index to ALI Decisions 214 - 220
Text of Selected Decisions
94 DOA 0738 221-223
VI. CUMULATIVE INDEX 225-227
*
NORTH CAROLINA REGISTER
Publication Schedule
(November 1994 - September 1995)
Volume
and
Issue
Number
Issue
Date
Last Day
for Fil-ing
Last Day
for Elec-tronic
Filing
Earliest
Date for
Public
Hearing
15 days
from
notice
* End of
Required
Comment
Period
30 days
from
notice
Last Day
to Submit
toRRC
** Earliest
Effective
Date
9:15 11/01/94 10/11/94 10/18/94 11/16/94 12/01/94 12/20/94 02/01/95
9:16 11/15/94 10/24/94 10/31/94 11/30/94 12/15/94 12/20/94 02/01/95
9:17 12/01/94 11/07/94 11/15/94 12/16/94 01/03/95 01/20/95 03/01/95
9:18 12/15/94 11/22/94 12/01/94 12/30/94 01/17/95 01/20/95 03/01/95
9:19 01/03/95 12/08/94 12/15/94 01/18/95 02/02/95 02/20/95 04/01/95
9:20 01/17/95 12/21/94 12/30/94 02/01/95 02/16/95 02/20/95 04/01/95
9:21 02/01/95 01/10/95 01/18/95 02/16/95 03/03/95 03/20/95 05/01/95
9:22 02/15/95 01/25/95 02/01/95 03/02/95 03/17/95 03/20/95 05/01/95
9:23 03/01/95 02/08/95 02/15/95 03/16/95 03/31/95 04/20/95 06/01/95
9:24 03/15/95 02/22/95 03/01/95 03/30/95 04/17/95 04/20/95 06/01/95
10:1 04/03/95 03/13/95 03/20/95 04/18/95 05/03/95 05/22/95 07/01/95
10:2 04/17/95 03/24/95 03/31/95 05/02/95 05/17/95 05/22/95 07/01/95
10:3 05/01/95 04/07/95 04/17/95 05/16/95 05/31/95 06/20/95 08/01/95
10:4 05/15/95 04/24/95 05/01/95 05/30/95 06/14/95 06/20/95 08/01/95
10:5 06/01/95 05/10/95 05/17/95 06/16/95 07/03/95 07/20/95 09/01/95
10:6 06/15/95 05/24/95 06/01/95 06/30/95 07/17/95 07/20/95 09/01/95 i
10:7 07/03/95 06/12/95 06/19/95 07/18/95 08/02/95 08/21/95 10/01/95
10:8 07/14/95 06/22/95 06/29/95 07/31/95 08/14/95 08/21/95 10/01/95
10:9 08/01/95 07/11/95 07/18/95 08/16/95 08/31/95 09/20/95 11/01/95
10:10 08/15/95 07/25/95 08/01/95 08/30/95 09/14/95 09/20/95 11/01/95
10:11 09/01/95 08/11/95 08/18/95 09/18/95 10/02/95 10/20/95 12/01/95
10:12 09/15/95 08/24/95 08/31/95 10/02/95 10/16/95 10/20/95 12/01/95
This table is published as a public service, and the computation of time periods are not to be deemed binding
or controlling. Time is computed according to 26 NCAC 2B .0103 and the Rules of Civil Procedure, Rule 6.
* An agency must accept comments for at least 30 days after the proposed text is published or until the date
of any public hearing, whichever is longer. See G.S. 150B-21.2(f) for adoption procedures.
** The "Earliest Effective Date" is computed assuming that the agency follows the publication schedule above,
that the Rules Review Commission approves the rule at the next calendar month meeting after submission, and
that RRC delivers the rule to the Codifier of Rules five (5) business days before the 1st day of the next calendar
month.
Revised 10/94
EXECUTIVE ORDERS
EXECUTIVE ORDER NO. 75
CREATION OF REGIONAL COUNCILS
AND A COORDINATING COUNCIL TO
SUPPORT SOUND ENVIRONMENTAL
MANAGEMENT IN THE ALBEMARLE-PAMLICO
ESTUARINE STUDY REGION
WHEREAS, the Albemarle-Pamlico Estuarine Study (APES)
was a cooperative effort by the State of North Carolina and the
U.S. Environmental Protection Agency to preserve water
quality, habitats, and fisheries in eastern North Carolina; and
WHEREAS, APES was the first of 21 National Estuary
Programs to be started under the Clean Water Act; and
WHEREAS, APES has provided extensive information and
scientific research about the environmental issues facing the
Albemarle-Pamlico estuary since 1987; and
WHEREAS, that scientific information was combined with
extraordinary involvement by citizens to develop a Compre-hensive
Conservation and Management Plan (CCMP) entitled
"A Guide to Environmental and Economic Stewardship in the
Albemarle-Pamlico Region"; and
WHEREAS, the CCMP also recognizes that, from an
ecological and an economic standpoint, the best way to ensure
the general environmental health of the Albemarle-Pamlico
watershed is to manage and protect the five river basins of the
watershed; and
WHEREAS, the CCMP also recognizes the importance of
involving the public in making decisions regarding environ-mental
management; and
WHEREAS, the CCMP recommends the establishment of
Regional Councils to foster public input from each of the five
river basins in the Albemarle-Pamlico region, and a Coordinat-ing
Council to support the implementation process of the
CCMP;
NOW, THEREFORE, by the authority vested in me as
Governor by the laws and Constitution of the State of North
Carolina, IT IS ORDERED:
Section 1. Establishment.
Five Regional Councils of citizens ("Councils"), one for each
river basin in the Albemarle-Pamlico watershed, are hereby
established to advise agencies responsible for environmental
management on concerns and issues relative to that basin.
A Coordinating Council consisting or representatives from
each Regional Council, citizen commissions, federal resource
agencies, and state government is hereby established to
evaluate and support implementation of the CCMP.
Section 2. Regional Councils.
A. Composition.
1, Basins to be represented by the Councils. Five
separate Regional Councils shall represent each of
the following river basins, with the area of the river
basin being defined by the hydrologic boundaries
ascribed to it by the N.C. Division of Environmental
Management (DEM):
a. Neuse (including areas of the White Oak River
basin that drain to Core and Bogue Sounds)
b. Tar-Pamlico (including areas draining directly into
the northern Pamlico Sound)
c. Roanoke (the portion of the basin below Lake
Gaston dam)
d. Chowan
e. Pasquotank/Alligator (including smaller rivers and
areas that drain directly into the Albemarle,
Currituck, Croatan, and Roanoke Sounds)
2. Membership of the Regional Councils.
a. Each county in the basin shall have at least three
representatives on the Council for that basin. In
instances where a county lies in more than one
basin, that county shall have at least three repre-sentatives
on each Council that serves a basin of
which the county is a part.
b. Membership from each county shall include:
(1) one elected or appointed county official selected
by the board of county commissioners;
(2) one elected or appointed municipal official
selected by the board of county commissioners
in consultation with municipalities in the county
(counties without municipalities shall appoint a
second county official); and
(3) one person appointed by the Secretary of the
N.C. Department of Environment, Health, and
Natural Resources (DEHNR). In making his
appointments to each Council, the Secretary
shall, to the greatest extent possible, seek to
ensure demographic and social balance, as well
as balance among the following interests:
(a) agriculture
(b) silviculture
(c) conservation
(d) environmental science
(e) commercial fishing
(f) business/industry
(g) recreational fishing
(h) tourism
(i) Soil and Water Conservation Districts
(j) at large
c. Each Regional Council may expand its member-ship
as it deems necessary.
d. Members shall serve for a five-year term to coin-cide
with the five-year cycle of discharge permit
renewals in the river basins. Vacancies shall be
filled by the appointing authority.
B. Duties.
1 . The Regional Councils shall advise and consult with
local, state, and federal governments, as well as the
general public and different interest groups within
the basin, on the implementation of environmental
management programs in the river basins. Because
10:3 NORTH CAROLINA REGISTER May 1, 1995 191
EXECUTIVE ORDERS
different basins are likely to face different concerns
and problems, the Council for a particular basin
shall work to prioritize the problems to be addressed
in that basin and to design and build consensus
support for the most cost-effective strategies for
dealing with those problems. The councils shall
also advise the public and local governments of
actions and information relevant to environmental
management in the basin. The Councils will have
no authority other than as advisory bodies.
2. Federal and state agencies with environmental
management responsibilities in the basin shall be
invited to participate in meetings of the Regional
Councils.
3. Each council shall be responsible for determining its
own rules of order, chairmanship, attendance regula-tions,
quorums, and other matters of protocol.
4. DEHNR shall assist the councils and serve as a
conduit for information between the councils, state
and federal agencies, local government, and the
public.
5. Each council shall work with DEHNR in preparing
an annual public report on the progress of environ-mental
protection and related concerns in the five
river basins.
C. Meetings.
Each Regional Council shall meet within three
months of its formation by the Secretary of DEHNR
and local governments. Each Council shall meet at
least two times each year, or more frequently if
deemed appropriate.
tion
4. Three representatives of state government:
a. Secretary of DEHNR, or his designee (Chair of
the Coordinating Council)
b. Secretary of the N.C. Department of Commerce,
or his designee
c. Commissioner of the N.C. Department of Agri-culture,
or his designee, is invited to participate.
B. Duties.
1
.
The role of the Coordinating Council shall be to
evaluate and support the implementation process to
ensure the highest level of cooperation and coordi-nation
among agencies, local governments, and
public and private interest groups.
2. The Coordinating Council shall consult the Regional
Councils for guidance on coordinating implementa-tion
strategies at a local level.
3. The Coordinating Council shall set annual priorities
for implementing sections of the CCMP and make
recommendations based on progress and success,
and shall identify and prioritize information needs as
descried in the CCMP.
4. The Coordinating Council shall pursue a Memoran-dum
of Agreement between North Carolina and
Virginia to ensure continued cooperation and coor-dination
in implementing the CCMP.
5. Each participating agency, institution, and organiza-tion
of the Coordinating Council shall submit annual
reports evaluating the progress made in implement-ing
CCMP recommendations and the success of
implementation strategies.
Section 3. Coordinating Council,
A. Membership.
Membership of the Coordinating Council shall
include:
1
.
Fifteen representatives of the five Regional Coun-cils.
(Each Regional Council will select two of the
elected and/or appointed government officials
and one other representative from any back-ground.)
2. Seven representatives of citizen commissions and
councils. The Chair of each of the following
groups shall select a representative:
a. Marine Fisheries Commission
b. Soil and Water Conservation Commission
c. Environmental Management Commission
d. Coastal Resources Commission
e. Wildlife Resources Commission
f. Forestry Advisory Council
g. Sedimentation Control Commission
3. Four representatives of federal resource agencies,
to be selected by the appropriate federal adminis-trators,
are invited to participate:
a. U.S. Environmental Protection Agency
b. U.S. Army Corps of Engineers
c. U.S. Fish and Wildlife Service
d. National Oceanic and Atmospheric Administra-
Section 4. Compensation. Per Diems and Expenses.
Members of the Regional Councils and the Coordinating
Council shall serve voluntarily and without compensation, per
diems or expenses.
Section 5. Effect of Other Executive Orders.
All other Executive Orders or portions of Executive Orders
inconsistent herewith are hereby rescinded.
This Order shall become effective immediately.
Done in the Capital City of Raleigh, North Carolina, this the
30th day of March, 1995.
EXECUTIVE ORDER NO. 76
NORTH CAROLINA MOTOR CARRIER
ADVISORY COMMITTEE
WHEREAS, the motor carrier industry is an important
industry to North Carolina and to the United States; and
WHEREAS, coordination with other states' laws and federal
laws benefit the motor earner industry, businesses served by
the motor carrier industry, and the citizens of North Carolina.
NOW, THEREFORE, by the power vested m me as Gover-nor
by the Constitution and laws of North Carolina, IT IS
192 NORTH CAROLINA REGISTER May 1, 1995 10:3
EXECUTIVE ORDERS
ORDERED:
Section 1. Establishment.
There is hereby established the North Carolina Motor Carrier
Advisory Committee.
Section 2. Membership.
The Advisory Committee shall be composed of not less than
eighteen (18) members as follows:
A. The Secretary of the Department of Transportation;
B. The Highway Administrator;
C. Commissioner, Division of Motor Vehicles;
D. Director, Motor Fuel Division, Department of
Revenue;
E. Director, Governor's Highway Safety Program;
F. North Carolina State Highway Patrol representative;
G. North Carolina State Ports Authority representative;
H. At least six members from the motor carrier industry
representing the following areas: heavy duty and
rigging, truckload, less than truckload, trucking
association, private carrier, and tank/bulk;
I. At least three (3) members representing the interests
of intra-state truck users;
J. National Motor Carrier Advisory Committee mem-bers
shall serve as ex-officio members of the North
Carolina Advisory Committee.
All members not specifically named herein shall be ap-pointed
by and serve at the pleasure of the Secretary of the
Department of Transportation (DOT). They shall serve two-year
terms. The Secretary of DOT or his designee shall chair
the Advisory Committee. The Secretary may designate a co-chair
from among the public members of the Committee.
D.
cies, and procedures are consistent with those in
other states;
To work cooperatively with the National Governors'
Association, the Federal Highway Administration,
North Carolina Board of Transportation, and other
organizations in an effort to streamline and improve
uniformity and efficiency among the states in motor
carrier taxation regulation, and other related matters;
and
To advise the Governor and make recommendations
concerning the motor carrier industry.
Section 4. Administration.
DOT shall provide the planning, technical, and administra-tive
support for the Advisory Committee.
Section 5. Expenses.
Members of the Committee shall be compensated for their
per diem expenses as provided in N.C.G.S. 138-5 and 138-6.
These expenses shall be provided from funds made available
from DOT.
Section 6. Agency Cooperation.
Every agency and department of state government is directed
to cooperate with the Committee by providing necessary
information requested by the Committee and to provide the
Committee on a timely basis departmental directives and
procedures applied within the agency or department which
affect the motor carrier industry.
This Order shall be effective immediately.
Section 3. Duties.
The Advisory Committee shall have the following duties:
A. To review current laws, policies, and procedures
regarding taxation, regulation, and safety of the
motor carrier industry in North Carolina;
B. To determine the extent to which these laws, poli-
Done in Raleigh, North Carolina, this the 3rd day of April,
1995.
10:3 NORTH CAROLINA REGISTER May 1, 1995 193
IN ADDITION
This Section contains public notices that are required to be published in the Register or have been approved by the
Codifier of Rules for publication.
\
DLP:MAP:JSS:emr
DJ 166-012-3
94-3209
U.S. Department of Justice
Civil Rights Division
Voting Section
P.O. Box 66128
Washington, D.C. 20035-6128
April 3, 1995
Michael Crowell, Esq.
Tharrington, Smith & Hargrove
P. O. Box 1151
Raleigh, North Carolina 27602
Dear Mr. Crowell:
This refers to Chapter 583 (1994), insofar as it provides for a change to a nonpartisan election system (with a
plurality vote requirement, elections conducted at the same time as party primaries, and a change in the date on which new
terms of office commence) for the board of Education of Onslow County, North Carolina, submitted to the Attorney General
pursuant to Section 5 of the Voting Rights Act of 1965, as amended, 42 U.S.C. 1973c. We received your responses to our
October 3, 1994, request for additional information on December 5 and 19, 1994, and January 10, 23, 25, and 31, 1995.
The Attorney General does not interpose any objection to the specified changes. However, we note that Section
5 expressly provides that the failure of the Attorney General to object does not bar subsequent litigation to enjoin the
enforcement of the changes. See the Procedures for the Administration of Section 5 (28 C.F.R. 51.41).
Sincerely,
Deval L. Patrick
Assistant Attorney General
Civil Rights Division
By:
Elizabeth Johnson
Acting Chief, Voting Section
i
194 NORTH CAROLINA REGISTER May 1, 1995 10:3
IN ADDITION
North Carolina Wildlife Resources Commission
512 N. Salisbury Street, Raleigh, North Carolina 27604-1188, 919-733-3391
Charles R. Fullwood, 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 effective at 12:00 midnight on April 14, 1995 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.
The Roanoke River Striped Bass Management Area is defined as the inland and joint fishing waters of the Roanoke
River, extending from its mouth to Roanoke Rapids Dam and all tributaries of the Roanoke River, including but not limited
to, the Cashie, Middle, and Eastmost Rivers and their tributaries.
This proclamation shall remain in effect until a new proclamation reopening the 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) The striped bass harvest quota for the hook and line sport fishery of the Roanoke River Striped Bass
Management Area has been met, and the area is closed for striped bass fishing until reopened as prescribed
herein.
c) All striped bass regardless of condition taken subsequent to the effective date and time of this Proclamation
shall be immediately returned to the waters where taken and no striped bass may be possessed.
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: Charles R. Fullwood Date: 04/10/95
Executive Director
10:3 NORTH CAROLINA REGISTER May 1, 1995 195
PROPOSED RULES
TITLE 10 - DEPARTMENT OF
HUMAN RESOURCES
Notice is hereby given in accordance with G.S.
150B-21. 2 that the Social Services Commission intends
to amend rules cited as 10 NCAC 41F .0706 and .0812.
Proposed Effective Date: August 1, 1995.
A Public Hearing will be conducted at 10:00 a.m. on June
7, 1995 at the Albemarle Building, Room 943-2, 325 N.
Salisbury Street, Raleigh, NC 27603.
Reason for Proposed Action: The rules are being revised
to reflect the age change from 14 to 13 years old, at which
juveniles may be tried as adults for certain felonies, and to
require criminal record checks be conducted on all foster
parent applicants and household members 13 years and
older and by disqualifying applicants and household mem-bers
13 years and older who have been convicted of certain
crimes from licensure.
Comment Procedures: Comments may be presented in
writing anytime before or at the public hearing or orally at
the hearing. Tune limits for oral remarks may be imposed
by the Commission Chairman. Any person may request
copies of these rules by calling or writing to Shamese
Ransome, Division of Social Services, 325 N. Salisbury
Street, Raleigh, NC 27603, 919-733-3055.
Fiscal Note: These Rules do not affect the expenditures or
revenues of local government or state funds.
CHAPTER 41 - CHILDREN'S SERVICES
SUBCHAPTER 41F - LICENSING OF
FAMILY FOSTER HOMES
SECTION .0700 - STANDARDS
FOR LICENSING
.0706 CRIMINAL CONVICTIONS
An applicant shall not be eligible for licensure as a foster
parent if the applicant, or any member of the applicant's
household 44—13 years or older, has been convicted or
entered a plea of no contest to a crime, and there is a
relationship between the nature of the crime and the ability
of the prospective foster parent to assure the health, safety
and well being of foster children; provided a license shall be
denied if the applicant or any member of the household 44
\3 years or older has been convicted or entered a plea of no
contest to a felony involving violent behavior, unlawful
sexual conduct, minor children or controlled drugs.
Statutory Authority G.S. 13ID- 10.5; 143B-153.
SECTION .0800 - LICENSING
REGULATIONS AND PROCEDURES
.0812 CRIMINAL BACKGROUND CHECKS
The supervising agency shall conduct a criminal back-ground
investigation through access of the Department of
Corrections Inmate/Probation Inquiry System for all mem-bers
of the foster family household 44 13 years and older at
the time of initial application and annually thereafter. The
results of the criminal background investigation shall be
reported to the Division of Social Services on the application
form.
Statutory Authority G.S. 13ID-10. 5; 143B-153.
TITLE 13 DEPARTMENT OF
LABOR
Notice is hereby given in accordance with G.S.
150B-21.2 that the Division of Occupational Safety &
Health, NC Department of Labor, intends to adopt rules
regarding administration of the Hazardous Chemicals
Right to Know Act (NCGS 95-173 et seq.) including
provisions regarding General Provisions, Hazardous
Substance List, Labeling, Emergency Information, Exemp-tions,
and Hazardous Substance Trade Secrets. The
agency will subsequently publish in the Register the text of
the rules it proposes to adopt as a result of the public
hearing and of any comments received on the subject
matter.
Statutory Authority: G.S. 95-4; 95-133; 95-175.
Proposed Effective Date: January 1, 1996.
A Public Hearing will be conducted at 2:00 p. m. on May
17, 1995 at the NCDOL/OSHA Office, 319 Chapanoke
Road, Suite 105, Conference Room A, Raleigh, NC.
Reason for Proposed Action: The Division of Occupa-tional
Safety & Health desires to obtain public comment on
the subject of what rules should be established pursuant to
the Hazardous Chemicals Right to Know Act (NCGS 95-
173 et_ seq.)
Comment Procedures: Please submit written comments
to Jill F. Cramer, NCDOL/OSHA, 319 Chapanoke Road,
Suite 105, Raleigh, NC 27603-3432, FAX (919) 662-4582.
You may present oral or written comments at the May 17
hearing; however, time limits may be imposed by the
Chair. The deadline for written comments is June 30,
1995.
******************
196 NORTH CAROLINA REGISTER May 1, 1995 10:3
PROPOSED RULES
Notice is hereby given in accordance with G.S.
150B-21.2 that the Division of Occupational Safety &
Health/NC Department of Labor, intends to adopt more
current permissible exposure limits in addition to those
adopted at 13 NCAC 07F .0101(a)(4), (Subpart Z, 29 CFR
1910. 1000, Air Contaminants). The more current PELs
under consideration are those listed as substances relating
to Avoidance of Neuropathy, Avoidance of Narcosis,
Cardiovascular Effects, Systemic Toxicity and Metabolic
Effects. The agency will subsequently publish in the
Register the text of the rules it proposes to adopt as a
result of the public hearing and of any comments received
on the subject matter.
Statutory Authority: G.S. 95-133.
Proposed Effective Date: January 1, 1996.
A Public Hearing will be conducted at 2:00 p. m. on May
18, 1995 at the NCDOL/OSHA Office, 319 Chapanoke
Road, Suite 105, Conference Room A, Raleigh, NC.
Reason for Proposed Action: The Division of Occupa-tional
Safety & Health of the NC Department of Labor
desires to obtain public comment on the subject of adop-tion
of more current PELs (permissible exposure limits.)
Comment Procedures: Please submit written comments
to Jill F. Cramer, NCDOL/OSHA, 319 Chapanoke Road,
Suite 105, Raleigh, NC 27603-3432, FAX (919) 662-4582.
You may present oral or written comments at the May 18
hearing; however, time limits may be imposed by the
Chair. The deadline for written comments is June 30,
1995.
TITLE ISA - DEPARTMENT OF
ENVIRONMENT, HEALTH, AND
NATURAL RESOURCES
Notice is hereby given in accordance with G.S.
150B-21.2 that EHNR - Coastal Resources Commis-sion
intends to amend rule cited as ISA NCAC 7H .0208.
Proposed Effective Date: December 1, 1995.
A Public Hearing will be conducted at 4:00 p.m. on the
following dates and locations:
May 25, 1995
Beaufort County Community College
Continuing Education Bldg. Auditorium
Building #5
Highway 264 East
Washington, NC 27889
July 27, 1995
Crystal Coast Civic Center
3505 Arendell Street
Morehead City, NC 28557
Reason for Proposed Action: To develop specific guide-lines
for mooring installation to control proliferation of
this type of development that heretofore has not been
closely regulated.
Comment Procedures: All persons interested in this
matter are invited to attend the public hearing. The
Coastal Resources Commission will receive mailed written
comments postmarked no later than August 2, 1995. Any
person desiring to present lengthy comments is requested
to submit a written statementfor inclusion in the record of
proceedingsfor the public hearing. Additional information
concerning the hearing or the proposals may be obtained
by contacting Kris M. Horton, Division of Coastal Man-agement,
PO Box 27687, Raleigh, North Carolina
27611-7687, (919) 733-2293.
Fiscal Note: This Rule does not affect the expenditures or
revenues of local government or state funds.
CHAPTER 7 - COASTAL MANAGEMENT
SUBCHAPTER 7H - STATE GUIDELINES FOR
AREAS OF ENVIRONMENTAL CONCERN
SECTION .0200 - THE ESTUARINE SYSTEM
.0208 USE STANDARDS
(a) General Use Standards
(1) Uses which are not water dependent will not
be permitted in coastal wetlands, estuarine
waters, and public trust areas. Restaurants,
residences, apartments, motels, hotels, trailer
parks, private roads, factories, and parking
lots are examples of uses that are not water
dependent. Uses that are water dependent may
include: utility easements; docks; wharfs; boat
ramps; dredging; bridges and bridge ap-proaches;
revetments, bulkheads; culverts;
groins; navigational aids; mooring pilings;
navigational channels; simple access channels
and drainage ditches.
(2) Before being granted a permit by the CRC or
local permitting authority, there shall be a
finding that the applicant has complied with the
following standards:
(A) The location, design, and need for develop-ment,
as well as the construction activities
involved must be consistent with the stated
management objective.
(B) Before receiving approval for location of a
use or development within these AECs, the
permit-letting authority shall find that no
10:3 NORTH CAROLINA REGISTER May 1, 1995 197
PROPOSED RULES
suitable alternative site or location outside of
the AEC exists for the use or development
and, further, that the applicant has selected a
combination of sites and design that will
have a minimum adverse impact upon the
productivity and biologic integrity of coastal
marshland, shellfish beds, beds of submerged
aquatic vegetation, spawning and nursery
areas, important nesting and wintering sites
for waterfowl and wildlife, and important
natural erosion barriers (cypress fringes,
marshes, clay soils).
(C) Development shall not violate water and air
quality standards.
(D) Development shall not cause major or irre-versible
damage to valuable documented
archaeological or historic resources.
(E) Development shall not measurably increase
siltation.
(F) Development shall not create stagnant water
bodies.
(G) Development shall be timed to have mini-mum
adverse significant affect on life cycles
of estuarine resources.
(H) Development shall not impede navigation or
create undue interference with access to, or
use of, public trust areas or estuarine waters.
(3) When the proposed development is in conflict
with the general or specific use standards set
forth in this Rule, the CRC may approve the
development if the applicant can demonstrate
that the activity associated with the proposed
project will have public benefits as identified
in the findings and goals of the Coastal Area
Management Act, that the public benefits
clearly outweigh the long range adverse effects
of the project, that there is no reasonable and
prudent alternate site available for the project,
and that all reasonable means and measures to
mitigate adverse impacts of the project have
been incorporated into the project design and
will be implemented at the applicant's expense.
These measures taken to mitigate or minimize
adverse impacts may include actions that will:
(A) minimize or avoid adverse impacts by limit-ing
the magnitude or degree of the action;
(B) restore the affected environment; or
(C) compensate for the adverse impacts by re-placing
or providing substitute resources.
(4) Primary nursery areas are those areas in the
estuarine system where initial post larval
development of finfish and crustaceans takes
place. They are usually located in the upper-most
sections of a system where populations
are uniformly early juvenile stages. They are
officially designated and described by the N.C.
Marine Fisheries Commission in 15A NCAC
3B .1405 and by the N.C. Wildlife Resources
Commission in 15A NCAC IOC .0110.
(5) Outstanding Resource Waters are those estua-rine
waters and public trust areas classified by
the N.C. Environmental Management Commis-sion
pursuant to Title 15A, Subchapter 2B
.0216 of the N.C. Administrative Code as
Outstanding Resource Waters (ORW) upon
finding that such waters are of exceptional
state or national recreational or ecological
significance. In those estuarine waters and
public trust areas classified as ORW by the
Environmental Management Commission
(EMC), no permit required by the Coastal
Area Management Act will be approved for
any project which would be inconsistent with
applicable use standards adopted by the CRC,
EMC, or Marine Fisheries Commission
(MFC) for estuarine waters, public trust areas,
or coastal wetlands. For development activi-ties
not covered by specific use standards, no
permit will be issued if the activity would,
based on site specific information, materially
degrade the water quality or outstanding re-source
values unless such degradation is tem-porary.
(6) Beds of submerged aquatic vegetation (SAV)
are those habitats in public trust and estuarine
waters vegetated with one or more species of
submergent vegetation. These vegetation beds
occur in both subtidal and intertidal zones and
may occur in isolated patches or cover exten-sive
areas. In either case, the bed is defined
by the presence of above-ground leaves or the
below-ground rhizomes and propagules. In
defining SAVs, the CRC recognizes the
Aquatic Weed Control Act of 1991 (G.S.
113A-220 et. seq.) and does not intend the
SAV definition and its implementing rules to
apply to or conflict with the non-development
control activities authorized by that Act.
(b) Specific Use Standards
(1) Navigation channels, canals, and boat basins
must be aligned or located so as to avoid
primary nursery areas highly productive shell-fish
beds, beds of submerged aquatic vegeta-tion,
or significant areas of regularly or irregu-larly
flooded coastal wetlands.
(A) Navigation channels and canals may be
allowed through narrow fringes of regularly
and irregularly flooded coastal wetlands if
the loss of wetlands will have no significant
adverse impacts on fishery resources, water
quality or adjacent wetlands, and, if there is
no reasonable alternative that would avoid
the wetland losses.
(B) All spoil material from new construction
198 NORTH CAROLINA REGISTER May 1, 1995 10:3
PROPOSED RULES
shall be confined landward of regularly and
irregularly flooded coastal wetlands and
stabilized to prevent entry of sediments into
the adjacent water bodies or marsh.
(C) Spoil from maintenance of channels and
canals through irregularly flooded wetlands
shall be placed on non-wetland areas, rem-nant
spoil piles, or disposed of by an accept-able
method having no significant, long term
wetland impacts. Under no circumstances
shall spoil be placed on regularly flooded
wetlands.
(D) Widths of the canals and channels shall be
the minimum required to meet the applicant's
needs and provide adequate water circula-tion.
(E) Boat basin design shall maximize water
exchange by having the widest possible
opening and the shortest practical entrance
canal. Depths of boat basins shall decrease
from the waterward end inland.
(F) Any canal or boat basin shall be excavated
no deeper than the depth of the connecting
channels.
(G) Canals for the purpose of multiple residential
development shall have:
(i) no septic tanks unless they meet the
standards set by the Division of Environ-mental
Management and the Division of
Environmental Health;
(ii) no untreated or treated point source
discharge;
(iii) storm water routing and retention areas
such as settling basins and grassed
swales.
(H) Construction of finger canal systems will not
be allowed. Canals shall be either straight or
meandering with no right angle corners.
(I) Canals shall be designed so as not to create
an erosion hazard to adjoining property.
Design may include bulkheading, vegetative
stabilization, or adequate setbacks based on
soil characteristics.
(J) Maintenance excavation in canals, channels
and boat basins within primary nursery areas
and beds of submerged aquatic vegetation
should be avoided. However, when essential
to maintain a traditional and established use,
maintenance excavation may be approved if
the applicant meets all of the following
criteria as shown by clear and convincing
evidence accompanying the permit applica-tion.
This Rule does not affect restrictions
placed on permits issued after March 1,
1991.
(i) The applicant demonstrates and docu-ments
that a water-dependent need exists
for the excavation; and
(ii) There exists a previously permitted chan-nel
which was constructed or maintained
under permits issued by the State or
Federal government. If a natural chan-nel
was in use, or if a human-made
channel was constructed before permit-ting
was necessary, there must be clear
evidence that the channel was continu-ously
used for a specific purpose; and
(iii) Excavated material can be removed and
placed in an approved disposal area
without significantly impacting adjacent
nursery areas and beds of submerged
aquatic vegetation; and
(iv) The original depth and width of a hu-man-
made or natural channel will not be
increased to allow a new or expanded
use of the channel.
(2) Hydraulic Dredging
(A) The terminal end of the dredge pipeline shall
be positioned at a distance sufficient to
preclude erosion of the containment dike and
a maximum distance from spillways to allow
adequate settlement of suspended solids.
(B) Dredge spoil must be either confined on high
ground by adequate retaining structures or if
the material is suitable, deposited on beaches
for purposes of renourishment, with the
exception of (G) of this Subsection (b)(2).
(C) Confinement of excavated materials shall be
on high ground landward of regularly and
irregularly flooded marshland and with
adequate soil stabilization measures to pre-vent
entry of sediments into the adjacent
water bodies or marsh.
(D) Effluent from diked areas receiving disposal
from hydraulic dredging operations must be
contained by pipe, trough, or similar device
to a point waterward of emergent vegetation
or, where local conditions require, below
mean low water.
(E) When possible, effluent from diked disposal
areas shall be returned to the area being
dredged.
(F) A water control structure must be installed at
the intake end of the effluent pipe.
(G) Publicly funded projects will be considered
by review agencies on a case-by-case basis
with respect to dredging methods and spoil
disposal.
(H) Dredge spoil from closed shellfish waters
and effluent from diked disposal areas used
when dredging in closed shellfish waters
shall be returned to the closed shellfish
waters.
(3) Drainage Ditches
10:3 NORTH CAROLINA REGISTER May 1, 1995 199
PROPOSED RULES
(A) Drainage ditches located through any marsh-land
shall not exceed six feet wide by four
feet deep (from ground surface) unless the
applicant shows that larger ditches are neces-sary
for adequate drainage.
(B) Spoil derived from the construction or main-tenance
of drainage ditches through regularly
flooded marsh shall be placed landward of
these marsh areas in a manner that will
insure that entry of sediment into the water
or marsh will not occur. Spoil derived from
the construction or maintenance of drainage
ditches through irregularly flooded marshes
shall be placed on nonwetlands wherever
feasible. Non-wetland areas include relic
disposal sites.
(C) Excavation of new ditches through high
ground shall take place landward of a tempo-rary
earthen plug or other methods to mini-mize
siltation to adjacent water bodies.
(D) Drainage ditches shall not have a significant
adverse effect on primary nursery areas,
productive shellfish beds, beds of submerged
aquatic vegetation, or other documented
important estuarine habitat. Particular atten-tion
shall be placed on the effects of fresh-water
inflows, sediment, and nutrient intro-duction.
Settling basins, water gates, reten-tion
structures are examples of design alter-natives
that may be used to minimize sedi-ment
introduction.
(4) Nonagricultural Drainage
(A) Drainage ditches shall be designed so that
restrictions in the volume or diversions of
flow are minimized to both surface and
ground water.
(B) Drainage ditches shall provide for the pas-sage
of migratory organisms by allowing free
passage of water of sufficient depth.
(C) Drainage ditches shall not create stagnant
water pools or significant changes in the
velocity of flow.
(D) Drainage ditches shall not divert or restrict
water flow to important wetlands or marine
habitats.
(5) Marinas. Marinas are defined as any publicly
or privately owned dock, basin or wet boat
storage facility constructed to accommodate
more than 10 boats and providing any of the
following services: permanent or transient
docking spaces, dry storage, fueling facilities,
haulout facilities and repair service. Excluded
from this definition are boat ramp facilities
allowing access only, temporary docking and
none of the preceding services. Expansion of
existing facilities shall also comply with these
standards for all development other than main-tenance
and repair necessary to maintain
previous service levels.
(A) Marinas shall be sited in non-wetland areas
or in deep waters (areas not requiring dredg-ing)
and shall not disturb valuable shallow
water, submerged aquatic vegetation, and
wetland habitats, except for dredging neces-sary
for access to high-ground sites. The
following four alternatives for siting marinas
are listed in order of preference for the least
damaging alterative; marina projects shall be
designed to have the highest of these four
priorities that is deemed feasible by the
permit letting agency:
(i) an upland basin site requiring no alter-ation
of wetland or estuarine habitat and
providing adequate flushing by tidal or
wind generated water circulation;
(ii) an upland basin site requiring dredging
for access when the necessary dredging
and operation of the marina will not
result in the significant degradation of
existing fishery, shellfish, or wetland
resources and the basin design shall
provide adequate flushing by tidal or
wind generated water circulation;
(iii) an open water site located outside a
primary nursery area which utilizes piers
or docks rather than channels or canals
to reach deeper water; and
(iv) an open water marina requiring excava-tion
of no intertidal habitat, and no
dredging greater than the depth of the
connecting channel.
(B) Marinas which require dredging shall not be
located in primary nursery areas nor in areas
which require dredging through primary
nursery areas for access. Maintenance dredg-ing
in primary nursery areas for existing
marinas will be considered on a case-by-case
basis.
(C) To minimize coverage of public trust areas
by docks and moored vessels, dry storage
marinas shall be used where feasible.
(D) Marinas to be developed in waters subject to
public trust rights (other than those created
by dredging upland basins or canals) for the
purpose of providing docking for residential
developments shall be allowed no more than
27 sq. ft. of public trust areas for every one
lin. ft. of shoreline adjacent to these public
trust areas for construction of docks and
mooring facilities. The 27 sq. ft. allocation
shall not apply to fairway areas between
parallel piers or any portion of the pier used
only for access from land to the docking
spaces.
200 NORTH CAROLINA REGISTER May 1, 1995 10:3
PROPOSED RULES
(E) To protect water quality of shellfishing
areas, marinas shall not be located within
areas where shellfish harvesting for human
consumption is a significant existing use or
adjacent to such areas if shellfish harvest
closure is anticipated to result from the
location of the marina. In compliance with
Section 101(aX2) of the Clean Water Act and
North Carolina Water Quality Standards
adopted pursuant to that Section, shellfish
harvesting is a significant existing use if it
can be established that shellfish have been
regularly harvested for human consumption
since November 28, 1975 or that shellfish
apparently are propagating and surviving in
a biologically suitable habitat and are avail-able
and suitable for harvesting for the pur-pose
of human consumption. The Division
of Marine Fisheries shall be consulted re-garding
the significance of shellfish harvest
as an existing use and the magnitude of the
quantities of shellfish which have been har-vested
or are available for harvest in the area
where harvest will be affected by the devel-opment.
(F) Marinas shall not be located without written
consent from the controlling parties in areas
of submerged lands which have been leased
from the state or deeded by the state.
(G) Marina basins shall be designed to promote
flushing through the following design crite-ria:
(i) the basin and channel depths shall gradu-ally
increase toward open water and shall
never be deeper than the waters to which
they connect; and
(ii) when possible, an opening shall be pro-vided
at opposite ends of the basin to
establish flow-through circulation.
(H) Marinas shall be designed to minimize ad-verse
effects on navigation and public use of
public trust areas while allowing the appli-cant
adequate access to deep waters.
(I) Marinas shall be located and constructed so
as to avoid adverse impacts on navigation
throughout all federally maintained channels
and their immediate boundaries. This in-cludes
mooring sites (permanent or tempo-rary),
speed or traffic reductions, or any
other device, either physical or regulatory,
that may cause a federally maintained chan-nel
to be restricted.
(J) Open water marinas shall not be enclosed
within breakwaters that preclude circulation
sufficient to maintain water quality.
(K) Marinas which require dredging shall pro-vide
acceptable areas to accommodate dis-posal
needs for future maintenance dredging.
Proof of the ability to truck the spoil mate-rial
from the marina site to an acceptable
disposal area will be acceptable.
(L) Marina design shall comply with all applica-ble
requirements for management of storm-water
runoff.
(M) Marinas shall post a notice prohibiting the
discharge of any waste from boat toilets and
explaining the availability of information on
local pump-out services.
(N) Boat maintenance areas must be designed so
that all scraping, sandblasting, and painting
will be done over dry land with adequate
containment devices to prevent entry of
waste materials into adjacent waters.
(O) All marinas shall comply with all applicable
standards for docks and piers, bulkheading,
dredging and spoil disposal.
(P) All applications for marinas shall be re-viewed
to determine their potential impact
and compliance with applicable standards.
Such review shall consider the cumulative
impacts of marina development.
(Q) Replacement of existing marinas to maintain
previous service levels shall be allowed
provided that the preceding rules are com-plied
with to the maximum extent possible,
with due consideration being given to re-placement
costs, service needs, etc.
(6) Docks and Piers
(A) Docks and piers shall not significantly inter-fere
with water flows.
(B) To preclude the adverse effects of shading
coastal wetlands vegetation, docks and piers
built over coastal wetlands shall not exceed
six feet in width. "T"s and platforms associ-ated
with residential piers must be at the
waterward end, and must not exceed a total
area of 500 sq. ft. with no more than six feet
of the dimension perpendicular to the marsh
edge extending over coastal wetlands. Water
dependent projects requiring piers or wharfs
of dimensions greater than those stated in
this Rule shall be considered on a
case-by-case basis.
(C) Piers shall be designed to minimize adverse
effects on navigation and public use of wa-ters
while allowing the applicant adequate
access to deep waters by:
(i) not extending beyond the established pier
length along the same shoreline for simi-lar
use; (This restriction shall not apply
to piers 200 feet or less in length unless
necessary to avoid unreasonable interfer-ence
with navigation or other uses of the
waters by the public);
10:3 NORTH CAROLINA REGISTER May 1, 1995 201
PROPOSED RULES
(ii) not extending into the channel portion of
the water body; and
(iii) not extending more than one-third the
width of a natural water body or
man-made canal or basin. Measure-ments
to determine widths of the chan-nels,
canals or basins shall be made from
the waterward edge of any coastal wet-land
vegetation which borders the water
body. The one-third length limitation
will not apply in areas where the U.S.
Army Corps of Engineers, or a local
government in consultation with the
Corps of Engineers, has established an
official pier-head line.
(D) Pier alignments along federally maintained
channels must meet Corps of Engineers
District guidelines.
(E) Piers shall not interfere with the access to
any riparian property and shall have a mini-mum
setback of 15 feet between any part of
the pier and the adjacent property owner's
areas of riparian access. The line of division
of areas of riparian access shall be estab-lished
by drawing a line along the channel or
deep water in front of the properties, then
drawing a line perpendicular to the line of
the channel so that it intersects with the
shore at the point the upland property line
meets the water's edge. The minimum
setback provided in the rule may be waived
by the written agreement of the adjacent
riparian owner(s) or when two adjoining
riparian owners are co-applicants. Should
the adjacent property be sold before con-struction
of the pier commences, the appli-cant
shall obtain a written agreement with the
new owner waiving the minimum setback
and submit it to the permitting agency prior
to initiating any development of the pier.
Application of this Rule may be aided by
reference to an approved diagram illustrating
the rule as applied to various shoreline con-figurations.
Copies of the diagram may be
obtained from the Division of Coastal Man-agement.
When shoreline configuration is
such that a perpendicular alignment cannot
be achieved, the pier shall be aligned to meet
the intent of this Rule to the maximum extent
practicable.
(F) Docks and piers shall not significantly inter-fere
with shellfish franchises or leases.
Applicants for authorization to construct a
dock or pier shall provide notice of the
permit application or exemption request to
the owner of any part of a shellfish franchise
or lease over which the proposed dock or
pier would extend.
(7) Bulkheads and Shore Stabilization Measures
(A) Bulkhead alignment, for the purpose of
shoreline stabilization, shall approximate
mean high water or normal water level.
(B) Bulkheads shall be constructed landward of
significant marshland or marshgrass fringes.
(C) Bulkhead fill material shall be obtained from
an approved upland source, or if the bulk-head
is a part of a permitted project involv-ing
excavation from a non-upland source, the
material so obtained may be contained be-hind
the bulkhead.
(D) Bulkheads or other structures employed for
shoreline stabilization shall be permitted
below approximate mean high water or
normal water level only when the following
standards are met:
(i) the property to be bulkheaded has an
identifiable erosion problem, whether it
results from natural causes or adjacent
bulkheads, or it has unusual geographic
or geologic features, e.g. steep grade
bank, which will cause the applicant
unreasonable hardship under the other
provisions of this Rule;
(ii) the bulkhead alignment extends no fur-ther
below approximate mean high water
or normal water level than necessary to
allow recovery of the area eroded in the
year prior to the date of application, to
align with adjacent bulkheads, or to
mitigate the unreasonable hardship re-sulting
from the unusual geographic or
geologic features;
(iii) the bulkhead alignment will not result in
significant adverse impacts to public trust
rights or to the property of adjacent
riparian owners;
(iv) the need for a bulkhead below approxi-mate
mean high water or normal water
level is documented in the Field Investi-gation
Report or other reports prepared
by the Division of Coastal Management;
and
(v) the property to be bulkheaded is in a
nonoceanfront area.
(E) Where possible, sloping rip-rap, gabions, or
vegetation shall be used rather than vertical
seawalls.
(8) Beach Nourishment
(A) Beach creation or maintenance may be al-lowed
to enhance water related recreational
facilities for public, commercial, and private
use.
(B) Beaches may be created or maintained in
areas where they have historically been
202 NORTH CAROLINA REGISTER May 1, 1995 10:3
PROPOSED RULES
found due to natural processes. They will
not be allowed in areas of high erosion rates
where frequent maintenance will be neces-sary.
(C) Placing unconfined sand material in the
water and along the shoreline will not be
allowed as a method of shoreline erosion
control.
(D) Material placed in the water and along the
shoreline shall be clean sand free from pol-lutants
and highly erodible finger material.
Grain size shall be equal to or larger than
that found naturally at the site.
(E) Material from dredging projects can be used
for beach nourishment if:
(i) it is first handled in a manner consistent
with rules governing spoil disposal;
(ii) it is allowed to dry for a suitable period;
and
(iii) only that material of acceptable grain
size is removed from the disposal site
for placement on the beach. Material
shall not be placed directly on the beach
by dredge or dragline during mainte-nance
excavation.
(F) Beach creation shall not be allowed in any
primary nursery areas, nor in any areas
where siltation from the site would pose a
threat to shellfish beds.
(G) Material shall not be placed on any coastal
wetlands or beds of submerged aquatic vege-tation.
(H) Material shall not be placed on any sub-merged
bottom with significant shellfish
resources.
(I) Beach construction shall not create the poten-tial
for filling adjacent or nearby navigation
channels, canals, or boat basins.
(J) Beach construction shall not violate water
quality standards.
(K) Permit renewal of these projects shall require
an evaluation of any adverse impacts of the
original work.
(L) Permits issued for this development shall be
limited to authorizing beach nourishment
only one time during the life of the permit.
Permits may be renewed for maintenance
work or repeated need for nourishment.
(9) Wooden and Riprap Groins
(A) Groins shall not extend more than 25 ft.
waterward of the mean high water or normal
water level unless a longer structure is justi-fied
by site specific conditions, sound engi-neering
and design principals.
(B) Groins shall be set back a minimum of 15 ft.
from the adjoining property lines. This
setback may be waived by written agreement
of the adjacent riparian owner(s) or when
two adjoining riparian owners are
co-applicants. Should the adjacent property
be sold before construction of the groin
commences, the applicant shall obtain a
written agreement with the new owner waiv-ing
the minimum setback and submit it to the
permitting agency prior to initiating any
development of the groin.
(C) Groins shall pose no threat to navigation.
(D) The height of groins shall not exceed 1 ft.
above mean high water or the normal water
level.
(E) No more than two structures shall be allowed
per 100 ft. of shoreline unless the applicant
provides evidence that more structures are
needed for shoreline stabilization.
(F) "L" and "T" sections shall not be allowed at
the end of groins.
(G) Riprap material used for groin construction
shall be free from loose dirt or any other
pollutant in other than non-harmful quantities
and of a size sufficient to prevent its move-ment
from the site by wave and current
action.
(10) "Free Standing Moorings"
(A) A "free standing mooring" is any means to
attach a ship, boat, vessel, floating structure
or other water craft to a stationary underwa-ter
device, mooring buoy, buoyed anchor, or
piling (as long as the piling is not associated
with an existing or proposed pier, dock, or
boathouse).
(B) Free standing moorings shall be permitted
only:
(i) to riparian property owners within their
riparian corridors; or
(ii) as a publicly sponsored project providing
a suitable area for access to any. moor-in
g(s) and other land based operations
which shall include but not be limited to
wastewater pumpout. trash disposal and
vehicle parking.
(C) To protect water quality of shellfishing
areas, mooring fields shall not be located
within areas where shellfish harvesting for
human consumption is a significant existing
use or adjacent to such areas if shellfish
harvest closure is anticipated to result from
the location of the mooring field. In compli-ance
with Section 101(a)(2) of the Federal
Water Pollution Control Act. 33 U.S.C.
1251 (a)(2). and North Carolina Water
Quality Standards adopted pursuant to that
section, shellfish harvesting is a significant
existing use if it can be established that
shellfish have been regularly harvested for
10:3 NORTH CAROLINA REGISTER May 1, 1995 203
PROPOSED RULES
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human consumption since November 28.
1975 or that shellfish apparently are propa-gating
and surviving in a biologicallv suitable
habitat and are available and suitable for
harvesting for the purpose of human con-sumption.
The Division of Marine Fisheries
shall be consulted regarding the significance
of shellfish harvest as an existing use and the
magnitude of the quantities of shellfish which
have been harvested or are available for
harvest in the area where harvest will be
affected by the development.
Moorings shall not be located without written
consent from the controlling parties in areas
of submerged lands which have been leased
from the state or deeded by the state-
Moorings shall be designed and maintained
to minimize adverse effects on navigation
and public use of public trust areas while
allowing the applicant adequate access to
deep waters.
Moorings shall be located and constructed so
as to avoid adverse impacts on navigation
throughout all federally maintained channels
and their immediate boundaries. This in-cludes
mooring sites (permanent or tempo-rary'),
speed or traffic reductions, or any
other device, either physical or regulatory,
that may cause a federally maintained chan-nel
to be restricted-
Open water moorings shall not be enclosed
within breakwaters that preclude circulation
sufficient to maintain water quality-
Moorings and the associated land based
operation design shall comply with all appli-cable
requirements for management of storm-water
runoff.
Mooring fields shall have posted in view of
patrons a notice prohibiting the discharge of
any waste from boat toilets or any other
discharge and explaining the availability of
information on local pump-out services and
waste disposal.
All applications for moorings shall be re-viewed
to determine their potential impact
and compliance with applicable standards.
Such review shall consider the cumulative
impacts of moorings development.
Free standing moorings associated with
public service or temporary construc-tion/
salvage operations can be permitted
without a public sponsor and shall be evalu-ated
on a case-by-case basis.
Free standing mooring buoys and piles are to
be evaluated based upon the arc of the swing
including the vessel to be moored. Moorings
and the attached vessel shall not interfere
with the access of any riparian owner nor
shall it block riparian access by blocking
channels, deep water, etc. which allows
riparian access. Free standing moorings
shall not interfere with the ability of any
riparian owner to place a pier for access.
(Ml Free standing moorings shall be marked or
colored in compliance with U.S. Coast
Guard and N.C. Wildlife Resource Commis-sion
requirements and the required marking
maintained for the life of the mooring(s1.
(N) The type of material used to create a moor-ing
must be free of pollutants and of a design
and type of material so as to not present a
hazard to navigation or public safety.
(CO Existing free standing moorings (i.e.
buoys/pilings) may be maintained in place
for two years. However, if the moorings(s')
deteriorate or are damaged such that replace-ment
is necessary during the two year pe-riod,
the mooring(s') then must comply with
those guidelines of the Division in place at
that time. In any event, existing moorings
must comply with these Rules within two
years.
Statutory Authority G.S. 113A-107(b); 113A-108;
113A-1 13(b); 113A-124.
Notice is hereby given in accordance with G.S.
150B-21.2 that EHNR - Coastal Resources Commis-sion
intends to adopt rules cited as 15A NCAC 7H .2201
- .2205.
Proposed Effective Date: December 1, 1995.
A Public Hearing will be conducted at 4:00 p.m. on the
following dates and locations:
May 25, 1995
Beaufort County Community College
Continuing Education Bldg. Auditorium
Building 08
Highway 264 East
Washington, NC 27889
July 27, 1995
Crystal Coast Civic Center
3505 Arendell Street
Morehead City, NC 28557
Reason for Proposed Action: These Rules will establish
a procedure for authorizing the installation of private
moorings in response to an increasing demand for such
facilities over the past 48 months. This is a new permit
204 NORTH CAROLINA REGISTER May 1, 1995 10:3
PROPOSED RULES
requirementfor a type of development that has not previ-ously
required permits.
Comment Procedures: All persons interested in this
matter are invited to attend the public hearing. The
Coastal Resources Commission will receive mailed written
comments postmarked no later than August 1, 1995. Any
person desiring to present lengthy comments is requested
to submit a written statementfor inclusion in the record of
proceedingsfor the public hearing. Additional information
concerning the hearing or the proposals may be obtained
by contacting Kris M. Horton, Division of Coastal Man-agement,
PO Box 27687, Raleigh, North Carolina
27611-7687, (919) 733-2293.
Fiscal Note: Rule .2203 affects the expenditure or distribu-tion
of State funds subject to the Executive Budget Act,
Article 1 of Chapter 143. Rules .2201 - .2202, .2204 -
. 2205 do not affect the expenditure or distribution of State
funds subject to the Executive Budget Act, Article 1 of
Chapter 143.
SECTION .2200 - GENERAL PERMIT FOR
CONSTRUCTION OF FREE STANDING
MOORINGS IN ESTUARINE WATERS AND
PUBLIC TRUST AREAS
.2201 PURPOSE
This permit will allow the construction of free standing
moorings in the estuarine waters and public trust areas
AECs according to the authority provided in 15A NCAC
7J .1100 and according to the following guidelines. This
permit will not apply to waters adjacent to the Ocean
Hazard AEC.
Statutory Authority G.S. 113A-107; 113A-118.1.
.llfil APPROVAL PROCEDURES
(a) The applicant must contact the Division of Coastal
Management and complete an application form requesting
approval for development.
(b) The applicant must provide:
(1) information on site location, dimensions of the
project area, and his/her name and address;
(2) a dated plat(s) showing existing and proposed
development: and
(3) confirmation that:
(A) a written statement has been obtained and
signed by the adjacent riparian property
owners indicating that they have no objec-tions
to the proposed work; or
(B) the adjacent riparian property owners have
been notified by certified mail of the pro-posed
work. Such notice shall instruct
adjacent property owners to provide any
comments on the proposed development in
writing for consideration by permitting offi-cials
to the Division of Coastal Management
within 10 days of receipt of the notice, and,
indicate that no response will be interpreted
as no objection. PCM staff will review all
comments. If PCM determines that:
(i) the comments are relevant to the poten-tial
impacts of the proposed project: and
(iil the permitting issues raised by the com-ments
are worthy of more detailed re-view,
the applicant will be notified that
he/she must submit an application for a
major development permit.
(c) Approval of individual projects will be acknowl-edged
in writing by the Pivision of Coastal Management
and the applicant shall be provided a copy of this Section-
Construction authorized by this permit must be completed
within 90 days of permit issuance or the general authoriza-tion
expires and a new permit shall be required to begin or
continue construction.
Statutory Authority G.S. 113A-107; 113A-118.1.
.2203 PERMIT FEE
The applicant must pay a permit fee of fifty dollars
($50.00). This fee may be paid by check or money order
made payable to the Pepartment.
Statutory Authority G.S. 113A-107; 113A-118.1.
.2204 GENERAL CONDITIONS
(a) A "free standing mooring" is any means to attach a
ship, boat, vessel, floating structure or other water craft
to a stationary underwater device, mooring buoy, buoyed
anchor, or piling (as long as the piling is not associated
with an existing or proposed pier, dock, or boathouse).
(b) Free standing moorings authorized by. this permit
shall be for the exclusive use of the riparian landowners)
in whose name the permit is issued, and shall not provide
either leased or rented moorings or any other commercial
services.
(c) There shall be no unreasonable interference with
navigation or use of the waters by the public by the
existence of free standing moorings authorized by this
permit.
(d) This general permit may not be applicable to
proposed construction when the Department determines
that the proposal might significantly affect the quality of
the human environment or unnecessarily endanger adjoin-ing
properties. In those cases, individual permit applica-tions
and review of the proposed project will be required
according, to 15A NCAC 7L
(e) Pevelopment carried out under this permit must be
consistent with all local requirements. AEC Guidelines,
and local land use plans current at the time of authoriza-tion.
(f) Individuals shall allow authorized representatives of
the Pepartment of Environment. Health, and Natural
10:3 NORTH CAROLINA REGISTER May 1, 1995 205
PROPOSED RULES
Resources to make periodic inspections at any time
deemed necessary in order to be sure that the activity
being performed under the authority of this general permit
is in accordance with the terms and conditions prescribed
herein.
(g) Free standing mooring(s) shall not be transferable or
assignable. Upon transfer of riparian property ownership,
the mooring(s) must be removed by the original permittee
unless a new permit is issued to the new riparian owner.
Statutory Authority G.S. U3A-107; 113A-U8.1.
.2205 SPECIFIC CONDITIONS
(a) Free standing moorings may be located up to a
maximum of 400 feet from the mean high water line, or
the normal water line, whichever is applicable.
(b) Free standing moorings along federally maintained
channels must meet Corps of Engineers guidelines-re)
Free standing moorings in no case shall extend more
than 1/3 the width of a natural water body or man-made
canal or basin.
(d) Free standing mooring buoys and piles are to be
evaluated based upon the arc of the swing including the
vessel to be moored. Moorings and the attached vessel
shall not interfere with the access to any. riparian property,
and shall have a minimum setback of 15 feet from the
adjacent property lines extended into the water at the
points that they intersect the shoreline. The minimum
setbacks provided in the rule may be waived by the
written agreement of the adjacent riparian owneifs'). or
when two adjoining riparian owners are co-applicants.
Should the adjacent property be sold before construction
commences, the applicant shall obtain a written agreement
with the new owner waiving the minimum setback and
submit it to the Division of Coastal Management prior to
initiating any development of free standing moorings. The
line of division of areas of riparian access shall be estab-lished
by drawing a line along the channel or deep water
in front of the property, then drawing a line perpendicular
to the line of the channel so that it intersects with the
shore at the point the upland property line meets the
water's edge.
(e) The total number of docking/mooring facilities to be
authorized via a CAMA General permit, a Certificate of
Exemption or any combination of the two may not exceed
four per property.
(f) Free standing moorings shall not significantly
interfere with shellfish franchises or leases. Applicants
for authorization to construct free standing moorings shall
provide notice of the permit application to the owner of
any part of a shellfish franchise or lease over which the
proposed installation would extend.
(g) Free standing moorings may not be established in
submerged cable/pipe crossing areas or in a manner which
interferes with the operation of an access through any
bridge.
(hi Free standing moorings shall be marked or colored
in compliance with U.S. Coast Guard and N.C. Wildlife
Resource Commission requirements and the required
marking maintained for the life of the mooring(s1.
(i) Free standing moorings must bear owner's name,
vessel State registration numbers or U.S. Customs Docu-mentation
numbers. Required identification must be
legible for the life of the mooring(s1.
£ii The type of material used to anchor a proposed
mooring buoy(s) must be acceptable to the Division of
Coastal Management.
(kl If use of any free standing mooring authorized by
this General permit is discontinued for a period of 12
months or more, it must be removed by the permittee.
(11 Mooring buoys authorized by this General permit
must be a minimum 12" in diameter and shall not exceed
36" inches in diameter.
(ml Existing free standing moorings (i.e. buoys/pilings)
may be maintained in place for two years. However, if
the mooring(s') deteriorate or are damaged such that
replacement is necessary during the two year period, the
mooring(s1 then must comply with those guidelines of the
Division in place at that time. In any event, existing
moorings must comply with these Rules within two years.
Statutory Authority G.S. 113A-107; 113A-118.1.
TITLE 21 - OCCUPATIONAL LICENSING
BOARDS
CHAPTER 37 - BOARD OF NURSING HOME
ADMINISTRATORS
Notice is hereby given in accordance with G.S.
150B-21.2 that the North Carolina State Board of
Examiners For Nursing Home Administrators intends to
amend rules cited as 21 NCAC 37 .0302, .0404, .0502,
.0603, .0912, .0914.
iil£ Proposed Effective Date: August 1, 1995.
Instructions on How to Demand a Public Hearing (must
be requested in writing within 15 days of notice): Any
requestfor a public hearing must be submitted, in writing,
to Jane Abernathey, N.C. State Board of Examiners for
Nursing Home Administrators, 3701 National Drive, Suite
123, Raleigh, NC 27612 by 4:00p.m. on May 16, 1995.
Reason for Proposed Action:
21 NCAC 37 .0302 - Increases fee required for initial
licensure.
21 NCAC 37 .0404 - Increases fee charged for adminis-tering
continuing education courses.
21 NCAC 37 .0502 - Increases fee required for adminis-trator-
in-training application.
21 NCAC 37 .0603 - Increases fees required to take the
national and state licensing examinations.
206 NORTH CAROLINA REGISTER May 1, 1995 10:3
PROPOSED RULES
21 NCAC 37 .0912 - Increases fee required for reciproc-ity.
21 NCAC 37 .0914 - Increases fee required for issuing a
duplicate license or certificate of registration.
Comment Procedures: Written comments on these Rules
must be submitted to the Board office by 9:00 a.m. on
June 13, 1995.
Fiscal Note: These Rules do not affect the expenditures or
revenues of local government or state funds.
SECTION .0300 - APPLICATION FOR LICENSE
.0302 INITIAL LICENSURE FEE
The applicant will send to the Board, prior to licensure,
an initial licensure fee of two hundred fifty dollars
($250.00) three hundred dollars ($300.00) when applicant
has successfully passed the examinations as required by
the Board under Rule .0208 of this Chapter.
Statutory Authority G.S. 90-280.
SECTION .0400 - COURSES OF STUDY
.0404 CONTINUING EDUCATION PROGRAMS
OF STUDY
(a) The Board shall certify and administer courses in
continuing education for the professional development of
nursing home administrators and to enable persons to meet
the requirements of these Rules. It is the responsibility of
the licensee to keep a record of his continuing education
hours. Certified courses, including those sponsored by the
Board, an accredited university, college or community
college, associations, professional societies, or organiza-tions
shall:
(1) contain a minimum of two classroom hours of
academic work and not more than eight class-room
hours within a 24-hour period; and
(2) include instruction in the following general
subject areas or their equivalents:
(A) Resident Care Management;
(B) Personnel Management;
(C) Financial Management;
(D) Environmental Management;
(E) Regulatory Management;
(F) Organizational Management.
(b) Certified courses not administered by the Board
shall:
(1) be submitted to the Board for approval at least
30 days prior to the presentation of the pro-gram;
(2) be accompanied with a fee of twenty five
dollars ($25.00) fifty dollars ($50.00) to cover
the cost of reviewing and maintaining records
associated with the continuing education pro-gram;
and
(3) be approved for a period of one year from the
date of initial presentation,
(c) The Board shall charge a fee pursuant to G.S. 90-
280 for continuing education courses.
Statutory Authority G.S. 90-278; 90-280; 90-285; 90-286.
SECTION .0500 - ADMINISTRATOR
-IN-TRAINING
.0502 APPLICATION TO BECOME
ADMINISTRATOR-IN-TRAINING
(a) The applicant will submit to the Board an applica-tion,
which shall contain such information as name,
education, employment history, questions pertaining to
moral character, and any other information the Board may
require to process an application according to these Rules,
and an affidavit stating that the applicant, if granted a
license, will obey the laws of the state and the rules of the
Board, and will maintain the honor and dignity of the
profession.
(b) The applicant will submit a background resume
indicating the areas in which he is competent or lacking.
(c) The applicant will submit three reference forms
which shall certify to his or her good moral character as
required and defined by Rule .0303 of this Chapter.
(d) The applicant will supply a certified copy of each
college transcript indicating the courses completed and
hours earned, specifying whether semester or quarter
hours. Instead of a transcript the applicant will supply
documentation of his supervisory experience in a nursing
home if he is utilizing the experience substitute for the
education requirement as allowed by G.S. 90-278(l)b.
(e) The preceptor shall submit to the Board three weeks
prior to the personal interview, a recommended number of
weeks and an individualized curriculum for the ATT
program that shall provide the ATT with on the job
experience in the six subject areas outlined in Section
.0700 of this Chapter.
(f) A fee of one hundred dollars ($100.00) one hundred
fifty dollars ($150.00) shall be submitted with the applica-tion.
(g) An AIT applicant must maintain at all times a
current mailing address with the Board office.
Statutory Authority G.S. 90-278; 90-280; 90-285.
SECTION .0600 - EXAMINATION
.0603 EXAMINATION
(a) There shall be a charge of one hundred seventy five
dollars ($175.00) two hundred dollars ($200.00) to take
the national examination and sixty dollars ($60.00) seventy
five dollars ($75.00) to take the state examination.
(b) If the applicant does not pass the examination, no
refund will be made.
(c) The applicant will be required to pay the appropriate
10:3 NORTH CAROLINA REGISTER May 1, 1995 207
PROPOSED RULES
fee each time he takes the examination.
(d) Upon the third failure of any examination required
by the Board, the AIT and the preceptor must submit to
the Board a program to strengthen the candidate's weak-ness
as demonstrated by the previous test results. Upon
approval by the Board of the program and completion
thereof by the candidate, he shall be allowed to take the
examinations.
Statutory Authority G.S. 90-278; 90-280; 90-284; 90-285.
SECTION .0900 - LICENSES
.0912 RECIPROCITY/ENDORSEMENT
(a) The Board may issue a license, to a nursing home
administrator who holds a nursing home administrator
license issued by the proper authorities of any other state,
upon payment of the current licensing fee, successful
completion of the state examination, and submission of
evidence satisfactory to the Board as to the following:
(1) such applicant for licensure must have personal
qualifications, education, training or experi-ence
at least substantially equivalent to those
required in this state;
(2) such applicant must be licensed in another state
that gives similar recognition and reciproc-ity/
endorsement to nursing home administrator
licenses of this state; and
(3) such applicant for license by reciproc-ity/
endorsement holds a valid license as a
nursing home administrator in the state from
which he is transferring.
(b) An applicant for reciprocity/endorsement shall
submit a completed application, background resume,
certified college transcript(s), three reference forms (one
of which must be from a previous employer) from individ-uals
who shall certify to the good moral character of the
applicant as defined in Rule .0303 of this Chapter,
licensing questionnaire^) from every state where the
applicant has held a license, a aovonty five dollar ($75.00)
one hundred twenty five dollar ($125.00) application fee,
and appear before the Board for a personal interview.
(c) The Board shall have the power, after due notice
and an opportunity to be heard at a hearing, to revoke or
suspend the nursing home administrator license issued to
any person under this Rule upon evidence satisfactory to
the Board that the duly constituted authorities of any other
state have lawfully revoked or suspended the nursing home
administrator license issued to such person by such state.
(d) All persons who hold a valid provisional license or
who have completed the requirements for a provisional
license as of the amended effective date of this Rule shall
be issued a full license upon submission (within 12 months
from the effective date of this Rule) to the Board their
provisional license or payment of the licensing fee is
applicable.
Statutory Authority G.S. 90-280; 90-285; 90-287.
.0914 DUPLICATE LICENSES
Upon receipt of satisfactory evidence that a license or
certificate of registration has been lost, mutilated, or
destroyed, the Board may issue a duplicate license or
certificate of registration upon payment of a fee of tea
dollars ($10.00) twenty five dollars ($25.00) .
Statutory Authority G.S. 90-280(d).
TITLE 23 - DEPARTMENT OF
COMMUNITY COLLEGES
Notice is hereby given in accordance with G.S.
150B-21.2 that the NC State Board of Community
Colleges intends to adopt rules cited as 23 NCAC 2C
.0108, .0211 and .0306.
Proposed Effective Date: September 1, 1995.
A Public Hearing will be conducted at 10:00 a.m. on
May 31, 1995 at the NC Community College System,
Caswell Building - State Board Room, 200 W. Jones
Street, Raleigh, NC 27603-1379.
Reason for Proposed Action:
23 NCAC 2C .0108 - To authorize community colleges to
adopt educational guarantee policies.
23 NCAC 2C .0211 - To regulate contract buy outs of
community college employee contracts.
23 NCAC 2C .0306 - To develop a system-wide plan for
accommodating students and preserving student records in
the event a community college closes.
Comment Procedures: Individuals who plan to make oral
presentations must submit their remarks in writing to the
hearing officer. A ten-minute or less time limit per person
may be imposedfor oral presentations. Interested persons
may submit written statements from the date of this notice
until May 31, 1995, delivered or mailed to Morris W.
Johnson, Jr. , Hearing Officer, NC Community College
System, 200 W. Jones Street, Raleigh, NC 27603-1379.
Fiscal Note: These Rules do not affect the expenditures or
revenues of local government or state funds.
CHAPTER 2 - COMMUNITY COLLEGES
SUBCHAPTER 2C - COLLEGES:
ORGANIZATION AND OPERATIONS
SECTION .0100 - TRUSTEES AND
COLLEGES
.0108 EDUCATIONAL GUARANTEE
208 NORTH CAROLINA REGISTER May 1, 1995 10:3
PROPOSED RULES
{a} The North Carolina State Board of Community
Colleges believes in the quality of its students, faculty, and
staff. It further believes that all colleges in the system
should provide the knowledge and the skills needed to
succeed in today's workplace and at other colleges and
universities.
(b) The State Board encourages and authorizes local
boards of trustees to adopt educational guarantee policies
for their colleges. Any educational guarantee policy
adopted by a board of trustees shall:
(1) Be developed in an atmosphere that provides
maximum input from faculty, staff, students,
employers, university representatives, and
community leaders.
(2) Identify the programs or activities to be guar-anteed.
This may include the entire program
or specific courses. The goal of the system is
to include all programs at all community
colleges.
(3) Define the skills, knowledge, or credits to be
guaranteed. This may include the guarantee to
transfer earned credits taken in transfer pro-grams
and the guarantee of technical knowl-edge
and skills needed for successful employ-ment
in occupations for graduates of vocational
and technical programs.
(4) Define the population of students who will
receive guarantees. This would include the
identification of students, both full-time and
part-time, for which the guarantee applies.
Define any special conditions of the guarantee.
This would include a time limit and grade
achievement.
Describe how the guarantee may be invoked
and how it will be honored.
(5)
£61
ill
£81
£21
Define the educational services or other bene-fits
a student who seeks the guarantee will
receive. This could include reimbursement
from non-state funds, re-enrollment, tutoring.
or counseling.
State that re-enrolled students shall not pay
tuition or fees associated with re-enrollment or
other related services. Budget Mb shall not be
earned for re-enrolled students.
Set forth the process to be used by students to
invoke the guarantee and the steps to be used
by the college to improve the programs in
question.
contract are responsible for implementing the contract.
Therefore, should it become necessary to terminate
employment prior to the expiration of a contract and if it
is necessary to buy out the contract, such payment shall
not be paid from state funds.
£b_l An individual in a state-funded position whose
employment is terminated prior to the expiration of a
contract may not be re-employed by the college to offset
the lost wages which the employee would have received
under the contract. All efforts should be made to prevent
terminations which require the buying out of contracts.
(c) If an individual whose employment contract has
been terminated enters into another employment agreement
with the college, such employment shall be for a salary
commensurate with the services being performed. Such
employment shall not be to provide the employee the same
level of compensation he or she would have received
under the former contract.
Statutory Authority G.S. 115D-5; 115D-20.
SECTION .0300 - STUDENTS
.0306 COMMUNITY COLLEGE CLOSURE:
TEACH-OUT PLAN AND RECORDS
PRESERVATION
(a) Any community college which closes shall inform
each student and each applicant of its pending closure at
least 90 days prior to closure.
(b) Prior to closure, college officials shall help students
identify equivalent programs and provide assistance in
transferring to other community colleges. A student who
is displaced due to a community college closing may
transfer to any other community college which offers the
student's program without loss of credits or quality points.
Community colleges shall give priority admission and
placement to transfer students who have been displaced
due to a community college closing.
(c) Before closing, the college shall file a copy of all
student permanent academic and financial aid records
with the Department of Cultural Resources in accordance
with the records retention process.
Statutory Authority G.S. 115D-5.
Statutory Authority G.S. 115D-5.
SECTION .0200 - PERSONNEL
.0211 CONTRACT BUY OUTS
(a) Contracts entered into by boards of trustees may not
be bought out with state funds, unless required by a court
of competent jurisdiction. The parties entering into a
10:3 NORTH CAROLINA REGISTER May 1, 1995 209
RRC OBJECTIONS
1 he Rules Review Commission (RRC) objected to the following rules in accordance with G.S. 150B-21.9(a). State
agencies are required to respond to RRC as provided in G.S. 150B-21. 12(a).
DEPARTMENT OF COMMERCE
Banking Commission
4 NCAC 31 .0101 - Definitions; Filings
Agency Revised Rule
4 NCAC 31 .0402 - Annual Statement
Agency Revised Rule
DEPARTMENT OF CULTURAL RESOURCES
Art Works in State Buildings Program
7 NCAC 12 .0002 - Transfer of Funds
Rule Withdrawn by Agency
7 NCAC 12 .0003 - Program Administration
Rule Withdrawn by Agency
7 NCAC 12 .0005 - Selection, Installation, and Maintenance
Rule Withdrawn by Agency
7 NCAC 12 .0006 - Maintenance, Repair and Conservation
Rule Withdrawn by Agency
Division of State Library
7 NCAC 2E .0301 - Qualifications for Grants
Agency Revised Rule
ENVIRONMENT, HEALTH, AND NATURAL RESOURCES
Adult Health
15A NCAC 16A .0104 - Co-Payments
Agency Revised Rule
15A NCAC 16A .0109 - Covered Services
Agency Revised Rule
Coastal Management
15A NCAC 7H .0308 - Specific Use Standards for Ocean Hazard Areas
Rule Returned to Agency
ISA NCAC 7M .0202 - Policy Statements
Rule Returned to Agency
Environmental Health
RRC Objection 04/20/95
Obj. Removed 04/20/95
RRC Objection 04/20/95
Obj. Removed 04/20/95
03/16/95
03/16/95
03/16/95
03/16/95
RRC Objection 04/20/95
Obj. Removed 04/20/95
RRC Objection 03/16/95
Obj. Removed 03/16/95
RRC Objection 03/16/95
Obj. Removed 03/16/95
RRC Objection 03/16/95
Obj. Cont'd 04/20/95
RRC Objection 03/16/95
Obj. Cont'd 04/20/95
15A NCAC 18A .2801 - Definitions
Rule Approved as Written
15A NCAC ISA .2810 - Specifications for Kitchens, Based on Number/Children
Agency Revised Rule
15A NCAC 18A .3204 - Sewage Disposal
Agency Revised Rule
15A NCAC 18A .3209 - Tattooing Procedures
Agency Revised Rule
RRC Objection
Obj. Removed
RRC Objection
Obj. Removed
RRC Objection
Obj. Removed
RRC Objection
Obj. Removed
01/19/95
02/16/95
01/19/95
02/16/95
03/16/95
03/16/95
03/16/95
03/16/95
210 NORTH CAROLINA REGISTER May 1, 1995 10:3
RRC OBJECTIONS
Environmental Management
15A NCAC 2D .0902 - Applicability RRC Objection 04/20/95
Agency Revised Rule Obj. Removed 04/20/95
15A NCAC 2D . 1204 - Reporting and Recordkeeping RRC Objection 03/16/95
Agency Revised Rule Obj. Removed 03/16/95
15A NCAC 2D . 1404 - Recordkeeping: Reporting: Monitoring RRC Objection 03/16/95
Agency Revised Rule Obj. Removed 03/16/95
15A NCAC 2D . 1407 - Non-Utility Boilers and Process Heaters RRC Objection 03/16/95
Agency Revised Rule Obj. Removed 03/16/95
ISA NCAC 2D . 1414 - Tune-Up Requirements RRC Objection 03/16/95
Agency Revised Rule Obj. Removed 03/16/95
15A NCAC 2K .0501 - Definitions RRC Objection 03/16/95
Agency Revised Rule Obj. Removed 03/16/95
ISA NCAC 2D .0502 - Required Minimum Flow for Dams (Not Small Hydro Projects) RRC Objection 03/16/95
Agency Revised Rule Obj. Removed 03/16/95
Parks and Recreation Area Rules
15A NCAC 12K .0103 - Funding Cycle
Agency Revised Rule
ISA NCAC 12K .0104 - Application Schedule
Agency Revised Rule
ISA NCAC 12K .0105 - Evaluation of Applications
Agency Revised Rule
ISA NCAC 12K .0106 - Grant Agreement
Agency Revised Rule
ISA NCAC 12K .0111 - Program Acknowledgment
Agency Revised Rule
RRC Objection
Obj. Removed
RRC Objection
Obj. Removed
RRC Objection
Obj. Removed
RRC Objection
Obj. Removed
RRC Objection
Obj. Removed
03/16/95
03/16/95
03/16/95
03/16/95
03/16/95
03/16/95
03/16/95
03/16/95
03/16/95
03/16/95
Radiation Protection
ISA NCAC 11 .0104 - Definitions
Agency Revised Rule
15A NCAC 11 .0503 - Equipment Radiation Level Limits
Agency Revised Rule
RRC Objection 04/20/95
Obj. Removed 04/20/95
RRC Objection 04/20/95
Obj. Removed 04/20/95
Wildlife Resources and Water Safety
ISA NCAC IOC .0205 - Public Mountain Trout Waters
Agency Revised Rule
ISA NCAC 10F .0330 - Carteret County
Agency Revised Rule
ISA NCAC 10K .0001 - Course Requirements
Rule Withdrawn by Agency
RRC Objection 04/20/95
Obj. Removed 04/20/95
RRC Objection 04/20/95
Obj. Removed 04/20/95
04/20/95
HUMAN RESOURCES
Aging
10 NCAC 22R .0202 - County Funding Plans
Agency Revised Rule
RRC Objection 04/20/95
Obj. Removed 04/20/95
Facility Services
10 NCAC 3R .3030 - Facility and Service Need Determinations RRC Objection 03/16/95
10:3 NORTH CAROLINA REGISTER May 1, 1995 211
RRC OBJECTIONS
Agency Revised Rule
10 NCAC 3U . 1001 - Seat Restraints
Agency Revised Rule
Medical Assistance
Obj. Removed 03/16/95
RRC Objection 03/16/95
Obj. Removed 03/16/95
10 NCAC 26H .0104 - Cost Reporting: Auditing and Settlements
Rule Withdrawn by Agency
10 NCAC 26M .0301 - Program Definition
Agency Revised Rule
10 NCAC 26M .0302 - Access to Care
Agency Revised Rule
10 NCAC 26M .0303 - Patient Informing
10 NCAC 26M .0304 - Relationship with Carolina Access
Agency Revised Rule
10 NCAC 26M .0305 - Relationship with EPSDTprogram
Agency Revised Rule
10 NCAC 26M .0306 - Relationship with Sub-Contractors
Agency Revised Rule
10 NCAC 26M .0307 - Utilization Review Requirements
Agency Revised Rule
10 NCAC 26M .0308 - Enrollee and Sub-Contractor Appeals and Grievances
INSURANCE
RRC Objection
RRC Objection
RRC Objection
RRC Objection
RRC Objection
RRC Objection
RRC Objection
RRC Objection
RRC Objection
RRC Objection
RRC Objection
RRC Objection
RRC Objection
RRC Objection
04/20/95
04/20/95
04/20/95
04/20/95
04/20/95
04/20/95
04/20/95
04/20/95
04/20/95
04/20/95
04/20/95
04/20/95
04/20/95
04/20/95
04/20/95
Actuarial Services Division
11 NCAC 16 .0601 - Definitions
Agency Revised Rule
11 NCAC 16 .0602 - HMO General Filing Requirements
Agency Revised Rule
11 NCAC 16 .0607 - HMO Incurred Loss Ratio Standards
Agency Revised Rule
LICENSING BOARDS AND COMMISSIONS
Board of Cosmetic Art Examiners
21 NCAC 14F .0014 - Salon Renewal
No Response from Agency
21 NCAC 141 .0401 - App. for Lie. by Individuals Who Have Been Convicted of a Felony
No Response from Agency
21 NCAC 141 .0402 - Requests for Preapplication Review of Felony Convictions
No Response from Agency
Board of Examiners of Electrical Contractors
21 NCAC 18B .0901 - Applicants Convicted of Crimes
No Response from Agency
Agency Revised Rule
Licensing Board for General Contractors
21 NCAC 12 .0701 - Improper Practice
Rule Withdrawn by Agency
Board of Opticians
RRC Objection
Obj. Removed
RRC Objection
Obj. Removed
RRC Objection
Obj. Removed
03/16/95
03/16/95
03/16/95
03/16/95
03/16/95
03/16/95
RRC Objection 03/16/95
Obj. Cont'd 04/20/95
RRC Objection 03/16/95
Obj. Cont'd 04/20/95
RRC Objection 03/16/95
Obj. Cont'd 04/20/95
RRC Objection 01/19/95
Obj. Cont'd 02/16/95
Obj. Removed 03/16/95
04/20/95
212 NORTH CAROLINA REGISTER May 1, 1995 10:3
RRC OBJECTIONS
21 NCAC 40 .0314 - Apprenticeship and Internship Requirements; Registration
Agency Revised Rule
No Response from Agency
Agency Responded
No Response from Agency
Rule Returned to Agency
PUBLIC EDUCATION
RRC Objection 11/17/94
Obj. Cont'd 11/17/94
Obj. Cont'd 12/15/94
Obj. Cont'd 01/19/95
Obj. Cont'd 02/16/95
03/16/95
Elementary and Secondary Education
16 NCAC 6C .0207 - Prospective Teacher Scholarship Loans
Agency Responded
Agency Revised Rule
REVENUE
Sales and Use Tax
17 NCAC 7B .1123 - Certain Sales to Commercial Livestock and Poultry Farmers
17 NCAC 7B .5436 - Farmer's Certificate Form: E-599
Agency Repealed Rule
17 NCAC 7B .5437 - Veterinarian's Certificate Form: E-567
Agency Repealed Rule
17 NCAC 7B .5445 - Commercial Swine, Livestock/Poultry Farmers' Cert. Form: E-599S
Agency Repealed Rule
17 NCAC 7B .5462 - Ice Certificate Form
Rule Withdrawn by Agency
SECRETARY OF STATE
RRC Objection 02/16/95
Obj. Confd03/16/95
Obj. Removed 04/20/95
RRC Objection
Obj. Removed
RRC Objection
Obj. Removed
RRC Objection
Obj. Removed
RRC Objection
Obj. Removed
03/16/95
04/20/95
03/16/95
03/16/95
03/16/95
03/16/95
03/16/95
04/20/95
03/16/95
Notary Public Division
18 NCAC 7 .0301 - Approved Course of Study
No Response from Agency
Rule Returned to Agency
18 NCAC 7 .0302 - Instructors
No Response from Agency
Rule Returned to Agency
RRC Objection 12/15/94
Obj. Cont'd 01/19/95
Obj. Cont'd 02/16/95
RRC Objection 12/15/94
Obj. Cont'd 01/19/95
Obj. Cont'd 02/16/95
10:3 NORTH CAROLINA REGISTER May 1, 1995 213
CONTESTED CASE DECISIONS
1 his Section contains the full text of some 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.
DECISION
CITATION
AGENCY
CASE
NUMBER ALJ
DATE OF
DECISION
PUBLISHED
REGISTER
ADMINISTRATION
Division of Purchase and Contract
Senter-Sanders Tractor Corp. v. Admin., Div of Purchase & Contract
State Construction Office
W. M. Piatt &. Company v. State Construction Office, DOA
ALCOHOLIC BEVERAGE CONTROL COMMISSION
Norman D. Forbes v. Alcoholic Beverage Control Commission
Albert Stanley Tomanec v. Alcoholic Beverage Control Commission
Alcoholic Beverage Control Comm. v. Depot Stop N Go, Inc.
Diamond Club, Inc. v. Alcoholic Beverage Control Commission
CRIME CONTROL AND PUBLIC SAFETY
Crime Victims Compensation Commission
John Pavlikianidis v. Victims Compensation Commission
Wayne L. Utlcy v. Crime Victims Compensation Commission
Thomasine Inman v. Crime Victims Compensation Commission
Irmgard Gordos v. Crime Victims Compensation Commission
Ellen Shcrwin v. Crime Vic Comp James Byrum Emp/ Baptist Hosp
ENVIRONMENT, HEALTH. AND NATURAL RESOURCES
Setzer Bros. Inc. v. Environment, Health, and Natural Resources
John W. VanHoy, Jr. & Adjacent Land Owners v. EHNR
and
Shugart Enterprises, Inc.
Coastal Resources
Howard C. Slack v. Coastal Resources Comm, EHNR
Davidson County Health Department
John Dee Clodfelter v. Davidson County Health Dept.; EHNR
Environmental Management
Empire Power Co. and George Clark v. EHNR, Div. of Env. Mgmt.
and
Duke Power Company
Empire Power Co. and George Clark v. EHNR, Div. of Env. Mgmt.
and
Duke Power Company
94 DOA 0803 Nesnow
94 DOA 0738 Nesnow
94 ABC 0787 Gray
94 ABC 1168 Becton
94 ABC 1694 Mann
94 ABC 1803 Mann
94 EHR 1676
95 EHR 0016
Nesnow
Phipps
95 EHR 0140 Phipps
94 EHR 1037 Chess
92 EHR 002 !•' Gray
92 EHR 0053* 1 Gray
03/06/95
04/11/95
03/17/95
03/07/95
03/29/95
04/07/95
03/09/95
03/17/95
03/22/95
03/13/95
04/03/95
04/03/95
10:3 NCR 221
94 CPS 0237 Morrison 03/21/95 10:2 NCR 176
94 CPS 1180 Becton 03/07/95
94 CPS 1731 Nesnow 03/09/95
94 CPS 1782 Gray 03/09/95
95 CPS 0012 West 03/22/95
I
10:2 NCR 185
€
* Consolidated cases.
214 NORTH CAROLINA REGISTER May 1, 1995 10:3
CONTESTED CASE DECISIONS
AGENCY
CASE
NUMBER A1J
DATE OF PUBLISHED DECISION
DECISION REGISTER CITATION
94 EHR 0924 Gray
Hyde County Health Department
Fritzner Henry v. Hyde County Health Department
Macon County Health Department
Four Residents on Genva Circle v. Macon County Health Department 94 EHR 1202 Nesnow
Maternal and Child Health
Philip Haskins v. EHNR, Div. of Maternal & Child Health 94 EHR 1777 Chess
EQUAL EMPLOYMENT OPPORTUNITY
Marsha Dianne McKoy v. DHR, Div. of MH/DD/SAS, Caswell Center 90 EEO 0379 Chess
HUMAN RESOURCES
Helen J. Walls, D/B/A Walls Young World v. Human Resources 94 DHR 1362 Becton
03/09/95
03/27/95
03/09/95
04/03/95
03/20/95
Division of Child Development
Iola Malloy v. DHR, Division of Child Development 94 DHR 0849 Mann
Esther Elder v. DHR, Division of Child Development 94 DHR 1771 Reilly
Facility Services
William H. Cooke v. DHR, Division of Facility Services 94 DHR 0565 Gray
Mildred Reece, Calvin Reece v. DHR, Division of Facility Svcs, 94 DHR 1783 Gray
Domiciliary & Group Care Section
Bingo licensure Section
The Regular Veterans Association of the United States and the Sixteen 95 DHR 0040 Morrison
Posts of the Regular Veterans Association of the United States and the
Regular Veterans Association Auxiliary Located in the State of North
Carolina v. DHR, Division of Facility Services, Bingo Licensure Section
Certificate of Need Section
The Carrolton of Fayetteville, Inc. and Highland House of Fayetteville, 94 DHR 0197*2 Reilly
Inc. and Richard Allen, Sr. v. DHR, Division of Facility Services,
Certificate of Need Section
and
Pine Manor Rest Home, Inc., d/b/a Pine Manor Health Care
The Carrolton of Fayetteville, Inc. and Highland House of Fayetteville, 94 DHR 0198* Reilly
Inc. and Richard Allen, Sr. v. DHR, Division of Facility Services,
Certificate of Need Section
and
Pine Manor Rest Home, Inc., d/b/a Pine Manor Health Care
Retirement Villages, Inc. (Lessor), and Liberty Healthcare Ltd.
Partnership (Lessee) D/B/A Countryside Villa of Duplin v. DHR,
Division of Facility Services, Certificate of Need Section
and
Beaver Properties/Wallace, Inc., and Brian Center Health & Retirement/
Wallace, Inc.
94 DHR 0403 Chess
03/03/95
03/17/95
03/16/95
03/16/95
04/13/95
04/05/95
04/05/95
12/14/94
Division of Social Services
Child Support Enforcement Section
Daniel J. Carter v. Department of Human Resources
Shawn Dominic Caldwell v. Department of Human Resources
William Zonta Thompson v. Department of Human Resources
Jackie E. Hackney v. Department of Human Resources
Elbert Quick v. Department of Human Resources
91 CSE 1103 Morrison
92 CSE 1449 Reilly
92 CSE 1559 Reilly
93 CSE 1088 Chess
93 CSE 1169 Chess
03/03/95
03/29/95
03/29/95
03/20/95
03/08/95
10:3 NORTH CAROLINA REGISTER May 1, 1995 215
CONTESTED CASE DECISIONS
AGENCY
Clement McMillan v. Department of Human Resources
James R. Gray v. Department of Human Resources
Lacy Green, Jr. v. Department of Human Resources
Leon McNair v. Department of Human Resources
Edwin A. Clarke v. Department of Human Resources
Lloyd Lane Speake v. Department of Human Resources
Henry C. Banks v. Department of Human Resources
Lucille B. Dutter v. Department of Human Resources
Gary Jay Stocks v. Department of Human Resources
Paul E. Strawcutter v. Department of Human Resources
Cary G. Dannelly v. Department of Human Resources
Robert G. Baker v. Department of Human Resources
Bernard T. Wade v. Department of Human Resources
Timothy Brian Eller v. Department of Human Resources
Morgan Pate, Jr. v. Department of Human Resources
Robert E. Dudley, Sr. v. Department of Human Resources
Julian Lattimore v. Department of Human Resources
James McFadden v. Department of Human Resources
Raymond B. Clontz Jr. v. Department of Human Resources
James C. Rogers v. Department of Human Resources
Ruby Fewell Henry v. Department of Human Resources
Richard Dill v. Department of Human Resources
Ted C. Jenkins v. Department of Human Resources
Anthony J. Gibbons v. Department of Human Resources
Aaron C. Harris v. Department of Human Resources
Donald L. Coetello Sr. v. Department of Human Resources
Kelvin L. Lankford v. Department of Human Resources
Jeffrey Thomas Chambers v. Department of Human Resources
Robert J. Holden v. Department of Human Resources
Michael L. Wright v. Department of Human Resources
Terry S. Gurganus v. Department of Human Resources
John Napoleon Window Cross Pullium v. Dept of Human Resources
Michael J. Montroy v. Department of Human Resources
Dennis L. Moore v. Department of Human Resources
James Edward Knox, Jr. v. Department of Human Resources
David House v. Department of Human Resources
Aqustin S. Sanchez v. Department of Human Resources
Ricky Ratliff v. Department of Human Resources
Willie McNeil Jr. v. Department of Human Resources
Ray Douglas Brickhouse v. Department of Human Resources
Tyron G. Moore v. Department of Human Resources
Paul A. Card v. Department of Human Resources
Darrin Yancey v. Department of Human Resources
Douglas L. Lucas v. Department of Human Resources
Gregory D. Simpson v. Department of Human Resources
Michael Lynn Avery v. Department of Human Resources
Elvis M. Graham v. Department of Human Resources
Shawn Fonville v. Department of Human Resources
James Lee, Jr. v. Department of Human Resources
Shannon Vanderaa v. Department of Human Resources
Anthony Murray v. Department of Human Resources
Tommy L. Burchfield v. Department of Human Resources
Gregory A. Rodrigues v. Department of Human Resources
Larry R. Bales v. Department of Human Resources
Karl Philip Jursen v. Department of Human Resources
Otis Lewis Jr. v. Department of Human Resources
Robert F. Catoe Jr. v. Department of Human Resources
William Anthony Winchester v. Department of Human Resources
Aaron L. Clark v. Department of Human Resources
Vincent R. Valles Sr. v. Department of Human Resources
Gary W. Gibson v. Department of Human Resources
Mark A. West v. Department of Human Resources
John E. Bolas Jr. v. Department of Human Resources
Gary C. Wiggins v. Department of Human Resources
Rhonnie J. Williams v. Department of Human Resources
Danny Ray Hensley v. Department of Human Resources
Ivy M. Harvell v. Department of Human Resources
Terry L. McMillon v. Department of Human Resources
CASE DATE OF
NUMBER ALJ DECISION
93 CSE 1208 Chess 03/08/95
93 CSE 1268 Chess 03/08/95
93 CSE 1295 Chess 03/08/95
93 CSE 1317 Beeton 04/04/95
93 CSE 1319 Chess 03/08/95
93 CSE 1451 Chess 03/22/95
93 CSE 1556 Chess 03/22/95
93 CSE 1558 Chess 03/13/95
93 CSE 1652 Chess 03/21/95
93 CSE 1713 Mann 03/13/95
94 CSE 1033 Ncsnow 03/24/95
94 CSE 1094 Chess 03/06/95
94 CSE 1101 Becton 04/03/95
94 CSE 1119 Reilly 03/29/95
94 CSE 1127 Mann 03/20/95
94 CSE 1128 Mann 03/31/95
94 CSE 1131 Reilly 03/13/95
94 CSE 1132 West 03/14/95
94 CSE 1149 Nesnow 03/03/95
94 CSE 1153 Gray 04/04/95
94 CSE 1157 Nesnow 03/16/95
94 CSE 1195 Mann 03/29/95
94 CSE 1218 Gray 03/15/95
94 CSE 1219 Gray 03/15/95
94 CSE 1225 Reilly 04/10/95
94 CSE 1228 West 03/17/95
94 CSE 1229 West 03/17/95
94 CSE 1231 Nesnow 03/03/95
94 CSE 1232 Nesnow 03/15/95
94 CSE 1237 Gray 03/15/95
94 CSE 1239 Gray 03/02/95
94 CSE 1241 Gray 03/15/95
94 CSE 1244 Morrison 03/13/95
94 CSE 1249 Morrison 03/02/95
94 CSE 1254 Reilly 03/13/95
94 CSE 1256 Reilly 03/15/95
94 CSE 1259 West 03/06/95
94 CSE 1261 West 03/17/95
94 CSE 1262 West 03/17/95
94 CSE 1263 West 03/17/95
94 CSE 1264 West 03/17/95
94 CSE 1266 Nesnow 03/13/95
94 CSE 1269 Nesnow 03/15/95
94 CSE 1270 Nesnow 03/15/95
94 CSE 1272 Becton 03/15/95
94 CSE 1274 Becton 03/15/95
94 CSE 1275 Becton 03/15/95
94 CSE 1277 Becton 03/06/95
94 CSE 1280 Chess 04/10/95
94 CSE 1286 Mann 03/21/95
94 CSE 1287 Mann 03/21/95
94 CSE 1289 Mann 03/21/95
94 CSE 1300 Mann 03/21/95
94 CSE 1302 Gray 03/02/95
94 CSE 1303 Gray 03/15/95
94 CSE 1314 Mann 03/21/95
94 CSE 1329 Morrison 03/15/95
94 CSE 1331 Reilly 03/15/95
94 CSE 1332 Reilly 03/15/95
94 CSE 1333 West 03/17/95
94 CSE 1334 West 03/06/95
94 CSE 1335 West 03/17/95
94 CSE 1336 Nesnow 03/15/95
94 CSE 1338 Nesnow 03/15/95
94 CSE 1339 Becton 03/15/95
94 CSE 1340 Becton 03/15/95
94 CSE 1345 Mann 03/21/95
94 CSE 1346 Mann 03/21/95
PUBLISHED DECISION
REGISTER CITATION
216 NORTH CAROLINA REGISTER May 1, 1995 10:3
CONTESTED CASE DECISIONS
AGENCY
Garry G. Hickman v. Department of Human Resources
Willie Herring v. Department of Human Resources
Joe C. Dean v. Department of Human Resources
Jimmie E. Barnes v. Department of Human Resources
Cecilia Cannosino v. Department of Human Resources
Marvin F. Walker v. Department of Human Resources
Richard J. Almeida v. Department of Human Resources
Michael R. French v. Department of Human Resources
John A. Jackson v. Department of Human Resources
Michael R. Roberts v. Department of Human Resources
Cleothis B. Smith v. Department of Human Resources
Leroy Johnson Jr. v. Department of Human Resources
James Patterson v. Department of Human Resources
Thomas Colon v. Department of Human Resources
Walter Swimiak Jr. v. Department of Human Resources
Marion Rodriguez v. Department of Human Resources
Jerry L. White Sr. v. Department of Human Resources
Dennis James Grimes v. Department of Human Resources
Scott John Tozzi v. Department of Human Resources
Roger A. Eaton v. Department of Human Resources
Willie J. Flowers Jr. v. Department of Human Resources
Jeffrey James Spence v. Department of Human Resources
Byron C. Alston v. Department of Human Resources
Oliver Lee Wolfe Sr. v. Department of Human Resources
James Tracy Strickland v. Department of Human Resources
Michael K. Reese v. Department of Human Resources
Richard G. Medford, Jr. v. Department of Human Resources
Theresa Strader v. Department of Human Resources
James F. Williams v. Department of Human Resources
Kennedy C. Uzomba v. Department of Human Resources
Marion A. Ward v. Department of Human Resources
Samuel A. Lewis v. Department of Human Resources
Robert Lee Wall v. Department of Human Resources
James M. Breaden Jr. v. Department of Human Resources
Peter G. Coley v. Department of Human Resources
Benjamin Nuriddin v. Department of Human Resources
Robert L. Carter v. Department of Human Resources
Danny Columbus Baker v. Department of Human Resources
Duke William Dupre' v. Department of Human Resources
Audrey Jennings v. Department of Human Resources
Michael A. Camp v. Department of Human Resources
Martin J. Miller v. Department of Human Resources
Willie Cherry, Jr. v. Department of Human Resources
William V. Glennon v. Department of Human Resources
Alaster Williams v. Department of Human Resources
Henry L. Gibbs v. Department of Human Resources
Roger Gene Fehlhaber v. Department of Human Resources
Beau L. Miller v. Department of Human Resources
Elizabeth F. West v. Department of Human Resources
Lori Davis Humphrey v. Department of Human Resources
Robert L. Freeland, Jr. v. Department of Human Resources
Antonio Darden (IV-D #1237637) v. Department of Human Resources
Antonio Darden (IV-D #1280116) v. Department of Human Resources
Antonio Darden (TV-D #1233347) v. Department of Human Resources
Cyrus R. Luallen v. Department of Human Resources
Harold Dean Horn v. Department of Human Resources
James B. Miller v. Department of Human Resources
Glenn Allison v. Department of Human Resources
Louis R. Salamone v. Department of Human Resources
Randy Norris Willis v. Department of Human Resources
Michael E. Bellamy v. Department of Human Resources
Eddie James Johnson v. Department of Human Resources
Coley C. Matthews v. Department of Human Resources
Willie J. Gadson v. Department of Human Resources
Donald Lee Barcliff v. Department of Human Resources
Peter Ian Oliveira v. Department of Human Resources
Ronald E. Lewis v. Department of Human Resources
Wesley Kelvin Cook v. Department of Human Resources
CASE DATE OF PUBLISHED DECISION
NUMBER ALJ DECISION REGISTER CITATION
94 CSE 1348 Gray 03/15/95
94 CSE 1350 Morrison 03/02/95
94 CSE 1351 Morrison 03/15/95
94 CSE 1352 Rally 03/03/95
94 CSE 1354 West 03/17/95
94 CSE 1355 West 03/17/95
94 CSE 1357 Nesnow 03/15/95
94 CSE 1359 Becton 03/15/95
94 CSE 1370 Mann 03/07/95
94 CSE 1371 Mann 03/21/95
94 CSE 1373 Gray 03/15/95
94 CSE 1377 Mann 03/31/95
94 CSE 1378 Morrison 03/15/95
94 CSE 1379 Rally 03/15/95
94 CSE 1382 West 03/17/95
94 CSE 1385 Nesnow 03/03/95
94 CSE 1387 Nesnow 03/15/95
94 CSE 1388 Becton 03/15/95
94 CSE 1389 Becton 03/15/95
94 CSE 1392 Gray 03/09/95
94 CSE 1393 Morrison 03/15/95
94 CSE 1394 Reilly 03/15/95
94 CSE 1396 Nesnow 03/03/95
94 CSE 1397 Mann 03/31/95
94 CSE 1398 Mann 03/31/95
94 CSE 1412 Gray 03/31/95
94 CSE 1415 Morrison 03/02/95
94 CSE 1416 Morrison 03/21/95
94 CSE 1417 Morrison 03/21/95
94 CSE 1420 Reilly 04/03/95
94 CSE 1421 Reilly 03/03/95
94 CSE 1424 Reilly 04/03/95
94 CSE 1425 West 03/31/95
94 CSE 1426 West 03/31/95
94 CSE 1427 West 03/31/95
94 CSE 1429 West 03/31/95
94 CSE 1430 Nesnow 03/24/95
94 CSE 1431 Nesnow 03/24/95
94 CSE 1432 Nesnow 03/24/95
94 CSE 1433 Nesnow 03/24/95
94 CSE 1435 Becton 03/06/95
94 CSE 1436 Becton 03/06/95
94 CSE 1439 Chess 03/03/95
94 CSE 1444 Mann 03/07/95
94 CSE 1445 Gray 03/02/95
94 CSE 1446 Morrison 03/21/95
94 CSE 1447 Reilly 04/03/95
94 CSE 1452 West 03/07/95
94 CSE 1455 Nesnow 03/07/95
94 CSE 1459 Becton 03/06/95
94 CSE 1460 Becton 04/07/95
94 CSE 1461 Becton 04/07/95
94 CSE 1462 Becton 04/07/95
94 CSE 1463 Becton 04/07/95
94 CSE 1470 Mann 03/31/95
94 CSE 1471 Mann 03/07/95
94 CSE 1472 Mann 03/07/95
94 CSE 1473 Gray 03/02/95
94 CSE 1474 Gray 03/09/95
94 CSE 1476 Morrison 03/21/95
94 CSE 1477 Morrison 03/02/95
94 CSE 1478 Morrison 03/02/95
94 CSE 1479 Morrison 03/21/95
94 CSE 1480 Reilly 04/10/95
94 CSE 1482 Reilly 04/10/95
94 CSE 1489 Becton 03/07/95
94 CSE 1491 Becton 03/07/95
94 CSE 1492 Becton 04/07/95
10:3 NORTH CAROLINA REGISTER May 1, 1995 217
CONTESTED CASE DECISIONS
AGENCY
Carlos L. Robinson v. Department of Human Resources
Eddie O. Toro v. Department of Human Resources
Volna Ramone Gales v. Department of Human Resources
Bruce Kelly Jacobs v. Department of Human Resources
Tony Collins v. Department of Human Resources
Ronald O. Biggs v. Department of Human Resources
Marvin B. Harris v. Department of Human Resources
Jay C. Edwards, HI v. Department of Human Resources
Mahalon E. White v. Department of Human Resources
Dennis Ray Alexander v. Department of Human Resources
Joseph R. &. Linda M. Grooms v. Department of Human Resources
Robert M. Martin v. Department of Human Resources
Ashton Berry Gatlin v. Department of Human Resources
Louis Cragg HI v. Department of Human Resources
Ellen Downing v. Department of Human Resources
Charles R. Hauley v. Department of Human Resources
Michael L. Schadler v. Department of Human Resources
Owen B. Fisher Jr. v. Department of Human Resources
Robin Delmar Goods v. Department of Human Resources
Terrence R. McLaughlin v. Department of Human Resources
Joel P. Roth v. Department of Human Resources
Atward T. Warren v. Department of Human Resources
Albert Noah Dunlap v. Department of Human Resources
James E. Davis v. Department of Human Resources
Roger T. Benoy v. Department of Human Resources
Spencer P. Johnson v. Department of Human Resources
James A. Bryant v. Department of Human Resources
Conrade Dunklin v. Department of Human Resources
Kenneth J. Balfour v. Department of Human Resources
Willie A. Harris v. Department of Human Resources
Dennis W. Nolan v. Department of Human Resources
Roderick Odcll Adams v. Department of Human Resources
Jonathan L. Payne II v. Department of Human Resources
Randolph J. Nunn v. Department of Human Resources
David Lester Gordon v. Department of Human Resources
Anthony Harrison v. Department of Human Resources
Michael D. Tyrce v. Department of Human Resources
Edward Fisher v. Department of Human Resources
Jimmy R. Jackson v. Department of Human Resources
Mark A. Jones v. Department of Human Resources
Ondino Damota Freitas v. Department of Human Resources
Tony Monzell Perry v. Department of Human Resources
James B. Stokes Jr. v. Department of Human Resources
Nelson Bennett v. Department of Human Resources
Eric L. McDonald v. Department of Human Resources
Kenny R. Bradshaw v. Department of Human Resources
Eddie Harris Jr. v. Department of Human Resources
Robert Larry Martin v. Department of Human Resources
Joseph 0. Evans v. Department of Human Resources
Donald E. Kirby v. Department of Human Resources
Paul R. Ross v. Department of Human Resources
Joyce Ann Wilkinson v. Department of Human Resources
CASE DATE OF
NUMBER ALJ DECISION
94 CSE 1499 Mann 03/31/95
94 CSE 1500 Mann 03/31/95
94 CSE 1505 Gray 04/07/95
94 CSE 1508 Gray 03/31/95
94 CSE 1511 Gray 03/02/95
94 CSE 1512 Gray 04/07/95
94 CSE 1533 Morrison 03/02/95
94 CSE 1534 Morrison 04/06/95
94 CSE 1537 Morrison 04/06/95
94 CSE 1538 Reilly 03/03/95
94 CSE 1539 Reilly 03/07/95
94 CSE 1541 Reilly 03/07/95
94 CSE 1542 Reilly 04/10/95
94 CSE 1543 West 03/06/95
94 CSE 1553 Nesnow 03/30/95
94 CSE 1554 Beeton 03/07/95
94 CSE 1555 Becton 03/07/95
94 CSE 1562 Becton 04/07/95
94 CSE 1563 Becton 04/07/95
94 CSE 1569 Chess 03/07/95
94 CSE 1572 West 03/14/95
94 CSE 1573 West 03/31/95
94 CSE 1577 Reilly 04/10/95
94 CSE 1578 Reilly 04/10/95
94 CSE 1579 Reilly 03/03/95
94 CSE 1580 Reilly 04/10/95
94 CSE 1582 Morrison 04/06/95
94 CSE 1583 Morrison 04/06/95
94 CSE 1584 Morrison 03/07/95
94 CSE 1586 Morrison 04/06/95
94 CSE 1590 Gray 03/31/95
94 CSE 1591 Gray 04/07/95
94 CSE 1592 Morrison 04/06/95
94 CSE 1608 Mann 03/21/95
94 CSE 1609 Mann 03/13/95
94 CSE 1615 Becton 04/07/95
94 CSE 1619 Becton 04/07/95
94 CSE 1621 Becton 04/07/95
94 CSE 1648 Gray 03/09/95
94 CSE 1649 Morrison 03/07/95
94 CSE 1650 Reilly 03/07/95
94 CSE 1651 West 04/07/95
94 CSE 1653 Becton 04/07/95
94 CSE 1656 Gray 03/02/95
94 CSE 1657 Morrison 04/06/95
94 CSE 1700 Reilly 04/10/95
94 CSE 1702 Becton 04/07/95
94 CSE 1750 Chess 03/21/95
94 CSE 1766 Chess 03/21/95
94 CSE 1767 Reilly 03/03/95
94 CSE 1778 West 03/06/95
95 CSE 0071 Becton 04/04/95
PUBLISHED DECISION
REGISTER CITATION
JUSTICE
Alarm Systems Licensing Board
Patrick P. Sassman v. Alarm Systems Licensing Board
Private Protective Services Board
94 DOJ 1825 Reilly 03/09/95
Lewis Austin Saintsing v. Private Protective Services Board
Marcus T. Williams v. Private Protective Services Board
Melvin Ray Cooper v. Private Protective Services Board
Donnell E. Morrow, Jr. v. Private Protective Services Board
94 DOJ 1000 Chess 03/03/95
94 DOJ 1064 Chess 02/24/95
94 DOJ 1635 Reilly 03/09/95
94 DOJ 1823 Reilly 03/09/95
I
218 NORTH CAROLINA REGISTER May 1, 1995 10:3
CONTESTED CASE DECISIONS
AGENCY
CASE
NUMBER ALJ
DATE OF
DECISION
PUBLISHED DECISION
REGISTER CITATION
Sheriff's Education and Training Standards Division
Constance F. Lawrence v. Sheriff's Ed. & Training Stds. Comm. 95 DOJ 0076 Morrison
LABOR
Wage and Hour Division
R.J. Scott, Pres. Pirate Enterprises, Inc. v. Labor, Wage & Hour Division 94 DOL 1524 West
PUBLIC INSTRUCTION
04/06/95
94 EDC 0533 Gray
95 EDC 0003 Chess
95 EDC 0168 Phipps
Glenn U, on behalf of Glenn A, and Glenn II, Individually v. Charlotte- 93 EDC 0549 Chess
Mecklenburg County Schools
William Hewett v. State Board of Education
Deborah R. Crouse v. State Board of Education
Bobby G. Little v. Department of Public Instruction
STATE PERSONNEL
Caswell County Health Department
Julie R. Johnson v. Caswell County Health Department
Department of Correction
94 OSP 0865 Reilly
Nancy Gilchrist v. Department of Correction
Thomas Wayne Smathers v. Department of Correction
Ruth Kearney v. Department of Correction
Office of the District Attorney
Shannon Caudill v. Office of the District Attorney for Judicial
District 17-B, and Administrative Office of the Courts
Fayetteville State University
George Benstead v. Fayetteville State University
Forsyth Stokes Mental Health Center
Michael Howell v. Forsyth Stokes Mental Health Center
Department of Human Resources
Rebecca Johnson v. Human Resources, Special Care Center
Cherry Hospital
William H. Cooke v. DHR, Cherry Hospital
Iredell County Department of Social Services
Vernon E. Grosse v. Iredell County Department of Social Services
Bonnie N. Bellamy v. Iredell County Department of Social Services
95 OSP 0188
94 OSP 1597
94 OSP 0499
95 OSP 0138
93 OSP 1547
94 OSP 0282
94 OSP 0739
Nesnow
Nesnow
Chess
West
Gray
Becton
Chess
Lee-Harnett Area Mental Health, Developmental Disabilities, and Substance Abuse Authority
Julie Dyer v. Lee-Harnett Area MH/DD/SA Authority
North Carolina State University
Billy Ray Kelly v. NCSU Physical Plant
Orange-Person-Chatham Mental Health
Patricia A. Harris v. Orange-Person-Chatham Mental Health
94 OSP 0750
95 OSP 0130
95 OSP 0162
Gray
West
West
03/23/95
03/16/95
03/31/95
04/10/95
03/20/95
03/15/95
94 OSP 0121 West 03/09/95
94 OSP 0590 West 03/23/95
94 OSP 1807 Becton 03/13/95
03/20/95
04/04/95
03/24/95
03/31/95
03/16/95
03/09/95
03/01/95
03/20/95
03/22/95
04/11/95
10:2 NCR 179
10:01 NCR 48
10:3 NORTH CAROLINA REGISTER May 1, 1995 219
CONTESTED CASE DECISIONS
AGENCY
CASE
NUMBER ALJ
DATE OF
DECISION
PUBLISHED DECISION
REGISTER CITATION
Department of Transportation
Michael E. Komcgay v. Department of Transportation
UNC Hospitals
David Patrick MaJone v. Univ. of NC Hospital at Chapel Hill
93 OSP 1700 Gray
94 OSP 0771 Becton
03/24/95
03/14/95
i
220 NORTH CAROLINA REGISTER May 1, 1995 10:3
CONTESTED CASE DECISIONS
STATE OF NORTH CAROLINA
COUNTY OF DURHAM
IN THE OFFICE OF
ADMINISTRATIVE HEARINGS
94 DOA 0738
W. M. PIATT & COMPANY,
Petitioner,
STATE CONSTRUCTION OFFICE, NORTH
CAROLINA DEPARTMENT OF ADMINISTRATION,
Respondent.
RECOMMENDED DECISION
This matter was heard by Dolores O. Nesnow, Administrative Law Judge, Office of Administrative Hearings, on
February 20 and 21, 1995, in Raleigh, North Carolina.
APPEARANCES
Petitioner was represented by Jay M. Wilkerson of Durham, North Carolina. The Respondent was represented
by D. David Steinbock, Assistant Attorney General.
ISSUES
1
.
Did the State of North Carolina (State) amend the terms of its contract with the Petitioner to include the
design of an alum sludge disposal facility and thereafter breach the contract by refusing to pay Petitioner for such design?
2. Is the Petitioner entitled to recover in quantum meruit for the design of an alum sludge disposal facility?
STIPULATED FACTS
1. All parties are properly before the Court, and the Court has jurisdiction over the parties and the subject
matter of the proceeding.
2. All parties have been correctly designated, and there is no question as to misjoinder or nonjoinder of
parties.
ADJUDICATED FACTS
1. On December 15, 1985, the State of North Carolina (State) selected W. M. Piatt and Company (Piatt)
as the designer for the renovation project known as Phase II Water Plant Improvements at John Umstead Hospital in
Butner, North Carolina.
2. On May 21, 1986 Piatt and the State executed a State of North Carolina Standard Form of Agreement
Between Owner and Designer contract.
3. This contract provided that the scope of work consisted of "Phase II Water Plant Improvements at John
Umstead Hospital, insofar as funds available will permit."
4. Article II of the contract provided that the State would pay the designer for additional design work
authorized by the State if the "Owner, with the approval of the Division of State Construction requests in writing that the
designer perform services over, above and beyond the basic services described in Article I, hereof,
"
5. At a meeting on February 27, 1986 which was memorialized by a letter dated March 4, 1986, Piatt
indicated that he had been directed by a representative of the State to do design work for the alum sludge facility.
6. The Business Manager of John Umstead Hospital, Gene Barrett, testified that no such direction was given
10:3 NORTH CAROLINA REGISTER May 1, 1995 221
CONTESTED CASE DECISIONS
to Piatt at that meeting or at any other time.
7. Grayson Gurley, who as the Physical Plant Director at Umstead during the time at issue, testified that
he saw "blue line" plans for the whole project including the alum sludge facility but that he had never told Piatt to do a
design for the alum sludge facility.
8. "Design" is a term of art used in the construction industry and understood to be an advanced step in the
process. It is a term not commonly associated with providing cost estimates.
9. Paragraph B(2) of the Design Agreement states that "[F]or the designer's additional services as described
in Article II hereinafter, a fee must be agreed upon with the Owner and Division of State Construction prior to beginning
the work. The agreement must be in writing and attached as an amendment to this agreement." This was not done.
10. In a letter to Gene Barrett, dated March 4, 1986, Piatt stated that the following items could be added:
"... Provide facilities for disposal of alum sludge utilizing sand-drying beds constructed so as to permit removal with vac-all
equipment, which equipment will be provided under the waste water treatment plan improvement project. The last group
of items will require some additional study and revisions to the estimate of costs. We will make these studies and estimates
as quickly as possible and will report them to you for your review and approval. Though some of the items mentioned
above will decrease the cost of the project originally proposed, we believe the additional items will increase the total cost
so that it will be necessary to supplement the original funds and modify the fee. Until further work is done, we cannot
give an opinion as to what the funding requirements