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jk^Kl/7434/A 2- ///£•£ 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 ffil IE} in im im m LD £K} QA 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
Object Description
Description
Title | North Carolina register |
Date | 1995-05-01 |
Description | Vol. 10, issue 3 (May 1, 1995) |
Publisher | Raleigh, N.C. : Office of Administrative Hearings |
Digital Characteristics-A | 48 p.; 2.68 MB |
Digital Format | application/pdf |
Pres File Name-M | pubs_serial_ncregister19950501.pdf |
Pres Local File Path-M | \Preservation_content\StatePubs\pubs_serial_ncregister\images_master |
Full Text | jk^Kl/7434/A 2- ///£•£ 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 ffil IE} in im im m LD £K} QA 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 |