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NORTH CAROLINA REGISTER Volume 20, Issue 17 Pages 1431 - 1550 March 1, 2006 This issue contains documents officially filed through February 8, 2006. Office of Administrative Hearings Rules Division 424 North Blount Street (27601) 6714 Mail Service Center Raleigh, NC 27699-6714 (919) 733-2678 FAX (919) 733-3462 Julian Mann III, Director Camille Winston, Deputy Director Molly Masich, Director of APA Services Dana Sholes, Publications Coordinator Julie Brincefield, Editorial Assistant Lisa Johnson, RRC Administrative Assistant IN THIS ISSUE I. EXECUTIVE ORDERS Executive Order No. 98 ...........................................1431 - 1432 Executive Order No. 99 ...........................................1433 II. IN ADDITION Brownfields Property – A Great Escape ..................1434 Tax Review Board Letters .......................................1435 - 1448 III. PROPOSED RULES Environment and Natural Resources Coastal Resources Commission ...........................1452 - 1457 Commission for Health Services ..........................1457 – 1488 Environmental Management Commission ...........1449 - 1452 Occupational Licensing Boards Cosmetic Art Examiners ......................................1488 - 1491 Medical Board......................................................1491 - 1492 Soil Scientist, Licensing of...................................1493 IV. APPROVED RULES.............................................1494 - 1529 Administration Commission for Indian Affairs Office of Historically Underutilized Businesses Environment and Natural Resources Coastal Resources Commission Wildlife Resources Commission Insurance Code Qualifications Board Manufactured Housing Board Justice Criminal Justice Education and Training Standards Commission Private Protective Services Board Sheriffs' Education and Training Standards Commission Occupational Licensing Boards Certified Public Accountants, Board of Cosmetic Art Examiners, Board of Electrical Contractors, Board of Pharmacy, Board of Veterinary Medical Board State Personnel Commission V. RULES REVIEW COMMISSION.......................1530 - 1543 VI. CONTESTED CASE DECISIONS Index to ALJ Decisions............................................1544 - 1550 For the CUMULATIVE INDEX to the NC Register go to: http://reports.oah.state.nc.us/cumulativeIndex.pl North Carolina Register is published semi-monthly for $195 per year by the Office of Administrative Hearings, 424 North Blount Street, Raleigh, NC 27601. North Carolina Register (ISSN 15200604) to mail at Periodicals Rates is paid at Raleigh, NC. POSTMASTER: Send Address changes to the North Carolina Register, 6714 Mail Service Center, Raleigh, NC 27699-6714. NORTH CAROLINA ADMINISTRATIVE CODE CLASSIFICATION SYSTEM The North Carolina Administrative Code (NCAC) has four major classifications of rules. Three of these, titles, chapters, and sections are mandatory. The major classification of the NCAC is the title. Each major department in the North Carolina executive branch of government has been assigned a title number. Titles are further broken down into chapters which shall be numerical in order. Subchapters are optional classifications to be used by agencies when appropriate. NCAC TITLES TITLE 21 LICENSING BOARDS TITLE 24 INDEPENDENT AGENCIES 1 ADMINISTRATION 2 AGRICULTURE & CONSUMER SERVICES 3 AUDITOR 4 COMMERCE 5 CORRECTION 6 COUNCIL OF STATE 7 CULTURAL RESOURCES 8 ELECTIONS 9 GOVERNOR 10A HEALTH AND HUMAN SERVICES 11 INSURANCE 12 JUSTICE 13 LABOR 14A CRIME CONTROL & PUBLIC SAFETY 15A ENVIRONMENT &NATURAL RESOURCES 16 PUBLIC EDUCATION 17 REVENUE 18 SECRETARY OF STATE 19A TRANSPORTATION 20 TREASURER 21* OCCUPATIONAL LICENSING BOARDS 22 ADMINISTRATIVE PROCEDURES (REPEALED) 23 COMMUNITY COLLEGES 24* INDEPENDENT AGENCIES 25 STATE PERSONNEL 26 ADMINISTRATIVE HEARINGS 27 NC STATE BAR 28 JUVENILE JUSTICE AND DELINQUENCY PREVENTION 1 Acupuncture 2 Architecture 3 Athletic Trainer Examiners 4 Auctioneers 6 Barber Examiners 8 Certified Public Accountant Examiners 10 Chiropractic Examiners 11 Employee Assistance Professionals 12 General Contractors 14 Cosmetic Art Examiners 16 Dental Examiners 17 Dietetics/Nutrition 18 Electrical Contractors 19 Electrolysis 20 Foresters 21 Geologists 22 Hearing Aid Dealers and Fitters 25 Interpreter/Transliterator 26 Landscape Architects 28 Landscape Contractors 29 Locksmith Licensing 30 Massage & Bodywork Therapy 31 Marital and Family Therapy 32 Medical Examiners 33 Midwifery Joint Committee 34 Funeral Service 36 Nursing 37 Nursing Home Administrators 38 Occupational Therapists 40 Opticians 42 Optometry 44 Osteopathic Examination (Repealed) 45 Pastoral Counselors, Fee-Based Practicing 46 Pharmacy 48 Physical Therapy Examiners 50 Plumbing, Heating & Fire Sprinkler Contractors 52 Podiatry Examiners 53 Professional Counselors 54 Psychology 56 Professional Engineers & Land Surveyors 57 Real Estate Appraisal 58 Real Estate Commission 60 Refrigeration Examiners 61 Respiratory Care 62 Sanitarian Examiners 63 Social Work Certification 64 Speech & Language Pathologists & Audiologists 65 Therapeutic Recreation Certification 66 Veterinary Medical 68 Substance Abuse Professionals 69 Soil Scientists 1 Housing Finance 2 Agricultural Finance Authority 3 Safety & Health Review Board 4 Reserved 5 State Health Plan Purchasing Alliance Board Note: Title 21 contains the chapters of the various occupational licensing boards and Title 24 contains the chapters of independent agencies. NORTH CAROLINA REGISTER Publication Schedule for January 2006 – December 2006 FILING DEADLINES NOTICE OF TEXT PERMANENT RULE TEMPORARY RULES Volume & issue number Issue date Last day for filing Earliest date for public hearing End of required comment period Deadline to submit to RRC for review at next meeting Earliest Eff. Date of Permanent Rule Delayed Eff. Date of Permanent Rule (first legislative day of the next regular session) 270th day from publication in the Register 20:13 01/03/06 12/08/05 01/18/06 03/06/06 03/20/06 05/01/06 05/09/06 09/30/06 20:14 01/17/06 12/21/05 02/01/06 03/20/06 04/20/06 06/01/06 01/07 10/14/06 20:15 02/01/06 01/10/06 02/16/06 04/03/06 04/20/06 06/01/06 01/07 10/29/06 20:16 02/15/06 01/25/06 03/02/06 04/17/06 04/20/06 06/01/06 01/07 11/12/06 20:17 03/01/06 02/08/06 03/16/06 05/01/06 05/22/06 07/01/06 01/07 11/26/06 20:18 03/15/06 02/22/06 03/30/06 05/15/06 05/22/06 07/01/06 01/07 12/10/06 20:19 04/03/06 03/13/06 04/18/06 06/02/06 06/20/06 08/01/06 01/07 12/29/06 20:20 04/17/06 03/24/06 05/02/06 06/16/06 06/20/06 08/01/06 01/07 01/12/07 20:21 05/01/06 04/07/06 05/16/06 06/30/06 07/20/06 09/01/06 01/07 01/26/07 20:22 05/15/06 04/24/06 05/30/06 07/14/06 07/20/06 09/01/06 01/07 02/09/07 20:23 06/01/06 05/10/06 06/16/06 07/31/06 08/21/06 10/01/06 01/07 02/26/07 20:24 06/15/06 05/24/06 06/30/06 08/14/06 08/21/06 10/01/06 01/07 03/12/07 21:01 07/03/06 06/12/06 07/18/06 09/01/06 09/20/06 11/01/06 01/07 03/30/07 21:02 07/17/06 06/23/06 08/01/06 09/15/06 09/20/06 11/01/06 01/07 04/13/07 21:03 08/01/06 07/11/06 08/16/06 10/02/06 10/20/06 12/01/06 01/07 04/28/07 21:04 08/15/06 07/25/06 08/30/06 10/16/06 10/20/06 12/01/06 01/07 05/12/07 21:05 09/01/06 08/11/06 09/16/06 10/31/06 11/20/06 01/01/07 01/07 05/29/07 21:06 09/15/06 08/24/06 09/30/06 11/14/06 11/20/06 01/01/07 01/07 06/12/07 21:07 10/02/06 09/11/06 10/17/06 12/01/06 12/20/06 02/01/07 05/08 06/29/07 21:08 10/16/06 09/25/06 10/31/06 12/15/06 12/20/06 02/01/07 05/08 07/13/07 21:09 11/01/06 10/11/06 11/16/06 01/01/07 01/22/07 03/01/07 05/08 07/29/07 21:10 11/15/06 10/24/06 11/30/06 01/15/07 01/22/07 03/01/07 05/08 08/12/07 21:11 12/01/06 11/07/06 12/16/06 01/30/07 02/20/07 04/01/07 05/08 08/28/07 21:12 12/15/06 11/22/06 12/30/06 02/13/07 02/20/07 04/01/07 05/08 09/11/07 EXPLANATION OF THE PUBLICATION SCHEDULE This Publication Schedule is prepared by the Office of Administrative Hearings 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 2C .0302 and the Rules of Civil Procedure, Rule 6. GENERAL The North Carolina Register shall be published twice a month and contains the following information submitted for publication by a state agency: (1) temporary rules; (2) notices of rule-making proceedings; (3) text of proposed rules; (4) text of permanent rules approved by the Rules Review Commission; (5) notices of receipt of a petition for municipal incorporation, as required by G.S. 120-165; (6) Executive Orders of the Governor; (7) final decision letters from the U.S. Attorney General concerning changes in laws affecting voting in a jurisdiction subject of Section 5 of the Voting Rights Act of 1965, as required by G.S. 120-30.9H; (8) orders of the Tax Review Board issued under G.S. 105-241.2; and (9) other information the Codifier of Rules determines to be helpful to the public. COMPUTING TIME: In computing time in the schedule, the day of publication of the North Carolina Register is not included. The last day of the period so computed is included, unless it is a Saturday, Sunday, or State holiday, in which event the period runs until the preceding day which is not a Saturday, Sunday, or State holiday. FILING DEADLINES ISSUE DATE: The Register is published on the first and fifteen of each month if the first or fifteenth of the month is not a Saturday, Sunday, or State holiday for employees mandated by the State Personnel Commission. If the first or fifteenth of any month is a Saturday, Sunday, or a holiday for State employees, the North Carolina Register issue for that day will be published on the day of that month after the first or fifteenth that is not a Saturday, Sunday, or holiday for State employees. LAST DAY FOR FILING: The last day for filing for any issue is 15 days before the issue date excluding Saturdays, Sundays, and holidays for State employees. NOTICE OF TEXT EARLIEST DATE FOR PUBLIC HEARING: The hearing date shall be at least 15 days after the date a notice of the hearing is published. END OF REQUIRED COMMENT PERIOD An agency shall accept comments on the text of a proposed rule for at least 60 days after the text is published or until the date of any public hearings held on the proposed rule, whichever is longer. DEADLINE TO SUBMIT TO THE RULES REVIEW COMMISSION: The Commission shall review a rule submitted to it on or before the twentieth of a month by the last day of the next month. FIRST LEGISLATIVE DAY OF THE NEXT REGULAR SESSION OF THE GENERAL ASSEMBLY: This date is the first legislative day of the next regular session of the General Assembly following approval of the rule by the Rules Review Commission. See G.S. 150B- 21.3, Effective date of rules. EXECUTIVE ORDERS 20:17 NORTH CAROLINA REGISTER March 1, 2006 1431 EXECUTIVE ORDER NO. 98 NORTH CAROLINA STATE HEALTH COORDINATING COUNCIL By the power vested in me as Governor by the Constitution and laws of the State of North Carolina, IT IS ORDERED THAT: Section 1. Establishment. The North Carolina State Health Coordinating Council is hereby established. Section 2. Duties. The Council shall have the following duties and functions: a. serve as a forum for hearing regional concerns and recommendations relating to health planning; b. compile a list of state health needs and advise the Department of Human Resources; c. advise the Department of Human Resources on issues related to state health needs, giving attention to local, regional, and statewide needs. d. review and comment on contents of documents related to health planning and make recommendations concerning them to the Secretary of Human Resources and the Governor; e. advise the Department of Human Resources on cost-effective mechanisms for achieving health needs; f. prepare the Annual State Medical Facilities Plan and present the plan to the Governor. Section 3. Membership. The Council shall consist of 27 members who shall be appointed by the Governor as follows: a. one member from the academic medical centers; b. one member from the area health education centers; c. two members from business and industry (at least one individual representing small business and one representing large business); d. one member from the health insurance industry; e. one member from the North Carolina Association of County Commissioners; f. one member from the North Carolina Health Care Facilities Association; g. one member from the North Carolina Hospital Association; h. one member from the North Carolina Association for Home Care; i. one member from the North Carolina Association of Long-Term Care Facilities; j. one member from the North Carolina Association of Local Health Directors; k. one member from the North Carolina Medical Society; l. one member from the North Carolina House of Representatives; m. one member from the North Carolina Senate; n. one member from the United States Department of Veterans Affairs (non-voting); o. twelve at-large members to represent other health professional associations and to ensure regional representation. Section 4. Terms of Membership. The terms of membership of the Council shall be staggered so that the terms of approximately one-third of the members shall expire in a single calendar year. Eight members shall be designated to serve initial terms of one year, eight to serve initial terms of two years, and nine to serve initial terms of three years. After the first three years, all members shall be appointed for a term of three years. Terms shall expire on December 31 and new terms shall begin on January 1. Section 5. Vacancies. A vacancy occurring during a term of appointment is filled in the same manner as the original appointment and for the balance of the unexpired term. Section 6. Travel Expenses. Members of the Council shall receive necessary travel and subsistence expenses in accordance with the provisions of G.S. §138-5. Section 7. Chairman. The Chairman and Vice Chairman of the Council shall be appointed by the Governor. The term of office for the Chairman and Vice Chairman shall be two calendar years. The Council may elect other such officers as it deems necessary. Section 8. Meetings. EXECUTIVE ORDERS 20:17 NORTH CAROLINA REGISTER March 1, 2006 1432 The Council shall meet quarterly and at other times at the call of the Chairman or upon written request of at least ten (10) of its members. All business meetings of the Council, its committees and subcommittees, or special task forces shall be open to the public. Section 9. Staff Assistance. The Department of Human Resources shall provide clerical support and other services required by the Council. Section 10. Executive Order Number 43, as amended by Executive Order 166 of the Hunt Administration and as amended by Executive Orders 16 and 55 of the Easley Administration are hereby resciended. This order is effective immediately. IN WITNESS WHEREOF, I have hereunto set my hand and affixed the Great Seal of the State of North Carolina at the Capitol in Raleigh, this the 18th day of January 2006. __________________________________________ Michael F. Easley Governor ATTEST: __________________________________________ Elaine F. Marshall Secretary of State EXECUTIVE ORDERS 20:17 NORTH CAROLINA REGISTER March 1, 2006 1433 EXECUTIVE ORDER NO. 99 EXTENDING EXECUTIVE ORDER NO. 56, NORTH CAROLINA INTERAGENCY COUNCIL FOR COORDINATING HOMELESS PROGRAMS By the power vested in me as Governor by the Constitution and laws of the State of North Carolina, IT IS ORDERED THAT: Executive Order No. 56 regarding the North Carolina Interagency Council for Coordinating Homeless Programs is hereby extended for two years. This order is effective immediately. IN WITNESS WHEREOF, I have hereunto set my hand and affixed the Great Seal of the State of North Carolina at the Capitol in the City of Raleigh this 19th day of January 2006. __________________________________________ Michael F. Easley Governor ATTEST: __________________________________________ Elaine F. Marshall Secretary of State IN ADDITION 20:17 NORTH CAROLINA REGISTER March 1, 2006 1434 Note from the Codifier: 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. SUMMARY OF NOTICE OF INTENT TO REDEVELOP A BROWNFIELDS PROPERTY A Great Escape Funtime, LLC Pursuant to N.C.G.S. § 130A-310.34, A Great Escape Funtime, LLC has filed with the North Carolina Department of Environment and Natural Resources ("DENR") a Notice of Intent to Redevelop a Brownfields Property ("Property") in Winston- Salem, Forsyth County, North Carolina. The Property consists of 4.79 acres and is located at 1806 Funtime Boulevard. Environmental contamination exists on the Property in soil and groundwater. A Great Escape Funtime, LLC has committed itself to making exclusively commercial use of the Property. The Notice of Intent to Redevelop a Brownfields Property includes: (1) a proposed Brownfields Agreement between DENR and A Great Escape Funtime, LLC which in turn includes (a) a map showing the location of the Property, (b) a description of the contaminants involved and their concentrations in the media of the Property, (c) the above-stated description of the intended future use of the Property, and (d) proposed investigation and remediation; and (2) a proposed Notice of Brownfields Property prepared in accordance with G.S. 130A-310.35. The full Notice of Intent to Redevelop a Brownfields Property may be reviewed at North Carolina Room of the Forsyth County Central Library, 660 West Fifth Street, Winston-Salem, NC 27101 by contacting Jerry Carroll at (336) 727-2264 ext. 9 or at carroljr@forsythlibrary.org; or at NC Brownfields Program, 401 Oberlin Rd., Suite 150, Raleigh, NC 27605 by contacting Shirley Liggins at that address, at shirley.liggins@ncmail.net, or at (919) 508-8411, where DENR will provide auxiliary aids and services for persons with disabilities who wish to review the documents. Written public comments may be submitted to DENR within 60 days after the date this Notice is published in a newspaper of general circulation serving the area in which the brownfields property is located, or in the North Carolina Register, whichever is later. Written requests for a public meeting may be submitted to DENR within 30 days after the period for written public comments begins. Thus, if A Great Escape Funtime, LLC, as it plans, publishes this Summary in the North Carolina Register after it publishes the Summary in a newspaper of general circulation serving the area in which the brownfields property is located, and if it effects publication of this Summary in the North Carolina Register on the date it expects to do so, the periods for submitting written requests for a public meeting regarding this project and for submitting written public comments will commence on March 2, 2006. All such comments and requests should be addressed as follows: Mr. Bruce Nicholson Brownfields Program Manager Division of Waste Management NC Department of Environment and Natural Resources 401 Oberlin Road, Suite 150 Raleigh, North Carolina 27605 IN ADDITION 20:17 NORTH CAROLINA REGISTER March 1, 2006 1435 STATE OF NORTH CAROLINA BEFORE THE TAX REVIEW BOARD COUNTY OF WAKE IN THE MATTER OF: The Proposed Assessments of Additional ) Income Tax for the Taxable Years 1997, ) ADMINISTRATIVE DECISION 2000, 2001, and 2002 by the Secretary ) NUMBER 466 Revenue of North Carolina ) Docket Number 2004-362 ) vs. ) ) ELTON S. SMITH, ) Taxpayer ) THIS MATTER is before the regular Tax Review Board (hereinafter “Board”) upon petition for administrative review filed by the Taxpayer (hereinafter “Taxpayer”) regarding the Final Decision of Eugene J. Cella, Assistant Secretary for Administrative Hearings of the North Carolina Department of Revenue (Assistant Secretary), sustaining the proposed assessments of additional individual income tax for taxable years 1997, 2000, 2001, and 2002. Pursuant to N.C. Gen. Stat. § 105-241.1, assessments proposing additional tax, penalty and accrued interest for the years at issue were mailed to the Taxpayer. The Taxpayer protested the assessments and filed a request for an administrative hearing. After conducting a hearing, the Assistant Secretary entered a Final Decision that sustained the proposed assessments against the Taxpayer. Pursuant to N.C. Gen. Stat. § 105-241.2, the Taxpayer filed a notice of intent and petition for administrative review of the Assistant Secretary���s final decision with the Tax Review Board. Pursuant to N.C. Gen. Stat. § 105-241.2(c), the Board has examined the petition, the records and documents transmitted by the North Carolina Secretary of Revenue pertaining to this matter; and it appearing to the Board that the Taxpayer’s petition should be dismissed since the grounds and arguments upon which relief is sought have been repeatedly rejected by the Courts and are deemed lacking in legal merit. Thus, the Board concludes that Taxpayer’s petition for administrative review is frivolous and is filed for the purpose of delay. IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that Taxpayer’s petition for administrative review be and is hereby Dismissed. Made and entered into the 24th day of August 2005. TAX REVIEW BOARD Signature Stacey A. Phipps, Chief Deputy Treasurer, on behalf of Richard H. Moore, State Treasurer Signature Jo Anne Sanford, Member Chair, Utilities Commission Signature Noel L. Allen, Appointed Member IN ADDITION 20:17 NORTH CAROLINA REGISTER March 1, 2006 1436 STATE OF NORTH CAROLINA BEFORE THE TAX REVIEW BOARD COUNTY OF WAKE IN THE MATTER OF: The Proposed Assessment of Sales and ) Use Tax for the period of July 1, 1999 ) through April 30, 2002 by the Secretary ) of Revenue ) ADMINISTRATIVE DECISION ) NUMBER: 467 vs. ) Docket Number 2003-171 ) The Loflin Group, Inc., ) Taxpayer ) This Matter was heard before the regular Tax Review Board (hereinafter "Board") in the City of Raleigh, Wake County, North Carolina, in the office of the State Treasurer, on Thursday, May 26, 2005 pursuant to the petition of The Loflin Group, Inc. (hereinafter "Taxpayer") for administrative review of the final decision entered by the Assistant Secretary of Revenue regarding the proposed assessment of sales and use tax for the period of July 1, 1999 through April 30, 2002. The Taxpayer protested the assessment and requested a hearing before the Secretary of Revenue. After conducting a hearing, the Assistant Secretary of Revenue entered a final decision that sustained the proposed assessment. From the Assistant Secretary's final decision, the Taxpayer filed a notice of intent and petition for administrative review with the Board pursuant to N.C. Gen. Stat. § 105-241.2. The scope of administrative review for petitions filed with the Tax Review Board is governed by N.C. Gen. Stat. § 105- 241.2(b2). After the Tax Review Board conducts an administrative hearing, this statute provides in pertinent part: (b2). "The Board shall confirm, modify, reverse, reduce or increase the assessment or decision of the Secretary." Pursuant to N.C. Gen. Stat. § 105-241.1(a), a proposed tax assessment is presumed to be correct and the burden is on the taxpayer to rebut that presumption. In order to rebut the presumption, the taxpayer must offer evidence to show that the assessment is not correct. And it appearing to the Board after conducting an administrative hearing in this matter, wherein appellant appeared pro se, and reviewing the Assistant Secretary's final decision concluded that the findings of fact made by the Assistant Secretary were supported by competent evidence in the record, that based upon the findings of fact, the Assistant Secretary's conclusions of law were fully supported by the findings of fact, and that the final decision of the Assistant Secretary was supported by the conclusions of law; IT IS THEREFORE ORDERED that the Assistant Secretary's final decision is affirmed. Made and entered into the 24th day of August 2005. TAX REVIEW BOARD /S/ Stacey A. Phipps, Chief Deputy Treasurer, on behalf of Richard H. Moore, Chairman State Treasurer /S/ Jo Anne Sanford, Member Chair, Utilities Commission /S/ Noel L. Allen, Appointed Member IN ADDITION 20:17 NORTH CAROLINA REGISTER March 1, 2006 1437 STATE OF NORTH CAROLINA BEFORE THE TAX REVIEW BOARD COUNTY OF WAKE IN THE MATTER OF: The Proposed Assessment of Unauthorized ) Substance Tax dated February 20, 2004 by ) the Secretary of Revenue ) ) ADMINISTRATIVE DECISION vs. ) NUMBER: 468 ) Docket Number 2004-125 Dennis Earl Gholston, ) Taxpayer ) This Matter was heard before the regular Tax Review Board (hereinafter "Board") in the City of Raleigh, Wake County, North Carolina, in the office of the State Treasurer, on Thursday, May 26, 2005 pursuant to the petition of Dennis Earl Gholston (hereinafter "Taxpayer") for administrative review of the final decision entered on October 5, 2004, by the Assistant Secretary of Revenue regarding the proposed assessment of unauthorized substance tax dated February 20, 2004. The Taxpayer protested the assessment and requested a hearing before the Secretary of Revenue. After conducting a hearing, the Assistant Secretary of Revenue entered a final decision that sustained the proposed assessment. From the Assistant Secretary's final decision, the Taxpayer filed a notice of intent and petition for administrative review with the Board pursuant to N.C. Gen. Stat. § 105-241.2. The scope of administrative review for petitions filed with the Tax Review Board is governed by N.C. Gen. Stat. § 105- 241.2(b2). After the Tax Review Board conducts an administrative hearing, this statute provides in pertinent part: (b2). "The Board shall confirm, modify, reverse, reduce or increase the assessment or decision of the Secretary." Pursuant to N.C. Gen. Stat. § 105-241.1(a), a proposed tax assessment is presumed to be correct and the burden is on the taxpayer to rebut that presumption. In order to rebut the presumption, the taxpayer must offer evidence to show that the assessment is not correct. And it appearing to the Board after conducting an administrative hearing in this matter wherein the appellant pro se, and reviewing the Assistant Secretary's final decision that the findings of fact made by the Assistant Secretary were supported by competent evidence in the record, that based upon the findings of fact, the Assistant Secretary's conclusions of law were fully supported by the findings of fact, and that the final decision of the Assistant Secretary was supported by the conclusions of law; IT IS THEREFORE ORDERED that the Assistant Secretary's final decision is confirmed in every respect. Made and entered into the 24th day of August 2005. TAX REVIEW BOARD /S/ Stacey A. Phipps, Chief Deputy Treasurer, on behalf Richard H. Moore, State Treasurer /S/ Jo Anne Sanford, Member Chair, Utilities Commission /S/ Noel L. Allen, Appointed Member IN ADDITION 20:17 NORTH CAROLINA REGISTER March 1, 2006 1438 STATE OF NORTH CAROLINA BEFORE THE TAX REVIEW BOARD COUNTY OF WAKE IN THE MATTER OF: The Proposed Assessment of Unauthorized ) Substance Tax dated April 11, 2003 by ) the Secretary of Revenue ) ) ADMINISTRATIVE DECISION vs. ) NUMBER: 469 ) Docket Number 2003-238 Wendell Desmond Lloyd, ) Taxpayer ) This Matter was heard before the regular Tax Review Board (hereinafter "Board") in the City of Raleigh, Wake County, North Carolina, in the office of the State Treasurer, on Thursday, May 26, 2005 pursuant to the petition of (hereinafter "Taxpayer") for administrative review of the final decision entered by the Assistant Secretary of Revenue regarding the proposed assessment of unauthorized substance tax dated April 11, 2003. The Taxpayer protested the assessment and requested a hearing before the Secretary of Revenue. After conducting a hearing, the Assistant Secretary of Revenue entered a final decision that sustained the proposed assessment. From the Assistant Secretary's final decision, the Taxpayer filed a notice of intent and petition for administrative review with the Board pursuant to N.C. Gen. Stat. § 105-241.2. The scope of administrative review for petitions filed with the Tax Review Board is governed by N.C. Gen. Stat. § 105- 241.2(b2). After the Tax Review Board conducts an administrative hearing, this statute provides in pertinent part: (b2). "The Board shall confirm, modify, reverse, reduce or increase the assessment or decision of the Secretary." Pursuant to N.C. Gen. Stat. § 105-241.1(a), a proposed tax assessment is presumed to be correct and the burden is on the taxpayer to rebut that presumption. In order to rebut the presumption, the taxpayer must offer evidence to show that the assessment is not correct. And it appearing to the Board after conducting an administrative hearing in this matter which the pro se appellant did not attend, and reviewing the Assistant Secretary's final decision that the findings of fact made by the Assistant Secretary were supported by competent evidence in the record, that based upon the findings of fact, the Assistant Secretary's conclusions of law were fully supported by the findings of fact, and that the final decision of the Assistant Secretary was supported by the conclusions of law; IT IS THEREFORE ORDERED that the Assistant Secretary's final decision is confirmed in every respect. Made and entered into the 24th day of August 2005. TAX REVIEW BOARD /S/ Stacey A. Phipps, Chief Deputy Treasurer, on behalf Richard H. Moore, State Treasurer /S/ Jo Anne Sanford, Member Chair, Utilities Commission /S/ Noel L. Allen, Appointed Member IN ADDITION 20:17 NORTH CAROLINA REGISTER March 1, 2006 1439 STATE OF NORTH CAROLINA BEFORE THE TAX REVIEW BOARD COUNTY OF WAKE IN THE MATTER OF: The Proposed Assessment of Unauthorized ) Substance Tax dated August 19, 2003 by ) the Secretary of Revenue of North Carolina ) ) ADMINISTRATIVE DECISION vs. ) NUMBER: 470 ) Docket Number 2003-398 Willie Jermaine Burgess, ) Taxpayer ) This Matter was heard before the regular Tax Review Board (hereinafter 'Board') in the City of Raleigh, Wake County, North Carolina, in the office of the State Treasurer, on Thursday, September 1, 2005 pursuant to the petition of Willie Jermaine Burgess (hereinafter 'Taxpayer') for administrative review of the final decision entered by the Assistant Secretary of Revenue regarding the proposed assessment of unauthorized substance tax dated August 19, 2003. The Taxpayer protested the assessment and requested a hearing before the Secretary of Revenue. After conducting a hearing, the Assistant Secretary of Revenue entered a final decision on March 18, 2004 that sustained the proposed assessment. From the Assistant Secretary's final decision, the Taxpayer filed a notice of intent and petition for administrative review with the Board pursuant to N.C. Gen. Stat. § 105-241.2. The scope of administrative review for petitions filed with the Tax Review Board is governed by N.C. Gen. Stat. § 105- 241.2(b2). After the Tax Review Board conducts an administrative hearing, this statute provides in pertinent part: (b2). 'The Board shall confirm, modify, reverse, reduce or increase the assessment or decision of the Secretary.' Pursuant to N.C. Gen. Stat. § 105-241.1(a), a proposed tax assessment is presumed to be correct and the burden is on the taxpayer to rebut that presumption. In order to rebut the presumption, the taxpayer must offer evidence to show that the assessment is not correct. And it appearing to the Board after conducting an administrative hearing in this matter which the pro se appellant did not attend, and reviewing the Assistant Secretary's final decision, that the findings of fact made by the Assistant Secretary were supported by competent evidence in the record, that based upon the findings of fact, the Assistant Secretary's conclusions of law were fully supported by the findings of fact, and that the final decision of the Assistant Secretary was supported by the conclusions of law; IT IS THEREFORE ORDERED that the Assistant Secretary's final decision is confirmed in every respect. Made and entered into the 17th day of November 2005. TAX REVIEW BOARD /S/ Stacey A. Phipps, Chief Deputy Treasurer, on behalf Richard H. Moore, State Treasurer /S/ Jo Anne Sanford, Chair North Carolina Utilities Commission /S/ Noel L. Allen, Esq. IN ADDITION 20:17 NORTH CAROLINA REGISTER March 1, 2006 1440 STATE OF NORTH CAROLINA BEFORE THE TAX REVIEW BOARD COUNTY OF WAKE IN THE MATTER OF: The Proposed Refund of Sales and Use ) Tax for the period of June 1, 1997, through ) March 31, 2000 by the Secretary of Revenue ) of North Carolina ) ADMINISTRATIVE DECISION ) NUMBER: 471 ) Docket Number 2001-235 vs. ) ) Coreslab Structure, Inc., ) Taxpayer ) This Matter was heard before the regular Tax Review Board (hereinafter "Board") in the City of Raleigh, Wake County, North Carolina, in the office of the State Treasurer, on Thursday, September 1, 2005 pursuant to the petition of Coreslab Structure, Inc. (hereinafter "Taxpayer") for further administrative review of the final decision entered by the Assistant Secretary of Revenue dated June 7, 2004 on remand from the Tax Review Board. In this decision, the Assistant Secretary of Revenue sustained the denial of the proposed refund of sales and use tax for the periods of June 1, 1997 through March 31, 2000. From the Assistant Secretary of Revenue's final decision, the Taxpayer filed a notice of intent and petition for administrative review with the Board pursuant to N.C. Gen. Stat. § 105-241.2. The scope of administrative review for petitions filed with the Tax Review Board is governed by N.C. Gen. Stat. § 105- 241.2(b2). After the Tax Review Board conducts an administrative hearing, this statute provides in pertinent part: (b2). "The Board shall confirm, modify, reverse, reduce or increase the assessment or decision of the Secretary." Pursuant to N.C. Gen. Stat. § 105-241.1(a), a proposed tax assessment is presumed to be correct and the burden is on the taxpayer to rebut that presumption. In order to rebut the presumption, the taxpayer must offer evidence to show that the assessment is not correct. And it appearing to the Board, after conducting an administrative hearing in this matter which counsel appeared for the appellant, and reviewing the Assistant Secretary's final decision, that the findings of fact made by the Assistant Secretary were supported by competent evidence in the record, that based upon the findings of fact, the Assistant Secretary's conclusions of law were fully supported by the findings of fact, and that the final decision of the Assistant Secretary was supported by the conclusions of law; IT IS THEREFORE ORDERED that the Assistant Secretary's final decision is confirmed in every respect. Made and entered into the 17th day of November 2005. TAX REVIEW BOARD /S/ Stacey A. Phipps, Chief Deputy Treasurer, on behalf Richard H. Moore, State Treasurer /S/ Jo Anne Sanford, Chair North Carolina Utilities Commission /S/ Noel L. Allen, Esq. IN ADDITION 20:17 NORTH CAROLINA REGISTER March 1, 2006 1441 STATE OF NORTH CAROLINA BEFORE THE TAX REVIEW BOARD COUNTY OF WAKE IN THE MATTER OF: The Proposed Assessment of Additional ) Income Tax for the Taxable Year 2001 ) ADMINISTRATIVE DECISION by the Secretary of Revenue of North ) Number: 472 Carolina ) Docket Number 2004-369 ) vs. ) ) Barnabas Williamson, ) Taxpayer ) THIS MATTER is before the regular Tax Review Board (hereinafter "Board") upon petition for administrative review filed by Barnabas Williamson (hereinafter "Taxpayer") regarding the Final Decision of Eugene J. Cella, Assistant Secretary for Administrative Hearings of the North Carolina Department of Revenue (hereinafter "Assistant Secretary"), sustaining the proposed assessments of additional individual income tax for taxable year 2001 by the Secretary of Revenue. Pursuant to N.C. Gen. Stat. § 105-241.1, assessment proposing additional tax, penalty and accrued interest for taxable year 2001 was mailed to the Taxpayer. The Taxpayer protested the assessment and filed a request for an administrative hearing. After conducting a hearing, the Assistant Secretary of Revenue entered a Final Decision, on February 28, 2004, that sustained the proposed assessments against the Taxpayer for the taxable year at issue. Pursuant to N.C. Gen. Stat. § 105-241.2, the Taxpayer filed a notice of intent and petition for administrative review of the Assistant Secretary's final decision with the Tax Review Board. Pursuant to N.C. Gen. Stat. § 105-241.2(c), the Board has examined the petition, the records and documents transmitted by the North Carolina Secretary of Revenue pertaining to this matter; and it appearing to the Board that the Taxpayer's petition should be dismissed since the grounds and arguments upon which relief is sought have been repeatedly rejected by the Courts and are deemed lacking in legal merit. Thus, the Board concludes that Taxpayer's petition for administrative review is frivolous and is filed for the purpose of delay. IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that Taxpayer's petition for administrative review be and is hereby Dismissed. Made and entered into the 17th day of November 2005. TAX REVIEW BOARD /S/ Stacey A. Phipps, Chief Deputy Treasurer, on behalf of Richard H. Moore, State Treasure /S/ Jo Anne Sanford, Chair North Carolina Utilities Commission /S/ Noel L. Allen, Esq. IN ADDITION 20:17 NORTH CAROLINA REGISTER March 1, 2006 1442 STATE OF NORTH CAROLINA BEFORE THE TAX REVIEW BOARD COUNTY OF WAKE IN THE MATTER OF: ) The Proposed Assessment of Additional ) Income Tax for the Taxable Year 1999 ) ADMINISTRATIVE DECISION by the Secretary of Revenue of North ) NUMBER: 473 Carolina ) Docket Number 2004-62 (A) ) vs. ) ) BETH STURDIVANT, ) Taxpayer ) THIS MATTER is before the regular Tax Review Board (hereinafter "Board") upon petition for administrative review filed by Beth Sturdivant (hereinafter "Taxpayer") regarding the Final Decision of Eugene J. Cella, Assistant Secretary for Administrative Hearings of the North Carolina Department of Revenue (hereinafter "Assistant Secretary"), sustaining the proposed assessment of additional individual income tax for taxable year 1999. Pursuant to N.C. Gen. Stat. § 105-241.1, an assessment proposing additional tax, penalty and accrued interest for taxable year 1999 was mailed to the Taxpayer. The Taxpayer protested the assessment and filed a request for an administrative hearing. After conducting a hearing, the Assistant Secretary of Revenue entered a Final Decision, on July 12, 2004, that sustained the proposed assessment against the Taxpayer for tax year 1999. Pursuant to N.C. Gen. Stat. § 105-241.2, the Taxpayer filed a notice of intent and petition for administrative review of the Assistant Secretary's final decision with the Tax Review Board. Pursuant to N.C. Gen. Stat. § 105-241.2(c), the Board has examined the petition, the records and documents transmitted by the North Carolina Secretary of Revenue pertaining to this matter; and it appearing to the Board that the Taxpayer's petition should be dismissed since the grounds and arguments upon which relief is sought have been repeatedly rejected by the Courts and are deemed lacking in legal merit. Thus, the Board concludes that Taxpayer's petition for administrative review is frivolous and is filed for the purpose of delay. IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that Taxpayer's petition for administrative review be and is hereby Dismissed. Made and entered into the 17th day of November 2005. TAX REVIEW BOARD /S/ Stacey A. Phipps, Chief Deputy Treasurer on behalf of Richard H. Moore, State Treasurer /S/ Jo Anne Sanford, Member Chair, Utilities Commission /S/ Noel L. Allen, Appointed Member IN ADDITION 20:17 NORTH CAROLINA REGISTER March 1, 2006 1443 STATE OF NORTH CAROLINA BEFORE THE TAX REVIEW BOARD COUNTY OF WAKE IN THE MATTER OF: ) The Proposed Assessment of Additional ) Income Tax for the Taxable Years 1998 ) ADMINISTRATIVE DECISION through 2000 by the Secretary of ) Number: 474 Revenue of North Carolina ) Docket Number 2003-554 ) vs. ) ) Blair E. and Diane M. Williamson, ) Taxpayers ) THIS MATTER is before the regular Tax Review Board (hereinafter "Board") upon petition for administrative review filed by Blair E. and Diane M. Williamson (hereinafter "Taxpayers") regarding the Final Decision of Eugene J. Cella, Assistant Secretary for Administrative Hearings of the North Carolina Department of Revenue (hereinafter "Assistant Secretary"), sustaining the proposed assessments of additional individual income tax for taxable years 1998 through 2000 by the Secretary of Revenue. Pursuant to N.C. Gen. Stat. § 105-241.1, assessments proposing additional tax, penalty and accrued interest for taxable years 1998 through 2000 were mailed to the Taxpayers. The Taxpayers protested the assessments and filed a request for an administrative hearing. After conducting a hearing, the Assistant Secretary of Revenue entered a Final Decision, on July 12, 2004, that sustained the proposed assessments against the Taxpayers for taxable years at issue. Pursuant to N.C. Gen. Stat. § 105-241.2, the Taxpayer filed a notice of intent and petition for administrative review of the Assistant Secretary's final decision with the Tax Review Board. Pursuant to N.C. Gen. Stat. § 105-241.2(c), the Board has examined the petition, the records and documents transmitted by the North Carolina Secretary of Revenue pertaining to this matter; and it appearing to the Board that the Taxpayers' petition should be dismissed since the grounds and arguments upon which relief is sought have been repeatedly rejected by the Courts and are deemed lacking in legal merit. Thus, the Board concludes that Taxpayers' petition for administrative review is frivolous and is filed for the purpose of delay. IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that Taxpayers' petition for administrative review be and is hereby Dismissed. Made and entered into the 17th day of November 2005. TAX REVIEW BOARD /S/ Stacey A. Phipps, Chief Deputy Treasurer, on behalf of Richard H. Moore, State Treasurer /S/ Jo Anne Sanford, Chair North Carolina Utilities Commission /S/ Noel L. Allen, Esq. IN ADDITION 20:17 NORTH CAROLINA REGISTER March 1, 2006 1444 STATE OF NORTH CAROLINA BEFORE THE TAX REVIEW BOARD COUNTY OF WAKE IN THE MATTER OF: The Proposed Assessments of Gift Tax ) for the Taxable year 2002 by the Secretary ) of Revenue of North Carolina ) ) ADMINISTRATIVE DECISION ) Number: 476 vs. ) Docket Numbers 2003-565 ) Cecil E. & Betty Lawing, ) Appellants ) This Matter was heard before the regular Tax Review Board (hereinafter "Board") in the City of Raleigh, Wake County, North Carolina, in the office of the State Treasurer, on Thursday, October 20, 2005 pursuant to the petition of Cecil E. & Betty Lawing (hereinafter "Appellants") for administrative review of the final decision entered by the Assistant Secretary of Revenue on August 11, 2004 regarding the proposed assessments of gift tax for the taxable year 2002 by the Secretary of Revenue. Appellants protested the assessments and requested a hearing before the Secretary of Revenue. After conducting a hearing, the Assistant Secretary of Revenue entered a final decision that sustained the proposed assessments. From the Assistant Secretary's final decision, appellants filed a notice of intent and petition for administrative review with the Board pursuant to N.C. Gen. Stat. § 105-241.2. N.C. Gen. Stat. § 105-241.2(b2) governs the scope of administrative review for petitions filed with the Tax Review Board. After the Tax Review Board conducts an administrative hearing, this statute provides in pertinent part: (b2). "The Board shall confirm, modify, reverse, reduce or increase the assessment or decision of the Secretary." Pursuant to N.C. Gen. Stat. § 105-241.1(a), a proposed tax assessment is presumed to be correct and the burden is on the taxpayer to rebut that presumption. In order to rebut the presumption, the taxpayer must offer evidence to show that the assessment is not correct. And it appearing to the Board, after conducting an administrative hearing in this matter, which the appellants did not attend, and reviewing the Assistant Secretary's final decision, that the findings of fact made by the Assistant Secretary were supported by competent evidence in the record, that based upon the findings of fact, the Assistant Secretary's conclusions of law were fully supported by the findings of fact, and that the final decision of the Assistant Secretary was supported by the conclusions of law; IT IS THEREFORE ORDERED that the Assistant Secretary's final decision is AFFIRMED. Made and entered into the 30th day of December 2005. TAX REVIEW BOARD /S/ Stacey A. Phipps, Chief Deputy Treasurer, on behalf Richard H. Moore, State Treasurer /S/ Jo Anne Sanford, Member Chair, Utilities Commission /S/ Noel L. Allen, Esquire Appointed Member IN ADDITION 20:17 NORTH CAROLINA REGISTER March 1, 2006 1445 STATE OF NORTH CAROLINA BEFORE THE TAX REVIEW BOARD COUNTY OF WAKE IN THE MATTER OF: The Proposed Assessments of Income Tax ) Withheld or required to have been withheld ) for the quarters ended December 31, 2000; ) June 30 and September 30, 2001; March 31, ) 2002; and the months of April, May, June, ) ADMINISTRATIVE DECISION and August 2002 through October 2003, by ) Number: 477 the Secretary of Revenue of North Carolina ) Docket Number 2004-45 ) vs. ) ) Paul A. Parsons, ) Appellant ) This Matter was heard before the regular Tax Review Board (hereinafter "Board") in the City of Raleigh, Wake County, North Carolina, in the office of the State Treasurer, on Thursday, October 20, 2005 pursuant to the petition of Paul A. Parsons (hereinafter "Appellant") for administrative review of the final decision entered by the Assistant Secretary of Revenue on June 25, 2004 regarding the proposed assessments of income tax withheld or required to have been withheld for the quarters ended December 31, 2000; June 30 and September 30, 2001; March 31, 2002; and the months of April, May, June, and August 2002 through October 2003. Appellant, as treasurer of a non-profit corporation, was held personally liable for income tax withheld or required to have been withheld for the periods at issue. Appellant protested the assessments and requested a hearing before the Secretary of Revenue. After conducting a hearing, the Assistant Secretary of Revenue entered a final decision that sustained the proposed assessments. From the Assistant Secretary's final decision, appellant filed a notice of intent and petition for administrative review with the Board pursuant to N.C. Gen. Stat. § 105-241.2. The scope of administrative review for petitions filed with the Tax Review Board is governed by N.C. Gen. Stat. § 105- 241.2(b2).After the Tax Review Board conducts an administrative hearing, this statute provides in pertinent part: (b2). "The Board shall confirm, modify, reverse, reduce or increase the assessment or decision of the Secretary." Pursuant to N.C. Gen. Stat. § 105-241.1(a), a proposed tax assessment is presumed to be correct and the burden is on the taxpayer to rebut that presumption. In order to rebut the presumption, the taxpayer must offer evidence to show that the assessment is not correct. And it appearing to the Board, after conducting an administrative hearing in this matter, during which appellant appeared pro se, and reviewing the Assistant Secretary's final decision, that the findings of fact made by the Assistant Secretary were supported by competent evidence in the record, that based upon the findings of fact, the Assistant Secretary's conclusions of law were fully supported by the findings of fact, and that the final decision of the Assistant Secretary was supported by the conclusions of law; IT IS THEREFORE ORDERED that the Assistant Secretary's final decision is AFFIRMED. Made and entered into the 30th day of December 2005. TAX REVIEW BOARD /S/ Stacey A. Phipps, Chief Deputy Treasurer, on behalf Richard H. Moore, State Treasurer /S/ Jo Anne Sanford, Chair North Carolina Utilities Commission /S/ Noel L. Allen, Esquire IN ADDITION 20:17 NORTH CAROLINA REGISTER March 1, 2006 1446 STATE OF NORTH CAROLINA BEFORE THE TAX REVIEW BOARD COUNTY OF WAKE IN THE MATTER OF: The Proposed Assessments of Sales and Use ) Tax for the period of August 1, 1996 through ) August 31, 2002, by the Secretary of ) Revenue of North Carolina ) ADMINISTRATIVE DECISION ) Number: 478 ) Docket Number 2004-68 vs. ) ) ) Gary Williams, d/b/a Dutch Iris Florist, ) Appellant. ) This Matter was heard before the regular Tax Review Board (hereinafter "Board") in the City of Raleigh, Wake County, North Carolina, in the office of the State Treasurer, on Thursday, October 20, 2005 pursuant to the Secretary of Revenue's motion to dismiss the petition of Gary Williams, d/b/a Dutch Iris Florist (hereinafter "Appellant") on the grounds that the appellant waived his rights under N.C. Gen. Stat. § 105- 241.2 to contest any civil assessment before the Tax Review Board. The Board, after reviewing the Secretary of Revenue's motion to dismiss, hearing argument of counsel, considering the authorities cited and reviewing all matters of record, enters the following Order: IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that the Secretary of Revenue's motion to dismiss appellant's petition for administrative review be and is hereby Granted. Made and entered into the 30th day of December 2005. TAX REVIEW BOARD /S/ Stacey A. Phipps, Chief Deputy Treasurer, on behalf Richard H. Moore, State Treasurer /S/ Jo Anne Sanford, Member Chair, Utilities Commission /S/ Noel L. Allen, Appointed Member IN ADDITION 20:17 NORTH CAROLINA REGISTER March 1, 2006 1447 STATE OF NORTH CAROLINA BEFORE THE TAX REVIEW BOARD COUNTY OF WAKE IN THE MATTER OF: The Proposed Assessments of Sales and Use ) taxes due the State of North Carolina for ) the period of May 1, 2001 through October ) 31, 2001 and November 1, 2001 through ) October 31, 2003 ) ADMINISTRATIVE DECISION ) Number: 479 ) Docket Number 2004-303 and vs. ) Docket Number 2004-304 ) ) Linda W. Foster d/b/a Atlantic Associates ) and Atlantic Design Associates, Inc., ) Appellants ) This Matter was heard before the regular Tax Review Board (hereinafter 'Board') in the City of Raleigh, Wake County, North Carolina, in the office of the State Treasurer, on Thursday, October 20, 2005 pursuant to the petition of Linda W. Foster d/b/a Atlantic Associates and Atlantic Associates d/b/a Atlantic Design Associates (hereinafter 'Appellants') for administrative review of the final decisions entered by the Assistant Secretary of Revenue on September 13, 2004 regarding the proposed assessments of sales and use taxes due the State of North Carolina for the period of May 1, 2001 through October 31, 2001 and November 1, 2001 through October 31, 2003. Appellants provide printed material, such as catalogs, displaying a customer's products. During the periods at issue, the appellants produced material primarily for the furniture industry. To provide catalogs, the appellants purchased photographs from studio freelance photographer. The images were originally produced as prints and negatives, and may be produced digitally. Appellants did not pay North Carolina sales or use tax on the photographs they purchased and furnished to third-party printers to use in the production of the catalogs. Instead, the appellants provided a certificate of resale to the vendors. Appellants did charge customers sales tax on the price of the catalogs or other printed materials. Appellants protested the assessment and requested a hearing before the Secretary of Revenue. After conducting a hearing, the Assistant Secretary of Revenue entered final decisions that sustained the proposed assessments. From the Assistant Secretary's final decisions, appellants filed a notice of intent and petition for administrative review with the Board pursuant to N.C. Gen. Stat. § 105-241.2. The scope of administrative review for petitions filed with the Tax Review Board is governed by N.C. Gen. Stat. § 105- 241.2(b2). After the Tax Review Board conducts an administrative hearing, this statute provides in pertinent part: (b2). 'The Board shall confirm, modify, reverse, reduce or increase the assessment or decision of the Secretary.' Pursuant to N.C. Gen. Stat. § 105-241.1(a), a proposed tax assessment is presumed to be correct and the burden is on the taxpayer to rebut that presumption. In order to rebut the presumption, the taxpayer must offer evidence to show that the assessment is not correct. It appearing to the Board, after conducting an administrative hearing in this matter, in which counsel appeared for appellants, and reviewing the Assistant Secretary's final decision, that the findings of fact made by the Assistant Secretary were supported by competent evidence in the record, that based upon the findings of fact, the Assistant Secretary's conclusions of law were fully supported by the findings of fact, and that the final decisions of the Assistant Secretary were supported by the conclusions of law; IT IS THEREFORE ORDERED that the Assistant Secretary's final decision is AFFIRMED. Made and entered into the 30th day of December 2005. TAX REVIEW BOARD IN ADDITION 20:17 NORTH CAROLINA REGISTER March 1, 2006 1448 /S/ Stacey A. Phipps, Chief Deputy Treasurer, on behalf Richard H. Moore, State Treasurer /S/ Jo Anne Sanford, Chair North Carolina Utilities Commission /S/ Noel L. Allen, Esquire Appointed Member PROPOSED RULES 20:17 NORTH CAROLINA REGISTER March 1, 2006 1449 Note from the Codifier: The notices published in this Section of the NC Register include the text of proposed rules. The agency must accept comments on the proposed rule(s) for at least 60 days from the publication date, or until the public hearing, or a later date if specified in the notice by the agency. If the agency adopts a rule that differs substantially from a prior published notice, the agency must publish the text of the proposed different rule and accept comment on the proposed different rule for 60 days. Statutory reference: G.S. 150B-21.2. TITLE 15A – DEPARTMENT OF ENVIRONMENT & NATURAL RESOURCES Notice is hereby given in accordance with G.S. 150B-21.2 that the Environmental Management Commission intends to amend the rule cited as 15A NCAC 02B .0309. Proposed Effective Date: September 1, 2006 Instructions on How to Demand a Public Hearing: (must be requested in writing within 15 days of notice): Any person requesting that the Environmental Management Commission conduct a public hearing on any portion of this proposed rule must submit a written request to Elizabeth Kountis, Division of Water Quality, 1617 Mail Service Center, Raleigh, NC 27699- 1617 by March 17, 2006. The request must specify which rule the hearing is being requested on. Mailed written requests must be postmarked no later than March 17, 2006 Reason for Proposed Action: The Town of Elkin requested the reclassification of a segment of the Yadkin River (Yadkin and Surry Counties, Yadkin-Pee Dee River Basin) from Class C to Water Supply-IV (WS-IV) Critical Area (CA). The purpose of this rule change is to allow a new intake structure to be placed in the river in order to supply the town with an emergency source of water. The waters to be reclassified meet water supply water quality standards according to DWR staff. DWR and DEH staff have approved of the proposed intake. This proposed CA would extend along the river from the proposed intake, which is to be placed directly above the mouth of Elkin Creek, to a point approximately 0.3 miles upstream of the proposed intake. Typically, a new riverine WS-IV CA is the area measured 0.5 miles from the proposed intake, but in this case, another WS-IV CA for a Town of Jonesville intake is located 0.3 miles upstream of the proposed 57-acre CA. In addition, no area in association with the proposed intake is to be reclassified to WS-IV PA due to the topography in this area. If reclassified, development and discharge restrictions will apply. However, there are no current or planned dischargers and no planned development in the proposed reclassification area. Yadkin County and the Town of Elkin, the only local governments with jurisdiction in the reclassification area, would need to modify their water supply watershed protection ordinances within 270 days after the reclassification effective date. Yadkin County and the nearby Town of Jonesville do not object to this reclassification. Since a public hearing is not required and no comments against this proposed reclassification have been received, a public hearing is not going to be scheduled for this proposed reclassification. If a hearing is requested, a hearing will be scheduled, and the process for this proposed reclassification will be delayed. This Notice of Text provides an opportunity for comments on the proposed reclassification of the Yadkin River to be submitted to the Division of Water Quality by May 1, 2006. Please note that the proposed rule text that appears in italics was previously noticed in Volume 20, Issue 4, Pages 184-186 of the North Carolina Register, and the comment period for the text shown in italics ends March 20, 2006. Procedure by which a person can object to the agency on a proposed rule: You may submit written comments, data or other relevant information by May 1, 2006. The EMC is very interested in all comments pertaining to the proposed reclassification. All persons interested and potentially affected by the proposal are strongly encouraged to read this entire notice and make comments on the proposed reclassification. The EMC may not adopt a rule that differs substantially from the text of the proposed rule published in this notice unless the EMC publishes the text of the proposed different rule and accepts comments on the new text (see General Statute 150B 21.2(g)). Written comments may be submitted to Elizabeth Kountis of the Water Quality Planning Section at the postal address, e-mail address, or fax number listed in this notice. Comments may be submitted to: Elizabeth Kountis, DENR/Division of Water Quality, Planning Section, 1617 Mail Service Center, Raleigh, NC 27699-1617, phone (919) 733-5083 ext 369, fax (919) 715-5637, email Elizabeth.kountis@ncmail.net Comment period ends: May 1, 2006 Procedure for Subjecting a Proposed Rule to Legislative Review: If an objection is not resolved prior to the adoption of the rule, a person may also submit written objections to the Rules Review Commission. If the Rules Review Commission receives written and signed objections in accordance with G.S. 150B-21.3(b2) from 10 or more persons clearly requesting review by the legislature and the Rules Review Commission approves the rule, the rule will become effective as provided in G.S. 150B-21.3(b1). The Commission will receive written objections until 5:00 p.m. on the day following the day the Commission approves the rule. The Commission will receive those objections by mail, delivery service, hand delivery, or facsimile transmission. If you have any further questions concerning the submission of objections to the Commission, please call a Commission staff attorney at 919-733-2721. Fiscal Impact: State Local Substantive (>$3,000,000) PROPOSED RULES 20:17 NORTH CAROLINA REGISTER March 1, 2006 1450 None SUBCHAPTER 02B - SURFACE WATER AND WETLAND STANDARDS SECTION .0300 - ASSIGNMENT OF STREAM CLASSIFICATIONS 15A NCAC 02B .0309 YADKIN-PEE DEE RIVER BASIN (a) The schedule may be inspected at the following places: (1) Clerk of Court: Alexander County Anson County Cabarrus County Caldwell County Davidson County Davie County Forsyth County Guilford County Iredell County Mecklenburg County Montgomery County Randolph County Richmond County Rowan County Stanly County Stokes County Surry County Union County Watauga County Wilkes County Yadkin County (2) North Carolina Department of Environment and Natural Resources: (A) Mooresville Regional Office 919 North Main Street 610 East Center Avenue, Suite 301 Mooresville, North Carolina (B) Winston-Salem Regional Office 8025 North Point Boulevard, Suite 100585 Waughtown Street Winston-Salem, North Carolina (C) Fayetteville Regional Office Wachovia Building Systel Building Suite 714225 Green Street Suite 714 Fayetteville, North Carolina (D) Asheville Regional Office Interchange Building 2090 US Highway 70 59 Woodfin Place Asheville, Swannanoa, North Carolina. (b) Unnamed Streams. Such streams entering Virginia are classified "C," and such streams entering South Carolina are classified "C". (c) The Yadkin-Pee Dee River Basin Schedule of Classifications and Water Quality Standards was amended effective: (1) February 12, 1979; (2) March 1, 1983; (3) August 1, 1985; (4) February 1, 1986; (5) October 1, 1988; (6) March 1, 1989; (7) January 1, 1990; (8) August 1, 1990; (9) January 1, 1992; (10) April 1, 1992; (11) August 3, 1992; (12) December 1, 1992; (13) April 1, 1993; (14) September 1, 1994; (15) August 1, 1995; (16) August 1, 1998; (17) April 1, 1999. 1999; (18) July 1, 2006. 2006; (19) September 1, 2006. (d) The Schedule of Classifications and Water Quality Standard for the Yadkin-Pee Dee River Basin has been amended effective October 1, 1988 as follows: (1) Mitchell River [Index No. 12-62-(1)] from source to mouth of Christian Creek (North Fork Mitchell River) including all tributaries has been reclassified from Class B Tr to Class B Tr ORW. (2) Mitchell River [Index No. 12-62-(7)] from mouth of Christian Creek (North Fork Mitchell River) to Surry County SR 1315 including all tributaries has been classified from Class C Tr to C Tr ORW, except Christian Creek and Robertson Creek which will be reclassified from Class B Tr to Class B Tr ORW. (3) Mitchell River [Index No. 12-62-(12)] from Surry County SR 1315 to mouth of South Fork Mitchell River including all tributaries from Class C to Class C ORW. (e) The Schedule of Classifications and Water Quality Standards for the Yadkin-Pee Dee River Basin was amended effective March 1, 1989 as follows: (1) Elk Creek [Index Nos. 12-24-(1) and 12-24-(10)] and all tributary waters were reclassified from Class B-trout, Class C-trout and Class B to Class B-trout ORW, Class C-trout ORW and Class B ORW. (f) The Schedule of Classifications and Water Quality Standards for the Yadkin-Pee Dee River Basin was amended effective January 1, 1990 as follows: Barnes Creek (Index No. 13-2-18) was reclassified from Class C to Class C ORW. (g) The Schedule of Classifications and Water Quality Standards for the Yadkin-Pee Dee River Basin has been amended effective January 1, 1992 as follows: (1) Little River [Index Nos. 13-25-(10) and 13-25-(19)] from Suggs Creek to Densons Creek has been reclassified from Classes PROPOSED RULES 20:17 NORTH CAROLINA REGISTER March 1, 2006 1451 WS-III and C to Classes WS-III HQW and C HQW. (2) Densons Creek [Index No. 13-25-20-(1)] from its source to Troy's Water Supply Intake including all tributaries has been reclassified from Class WS-III to Class WS-III HQW. (3) Bridgers Creek (Index No. 13-25-24) from its source to the Little River has been reclassified from Class C to Class C HQW. (h) The Schedule of Classifications and Water Quality Standards for the Yadkin-Pee Dee River Basin was amended effective April 1, 1992 with the reclassification of the North Prong South Fork Mitchell River from Class C to Class C Trout. (i) The Schedule of Classifications and Water Quality Standards for the Yadkin-Pee Dee River was amended effective August 3, 1992 with the reclassification of all water supply waters (waters with a primary classification of WS-I, WS-II or WS-III). These waters were reclassified to WS-I, WS-II, WS-III, WS-IV or WS-V as defined in the revised water supply protection rules, (15A NCAC 2B .0100, .0200 and .0300) which became effective on August 3, 1992. In some cases, streams with primary classifications other than WS were reclassified to a WS classification due to their proximity and linkage to water supply waters. In other cases, waters were reclassified from a WS classification to an alternate appropriate primary classification after being identified as downstream of a water supply intake or identified as not being used for water supply purposes. (j) The Schedule of Classifications and Water Quality Standards for the Yadkin-Pee Dee River Basin has been amended effective December 1, 1992 as follows: (1) Pike Creek (Index No. 12-46-1-2) was reclassified from Class C Tr to Class C Tr HQW; (2) Basin Creek (Index No. 12-46-2-2) was reclassified from Class C Tr to Class C Tr ORW; (3) Bullhead Creek (Index No. 12-46-4-2) was reclassified from Class C Tr to Class C Tr ORW; (4) Rich Mountain Creek (Index No. 12-46-4-2-2) was reclassified from Class Tr to Class C Tr ORW; and (5) Widows Creek (Index No. 12-46-4-4) was reclassified from Class C Tr HQW to Class C Tr ORW. (k) The Schedule of Classifications and Water Quality Standards for the Yadkin-Pee Dee River Basin has been amended effective September 1, 1994 as follows: (1) Lanes Creek [Index Nos. 13-17-40-(1) and 13- 17-40-(10.5)] from its source to the Marshville water supply dam including tributaries was reclassified from Classes WS-II and WS-II CA to Class WS-V. (2) The South Yadkin River [Index Nos. 12-108- (9.7) and 12-108-(15.5)] from Iredell County SR 1892 to a point 0.7 mile upstream of the mouth of Hunting Creek including associated tributaries was reclassified from Classes WS-V, C and WS-IV to Classes WS-V, WS-IV, C and WS-IV CA. (3) The Yadkin River [Index Nos. 12-(53) and 12- (71)] from a point 0.3 mile upstream of the mouth of Elkin Creek (River) to the Town of King water supply intake including associated tributaries was reclassified from Classes C and WS-IV to Classes WS-IV and WS-IV CA. (4) The Yadkin River [Index Nos. 12-(80.5), 12- (81.5) and 12-(84.5)] from the Town of King water supply intake to the Davie County water supply intake reclassified from Classes C, B, WS-IV and WS-V to Classes WS-IV, WS-IV& B and WS-IV CA. (l) The Schedule of Classifications and Water Quality Standards for the Yadkin-Pee Dee River Basin has been amended effective August 1, 1995 as follows: Bear Creek [Index Nos. 12-108-18- (3), 12-108-18-(3.3)], Little Bear Creek (Index No. 12-108-18- 2), and Blue Branch (Index No. 12-108-18-2-1) were reclassified from WS-II and WS-II CA (Critical Area) to C and WS-IV. (m) The Schedule of Classifications and Water Quality Standards for the Yadkin-Pee Dee River Basin was amended effective August 1, 1998 with the revision to the primary classification for portions of the Yadkin River [Index No. 12- (45)] from Class WS-IV to WS-V, Yadkin River [Index No. 12- (67.5)] from Class WS-IV to Class C, Yadkin River [Index Nos. 12-(93.5) and 12-(98.5)] from Class WS-IV to Class WS-V, South Yadkin River [Index No. 12-108-(12.5)] from Class WS-IV to Class WS-V, and South Yadkin River [Index Nos. 12-108- (19.5) and 12-108-(22)] from Class WS-IV to Class C. (n) The Schedule of Classifications and Water Quality Standards for the Yadkin Pee-Dee River Basin was amended effective April 1, 1999 with the reclassification of a portion of the Yadkin River [Index No. 12-(80.5)] from WS-IV CA to WS-IV. A portion of the Yadkin River 0.5 mile upstream of Bashavia Creek was reclassified from WS-IV to WS-IV CA. Bashavia Creek [Index Nos. 12-81-(0.5) and 12-81-(2)] was reclassified from WS-IV and WS-IV CA to Class C. Tributaries to Bashavia Creek were also reclassified to Class C. Portions of the Yadkin River [Index Nos. 12-(25.5) and 12-(27)] were reclassified from WS-IV to Class C and from WS-IV & B to Class B. Tributaries were reclassed from Class WS-IV to Class C. Supplemental classifications were not changed. (o) The Schedule of Classifications and Water Quality Standards for the Yadkin Pee-Dee River Basin was amended effective July 1, 2006 with the reclassification of a portion of the Uwharrie River. More specifically, Index No. 13-2-(25), Index No. 13-2-(17.5), and a portion of Index No. 13-2-(1.5) was reclassified from Class WS-IV CA, WS-IV, and C, to Class WS-IV & B CA, WS-IV & B, and B, respectively. (p) The Schedule of Classifications and Water Quality Standards for the Yadkin Pee-Dee River Basin was amended effective September 1, 2006 with the reclassification of a segment of the Yadkin River [portion of Index No. 12-(53)] from a point 0.3 mile upstream of the Town of Elkin proposed water supply intake to the Town of Elkin proposed water supply intake from C to WS-IV CA. The Town of Elkin proposed water supply intake is to be placed on the Yadkin River at a point directly above the mouth of Elkin Creek. PROPOSED RULES 20:17 NORTH CAROLINA REGISTER March 1, 2006 1452 Authority G.S. 143-214.1; 143-215.1; 143-215.3(a)(1). Notice is hereby given in accordance with G.S. 150B-21.2 that the Environmental Management Commission intends to adopt the rule cited as 15A NCAC 02D .0543. Proposed Effective Date: July 1, 2006 Public Hearing: Date: April 6, 2006 Time: 7:00 p.m. Location: Leslie Building, Room 143, Pitt Community College, 1986 Pitt Tech Rd., Winterville, NC 28590 Date: April 12, 2006 Time: 7:00 pm Location: Haynes Conference Center, Large Conference Room, Asheville-Buncombe Technical Community College, Enka Campus, 1459 Sand Hill Road, Candler, NC 28715 Reason for Proposed Action: This Rule is proposed to improve visibility in federal Class I areas in response to federal requirements. Procedure by which a person can object to the agency on a proposed rule: If you have any objections to the proposed rule, please mail a letter including your specific reasons to Mr. Thomas C. Allen, Division of Air Quality, Raleigh, NC 27699- 1641. Comments may be submitted to: Mr. Thomas Allen, Division of Air Quality, 1641 Mail Service Center, Raleigh, NC 27699- 1641, phone (919) 733-1489, fax (919) 715-7476, email thom.allen@ncmail.net Comment period ends: May 1, 2006 Procedure for Subjecting a Proposed Rule to Legislative Review: If an objection is not resolved prior to the adoption of the rule, a person may also submit written objections to the Rules Review Commission. If the Rules Review Commission receives written and signed objections in accordance with G.S. 150B-21.3(b2) from 10 or more persons clearly requesting review by the legislature and the Rules Review Commission approves the rule, the rule will become effective as provided in G.S. 150B-21.3(b1). The Commission will receive written objections until 5:00 p.m. on the day following the day the Commission approves the rule. The Commission will receive those objections by mail, delivery service, hand delivery, or facsimile transmission. If you have any further questions concerning the submission of objections to the Commission, please call a Commission staff attorney at 919-733-2721. Fiscal Impact: A copy of the fiscal note can be obtained from the agency. State Local Substantive (>$3,000,000) None SUBCHAPTER 02D – AIR POLLUTION CONTROL REQUIREMENTS SECTION .0500 – EMISSION CONTROL STANDARDS 15A NCAC 02D .0543 BEST AVAILABLE RETROFIT TECHNOLOGY (a) For the purposes of this Rule, the definitions at 40 CFR 51.301 shall apply. (b) Mandatory Class I Federal areas are identified in 40 CFR Part 81, Subpart D. (c) This Rule applies to BART-eligible sources as determined using 40 CFR Part 51, Appendix Y that cause or contribute to any visibility impairment in a mandatory Class I Federal area as determined by using 40 CFR Part 51, Subpart P. (d) Unless exempted under 40 CFR 51.303, the owner or operators of any BART-eligible source subject to this Rule shall install, operate, and maintain best available retrofit technology (BART). (e) The owner or operators of a BART-eligible source required to install BART under this Rule shall submit permit applications for the installation and operation of BART by September 1, 2006. (f) BART shall be determined using "Guidelines for Determining Best Available Retrofit Technology for Coal-fired Power Plants and Other Existing Stationary Facilities" (1980), 40 CFR 51.308(e)(1)(ii), and 40 CFR Part 51, Appendix Y. Electric generating units covered under and complying with 15A NCAC 02D .2400, Clean Air Interstate Rules, are considered to be in compliance with the BART requirements for nitrogen oxides and sulfur dioxide under this Rule. (g) The owner or operator of a BART-eligible source required to install BART under this Rule shall have installed and begun operation of the BART controls by June 1, 2010. (h) "Guidelines for Determining Best Available Retrofit Technology for Coal-fired Power Plants and Other Existing Stationary Facilities" is incorporated by reference, exclusive of appendix E, and shall include any later amendments or editions. This document, which was published in the Federal Register on February 6, 1980 (45 FR 8210), is EPA publication No. 450/3– 80–009b and can be obtained from the U.S. Department of Commerce, National Technical Information Service, 5285 Port Royal Road, Springfield, Virginia 22161 for eighty-four dollars ($84.00). It is also available for inspection at the National Archives and Records Administration (NARA). Information on the availability of this material may be found at: http://www.archives.gov/federal_register/code_of_federal_regul ations/ibr_locations.html. Authority G.S.143-215/3(a)(1); 143-215.107(a)(5),(10). * * * * * * * * * * * * * * * * * * * * Notice is hereby given in accordance with G.S. 150B-21.2 that the Coastal Resources Commission intends to amend the rule(s) cited as 15A NCAC 07H .1102-.1103, .1203, .1302-.1303, .1403, PROPOSED RULES 20:17 NORTH CAROLINA REGISTER March 1, 2006 1453 .1503, .1603, .1703, .1803, .1903, .2003, .2102-.2103, .2203, .2303, .2403, .2503, .2603, .2703; 07K .0208. Proposed Effective Date: July 1, 2006 Public Hearing: Date: March 25, 2006 Time: 5:00 p.m. Location: Ramada Inn, 1701 South Virginia Trail, Kill Devil Hills, NC Reason for Proposed Action: 15A NCAC 07H – The General permit structure was created to facilitate the rapid permitting of low impact, commonly proposed projects. While the maximum fee that the agency can charge to process GPs has been legislatively capped at $400 since 1989, the costs associated with issuing GPs have increased over time. Staff perform site visits with these projects so when travel, record keeping and compliance are factored in, staff estimates that most GP costs over $200 each to issue. The agency proposed to increase its GP application fees within the legislative cap to offset the higher costs of processing permit applications. 15A NCAC 07K .0208 – Standardize language to be consistent with other current CRC rules and to add a time requirement for project construction. Procedure by which a person can object to the agency on a proposed rule: Objections may be filed in writing and addressed to the Director of Coastal Management, 400 Commerce Avenue, Morehead City, NC 28557 Comments may be submitted to: Charles S. Jones, 400 Commerce Avenue, Morehead City, NC 28557, phone (252) 808- 2808, fax (252) 247-3330, email charles.s.jones@ncmail.net Comment period ends: May 1, 2006 Procedure for Subjecting a Proposed Rule to Legislative Review: If an objection is not resolved prior to the adoption of the rule, a person may also submit written objections to the Rules Review Commission. If the Rules Review Commission receives written and signed objections in accordance with G.S. 150B-21.3(b2) from 10 or more persons clearly requesting review by the legislature and the Rules Review Commission approves the rule, the rule will become effective as provided in G.S. 150B-21.3(b1). The Commission will receive written objections until 5:00 p.m. on the day following the day the Commission approves the rule. The Commission will receive those objections by mail, delivery service, hand delivery, or facsimile transmission. If you have any further questions concerning the submission of objections to the Commission, please call a Commission staff attorney at 919-733-2721. Fiscal Impact: A copy of the fiscal note can be obtained from the agency. State 15A NCAC 07H .2303, .2603 Local Substantive (>$3,000,000) None 15A NCAC 07H .1102, .1103, .1203, .1302- .1303, .1403 .1503, .1603, .1703, .1803, .1903, .2003, .2102-.2103, .2203, .2403, .2503, .2703; 07K .0208 SUBCHAPTER 07H - STATE GUIDELINES FOR AREAS OF ENVIRONMENTAL CONCERN SECTION .1100 - GENERAL PERMIT FOR CONSTRUCTION OF BULKHEADS AND THE PLACEMENT OF RIPRAP FOR SHORELINE PROTECTION IN ESTUARINE AND PUBLIC TRUST WATERS AND OCEAN HAZARD AREAS 15A NCAC 07H .1102 APPROVAL PROCEDURES (a) The applicant must shall contact the Division of Coastal Management and complete an application form requesting approval for development. The applicant shall provide information on site location, dimensions of the project area, and his name and address. (b) The applicant must shall provide: (1) confirmation that a written statement has been obtained signed by the adjacent riparian property owners indicating that they have no objections to the proposed work; or (2) confirmation that the adjacent riparian property owners have been notified by certified mail of the proposed work. Such notice should shall instruct adjacent property owners to provide any written comments on the proposed development in writing for consideration by permitting officials to the Division of Coastal Management within ten days of receipt of the notice, and, indicate that no response will shall be interpreted as no objection. DCM staff will shall review all comments and determine, based on their relevance to the potential impacts of the proposed project, if the proposed project can be approved by a General Permit. If DCM staff determines that the project exceeds the guidelines established by the General Permit Process, finds that the comments are worthy of more in-depth review, the applicant will be notified that he must submit an application for a major development permit. (c) No work shall begin until an on-site meeting is held with the applicant and appropriate Division of Coastal Management representative so that the proposed bulkhead alignment can be appropriately marked. Written authorization to proceed with the proposed development may be issued during this visit. Construction of the bulkhead or riprap structure must shall be begin completed within 90 days of this visit or the general authorization expires and it will be necessary to re-examine the alignment to determine if the general authorization can be reissued. Authority G.S. 113A-107(a); 113A-107(b); 113A-113(b); 113A-118.1; 113A-124. PROPOSED RULES 20:17 NORTH CAROLINA REGISTER March 1, 2006 1454 15A NCAC 07H .1103 PERMIT FEE The applicant must shall pay a permit fee of one two hundred dollars ($100.00) ($200.00) for riprap and bulkhead structures sited at or above normal high water or normal water level, or a permit fee of four hundred dollars ($400.00) for bulkhead and riprap structures sited below normal high water or normal water level. Permit fees shall be paid by check or money order payable to the Department. Authority G.S. 113A-107; 113A-113(b); 113A-118.1; 113A-119; 113-119.1; 113A-124. SECTION .1200 - GENERAL PERMIT FOR CONSTRUCTION OF PIERS: DOCKS: AND BOAT HOUSES IN ESTUARINE AND PUBLIC TRUST WATERS AND OCEAN HAZARD AREAS 15A NCAC 07H .1203 PERMIT FEE The applicant must shall pay a permit fee of one two hundred dollars ($100.00) ($200.00) by check or money order payable to the Department. Authority G.S. 113A-107; 113A-113(b); 113A-118.1; 113A-119; 113-119.1; 113A-124. SECTION .1300 – GENERAL PERMIT TO MAINTAIN: REPAIR AND CONSTRUCT BOAT RAMPS ALONG ESTUARINE AND PUBLIC TRUST SHORELINES AND INTO ESTUARINE AND PUBLIC TRUST WATERS 15A NCAC 07H .1302 APPROVAL PROCEDURES (a) The applicant must shall contact the Division of Coastal Management and complete an application form requesting approval for development. The applicant shall provide information on site location, dimensions of the project area, and his name and address. (b) The applicant must shall provide: (1) confirmation that a written statement has been obtained signed by the adjacent riparian property owners indicating that they have no objections to the proposed work; or (2) confirmation that the adjacent riparian property owners have been notified by certified mail of the proposed work. Such notice should shall instruct adjacent property owners to provide any written comments on the proposed development in writing for consideration by permitting officials to the Division of Coastal Management within ten days of receipt of the notice, and, indicate that no response will shall be interpreted as no objection. DCM staff will shall review all comments and determine, based on their relevance to the potential impacts of the proposed project, if the proposed project can be approved by a General Permit. If DCM staff determines that the project exceeds the guidelines established by the General Permit Process, finds that the comments are worthy of more in-depth review, the applicant will be notified that he must submit an application for a major development permit. (c) No work shall begin until an on-site meeting is held with the applicant and appropriate Division of Coastal Management representative so that the proposed boat ramp alignment can be appropriately marked. Written authorization to proceed with the proposed development will be issued during this visit. Construction of the boat ramp structure must begin shall be completed within 90 days of this visit or the general authorization expires. Authority G.S. 113A-107(a); 113A-107(b); 113A-113(b); 113A-118.1; 113A-124. 15A NCAC 07H .1303 PERMIT FEE The applicant must shall pay a permit fee of one two hundred dollars ($100.00) ($200.00) by check or money order payable to the Department. Authority G.S. 113A-107; 113A-113(b); 113A-118.1; 113A-119; 113A-119.1; 113A-124. SECTION .1400 - GENERAL PERMIT FOR CONSTRUCTION OF WOODEN GROINS IN ESTUARINE AND PUBLIC TRUST WATERS AND OCEAN HAZARD AREAS 15A NCAC 07H .1403 PERMIT FEE The applicant must shall pay a permit fee of one two hundred dollars ($100.00) ($200.00) by check or money order payable to the Department. Authority G.S. 113A-107; 113A-113(b); 113A-118.1; 113A-119; 113A-119.1; 113A-124. SECTION .1500 - GENERAL PERMIT FOR EXCAVATION WITHIN OR CONNECTING TO EXISTING CANALS: CHANNELS: BASINS: OR DITCHES IN ESTUARINE WATERS: PUBLIC TRUST WATERS: AND ESTUARINE SHORELINE AEC'S 15A NCAC 07H .1503 APPLICATION FEE The applicant must shall pay a permit fee of one two hundred dollars ($100.00) ($200.00) for maintenance excavation of 100 cubic yards or less or four hundred dollars ($400.00) for maintenance excavation of over 100 to 1,000 cubic yards. Permit fees shall be paid by check or money order payable to the Department. Authority G.S. 113A-107; 113A-113(b); 113A-118.1; 113A-119; 113A-119.1; 113A-124. SECTION .1600 - GENERAL PERMIT FOR THE INSTALLATION OF AERIAL AND SUBAQUEOUS UTILITY LINES WITH ATTENDANT STRUCTURES IN COASTAL WETLANDS: ESTUARINE WATERS: PUBLIC TRUST WATERS AND ESTUARINE SHORELINES PROPOSED RULES 20:17 NORTH CAROLINA REGISTER March 1, 2006 1455 15A NCAC 07H .1603 PERMIT FEE The applicant must shall pay a permit fee of one four hundred dollars ($100.00) ($400.00) by check or money order payable to the Department. Authority G.S. 113-229(c1); 113A-107; 113A-113(b); 113A-118.1; 113A-119; 113A-119.1. SECTION .1700 - GENERAL PERMIT FOR EMERGENCY WORK REQUIRING A CAMA AND/OR A DREDGE AND FILL PERMIT 15A NCAC 07H .1703 PERMIT FEE The agency shall not charge a fee for permitting work necessary to respond to emergency situations except in the case when a temporary erosion control structure is used. In those cases, the applicant must shall pay a permit fee of two four hundred and fifty dollars ($250.00) ($400.00) by check or money order made payable to the Department. Authority G.S. 113-229(cl); 113A-107(a),(b); 113A-113(b); 113A-118.1; 113A-119. SECTION .1800 - GENERAL PERMIT TO ALLOW BEACH BULLDOZING LANDWARD OF THE MEAN HIGH WATER MARK IN THE OCEAN HAZARD AEC 15A NCAC 07H .1803 PERMIT FEE The applicant must shall pay a permit fee of one four hundred dollars ($100.00) ($400.00) by check or money order payable to the Department. Authority G.S. 113-229(c1); 113A-107; 113A-113(b); 113A-118.1; 113A-119; 113A-119.1. SECTION .1900 – GENERAL PERMIT TO ALLOW FOR TEMPORARY STRUCTURES WITHIN COASTAL SHORELINES AND OCEAN HAZARD AECS 15A NCAC 07H .1903 PERMIT FEE The applicant must shall pay a permit fee of one two hundred dollars ($100.00) ($200.00) by check or money order payable to the Department. Authority G.S. 113-229(c1); 113A-107; 113A-113(b); 113A-118.1; 113A-119; 113A-119.1. SECTION .2000 - GENERAL PERMIT FOR AUTHORIZING MINOR MODIFICATIONS AND REPAIR TO EXISTING PIER/MOORING FACILITIES IN ESTUARINE AND PUBLIC TRUST WATERS AND OCEAN HAZARD AREAS 15A NCAC 07H .2003 PERMIT FEE The applicant must shall pay a permit fee of one two hundred dollars ($100.00) ($200.00) by check or money order payable to the Department. Authority G.S. 113A-107; 113A-118.1; 113A-119.1. 15A NCAC 07H .2102 APPROVAL PROCEDURES (a) The applicant must shall contact the Division of Coastal Management and request approval for development. The applicant shall provide information on site location, dimensions of the project area, and his name and address. (b) The applicant must shall provide: (1) confirmation that a written statement has been obtained signed by the adjacent riparian property owners indicating that they have no objections to the proposed work; or (2) confirmation that the adjacent riparian property owners have been notified by certified mail of the proposed work. Such notice should shall instruct adjacent property owners to provide any written comments on the proposed development in writing for consideration by permitting officials to the Division of Coastal Management within ten days of receipt of the notice, and, indicate that no response will shall be interpreted as no objection. DCM staff will shall review all comments and determine, based on their relevance to the potential impacts of the proposed project, if the proposed project can be approved by a General Permit. If DCM staff determines that the project exceeds the guidelines established by the General Permit Process, finds that the comments are worthy of more in-depth review, the applicant will be notified that he must submit an application for a major development permit. (c) No work shall begin until an on-site meeting is held with the applicant and appropriate Division of Coastal Management representative so that the proposed breakwater alignment can be appropriately marked. Written authorization to proceed with the proposed development may be issued during this visit. Construction of the breakwater must begin shall be completed within 90 days of this visit or the general authorization expires and it will be necessary to re-examine the alignment to determine if the general authorization can be reissued. Authority G.S. 113A-107; 113A-118.1. 15A NCAC 07H .2103 PERMIT FEE The applicant must shall pay a permit fee of one two hundred dollars ($100.00) ($200.00). This fee may shall be paid by check or money order made payable to the Department. Authority G.S. 113A-107; 113A-118.1; 113A-119.1. SECTION .2200 - GENERAL PERMIT FOR CONSTRUCTION OF FREESTANDING MOORINGS IN ESTUARINE WATERS AND PUBLIC TRUST AREAS AND OCEAN HAZARD AREAS 15A NCAC 07H .2203 PERMIT FEE PROPOSED RULES 20:17 NORTH CAROLINA REGISTER March 1, 2006 1456 The applicant must shall pay a permit fee of one two hundred dollars ($100.00) ($200.00). This fee may shall be paid by check or money order made payable to the Department. Authority G.S. 113A-107; 113A-118.1; 113A-119; 113A-119.1. SECTION .2300 - GENERAL PERMIT FOR REPLACEMENT OF EXISTING BRIDGES AND CULVERTS IN ESTUARINE WATERS, ESTUARINE AND PUBLIC TRUST SHORELINES, PUBLIC TRUST AREAS, AND COASTAL WETLANDS 15A NCAC 07H .2303 PERMIT FEE The applicant shall pay a permit fee of one four hundred dollars ($100.00) ($400.00). This fee may shall be paid by check or money order made payable to the Department. Authority G.S. 113A-107; 113A-118.1; 113A-119; 113A-119.1; 113A-124. SECTION .2400 – GENERAL PERMIT FOR PLACEMENT OF RIPRAP FOR WETLAND PROTECTION IN ESTUARINE AND PUBLIC TRUST WATERS 15A NCAC 07H .2403 PERMIT FEE The applicant must shall pay a permit fee of fifty two hundred dollars ($50.00) ($200.00). This fee may shall be paid by check or money order made payable to the Department. Authority G.S. 113A-107; 113A-118.1; 113A-119.1. SECTION .2500 - EMERGENCY GENERAL PERMIT, TO BE INITIATED AT THE DISCRETION OF THE SECRETARY OF THE DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES FOR REPLACEMENT OF STRUCTURES, THE RECONSTRUCTION OF PRIMARY OR FRONTAL DUNE SYSTEMS, AND THE MAINTENANCE EXCAVATION OF EXISTING CANALS, BASINS, CHANNELS, OR DITCHES, DAMAGED, DESTROYED, OR FILLED IN BY HURRICANES OR TROPICAL STORMS, PROVIDED ALL REPLACEMENT, RECONSTRUCTION AND MAINTENANCE EXCAVATION ACTIVITIES CONFORM TO ALL CURRENT STANDARDS 15A NCAC 07H .2503 PERMIT FEE The standard permit fee of one two hundred dollars ($100.00) ($200.00) has been waived for this General Permit. Authority G.S. 113A-107; 113A-118.1. SECTION .2600 – GENERAL PERMIT FOR CONSTRUCTION OF WETLAND, STREAM AND BUFFER MITIGATION SITES BY THE NORTH CAROLINA ECOSYSTEM ENHANCEMENT PROGRAM OR THE NORTH CAROLINA WETLANDS RESTORATION PROGRAM 15A NCAC 07H .2603 PERMIT FEE The applicant shall pay a permit fee of one four hundred dollars ($100.00) ($400.00). This fee shall be paid by check or money order made payable to the Department. Department of Environment and Natural Resources (DENR). Authority G.S. 113A-107; 113A-118.1; 113A-119.1. SECTION .2700 – GENERAL PERMIT FOR THE CONSTRUCTION OF RIPRAP SILLS FOR WETLAND ENHANCEMENT IN ESTUARINE AND PUBLIC TRUST WATERS 15A NCAC 07H .2703 PERMIT FEE The applicant shall pay a permit fee of one two hundred dollars ($100.00) ($200.00). This fee shall be paid by check or money order made payable to the Department. Authority G.S. 113A-107; 113A-118.1; 113A-119.1. SUBCHAPTER 07K - ACTIVITIES IN AREAS OF ENVIRONMENTAL CONCERN WHICH DO NOT REQUIRE A COASTAL AREA MANAGEMENT ACT PERMIT SECTION .0200 - CLASSES OF MINOR MAINTENANCE AND IMPROVEMENTS WHICH SHALL BE EXEMPTED FROM THE CAMA MAJOR DEVELOPMENT PERMIT REQUIREMENT 15A NCAC 07K .0208 SINGLE FAMILY RESIDENCES EXEMPTED (a) All single family residences constructed within the Estuarine Shoreline Area of Environmental Concern which are more than 40 feet landward of the mean normal high water mark or normal water level, and involve no land disturbing activity within the 40 feet buffer area are exempted from the CAMA permit requirement as long as this exemption is consistent with all other applicable CAMA permit standards and local land use plans and/or rules in effect at the time the exemption is granted. This exemption does allow for the construction of an access to the water not exceeding six feet in width in accordance with Rule 07H .0209(d)(10). (b) Within the AEC for estuarine shorelines contiguous to waters classified as Outstanding Resource Waters (ORW), no CAMA permit will be required if the proposed development is a single-family residence which has a built upon area of 25 percent or less and: (1) has no stormwater collection system; and (2) is at least 40 feet from waters classified as ORW. (c) Before beginning any work under this exemption, the Department of Environment, Health, Environment and Natural Resources representative must be notified of the proposed activity to allow on-site review. Notification may be by telephone, in person or in writing. Notification must include: (1) the name, address, and telephone number of the landowner and the location of the work, PROPOSED RULES 20:17 NORTH CAROLINA REGISTER March 1, 2006 1457 including the county, nearest community and water body; (2) the dimensions of the proposed project, including proposed landscaping and the location of normal high water or normal water level; pier, bulkhead with backfill or the area dimensions to be covered by placement of riprap material; (3) confirmation that a written statement has been obtained, signed by the adjacent riparian property owners indicating that they have no objections to the proposed work. (These statements do not have to be presented at the time of notification of intent to perform work, but the permittee must make it available to CRC agents at their request.) (d) In eroding areas, this exemption shall apply only when, when in the opinion of the local permit officer, officer has determined that the house has been located the maximum feasible distance back on the lot but not less than forty feet. (e) Construction of the structure shall be completed within one year of the issuance date of this permit or the general authorization expires. Authority G.S. 113A-103(5)c. * * * * * * * * * * * * * * * * * * * * Notice is hereby given in accordance with G.S. 150B-21.2 that the Commission for Health Services intends to adopt the rules cited as 15A NCAC 13B .0531-.0547. Proposed Effective Date: January 1, 2007 Public Hearing: Date: April 3, 2006 Time: 2:00 p.m. Location: Ground Floor Hearing Room, Archdale Building, 512 N. Salisbury St., Raleigh, NC Reason for Proposed Action: These Rules are intended to provide regulatory guidance for the development of new and the continued operation of construction and demolition landfills (CDLF) operating on top of closed municipal solid waste (MSW) landfills. Procedure by which a person can object to the agency on a proposed rule: Persons may submit written objections to the proposed rules by contacting: Ed Mussler, DENR – Division of Waste Management, Solid Waste Section, 1646 Mail Service Center, Raleigh, NC 27699-1646, fax (919) 733-4810, email ed.mussler@ncmail.net. Comments may be submitted to: Ed Mussler, DENR – Division of Waste Management, Solid Waste Section, 1646 Mail Service Center, Raleigh, NC 27699-1646, phone (919) 508- 8495, fax (919) 733-4810, email ed.mussler@ncmail.net. Comment period ends: May 1, 2006 Procedure for Subjecting a Proposed Rule to Legislative Review: If an objection is not resolved prior to the adoption of the rule, a person may also submit written objections to the Rules Review Commission. If the Rules Review Commission receives written and signed objections in accordance with G.S. 150B-21.3(b2) from 10 or more persons clearly requesting review by the legislature and the Rules Review Commission approves the rule, the rule will become effective as provided in G.S. 150B-21.3(b1). The Commission will receive written objections until 5:00 p.m. on the day following the day the Commission approves the rule. The Commission will receive those objections by mail, delivery service, hand delivery, or facsimile transmission. If you have any further questions concerning the submission of objections to the Commission, please call a Commission staff attorney at 919-733-2721. Fiscal Impact: A copy of the fiscal note can be obtained from the agency. State Local 15A NCAC 13B .0532-.0547 Substantive (>$3,000,000) None 15A NCAC 13B .0531 CHAPTER 13 – SOLID WASTE MANAGEMENT SUBCHAPTER 13B - SOLID WASTE MANAGEMENT SECTION .0500 - DISPOSAL SITES 15A NCAC 13B .0531 PURPOSE, SCOPE, AND APPLICABILITY FOR CONSTRUCTION AND DEMOLITION LANDFILLS (a) Purpose. The purpose of Rules .0531 through .0547 of this Section is to regulate the siting, design, construction, operation, closure and post-closure of all construction and demolition solid waste landfill (C&DLF) facilities and units. (b) Scope. Rules .0531 through .0547 of this Section describe the performance standards, application requirements, and permitting procedures for all C&DLF facilities and units. Rules .0531 through .0547 of this Section are intended to: (1) establish the State standards for C&DLF facilities and units to provide for effective disposal practices and protect the public health and environment; and (2) coordinate other State Rules applicable to landfills. (c) Applicability. Owners and operators of C&DLF facilities and units shall conform to the requirements of Rules .0531 through .0547 of this Section as follows: (1) C&DLF units which do not receive solid waste after January 1, 2008, shall comply with the Conditions of the Solid Waste Permit and Rule .0510 of this Section. (2) C&DLF units which continue to receive waste after January 1, 2008, shall comply with Rule .0547 of this Section, at the time of closure of the unit(s). PROPOSED RULES 20:17 NORTH CAROLINA REGISTER March 1, 2006 1458 (3) C&DLF units permitted after January 1, 2007 shall comply with the requirements of Rules .0531 through .0546 of this Section. (d) Owners and operators of a C&DLF facility shall comply with any other applicable Federal, State and Local laws, rules, regulations, or other requirements. Authority G.S. 130A-294. 15A NCAC 13B .0532 DEFINITIONS FOR C&DLF FACILITIES This Rule contains definitions for terms that appear throughout the Rules pertaining to Construction and Demolition Landfills, Rules .0531 through .0547 of this Section; additional definitions appear in the specific rules to which they apply. (1) "100-year flood" means a flood that has a one-percent or greater chance of recurring in any given year or a flood of a magnitude equaled or exceeded once in 100 years on average over a significantly long period. (2) "Active life" means the period of operation beginning with the initial receipt of C&D solid waste and ending at completion of closure activities in accordance with Rule .0543 of this Section. (3) "Active portion" means that part of a facility or unit(s) that has received or is receiving wastes and that has not been closed in accordance with Rule .0543 of this Section. (4) "Aquifer" means a geological formation, group of formations, or portion of a formation capable of yielding ground water. (5) "Areas susceptible to mass movement" means those areas of influence (i.e., areas characterized as having an active or substantial possibility of mass movement) where the movement of earth material at, beneath, or adjacent to the C&DLF unit(s), because of natural or man-induced events, results in the downslope transport of soil and rock material by means of gravitational influence. Areas of mass movement include, but are not limited to, landslides, avalanches, debris slides and flows, soil fluction, block sliding, and rock fall. (6) "Base liner system" means the liner system installed on the C&DLF unit's foundation to control the flow of leachate. (7) "Cap system" means a liner system installed over the C&DLF unit(s) to minimize infiltration of precipitation and contain the wastes. (8) "C&D solid waste" means solid waste generated solely from the construction, remodeling, repair, or demolition operations on pavement, and buildings or structures. C&D waste does not include municipal and industrial wastes that may be generated by the on-going operations at buildings or structures. (9) "Floodplain" means the lowland and relatively flat areas adjoining inland and coastal waters, including flood-prone areas of offshore islands, which are inundated by the 100-year flood. (10) "Ground water" means water below the land surface in a zone of saturation. (11) "Hazardous Waste" means a solid waste as defined in G.S.130A-290 (a)(8). "Hazardous Waste" does not include those solid wastes excluded from regulation pursuant to 40 CFR 261.4, incorporated by reference in 15A NCAC 13A .0106. "Hazardous Waste" does include hazardous waste generated by conditionally exempt small quantity generators as defined in 40 CFR 261.5, incorporated by reference in 15A NCAC 13A .0106. (12) "Industrial solid waste" means solid waste generated by manufacturing or industrial processes that is not a hazardous waste regulated under Subtitle C of RCRA. Such waste may include, but is not limited to, waste resulting from the following manufacturing processes: electric power generation; fertilizer/agricultural chemicals; food and related products/by-products; inorganic chemicals; iron and steel manufacturing; leather and leather products; nonferrous metals manufacturing/foundries; organic chemicals; plastics and resins manufacturing; pulp and paper industry; rubber and miscellaneous plastic products; stone, glass, clay, and concrete products; textile manufacturing; transportation equipment; and water treatment. This term does not include mining waste or oil and gas waste. (13) "Karst terranes" means areas where karst topography, with its characteristic surface and subterranean features, is developed as the result of dissolution of limestone, dolomite, or other soluble rock. Characteristic physiographic features present in karst terranes include, but are not limited to, sinkholes, sinking streams, caves, large springs, and blind valleys. (14) "Landfill facility" means all contiguous land and structures, waste management unit(s), other appurtenances, and improvements on the land within the legal description of the site included in or proposed for the Solid Waste Permit. Existing facilities are those facilities which were permitted by the Division prior to July 1, 2007. Facilities permitted on or after January 1, 2007 are new facilities. (15) "Landfill unit" means a discrete area of land or an excavation, that receives a particular type of waste such as C&D, industrial, or municipal solid waste, and is not a land application unit, surface impoundment, injection well, or waste PROPOSED RULES 20:17 NORTH CAROLINA REGISTER March 1, 2006 1459 pile, as defined under 40 CFR Part 257. Such a landfill unit may be publicly or privately owned, may be located at a MSWLF, an industrial landfill facility, or other waste management facility. (16) "Lateral expansion" means a horizontal expansion of the waste boundaries of an existing C&DLF unit(s). (17) "Liner system" means an engineered environmental control system which can incorporate filters, drainage layers, compacted soil liners, geomembrane liners, piping systems, and connected structures. (18) "Liquid waste" means any waste material that is determined to contain "free liquids" as defined by Method 9095 (Paint Filter Liquids Test), S.W. 846. (19) "Licensed Geologist" means individual who is licensed to practice geology in accordance with N.C.G.S. Chapter 89E. (20) "Open burning" means the combustion of any solid waste without: (a) control of combustion air to maintain adequate temperature for efficient combustion; (b) containment of the combustion reaction in an enclosed device to provide sufficient residence time and mixing for complete combustion; and (c) control of the emission of the combustion products. (21) "Poor foundation conditions" means those areas where features exist which indicate that a natural or man-induced event may result in inadequate foundation support for the structural components of a C&DLF unit(s). (22) "Professional Engineer" means individual who is licensed to practice engineering in accordance with G.S. 89C. (23) "Project engineer" means the official representative of the permittee who is licensed to practice engineering in the State of North Carolina, who is responsible for observing, documenting, and certifying that activities related to the quality assurance of the construction of the solid waste management unit conforms to the Division approved plan, the permit to construct and the rules specified in this Section. All certifications must bear the seal and signature of the professional engineer and the date of certification. (24) "Registered Land Surveyor" means individual who is licensed to practice surveying in accordance with G.S. 89C. (25) "Run-off" means any rainwater that drains over land from any part of a facility or unit. (26) "Run-on" means any rainwater that drains over land onto any part of a facility. (27) "Structural components" means liners, leachate collection systems, final covers, run-on or run-off systems, and any other component used in the construction and operation of the C&DLF that is necessary for protection of human health and the environment. (28) "Unstable area" means a location that is susceptible to natural or human-induced events or forces capable of impairing the integrity of some or all of the landfill structural components responsible for preventing releases from a landfill. Unstable areas can include poor foundation conditions, areas susceptible to mass movements, and Karst terranes. (29) "Uppermost aquifer" means the geologic formation nearest the natural ground surface that is an aquifer, as well as, lower aquifers that are hydraulically interconnected with this aquifer within the facility's property boundary. (30) "Washout" means the carrying away of solid waste by waters of the base flood. Authority G.S. 130A-294. 15A NCAC 13B .0533 GENERAL APPLICATION REQUIREMENTS AND PROCESSING FOR C&DLF FACILITIES (a) Applicability. Owners or operators of a proposed or existing C&DLF unit or facility shall submit an application document as detailed in Rule .0535 of this Section in accordance with the criteria and scheduling requirements set forth in this Paragraph. (1) New facility. Owners or operators proposing to establish a C&DLF facility or unit in accordance with the following criteria shall submit a Site Study and subsequently, an application for a permit to construct as set forth in Paragraph (a) of Rule .0535 of this Section. A new facility permit application is required when: (A) The owner or operator proposes to establish a new facility not previously permitted by the Division. (B) The owner or operator proposes to expand the landfill facility in order to expand the C&DLF unit(s) boundary approved in accordance with Subparagraph (a)(1) of Rule .0536 of this Section. (2) Amendment to the permit. The owner or operator shall prepare an application to amend the permit to construct for any subsequent phase of landfill development in accordance with Paragraph (b) of Rule .0535 of this Section and submit the application: (A) at least 180 days prior to the date scheduled for commencing construction; or PROPOSED RULES 20:17 NORTH CAROLINA REGISTER March 1, 2006 1460 (B) five years from the issuance date of the initial permit to operate or as specified in the effective permit. (3) Substantial amendment to the permit. A permit issued in accordance with Paragraph (c) of this Rule approves a facility plan for the life of the C&DLF facility and a set of plans for the initial phase of landfill development. The owner or operator shall prepare an application in accordance with Paragraph (c) of Rule .0535 of this Section and submit the application when there is: (A) a substantial change in accordance to G.S. 130A-294(b1)(1); or (B) a transfer of ownership of the C&DLF facility. (4) Modifications to the permit. An owner or operator proposing changes to the plans approved in the permit shall request prior approval from the Division in accordance with Paragraph (d) of Rule .0535 of this Section. (b) Application format guidelines. All applications and plans required by Rules .0531 through .0547 of this Section shall be prepared in accordance with the following guidelines: (1) The initial application shall: (A) contain a cover sheet stating the project title and location, the applicant's name, and the engineer's name, address, signature, date of signature and seal; and (B) contain a statement defining the purpose of the submittal signed and dated by the applicant. (2) The text of the application shall: (A) be submitted in a three ring binder; (B) contain a table of contents or index outlining the body of the application and the appendices; (C) be paginated consecutively; and (D) identify revised text by noting the date of revision on the page. (3) Drawings. The engineering drawings for all landfill facilities shall be submitted using the following format. (A) The sheet size with title blocks shall be at least 22 inches by 34 inches. (B) The cover sheet shall include the project title, applicant's name, sheet index, legend of symbols, and the engineer's name, address, signature, date of signature, and seal. (C) Where the requirements do not explicitly specify a minimum scale, maps and drawings shall be prepared at a scale that adequately illustrates the subject requirement(s). (4) Number of copies. An applicant shall submit a minimum of three copies of each original application document and any revisions to the Division. The Division may request additional copies as necessary. The Division may request submittal of relevant documents in electronic format. (c) Permitting and Public Information Procedures. (1) Purpose and Applicability. (A) Purpose. The permitting process shall provide for public review of and input to permit documents containing the applicable design and operating conditions and shall provide for consideration of comments received and notification to the public of the permit design. (B) Applicability. Applications for a Permit to Construct for a new facility or a substantial amendment to the permit for an existing facility or a modification to the permit involving corrective remedy selection required by Paragraph (d) through (h) of Rule .0545 of this Section shall be subject to the requirements of Subparagraphs (c)(2) through (c)(9) of this Rule. Applications submitted in accordance with Subparagraphs (a)(2) and (a)(4) of this Rule are not subject to the requirements of this Paragraph. (2) Draft Permits. (A) Once an application is complete, the Division shall tentatively decide whether the permit should be issued or denied. (B) If the Division decides the permit should be denied, a notice to deny shall be sent to the applicant. Reasons for permit denial shall be in accordance with Rule .0203(e) of this Subchapter. (C) If the Division tentatively decides the permit should be issued, a draft permit shall be prepared. (D) A draft permit shall contain (either expressly or by reference) all applicable terms and conditions for the permit. (E) All draft permits shall be subject to the procedures of Subparagraphs (3) through (9) of this Paragraph, unless otherwise specified in those Subparagraphs. (3) Fact Sheet. (A) A fact sheet shall be prepared for every draft permit. (B) The fact sheet shall include a brief description of the type of facility or activity, which is the subject of the draft permit; a description of the area to be served and of the volume and PROPOSED RULES 20:17 NORTH CAROLINA REGISTER March 1, 2006 1461 characteristics of the waste stream, and a projection of the useful life of the landfill; a brief summary of the basis for the draft permit conditions including references to applicable statutory or regulatory provisions and appropriate supporting references to the permit application; a description of the procedures for reaching a decision on the draft permit, including the beginning and ending dates of the comment period under Subparagraph (4) of this Paragraph and the address where comments will be received; procedures for requesting a public hearing; and any other procedures by which the public may participate in the decision; and name and telephone number of a person to contact for additional information. (C) The Division shall send this fact sheet to the applicant and it shall be made available to the public for review or copying at the central office of the Division of Waste Management – Solid Waste Section. The fact sheet may be made available on the Division web site. (4) Public Notice of Permit Actions and Public Hearings. (A) The Division shall give public notice when a draft permit has been prepared; or a public hearing has been scheduled under Subparagraph (6) of this Paragraph; or a notice of intent to deny a permit has been prepared under Part (2)(B) of this Paragraph. (B) No public notice is required when a request for a permit modification is denied. (C) Written notice of denial shall be given to the applicant. (D) Public notices may describe more than one permit or permit action. (E) Public notice of the preparation of a draft permit or a notice of intent to deny a permit shall allow at least 45 days for public comment. (F) Public notice of a public hearing shall be given at least 15 days before the hearing. Public notice of the hearing may be given at the same time as public notice of the draft permit and the two notices may be combined. (G) Public notice of activities described in Part (A) of this Subparagraph shall be given by posting in the post office and public places of the municipalities nearest the site under consideration; or by publication in a daily or weekly local newspaper of general circulation; or by publication on the Division website; or by any other method deemed necessary or appropriate by the Division to give actual notice of the activities to persons potentially affected. (H) General Public Notices. All public notices issued under this Part shall at minimum contain name, address and phone number of the office processing the permit action for which notice is being given; name and address of the owner and operator applying for the permit; a brief description of the business conducted at the facility or activity described in the permit application including the size and location of the facility and type of waste accepted; a brief description of the comment procedures required by Subparagraphs (5) and (6) of this Paragraph, including a statement of procedures to request a public hearing, unless a hearing has already been scheduled, and other procedures by which the public may participate in the permit decision; name, address, and telephone number of a person from whom interested persons may obtain further information; a description of the time frame and procedure for making an approval or disapproval decision of the application; and any additional information considered necessary or proper as required by the Division. (I) Public Notices for Public Hearing. In addition to the general public notice described in Part (4)(A) of this Paragraph, the public notice of a public hearing shall contain the date, time, and place of the public hearing; a brief description of the nature and purpose of the public hearing, including the applicable rules and procedures; and a concise statement of the issues raised by the persons requesting the hearing. (5) Public Comments and Requests for Public Hearings. During the public comment period provided, any interested person may submit written comments on the draft permit and may request a public hearing, if no hearing has already been scheduled. A request for a public hearing shall be in writing and shall state the PROPOSED RULES 20:17 NORTH CAROLINA REGISTER March 1, 2006 1462 nature of the issues proposed to be raised in the hearing. All comments shall be considered in making the decision and shall be answered as provided in Subparagraph (9) of this Paragraph. (6) Public Hearings. (A) A public hearing shall be held whenever on the basis of requests a significant degree of public interest in a draft permit(s) is determined. The Division may also hold a public hearing at its discretion whenever such a hearing might clarify one or more issues involved in the permit decision. Public hearings held pursuant to this Rule shall be at a location convenient to the nearest population center to the subject facility. Public notice of the hearing shall be given as specified in Subparagraph (4) of this Paragraph. (B) Any person may submit oral or written statements and data concerning the draft permit. Reasonable limits may be set upon the time allowed for oral statements, and the submission of statements in writing may be required. The public comment period under Subparagraph (4) of this Paragraph shall be automatically extended to the close of any public hearing under this Subparagraph. The hearing officer may also extend the comment period by so stating at the hearing. (C) A recording or written transcript of the hearing shall be made available to the public for review or copying at the central office of the Division of Waste Management - Solid Waste Section. (7) Reopening of the Public Comment Period. (A) If any data, information, or arguments submitted during the public comment period appear to raise substantial new questions concerning a permit action, the Division may prepare a new draft permit, appropriately modified, under Subparagraph (2) of this Paragraph; prepare a fact sheet or revised fact sheet under Subparagraph (3) of this Paragraph and reopen the comment period under Subparagraph (4) of this Paragraph; or reopen or extend the comment period under Subparagraph (4) of this Paragraph to give interested persons an opportunity to comment on the information or arguments submitted. (B) Comments filed during the reopened comment period shall be limited to the substantial new questions that caused its reopening. The public notice under Subparagraph (4) of this Paragraph shall define the scope of the reopening. (C) Public notice of any of the actions of this Subparagraph shall be issued under Subparagraph (4) of this Paragraph. (8) Permit Decision. (A) After the close of the public comment period under Subparagraph (4) of this Paragraph on a draft permit or a notice of intent to deny a permit, the Division shall issue a permit decision. The Division shall notify the applicant and each person who has submitted a written request for notice of the permit decision. For the purposes of this Subparagraph, a permit decision means a decision to issue, deny or modify a permit. (B) A permit decision shall become effective upon the date of the service of notice of the decision unless a later date is specified in the decision. (9) Response to Comments. (A) At the time that a permit decision is issued under Subparagraph (8) of this Paragraph, the Division shall issue a response to comments. This response shall specify which provisions, if any, of the draft permit have been changed in the permit decision, and the reasons for the change; and briefly describe and respond to all significant comments on the draft permit raised during the public comment period, or during any public hearing. (B) The response to comments shall be made available to the public for review or copying at the central office of the Division of Waste Management – Solid Waste Section. (d) Permit approval or denial. The Division shall review all permit applications in accordance with Rule .0203 of Section .0200 - PERMITS FOR SOLID WASTE MANAGEMENT FACILITIES. Authority G.S. 130A-294. 15A NCAC 13B .0534 GENERAL REQUIREMENTS FOR C&DLF FACILITIES AND UNITS (a) Applicability. Permits issued by the Division for C&DLF facilities and units shall be subject to the general requirements set forth in this Rule. PROPOSED RULES 20:17 NORTH CAROLINA REGISTER March 1, 2006 1463 (b) Terms of the Permit. The Solid Waste Management Permit shall incorporate requirements necessary to comply with this Subchapter and the North Carolina Solid Waste Management Act including, but not limited to, the provisions of this Paragraph. (1) Division Approved Plan. Permits issued subsequent to the effective date of this Rule shall incorporate a Division approved plan. (A) The scope of the Division approved plan shall include the information necessary to comply with the requirements set forth in Rule .0535 of this Section. (B) The Division approved plans shall be subject to and may be limited by the conditions of the permit. (C) The Division approved plans for a new facility shall be described in the permit and shall include, but not be limited to, the Facility Plan, Rule .0537 of this Section, Engineering Plan, Rule .0539 of this Section, Construction Quality Assurance plan, Rule .0541 of this Section, Operation Plan, Rule .0542 of this Section, Closure and Post-Closure plan, Rule .0543 of this Section, and Monitoring Plans, Rule .0544 of this Section. (2) Permit provisions. All C&DLF facilities and units shall conform to the specific conditions set forth in the permit and the following general provisions. Nothing in this Subparagraph shall be construed to limit the conditions the Division may impose on a permit. (A) Duty to Comply. The permittee shall comply with all conditions of the permit, unless otherwise authorized by the Division. Any permit noncompliance, except as otherwise authorized by the Division, constitutes a violation of the Act and is grounds for enforcement action or for permit revocation, modification or suspension. (B) Duty to Mitigate. In the event of noncompliance with the permit, the permittee shall take all reasonable steps to minimize releases to the environment, and shall carry out such measures as are reasonable to prevent adverse impacts on human health or the environment. (C) Duty to Provide Information. The permittee shall furnish to the Division, any relevant information that the Division may request to determine whether cause exists for modifying, revoking or suspending the permit, or to determine compliance with the permit. The permittee shall also furnish to the Division, upon request, copies of records as required to be kept under the conditions of the permit. (D) Recordation Procedures. The permittee shall comply with the requirements of Rule .0204 of this Subchapter RECORDATION OF LAND DISPOSAL PERMITS in order for a new permit to be effective. (E) Need to Halt or Reduce Activity. It shall not be a defense for a permittee in an enforcement action to claim that it would have been necessary to halt or reduce the permitted activity in order to maintain compliance with the conditions of the permit. (F) Permit Actions. The permit may be modified, reissued, revoked, suspended or terminated in accordance with G.S. 130A-23. The filing of a request by the permittee for a permit modification, or a notification of planned changes or anticipated noncompliance, does not stay any existing permit condition. (G) No Property Rights. The permit does not convey any property rights of any sort, or any exclusive privilege. The permit is not transferable. (H) Construction. If construction does not commence within 18 months from the issuance date of the permit to construct, or a substantial amendment to the permit, or an amendment to the permit, then the permittee shall obtain written approval from the Division prior to construction and comply with any conditions of said approval. (I) Proper Operation and Maintenance. The permittee shall at all times properly operate and maintain all facilities and systems of treatment and control (and related appurtenances) which are installed or used by the permittee to achieve compliance with the conditions of the permit. Proper operation and maintenance includes effective performance, adequate funding, adequate operator staffing and training, and adequate laboratory and process controls, including appropriate quality assurance procedures. This provision requires the operation of back-up or auxiliary facilities or similar systems only PROPOSED RULES 20:17 NORTH CAROLINA REGISTER March 1, 2006 1464 when necessary to achieve compliance with the conditions of the permit. (J) Inspection and Entry. The permittee shall allow the Division or an authorized representative to enter the permittee's premises where a regulated unit(s) or activity is located or conducted, or where records are kept under the conditions of the permit; have access in order to copy any records required to be kept under the conditions of the permit; any unit(s), equipment (including monitoring and control equipment), practices or operations regulated by the Division; or monitor for the purposes of assuring permit compliance or as otherwise authorized by the Act, any substances or parameters at any location; and make photographs for the purpose of documenting items of compliance or noncompliance at waste management units, or where appropriate to protect legitimate proprietary interests, require the permittee to make such photos for the Division. (K) Waste Exclusions. Waste to be excluded from disposal in a C&DLF is listed in Rule .0542 of this Section. Permit conditions may include additional exclusions as they become necessary in order to protect the public health and the environment or to ensure proper landfill operation. (L) Additional Solid Waste Management Activities. Construction and operation of additional solid waste management activities at the landfill facility shall not impede operation or monitoring of the C&DLF unit(s) and shall be submitted to the Division for review and approval. Authority G.S. 130A-294. 15A NCAC 13B .0535 APPLICATION REQUIREMENTS FOR C&DLF FACILITIES (a) Permit for a new facility. The owner and operator of a new facility shall meet the re
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Title | North Carolina register |
Date | 2006-03-01 |
Description | Volume 20, Issue 17, (March 1, 2006) |
Digital Characteristics-A | 858 KB; 124 p. |
Digital Format |
application/pdf |
Pres Local File Path-M | \Preservation_content\StatePubs\pubs_borndigital\images_master\ |
Full Text | NORTH CAROLINA REGISTER Volume 20, Issue 17 Pages 1431 - 1550 March 1, 2006 This issue contains documents officially filed through February 8, 2006. Office of Administrative Hearings Rules Division 424 North Blount Street (27601) 6714 Mail Service Center Raleigh, NC 27699-6714 (919) 733-2678 FAX (919) 733-3462 Julian Mann III, Director Camille Winston, Deputy Director Molly Masich, Director of APA Services Dana Sholes, Publications Coordinator Julie Brincefield, Editorial Assistant Lisa Johnson, RRC Administrative Assistant IN THIS ISSUE I. EXECUTIVE ORDERS Executive Order No. 98 ...........................................1431 - 1432 Executive Order No. 99 ...........................................1433 II. IN ADDITION Brownfields Property – A Great Escape ..................1434 Tax Review Board Letters .......................................1435 - 1448 III. PROPOSED RULES Environment and Natural Resources Coastal Resources Commission ...........................1452 - 1457 Commission for Health Services ..........................1457 – 1488 Environmental Management Commission ...........1449 - 1452 Occupational Licensing Boards Cosmetic Art Examiners ......................................1488 - 1491 Medical Board......................................................1491 - 1492 Soil Scientist, Licensing of...................................1493 IV. APPROVED RULES.............................................1494 - 1529 Administration Commission for Indian Affairs Office of Historically Underutilized Businesses Environment and Natural Resources Coastal Resources Commission Wildlife Resources Commission Insurance Code Qualifications Board Manufactured Housing Board Justice Criminal Justice Education and Training Standards Commission Private Protective Services Board Sheriffs' Education and Training Standards Commission Occupational Licensing Boards Certified Public Accountants, Board of Cosmetic Art Examiners, Board of Electrical Contractors, Board of Pharmacy, Board of Veterinary Medical Board State Personnel Commission V. RULES REVIEW COMMISSION.......................1530 - 1543 VI. CONTESTED CASE DECISIONS Index to ALJ Decisions............................................1544 - 1550 For the CUMULATIVE INDEX to the NC Register go to: http://reports.oah.state.nc.us/cumulativeIndex.pl North Carolina Register is published semi-monthly for $195 per year by the Office of Administrative Hearings, 424 North Blount Street, Raleigh, NC 27601. North Carolina Register (ISSN 15200604) to mail at Periodicals Rates is paid at Raleigh, NC. POSTMASTER: Send Address changes to the North Carolina Register, 6714 Mail Service Center, Raleigh, NC 27699-6714. NORTH CAROLINA ADMINISTRATIVE CODE CLASSIFICATION SYSTEM The North Carolina Administrative Code (NCAC) has four major classifications of rules. Three of these, titles, chapters, and sections are mandatory. The major classification of the NCAC is the title. Each major department in the North Carolina executive branch of government has been assigned a title number. Titles are further broken down into chapters which shall be numerical in order. Subchapters are optional classifications to be used by agencies when appropriate. NCAC TITLES TITLE 21 LICENSING BOARDS TITLE 24 INDEPENDENT AGENCIES 1 ADMINISTRATION 2 AGRICULTURE & CONSUMER SERVICES 3 AUDITOR 4 COMMERCE 5 CORRECTION 6 COUNCIL OF STATE 7 CULTURAL RESOURCES 8 ELECTIONS 9 GOVERNOR 10A HEALTH AND HUMAN SERVICES 11 INSURANCE 12 JUSTICE 13 LABOR 14A CRIME CONTROL & PUBLIC SAFETY 15A ENVIRONMENT &NATURAL RESOURCES 16 PUBLIC EDUCATION 17 REVENUE 18 SECRETARY OF STATE 19A TRANSPORTATION 20 TREASURER 21* OCCUPATIONAL LICENSING BOARDS 22 ADMINISTRATIVE PROCEDURES (REPEALED) 23 COMMUNITY COLLEGES 24* INDEPENDENT AGENCIES 25 STATE PERSONNEL 26 ADMINISTRATIVE HEARINGS 27 NC STATE BAR 28 JUVENILE JUSTICE AND DELINQUENCY PREVENTION 1 Acupuncture 2 Architecture 3 Athletic Trainer Examiners 4 Auctioneers 6 Barber Examiners 8 Certified Public Accountant Examiners 10 Chiropractic Examiners 11 Employee Assistance Professionals 12 General Contractors 14 Cosmetic Art Examiners 16 Dental Examiners 17 Dietetics/Nutrition 18 Electrical Contractors 19 Electrolysis 20 Foresters 21 Geologists 22 Hearing Aid Dealers and Fitters 25 Interpreter/Transliterator 26 Landscape Architects 28 Landscape Contractors 29 Locksmith Licensing 30 Massage & Bodywork Therapy 31 Marital and Family Therapy 32 Medical Examiners 33 Midwifery Joint Committee 34 Funeral Service 36 Nursing 37 Nursing Home Administrators 38 Occupational Therapists 40 Opticians 42 Optometry 44 Osteopathic Examination (Repealed) 45 Pastoral Counselors, Fee-Based Practicing 46 Pharmacy 48 Physical Therapy Examiners 50 Plumbing, Heating & Fire Sprinkler Contractors 52 Podiatry Examiners 53 Professional Counselors 54 Psychology 56 Professional Engineers & Land Surveyors 57 Real Estate Appraisal 58 Real Estate Commission 60 Refrigeration Examiners 61 Respiratory Care 62 Sanitarian Examiners 63 Social Work Certification 64 Speech & Language Pathologists & Audiologists 65 Therapeutic Recreation Certification 66 Veterinary Medical 68 Substance Abuse Professionals 69 Soil Scientists 1 Housing Finance 2 Agricultural Finance Authority 3 Safety & Health Review Board 4 Reserved 5 State Health Plan Purchasing Alliance Board Note: Title 21 contains the chapters of the various occupational licensing boards and Title 24 contains the chapters of independent agencies. NORTH CAROLINA REGISTER Publication Schedule for January 2006 – December 2006 FILING DEADLINES NOTICE OF TEXT PERMANENT RULE TEMPORARY RULES Volume & issue number Issue date Last day for filing Earliest date for public hearing End of required comment period Deadline to submit to RRC for review at next meeting Earliest Eff. Date of Permanent Rule Delayed Eff. Date of Permanent Rule (first legislative day of the next regular session) 270th day from publication in the Register 20:13 01/03/06 12/08/05 01/18/06 03/06/06 03/20/06 05/01/06 05/09/06 09/30/06 20:14 01/17/06 12/21/05 02/01/06 03/20/06 04/20/06 06/01/06 01/07 10/14/06 20:15 02/01/06 01/10/06 02/16/06 04/03/06 04/20/06 06/01/06 01/07 10/29/06 20:16 02/15/06 01/25/06 03/02/06 04/17/06 04/20/06 06/01/06 01/07 11/12/06 20:17 03/01/06 02/08/06 03/16/06 05/01/06 05/22/06 07/01/06 01/07 11/26/06 20:18 03/15/06 02/22/06 03/30/06 05/15/06 05/22/06 07/01/06 01/07 12/10/06 20:19 04/03/06 03/13/06 04/18/06 06/02/06 06/20/06 08/01/06 01/07 12/29/06 20:20 04/17/06 03/24/06 05/02/06 06/16/06 06/20/06 08/01/06 01/07 01/12/07 20:21 05/01/06 04/07/06 05/16/06 06/30/06 07/20/06 09/01/06 01/07 01/26/07 20:22 05/15/06 04/24/06 05/30/06 07/14/06 07/20/06 09/01/06 01/07 02/09/07 20:23 06/01/06 05/10/06 06/16/06 07/31/06 08/21/06 10/01/06 01/07 02/26/07 20:24 06/15/06 05/24/06 06/30/06 08/14/06 08/21/06 10/01/06 01/07 03/12/07 21:01 07/03/06 06/12/06 07/18/06 09/01/06 09/20/06 11/01/06 01/07 03/30/07 21:02 07/17/06 06/23/06 08/01/06 09/15/06 09/20/06 11/01/06 01/07 04/13/07 21:03 08/01/06 07/11/06 08/16/06 10/02/06 10/20/06 12/01/06 01/07 04/28/07 21:04 08/15/06 07/25/06 08/30/06 10/16/06 10/20/06 12/01/06 01/07 05/12/07 21:05 09/01/06 08/11/06 09/16/06 10/31/06 11/20/06 01/01/07 01/07 05/29/07 21:06 09/15/06 08/24/06 09/30/06 11/14/06 11/20/06 01/01/07 01/07 06/12/07 21:07 10/02/06 09/11/06 10/17/06 12/01/06 12/20/06 02/01/07 05/08 06/29/07 21:08 10/16/06 09/25/06 10/31/06 12/15/06 12/20/06 02/01/07 05/08 07/13/07 21:09 11/01/06 10/11/06 11/16/06 01/01/07 01/22/07 03/01/07 05/08 07/29/07 21:10 11/15/06 10/24/06 11/30/06 01/15/07 01/22/07 03/01/07 05/08 08/12/07 21:11 12/01/06 11/07/06 12/16/06 01/30/07 02/20/07 04/01/07 05/08 08/28/07 21:12 12/15/06 11/22/06 12/30/06 02/13/07 02/20/07 04/01/07 05/08 09/11/07 EXPLANATION OF THE PUBLICATION SCHEDULE This Publication Schedule is prepared by the Office of Administrative Hearings 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 2C .0302 and the Rules of Civil Procedure, Rule 6. GENERAL The North Carolina Register shall be published twice a month and contains the following information submitted for publication by a state agency: (1) temporary rules; (2) notices of rule-making proceedings; (3) text of proposed rules; (4) text of permanent rules approved by the Rules Review Commission; (5) notices of receipt of a petition for municipal incorporation, as required by G.S. 120-165; (6) Executive Orders of the Governor; (7) final decision letters from the U.S. Attorney General concerning changes in laws affecting voting in a jurisdiction subject of Section 5 of the Voting Rights Act of 1965, as required by G.S. 120-30.9H; (8) orders of the Tax Review Board issued under G.S. 105-241.2; and (9) other information the Codifier of Rules determines to be helpful to the public. COMPUTING TIME: In computing time in the schedule, the day of publication of the North Carolina Register is not included. The last day of the period so computed is included, unless it is a Saturday, Sunday, or State holiday, in which event the period runs until the preceding day which is not a Saturday, Sunday, or State holiday. FILING DEADLINES ISSUE DATE: The Register is published on the first and fifteen of each month if the first or fifteenth of the month is not a Saturday, Sunday, or State holiday for employees mandated by the State Personnel Commission. If the first or fifteenth of any month is a Saturday, Sunday, or a holiday for State employees, the North Carolina Register issue for that day will be published on the day of that month after the first or fifteenth that is not a Saturday, Sunday, or holiday for State employees. LAST DAY FOR FILING: The last day for filing for any issue is 15 days before the issue date excluding Saturdays, Sundays, and holidays for State employees. NOTICE OF TEXT EARLIEST DATE FOR PUBLIC HEARING: The hearing date shall be at least 15 days after the date a notice of the hearing is published. END OF REQUIRED COMMENT PERIOD An agency shall accept comments on the text of a proposed rule for at least 60 days after the text is published or until the date of any public hearings held on the proposed rule, whichever is longer. DEADLINE TO SUBMIT TO THE RULES REVIEW COMMISSION: The Commission shall review a rule submitted to it on or before the twentieth of a month by the last day of the next month. FIRST LEGISLATIVE DAY OF THE NEXT REGULAR SESSION OF THE GENERAL ASSEMBLY: This date is the first legislative day of the next regular session of the General Assembly following approval of the rule by the Rules Review Commission. See G.S. 150B- 21.3, Effective date of rules. EXECUTIVE ORDERS 20:17 NORTH CAROLINA REGISTER March 1, 2006 1431 EXECUTIVE ORDER NO. 98 NORTH CAROLINA STATE HEALTH COORDINATING COUNCIL By the power vested in me as Governor by the Constitution and laws of the State of North Carolina, IT IS ORDERED THAT: Section 1. Establishment. The North Carolina State Health Coordinating Council is hereby established. Section 2. Duties. The Council shall have the following duties and functions: a. serve as a forum for hearing regional concerns and recommendations relating to health planning; b. compile a list of state health needs and advise the Department of Human Resources; c. advise the Department of Human Resources on issues related to state health needs, giving attention to local, regional, and statewide needs. d. review and comment on contents of documents related to health planning and make recommendations concerning them to the Secretary of Human Resources and the Governor; e. advise the Department of Human Resources on cost-effective mechanisms for achieving health needs; f. prepare the Annual State Medical Facilities Plan and present the plan to the Governor. Section 3. Membership. The Council shall consist of 27 members who shall be appointed by the Governor as follows: a. one member from the academic medical centers; b. one member from the area health education centers; c. two members from business and industry (at least one individual representing small business and one representing large business); d. one member from the health insurance industry; e. one member from the North Carolina Association of County Commissioners; f. one member from the North Carolina Health Care Facilities Association; g. one member from the North Carolina Hospital Association; h. one member from the North Carolina Association for Home Care; i. one member from the North Carolina Association of Long-Term Care Facilities; j. one member from the North Carolina Association of Local Health Directors; k. one member from the North Carolina Medical Society; l. one member from the North Carolina House of Representatives; m. one member from the North Carolina Senate; n. one member from the United States Department of Veterans Affairs (non-voting); o. twelve at-large members to represent other health professional associations and to ensure regional representation. Section 4. Terms of Membership. The terms of membership of the Council shall be staggered so that the terms of approximately one-third of the members shall expire in a single calendar year. Eight members shall be designated to serve initial terms of one year, eight to serve initial terms of two years, and nine to serve initial terms of three years. After the first three years, all members shall be appointed for a term of three years. Terms shall expire on December 31 and new terms shall begin on January 1. Section 5. Vacancies. A vacancy occurring during a term of appointment is filled in the same manner as the original appointment and for the balance of the unexpired term. Section 6. Travel Expenses. Members of the Council shall receive necessary travel and subsistence expenses in accordance with the provisions of G.S. §138-5. Section 7. Chairman. The Chairman and Vice Chairman of the Council shall be appointed by the Governor. The term of office for the Chairman and Vice Chairman shall be two calendar years. The Council may elect other such officers as it deems necessary. Section 8. Meetings. EXECUTIVE ORDERS 20:17 NORTH CAROLINA REGISTER March 1, 2006 1432 The Council shall meet quarterly and at other times at the call of the Chairman or upon written request of at least ten (10) of its members. All business meetings of the Council, its committees and subcommittees, or special task forces shall be open to the public. Section 9. Staff Assistance. The Department of Human Resources shall provide clerical support and other services required by the Council. Section 10. Executive Order Number 43, as amended by Executive Order 166 of the Hunt Administration and as amended by Executive Orders 16 and 55 of the Easley Administration are hereby resciended. This order is effective immediately. IN WITNESS WHEREOF, I have hereunto set my hand and affixed the Great Seal of the State of North Carolina at the Capitol in Raleigh, this the 18th day of January 2006. __________________________________________ Michael F. Easley Governor ATTEST: __________________________________________ Elaine F. Marshall Secretary of State EXECUTIVE ORDERS 20:17 NORTH CAROLINA REGISTER March 1, 2006 1433 EXECUTIVE ORDER NO. 99 EXTENDING EXECUTIVE ORDER NO. 56, NORTH CAROLINA INTERAGENCY COUNCIL FOR COORDINATING HOMELESS PROGRAMS By the power vested in me as Governor by the Constitution and laws of the State of North Carolina, IT IS ORDERED THAT: Executive Order No. 56 regarding the North Carolina Interagency Council for Coordinating Homeless Programs is hereby extended for two years. This order is effective immediately. IN WITNESS WHEREOF, I have hereunto set my hand and affixed the Great Seal of the State of North Carolina at the Capitol in the City of Raleigh this 19th day of January 2006. __________________________________________ Michael F. Easley Governor ATTEST: __________________________________________ Elaine F. Marshall Secretary of State IN ADDITION 20:17 NORTH CAROLINA REGISTER March 1, 2006 1434 Note from the Codifier: 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. SUMMARY OF NOTICE OF INTENT TO REDEVELOP A BROWNFIELDS PROPERTY A Great Escape Funtime, LLC Pursuant to N.C.G.S. § 130A-310.34, A Great Escape Funtime, LLC has filed with the North Carolina Department of Environment and Natural Resources ("DENR") a Notice of Intent to Redevelop a Brownfields Property ("Property") in Winston- Salem, Forsyth County, North Carolina. The Property consists of 4.79 acres and is located at 1806 Funtime Boulevard. Environmental contamination exists on the Property in soil and groundwater. A Great Escape Funtime, LLC has committed itself to making exclusively commercial use of the Property. The Notice of Intent to Redevelop a Brownfields Property includes: (1) a proposed Brownfields Agreement between DENR and A Great Escape Funtime, LLC which in turn includes (a) a map showing the location of the Property, (b) a description of the contaminants involved and their concentrations in the media of the Property, (c) the above-stated description of the intended future use of the Property, and (d) proposed investigation and remediation; and (2) a proposed Notice of Brownfields Property prepared in accordance with G.S. 130A-310.35. The full Notice of Intent to Redevelop a Brownfields Property may be reviewed at North Carolina Room of the Forsyth County Central Library, 660 West Fifth Street, Winston-Salem, NC 27101 by contacting Jerry Carroll at (336) 727-2264 ext. 9 or at carroljr@forsythlibrary.org; or at NC Brownfields Program, 401 Oberlin Rd., Suite 150, Raleigh, NC 27605 by contacting Shirley Liggins at that address, at shirley.liggins@ncmail.net, or at (919) 508-8411, where DENR will provide auxiliary aids and services for persons with disabilities who wish to review the documents. Written public comments may be submitted to DENR within 60 days after the date this Notice is published in a newspaper of general circulation serving the area in which the brownfields property is located, or in the North Carolina Register, whichever is later. Written requests for a public meeting may be submitted to DENR within 30 days after the period for written public comments begins. Thus, if A Great Escape Funtime, LLC, as it plans, publishes this Summary in the North Carolina Register after it publishes the Summary in a newspaper of general circulation serving the area in which the brownfields property is located, and if it effects publication of this Summary in the North Carolina Register on the date it expects to do so, the periods for submitting written requests for a public meeting regarding this project and for submitting written public comments will commence on March 2, 2006. All such comments and requests should be addressed as follows: Mr. Bruce Nicholson Brownfields Program Manager Division of Waste Management NC Department of Environment and Natural Resources 401 Oberlin Road, Suite 150 Raleigh, North Carolina 27605 IN ADDITION 20:17 NORTH CAROLINA REGISTER March 1, 2006 1435 STATE OF NORTH CAROLINA BEFORE THE TAX REVIEW BOARD COUNTY OF WAKE IN THE MATTER OF: The Proposed Assessments of Additional ) Income Tax for the Taxable Years 1997, ) ADMINISTRATIVE DECISION 2000, 2001, and 2002 by the Secretary ) NUMBER 466 Revenue of North Carolina ) Docket Number 2004-362 ) vs. ) ) ELTON S. SMITH, ) Taxpayer ) THIS MATTER is before the regular Tax Review Board (hereinafter “Board”) upon petition for administrative review filed by the Taxpayer (hereinafter “Taxpayer”) regarding the Final Decision of Eugene J. Cella, Assistant Secretary for Administrative Hearings of the North Carolina Department of Revenue (Assistant Secretary), sustaining the proposed assessments of additional individual income tax for taxable years 1997, 2000, 2001, and 2002. Pursuant to N.C. Gen. Stat. § 105-241.1, assessments proposing additional tax, penalty and accrued interest for the years at issue were mailed to the Taxpayer. The Taxpayer protested the assessments and filed a request for an administrative hearing. After conducting a hearing, the Assistant Secretary entered a Final Decision that sustained the proposed assessments against the Taxpayer. Pursuant to N.C. Gen. Stat. § 105-241.2, the Taxpayer filed a notice of intent and petition for administrative review of the Assistant Secretary���s final decision with the Tax Review Board. Pursuant to N.C. Gen. Stat. § 105-241.2(c), the Board has examined the petition, the records and documents transmitted by the North Carolina Secretary of Revenue pertaining to this matter; and it appearing to the Board that the Taxpayer’s petition should be dismissed since the grounds and arguments upon which relief is sought have been repeatedly rejected by the Courts and are deemed lacking in legal merit. Thus, the Board concludes that Taxpayer’s petition for administrative review is frivolous and is filed for the purpose of delay. IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that Taxpayer’s petition for administrative review be and is hereby Dismissed. Made and entered into the 24th day of August 2005. TAX REVIEW BOARD Signature Stacey A. Phipps, Chief Deputy Treasurer, on behalf of Richard H. Moore, State Treasurer Signature Jo Anne Sanford, Member Chair, Utilities Commission Signature Noel L. Allen, Appointed Member IN ADDITION 20:17 NORTH CAROLINA REGISTER March 1, 2006 1436 STATE OF NORTH CAROLINA BEFORE THE TAX REVIEW BOARD COUNTY OF WAKE IN THE MATTER OF: The Proposed Assessment of Sales and ) Use Tax for the period of July 1, 1999 ) through April 30, 2002 by the Secretary ) of Revenue ) ADMINISTRATIVE DECISION ) NUMBER: 467 vs. ) Docket Number 2003-171 ) The Loflin Group, Inc., ) Taxpayer ) This Matter was heard before the regular Tax Review Board (hereinafter "Board") in the City of Raleigh, Wake County, North Carolina, in the office of the State Treasurer, on Thursday, May 26, 2005 pursuant to the petition of The Loflin Group, Inc. (hereinafter "Taxpayer") for administrative review of the final decision entered by the Assistant Secretary of Revenue regarding the proposed assessment of sales and use tax for the period of July 1, 1999 through April 30, 2002. The Taxpayer protested the assessment and requested a hearing before the Secretary of Revenue. After conducting a hearing, the Assistant Secretary of Revenue entered a final decision that sustained the proposed assessment. From the Assistant Secretary's final decision, the Taxpayer filed a notice of intent and petition for administrative review with the Board pursuant to N.C. Gen. Stat. § 105-241.2. The scope of administrative review for petitions filed with the Tax Review Board is governed by N.C. Gen. Stat. § 105- 241.2(b2). After the Tax Review Board conducts an administrative hearing, this statute provides in pertinent part: (b2). "The Board shall confirm, modify, reverse, reduce or increase the assessment or decision of the Secretary." Pursuant to N.C. Gen. Stat. § 105-241.1(a), a proposed tax assessment is presumed to be correct and the burden is on the taxpayer to rebut that presumption. In order to rebut the presumption, the taxpayer must offer evidence to show that the assessment is not correct. And it appearing to the Board after conducting an administrative hearing in this matter, wherein appellant appeared pro se, and reviewing the Assistant Secretary's final decision concluded that the findings of fact made by the Assistant Secretary were supported by competent evidence in the record, that based upon the findings of fact, the Assistant Secretary's conclusions of law were fully supported by the findings of fact, and that the final decision of the Assistant Secretary was supported by the conclusions of law; IT IS THEREFORE ORDERED that the Assistant Secretary's final decision is affirmed. Made and entered into the 24th day of August 2005. TAX REVIEW BOARD /S/ Stacey A. Phipps, Chief Deputy Treasurer, on behalf of Richard H. Moore, Chairman State Treasurer /S/ Jo Anne Sanford, Member Chair, Utilities Commission /S/ Noel L. Allen, Appointed Member IN ADDITION 20:17 NORTH CAROLINA REGISTER March 1, 2006 1437 STATE OF NORTH CAROLINA BEFORE THE TAX REVIEW BOARD COUNTY OF WAKE IN THE MATTER OF: The Proposed Assessment of Unauthorized ) Substance Tax dated February 20, 2004 by ) the Secretary of Revenue ) ) ADMINISTRATIVE DECISION vs. ) NUMBER: 468 ) Docket Number 2004-125 Dennis Earl Gholston, ) Taxpayer ) This Matter was heard before the regular Tax Review Board (hereinafter "Board") in the City of Raleigh, Wake County, North Carolina, in the office of the State Treasurer, on Thursday, May 26, 2005 pursuant to the petition of Dennis Earl Gholston (hereinafter "Taxpayer") for administrative review of the final decision entered on October 5, 2004, by the Assistant Secretary of Revenue regarding the proposed assessment of unauthorized substance tax dated February 20, 2004. The Taxpayer protested the assessment and requested a hearing before the Secretary of Revenue. After conducting a hearing, the Assistant Secretary of Revenue entered a final decision that sustained the proposed assessment. From the Assistant Secretary's final decision, the Taxpayer filed a notice of intent and petition for administrative review with the Board pursuant to N.C. Gen. Stat. § 105-241.2. The scope of administrative review for petitions filed with the Tax Review Board is governed by N.C. Gen. Stat. § 105- 241.2(b2). After the Tax Review Board conducts an administrative hearing, this statute provides in pertinent part: (b2). "The Board shall confirm, modify, reverse, reduce or increase the assessment or decision of the Secretary." Pursuant to N.C. Gen. Stat. § 105-241.1(a), a proposed tax assessment is presumed to be correct and the burden is on the taxpayer to rebut that presumption. In order to rebut the presumption, the taxpayer must offer evidence to show that the assessment is not correct. And it appearing to the Board after conducting an administrative hearing in this matter wherein the appellant pro se, and reviewing the Assistant Secretary's final decision that the findings of fact made by the Assistant Secretary were supported by competent evidence in the record, that based upon the findings of fact, the Assistant Secretary's conclusions of law were fully supported by the findings of fact, and that the final decision of the Assistant Secretary was supported by the conclusions of law; IT IS THEREFORE ORDERED that the Assistant Secretary's final decision is confirmed in every respect. Made and entered into the 24th day of August 2005. TAX REVIEW BOARD /S/ Stacey A. Phipps, Chief Deputy Treasurer, on behalf Richard H. Moore, State Treasurer /S/ Jo Anne Sanford, Member Chair, Utilities Commission /S/ Noel L. Allen, Appointed Member IN ADDITION 20:17 NORTH CAROLINA REGISTER March 1, 2006 1438 STATE OF NORTH CAROLINA BEFORE THE TAX REVIEW BOARD COUNTY OF WAKE IN THE MATTER OF: The Proposed Assessment of Unauthorized ) Substance Tax dated April 11, 2003 by ) the Secretary of Revenue ) ) ADMINISTRATIVE DECISION vs. ) NUMBER: 469 ) Docket Number 2003-238 Wendell Desmond Lloyd, ) Taxpayer ) This Matter was heard before the regular Tax Review Board (hereinafter "Board") in the City of Raleigh, Wake County, North Carolina, in the office of the State Treasurer, on Thursday, May 26, 2005 pursuant to the petition of (hereinafter "Taxpayer") for administrative review of the final decision entered by the Assistant Secretary of Revenue regarding the proposed assessment of unauthorized substance tax dated April 11, 2003. The Taxpayer protested the assessment and requested a hearing before the Secretary of Revenue. After conducting a hearing, the Assistant Secretary of Revenue entered a final decision that sustained the proposed assessment. From the Assistant Secretary's final decision, the Taxpayer filed a notice of intent and petition for administrative review with the Board pursuant to N.C. Gen. Stat. § 105-241.2. The scope of administrative review for petitions filed with the Tax Review Board is governed by N.C. Gen. Stat. § 105- 241.2(b2). After the Tax Review Board conducts an administrative hearing, this statute provides in pertinent part: (b2). "The Board shall confirm, modify, reverse, reduce or increase the assessment or decision of the Secretary." Pursuant to N.C. Gen. Stat. § 105-241.1(a), a proposed tax assessment is presumed to be correct and the burden is on the taxpayer to rebut that presumption. In order to rebut the presumption, the taxpayer must offer evidence to show that the assessment is not correct. And it appearing to the Board after conducting an administrative hearing in this matter which the pro se appellant did not attend, and reviewing the Assistant Secretary's final decision that the findings of fact made by the Assistant Secretary were supported by competent evidence in the record, that based upon the findings of fact, the Assistant Secretary's conclusions of law were fully supported by the findings of fact, and that the final decision of the Assistant Secretary was supported by the conclusions of law; IT IS THEREFORE ORDERED that the Assistant Secretary's final decision is confirmed in every respect. Made and entered into the 24th day of August 2005. TAX REVIEW BOARD /S/ Stacey A. Phipps, Chief Deputy Treasurer, on behalf Richard H. Moore, State Treasurer /S/ Jo Anne Sanford, Member Chair, Utilities Commission /S/ Noel L. Allen, Appointed Member IN ADDITION 20:17 NORTH CAROLINA REGISTER March 1, 2006 1439 STATE OF NORTH CAROLINA BEFORE THE TAX REVIEW BOARD COUNTY OF WAKE IN THE MATTER OF: The Proposed Assessment of Unauthorized ) Substance Tax dated August 19, 2003 by ) the Secretary of Revenue of North Carolina ) ) ADMINISTRATIVE DECISION vs. ) NUMBER: 470 ) Docket Number 2003-398 Willie Jermaine Burgess, ) Taxpayer ) This Matter was heard before the regular Tax Review Board (hereinafter 'Board') in the City of Raleigh, Wake County, North Carolina, in the office of the State Treasurer, on Thursday, September 1, 2005 pursuant to the petition of Willie Jermaine Burgess (hereinafter 'Taxpayer') for administrative review of the final decision entered by the Assistant Secretary of Revenue regarding the proposed assessment of unauthorized substance tax dated August 19, 2003. The Taxpayer protested the assessment and requested a hearing before the Secretary of Revenue. After conducting a hearing, the Assistant Secretary of Revenue entered a final decision on March 18, 2004 that sustained the proposed assessment. From the Assistant Secretary's final decision, the Taxpayer filed a notice of intent and petition for administrative review with the Board pursuant to N.C. Gen. Stat. § 105-241.2. The scope of administrative review for petitions filed with the Tax Review Board is governed by N.C. Gen. Stat. § 105- 241.2(b2). After the Tax Review Board conducts an administrative hearing, this statute provides in pertinent part: (b2). 'The Board shall confirm, modify, reverse, reduce or increase the assessment or decision of the Secretary.' Pursuant to N.C. Gen. Stat. § 105-241.1(a), a proposed tax assessment is presumed to be correct and the burden is on the taxpayer to rebut that presumption. In order to rebut the presumption, the taxpayer must offer evidence to show that the assessment is not correct. And it appearing to the Board after conducting an administrative hearing in this matter which the pro se appellant did not attend, and reviewing the Assistant Secretary's final decision, that the findings of fact made by the Assistant Secretary were supported by competent evidence in the record, that based upon the findings of fact, the Assistant Secretary's conclusions of law were fully supported by the findings of fact, and that the final decision of the Assistant Secretary was supported by the conclusions of law; IT IS THEREFORE ORDERED that the Assistant Secretary's final decision is confirmed in every respect. Made and entered into the 17th day of November 2005. TAX REVIEW BOARD /S/ Stacey A. Phipps, Chief Deputy Treasurer, on behalf Richard H. Moore, State Treasurer /S/ Jo Anne Sanford, Chair North Carolina Utilities Commission /S/ Noel L. Allen, Esq. IN ADDITION 20:17 NORTH CAROLINA REGISTER March 1, 2006 1440 STATE OF NORTH CAROLINA BEFORE THE TAX REVIEW BOARD COUNTY OF WAKE IN THE MATTER OF: The Proposed Refund of Sales and Use ) Tax for the period of June 1, 1997, through ) March 31, 2000 by the Secretary of Revenue ) of North Carolina ) ADMINISTRATIVE DECISION ) NUMBER: 471 ) Docket Number 2001-235 vs. ) ) Coreslab Structure, Inc., ) Taxpayer ) This Matter was heard before the regular Tax Review Board (hereinafter "Board") in the City of Raleigh, Wake County, North Carolina, in the office of the State Treasurer, on Thursday, September 1, 2005 pursuant to the petition of Coreslab Structure, Inc. (hereinafter "Taxpayer") for further administrative review of the final decision entered by the Assistant Secretary of Revenue dated June 7, 2004 on remand from the Tax Review Board. In this decision, the Assistant Secretary of Revenue sustained the denial of the proposed refund of sales and use tax for the periods of June 1, 1997 through March 31, 2000. From the Assistant Secretary of Revenue's final decision, the Taxpayer filed a notice of intent and petition for administrative review with the Board pursuant to N.C. Gen. Stat. § 105-241.2. The scope of administrative review for petitions filed with the Tax Review Board is governed by N.C. Gen. Stat. § 105- 241.2(b2). After the Tax Review Board conducts an administrative hearing, this statute provides in pertinent part: (b2). "The Board shall confirm, modify, reverse, reduce or increase the assessment or decision of the Secretary." Pursuant to N.C. Gen. Stat. § 105-241.1(a), a proposed tax assessment is presumed to be correct and the burden is on the taxpayer to rebut that presumption. In order to rebut the presumption, the taxpayer must offer evidence to show that the assessment is not correct. And it appearing to the Board, after conducting an administrative hearing in this matter which counsel appeared for the appellant, and reviewing the Assistant Secretary's final decision, that the findings of fact made by the Assistant Secretary were supported by competent evidence in the record, that based upon the findings of fact, the Assistant Secretary's conclusions of law were fully supported by the findings of fact, and that the final decision of the Assistant Secretary was supported by the conclusions of law; IT IS THEREFORE ORDERED that the Assistant Secretary's final decision is confirmed in every respect. Made and entered into the 17th day of November 2005. TAX REVIEW BOARD /S/ Stacey A. Phipps, Chief Deputy Treasurer, on behalf Richard H. Moore, State Treasurer /S/ Jo Anne Sanford, Chair North Carolina Utilities Commission /S/ Noel L. Allen, Esq. IN ADDITION 20:17 NORTH CAROLINA REGISTER March 1, 2006 1441 STATE OF NORTH CAROLINA BEFORE THE TAX REVIEW BOARD COUNTY OF WAKE IN THE MATTER OF: The Proposed Assessment of Additional ) Income Tax for the Taxable Year 2001 ) ADMINISTRATIVE DECISION by the Secretary of Revenue of North ) Number: 472 Carolina ) Docket Number 2004-369 ) vs. ) ) Barnabas Williamson, ) Taxpayer ) THIS MATTER is before the regular Tax Review Board (hereinafter "Board") upon petition for administrative review filed by Barnabas Williamson (hereinafter "Taxpayer") regarding the Final Decision of Eugene J. Cella, Assistant Secretary for Administrative Hearings of the North Carolina Department of Revenue (hereinafter "Assistant Secretary"), sustaining the proposed assessments of additional individual income tax for taxable year 2001 by the Secretary of Revenue. Pursuant to N.C. Gen. Stat. § 105-241.1, assessment proposing additional tax, penalty and accrued interest for taxable year 2001 was mailed to the Taxpayer. The Taxpayer protested the assessment and filed a request for an administrative hearing. After conducting a hearing, the Assistant Secretary of Revenue entered a Final Decision, on February 28, 2004, that sustained the proposed assessments against the Taxpayer for the taxable year at issue. Pursuant to N.C. Gen. Stat. § 105-241.2, the Taxpayer filed a notice of intent and petition for administrative review of the Assistant Secretary's final decision with the Tax Review Board. Pursuant to N.C. Gen. Stat. § 105-241.2(c), the Board has examined the petition, the records and documents transmitted by the North Carolina Secretary of Revenue pertaining to this matter; and it appearing to the Board that the Taxpayer's petition should be dismissed since the grounds and arguments upon which relief is sought have been repeatedly rejected by the Courts and are deemed lacking in legal merit. Thus, the Board concludes that Taxpayer's petition for administrative review is frivolous and is filed for the purpose of delay. IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that Taxpayer's petition for administrative review be and is hereby Dismissed. Made and entered into the 17th day of November 2005. TAX REVIEW BOARD /S/ Stacey A. Phipps, Chief Deputy Treasurer, on behalf of Richard H. Moore, State Treasure /S/ Jo Anne Sanford, Chair North Carolina Utilities Commission /S/ Noel L. Allen, Esq. IN ADDITION 20:17 NORTH CAROLINA REGISTER March 1, 2006 1442 STATE OF NORTH CAROLINA BEFORE THE TAX REVIEW BOARD COUNTY OF WAKE IN THE MATTER OF: ) The Proposed Assessment of Additional ) Income Tax for the Taxable Year 1999 ) ADMINISTRATIVE DECISION by the Secretary of Revenue of North ) NUMBER: 473 Carolina ) Docket Number 2004-62 (A) ) vs. ) ) BETH STURDIVANT, ) Taxpayer ) THIS MATTER is before the regular Tax Review Board (hereinafter "Board") upon petition for administrative review filed by Beth Sturdivant (hereinafter "Taxpayer") regarding the Final Decision of Eugene J. Cella, Assistant Secretary for Administrative Hearings of the North Carolina Department of Revenue (hereinafter "Assistant Secretary"), sustaining the proposed assessment of additional individual income tax for taxable year 1999. Pursuant to N.C. Gen. Stat. § 105-241.1, an assessment proposing additional tax, penalty and accrued interest for taxable year 1999 was mailed to the Taxpayer. The Taxpayer protested the assessment and filed a request for an administrative hearing. After conducting a hearing, the Assistant Secretary of Revenue entered a Final Decision, on July 12, 2004, that sustained the proposed assessment against the Taxpayer for tax year 1999. Pursuant to N.C. Gen. Stat. § 105-241.2, the Taxpayer filed a notice of intent and petition for administrative review of the Assistant Secretary's final decision with the Tax Review Board. Pursuant to N.C. Gen. Stat. § 105-241.2(c), the Board has examined the petition, the records and documents transmitted by the North Carolina Secretary of Revenue pertaining to this matter; and it appearing to the Board that the Taxpayer's petition should be dismissed since the grounds and arguments upon which relief is sought have been repeatedly rejected by the Courts and are deemed lacking in legal merit. Thus, the Board concludes that Taxpayer's petition for administrative review is frivolous and is filed for the purpose of delay. IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that Taxpayer's petition for administrative review be and is hereby Dismissed. Made and entered into the 17th day of November 2005. TAX REVIEW BOARD /S/ Stacey A. Phipps, Chief Deputy Treasurer on behalf of Richard H. Moore, State Treasurer /S/ Jo Anne Sanford, Member Chair, Utilities Commission /S/ Noel L. Allen, Appointed Member IN ADDITION 20:17 NORTH CAROLINA REGISTER March 1, 2006 1443 STATE OF NORTH CAROLINA BEFORE THE TAX REVIEW BOARD COUNTY OF WAKE IN THE MATTER OF: ) The Proposed Assessment of Additional ) Income Tax for the Taxable Years 1998 ) ADMINISTRATIVE DECISION through 2000 by the Secretary of ) Number: 474 Revenue of North Carolina ) Docket Number 2003-554 ) vs. ) ) Blair E. and Diane M. Williamson, ) Taxpayers ) THIS MATTER is before the regular Tax Review Board (hereinafter "Board") upon petition for administrative review filed by Blair E. and Diane M. Williamson (hereinafter "Taxpayers") regarding the Final Decision of Eugene J. Cella, Assistant Secretary for Administrative Hearings of the North Carolina Department of Revenue (hereinafter "Assistant Secretary"), sustaining the proposed assessments of additional individual income tax for taxable years 1998 through 2000 by the Secretary of Revenue. Pursuant to N.C. Gen. Stat. § 105-241.1, assessments proposing additional tax, penalty and accrued interest for taxable years 1998 through 2000 were mailed to the Taxpayers. The Taxpayers protested the assessments and filed a request for an administrative hearing. After conducting a hearing, the Assistant Secretary of Revenue entered a Final Decision, on July 12, 2004, that sustained the proposed assessments against the Taxpayers for taxable years at issue. Pursuant to N.C. Gen. Stat. § 105-241.2, the Taxpayer filed a notice of intent and petition for administrative review of the Assistant Secretary's final decision with the Tax Review Board. Pursuant to N.C. Gen. Stat. § 105-241.2(c), the Board has examined the petition, the records and documents transmitted by the North Carolina Secretary of Revenue pertaining to this matter; and it appearing to the Board that the Taxpayers' petition should be dismissed since the grounds and arguments upon which relief is sought have been repeatedly rejected by the Courts and are deemed lacking in legal merit. Thus, the Board concludes that Taxpayers' petition for administrative review is frivolous and is filed for the purpose of delay. IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that Taxpayers' petition for administrative review be and is hereby Dismissed. Made and entered into the 17th day of November 2005. TAX REVIEW BOARD /S/ Stacey A. Phipps, Chief Deputy Treasurer, on behalf of Richard H. Moore, State Treasurer /S/ Jo Anne Sanford, Chair North Carolina Utilities Commission /S/ Noel L. Allen, Esq. IN ADDITION 20:17 NORTH CAROLINA REGISTER March 1, 2006 1444 STATE OF NORTH CAROLINA BEFORE THE TAX REVIEW BOARD COUNTY OF WAKE IN THE MATTER OF: The Proposed Assessments of Gift Tax ) for the Taxable year 2002 by the Secretary ) of Revenue of North Carolina ) ) ADMINISTRATIVE DECISION ) Number: 476 vs. ) Docket Numbers 2003-565 ) Cecil E. & Betty Lawing, ) Appellants ) This Matter was heard before the regular Tax Review Board (hereinafter "Board") in the City of Raleigh, Wake County, North Carolina, in the office of the State Treasurer, on Thursday, October 20, 2005 pursuant to the petition of Cecil E. & Betty Lawing (hereinafter "Appellants") for administrative review of the final decision entered by the Assistant Secretary of Revenue on August 11, 2004 regarding the proposed assessments of gift tax for the taxable year 2002 by the Secretary of Revenue. Appellants protested the assessments and requested a hearing before the Secretary of Revenue. After conducting a hearing, the Assistant Secretary of Revenue entered a final decision that sustained the proposed assessments. From the Assistant Secretary's final decision, appellants filed a notice of intent and petition for administrative review with the Board pursuant to N.C. Gen. Stat. § 105-241.2. N.C. Gen. Stat. § 105-241.2(b2) governs the scope of administrative review for petitions filed with the Tax Review Board. After the Tax Review Board conducts an administrative hearing, this statute provides in pertinent part: (b2). "The Board shall confirm, modify, reverse, reduce or increase the assessment or decision of the Secretary." Pursuant to N.C. Gen. Stat. § 105-241.1(a), a proposed tax assessment is presumed to be correct and the burden is on the taxpayer to rebut that presumption. In order to rebut the presumption, the taxpayer must offer evidence to show that the assessment is not correct. And it appearing to the Board, after conducting an administrative hearing in this matter, which the appellants did not attend, and reviewing the Assistant Secretary's final decision, that the findings of fact made by the Assistant Secretary were supported by competent evidence in the record, that based upon the findings of fact, the Assistant Secretary's conclusions of law were fully supported by the findings of fact, and that the final decision of the Assistant Secretary was supported by the conclusions of law; IT IS THEREFORE ORDERED that the Assistant Secretary's final decision is AFFIRMED. Made and entered into the 30th day of December 2005. TAX REVIEW BOARD /S/ Stacey A. Phipps, Chief Deputy Treasurer, on behalf Richard H. Moore, State Treasurer /S/ Jo Anne Sanford, Member Chair, Utilities Commission /S/ Noel L. Allen, Esquire Appointed Member IN ADDITION 20:17 NORTH CAROLINA REGISTER March 1, 2006 1445 STATE OF NORTH CAROLINA BEFORE THE TAX REVIEW BOARD COUNTY OF WAKE IN THE MATTER OF: The Proposed Assessments of Income Tax ) Withheld or required to have been withheld ) for the quarters ended December 31, 2000; ) June 30 and September 30, 2001; March 31, ) 2002; and the months of April, May, June, ) ADMINISTRATIVE DECISION and August 2002 through October 2003, by ) Number: 477 the Secretary of Revenue of North Carolina ) Docket Number 2004-45 ) vs. ) ) Paul A. Parsons, ) Appellant ) This Matter was heard before the regular Tax Review Board (hereinafter "Board") in the City of Raleigh, Wake County, North Carolina, in the office of the State Treasurer, on Thursday, October 20, 2005 pursuant to the petition of Paul A. Parsons (hereinafter "Appellant") for administrative review of the final decision entered by the Assistant Secretary of Revenue on June 25, 2004 regarding the proposed assessments of income tax withheld or required to have been withheld for the quarters ended December 31, 2000; June 30 and September 30, 2001; March 31, 2002; and the months of April, May, June, and August 2002 through October 2003. Appellant, as treasurer of a non-profit corporation, was held personally liable for income tax withheld or required to have been withheld for the periods at issue. Appellant protested the assessments and requested a hearing before the Secretary of Revenue. After conducting a hearing, the Assistant Secretary of Revenue entered a final decision that sustained the proposed assessments. From the Assistant Secretary's final decision, appellant filed a notice of intent and petition for administrative review with the Board pursuant to N.C. Gen. Stat. § 105-241.2. The scope of administrative review for petitions filed with the Tax Review Board is governed by N.C. Gen. Stat. § 105- 241.2(b2).After the Tax Review Board conducts an administrative hearing, this statute provides in pertinent part: (b2). "The Board shall confirm, modify, reverse, reduce or increase the assessment or decision of the Secretary." Pursuant to N.C. Gen. Stat. § 105-241.1(a), a proposed tax assessment is presumed to be correct and the burden is on the taxpayer to rebut that presumption. In order to rebut the presumption, the taxpayer must offer evidence to show that the assessment is not correct. And it appearing to the Board, after conducting an administrative hearing in this matter, during which appellant appeared pro se, and reviewing the Assistant Secretary's final decision, that the findings of fact made by the Assistant Secretary were supported by competent evidence in the record, that based upon the findings of fact, the Assistant Secretary's conclusions of law were fully supported by the findings of fact, and that the final decision of the Assistant Secretary was supported by the conclusions of law; IT IS THEREFORE ORDERED that the Assistant Secretary's final decision is AFFIRMED. Made and entered into the 30th day of December 2005. TAX REVIEW BOARD /S/ Stacey A. Phipps, Chief Deputy Treasurer, on behalf Richard H. Moore, State Treasurer /S/ Jo Anne Sanford, Chair North Carolina Utilities Commission /S/ Noel L. Allen, Esquire IN ADDITION 20:17 NORTH CAROLINA REGISTER March 1, 2006 1446 STATE OF NORTH CAROLINA BEFORE THE TAX REVIEW BOARD COUNTY OF WAKE IN THE MATTER OF: The Proposed Assessments of Sales and Use ) Tax for the period of August 1, 1996 through ) August 31, 2002, by the Secretary of ) Revenue of North Carolina ) ADMINISTRATIVE DECISION ) Number: 478 ) Docket Number 2004-68 vs. ) ) ) Gary Williams, d/b/a Dutch Iris Florist, ) Appellant. ) This Matter was heard before the regular Tax Review Board (hereinafter "Board") in the City of Raleigh, Wake County, North Carolina, in the office of the State Treasurer, on Thursday, October 20, 2005 pursuant to the Secretary of Revenue's motion to dismiss the petition of Gary Williams, d/b/a Dutch Iris Florist (hereinafter "Appellant") on the grounds that the appellant waived his rights under N.C. Gen. Stat. § 105- 241.2 to contest any civil assessment before the Tax Review Board. The Board, after reviewing the Secretary of Revenue's motion to dismiss, hearing argument of counsel, considering the authorities cited and reviewing all matters of record, enters the following Order: IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that the Secretary of Revenue's motion to dismiss appellant's petition for administrative review be and is hereby Granted. Made and entered into the 30th day of December 2005. TAX REVIEW BOARD /S/ Stacey A. Phipps, Chief Deputy Treasurer, on behalf Richard H. Moore, State Treasurer /S/ Jo Anne Sanford, Member Chair, Utilities Commission /S/ Noel L. Allen, Appointed Member IN ADDITION 20:17 NORTH CAROLINA REGISTER March 1, 2006 1447 STATE OF NORTH CAROLINA BEFORE THE TAX REVIEW BOARD COUNTY OF WAKE IN THE MATTER OF: The Proposed Assessments of Sales and Use ) taxes due the State of North Carolina for ) the period of May 1, 2001 through October ) 31, 2001 and November 1, 2001 through ) October 31, 2003 ) ADMINISTRATIVE DECISION ) Number: 479 ) Docket Number 2004-303 and vs. ) Docket Number 2004-304 ) ) Linda W. Foster d/b/a Atlantic Associates ) and Atlantic Design Associates, Inc., ) Appellants ) This Matter was heard before the regular Tax Review Board (hereinafter 'Board') in the City of Raleigh, Wake County, North Carolina, in the office of the State Treasurer, on Thursday, October 20, 2005 pursuant to the petition of Linda W. Foster d/b/a Atlantic Associates and Atlantic Associates d/b/a Atlantic Design Associates (hereinafter 'Appellants') for administrative review of the final decisions entered by the Assistant Secretary of Revenue on September 13, 2004 regarding the proposed assessments of sales and use taxes due the State of North Carolina for the period of May 1, 2001 through October 31, 2001 and November 1, 2001 through October 31, 2003. Appellants provide printed material, such as catalogs, displaying a customer's products. During the periods at issue, the appellants produced material primarily for the furniture industry. To provide catalogs, the appellants purchased photographs from studio freelance photographer. The images were originally produced as prints and negatives, and may be produced digitally. Appellants did not pay North Carolina sales or use tax on the photographs they purchased and furnished to third-party printers to use in the production of the catalogs. Instead, the appellants provided a certificate of resale to the vendors. Appellants did charge customers sales tax on the price of the catalogs or other printed materials. Appellants protested the assessment and requested a hearing before the Secretary of Revenue. After conducting a hearing, the Assistant Secretary of Revenue entered final decisions that sustained the proposed assessments. From the Assistant Secretary's final decisions, appellants filed a notice of intent and petition for administrative review with the Board pursuant to N.C. Gen. Stat. § 105-241.2. The scope of administrative review for petitions filed with the Tax Review Board is governed by N.C. Gen. Stat. § 105- 241.2(b2). After the Tax Review Board conducts an administrative hearing, this statute provides in pertinent part: (b2). 'The Board shall confirm, modify, reverse, reduce or increase the assessment or decision of the Secretary.' Pursuant to N.C. Gen. Stat. § 105-241.1(a), a proposed tax assessment is presumed to be correct and the burden is on the taxpayer to rebut that presumption. In order to rebut the presumption, the taxpayer must offer evidence to show that the assessment is not correct. It appearing to the Board, after conducting an administrative hearing in this matter, in which counsel appeared for appellants, and reviewing the Assistant Secretary's final decision, that the findings of fact made by the Assistant Secretary were supported by competent evidence in the record, that based upon the findings of fact, the Assistant Secretary's conclusions of law were fully supported by the findings of fact, and that the final decisions of the Assistant Secretary were supported by the conclusions of law; IT IS THEREFORE ORDERED that the Assistant Secretary's final decision is AFFIRMED. Made and entered into the 30th day of December 2005. TAX REVIEW BOARD IN ADDITION 20:17 NORTH CAROLINA REGISTER March 1, 2006 1448 /S/ Stacey A. Phipps, Chief Deputy Treasurer, on behalf Richard H. Moore, State Treasurer /S/ Jo Anne Sanford, Chair North Carolina Utilities Commission /S/ Noel L. Allen, Esquire Appointed Member PROPOSED RULES 20:17 NORTH CAROLINA REGISTER March 1, 2006 1449 Note from the Codifier: The notices published in this Section of the NC Register include the text of proposed rules. The agency must accept comments on the proposed rule(s) for at least 60 days from the publication date, or until the public hearing, or a later date if specified in the notice by the agency. If the agency adopts a rule that differs substantially from a prior published notice, the agency must publish the text of the proposed different rule and accept comment on the proposed different rule for 60 days. Statutory reference: G.S. 150B-21.2. TITLE 15A – DEPARTMENT OF ENVIRONMENT & NATURAL RESOURCES Notice is hereby given in accordance with G.S. 150B-21.2 that the Environmental Management Commission intends to amend the rule cited as 15A NCAC 02B .0309. Proposed Effective Date: September 1, 2006 Instructions on How to Demand a Public Hearing: (must be requested in writing within 15 days of notice): Any person requesting that the Environmental Management Commission conduct a public hearing on any portion of this proposed rule must submit a written request to Elizabeth Kountis, Division of Water Quality, 1617 Mail Service Center, Raleigh, NC 27699- 1617 by March 17, 2006. The request must specify which rule the hearing is being requested on. Mailed written requests must be postmarked no later than March 17, 2006 Reason for Proposed Action: The Town of Elkin requested the reclassification of a segment of the Yadkin River (Yadkin and Surry Counties, Yadkin-Pee Dee River Basin) from Class C to Water Supply-IV (WS-IV) Critical Area (CA). The purpose of this rule change is to allow a new intake structure to be placed in the river in order to supply the town with an emergency source of water. The waters to be reclassified meet water supply water quality standards according to DWR staff. DWR and DEH staff have approved of the proposed intake. This proposed CA would extend along the river from the proposed intake, which is to be placed directly above the mouth of Elkin Creek, to a point approximately 0.3 miles upstream of the proposed intake. Typically, a new riverine WS-IV CA is the area measured 0.5 miles from the proposed intake, but in this case, another WS-IV CA for a Town of Jonesville intake is located 0.3 miles upstream of the proposed 57-acre CA. In addition, no area in association with the proposed intake is to be reclassified to WS-IV PA due to the topography in this area. If reclassified, development and discharge restrictions will apply. However, there are no current or planned dischargers and no planned development in the proposed reclassification area. Yadkin County and the Town of Elkin, the only local governments with jurisdiction in the reclassification area, would need to modify their water supply watershed protection ordinances within 270 days after the reclassification effective date. Yadkin County and the nearby Town of Jonesville do not object to this reclassification. Since a public hearing is not required and no comments against this proposed reclassification have been received, a public hearing is not going to be scheduled for this proposed reclassification. If a hearing is requested, a hearing will be scheduled, and the process for this proposed reclassification will be delayed. This Notice of Text provides an opportunity for comments on the proposed reclassification of the Yadkin River to be submitted to the Division of Water Quality by May 1, 2006. Please note that the proposed rule text that appears in italics was previously noticed in Volume 20, Issue 4, Pages 184-186 of the North Carolina Register, and the comment period for the text shown in italics ends March 20, 2006. Procedure by which a person can object to the agency on a proposed rule: You may submit written comments, data or other relevant information by May 1, 2006. The EMC is very interested in all comments pertaining to the proposed reclassification. All persons interested and potentially affected by the proposal are strongly encouraged to read this entire notice and make comments on the proposed reclassification. The EMC may not adopt a rule that differs substantially from the text of the proposed rule published in this notice unless the EMC publishes the text of the proposed different rule and accepts comments on the new text (see General Statute 150B 21.2(g)). Written comments may be submitted to Elizabeth Kountis of the Water Quality Planning Section at the postal address, e-mail address, or fax number listed in this notice. Comments may be submitted to: Elizabeth Kountis, DENR/Division of Water Quality, Planning Section, 1617 Mail Service Center, Raleigh, NC 27699-1617, phone (919) 733-5083 ext 369, fax (919) 715-5637, email Elizabeth.kountis@ncmail.net Comment period ends: May 1, 2006 Procedure for Subjecting a Proposed Rule to Legislative Review: If an objection is not resolved prior to the adoption of the rule, a person may also submit written objections to the Rules Review Commission. If the Rules Review Commission receives written and signed objections in accordance with G.S. 150B-21.3(b2) from 10 or more persons clearly requesting review by the legislature and the Rules Review Commission approves the rule, the rule will become effective as provided in G.S. 150B-21.3(b1). The Commission will receive written objections until 5:00 p.m. on the day following the day the Commission approves the rule. The Commission will receive those objections by mail, delivery service, hand delivery, or facsimile transmission. If you have any further questions concerning the submission of objections to the Commission, please call a Commission staff attorney at 919-733-2721. Fiscal Impact: State Local Substantive (>$3,000,000) PROPOSED RULES 20:17 NORTH CAROLINA REGISTER March 1, 2006 1450 None SUBCHAPTER 02B - SURFACE WATER AND WETLAND STANDARDS SECTION .0300 - ASSIGNMENT OF STREAM CLASSIFICATIONS 15A NCAC 02B .0309 YADKIN-PEE DEE RIVER BASIN (a) The schedule may be inspected at the following places: (1) Clerk of Court: Alexander County Anson County Cabarrus County Caldwell County Davidson County Davie County Forsyth County Guilford County Iredell County Mecklenburg County Montgomery County Randolph County Richmond County Rowan County Stanly County Stokes County Surry County Union County Watauga County Wilkes County Yadkin County (2) North Carolina Department of Environment and Natural Resources: (A) Mooresville Regional Office 919 North Main Street 610 East Center Avenue, Suite 301 Mooresville, North Carolina (B) Winston-Salem Regional Office 8025 North Point Boulevard, Suite 100585 Waughtown Street Winston-Salem, North Carolina (C) Fayetteville Regional Office Wachovia Building Systel Building Suite 714225 Green Street Suite 714 Fayetteville, North Carolina (D) Asheville Regional Office Interchange Building 2090 US Highway 70 59 Woodfin Place Asheville, Swannanoa, North Carolina. (b) Unnamed Streams. Such streams entering Virginia are classified "C," and such streams entering South Carolina are classified "C". (c) The Yadkin-Pee Dee River Basin Schedule of Classifications and Water Quality Standards was amended effective: (1) February 12, 1979; (2) March 1, 1983; (3) August 1, 1985; (4) February 1, 1986; (5) October 1, 1988; (6) March 1, 1989; (7) January 1, 1990; (8) August 1, 1990; (9) January 1, 1992; (10) April 1, 1992; (11) August 3, 1992; (12) December 1, 1992; (13) April 1, 1993; (14) September 1, 1994; (15) August 1, 1995; (16) August 1, 1998; (17) April 1, 1999. 1999; (18) July 1, 2006. 2006; (19) September 1, 2006. (d) The Schedule of Classifications and Water Quality Standard for the Yadkin-Pee Dee River Basin has been amended effective October 1, 1988 as follows: (1) Mitchell River [Index No. 12-62-(1)] from source to mouth of Christian Creek (North Fork Mitchell River) including all tributaries has been reclassified from Class B Tr to Class B Tr ORW. (2) Mitchell River [Index No. 12-62-(7)] from mouth of Christian Creek (North Fork Mitchell River) to Surry County SR 1315 including all tributaries has been classified from Class C Tr to C Tr ORW, except Christian Creek and Robertson Creek which will be reclassified from Class B Tr to Class B Tr ORW. (3) Mitchell River [Index No. 12-62-(12)] from Surry County SR 1315 to mouth of South Fork Mitchell River including all tributaries from Class C to Class C ORW. (e) The Schedule of Classifications and Water Quality Standards for the Yadkin-Pee Dee River Basin was amended effective March 1, 1989 as follows: (1) Elk Creek [Index Nos. 12-24-(1) and 12-24-(10)] and all tributary waters were reclassified from Class B-trout, Class C-trout and Class B to Class B-trout ORW, Class C-trout ORW and Class B ORW. (f) The Schedule of Classifications and Water Quality Standards for the Yadkin-Pee Dee River Basin was amended effective January 1, 1990 as follows: Barnes Creek (Index No. 13-2-18) was reclassified from Class C to Class C ORW. (g) The Schedule of Classifications and Water Quality Standards for the Yadkin-Pee Dee River Basin has been amended effective January 1, 1992 as follows: (1) Little River [Index Nos. 13-25-(10) and 13-25-(19)] from Suggs Creek to Densons Creek has been reclassified from Classes PROPOSED RULES 20:17 NORTH CAROLINA REGISTER March 1, 2006 1451 WS-III and C to Classes WS-III HQW and C HQW. (2) Densons Creek [Index No. 13-25-20-(1)] from its source to Troy's Water Supply Intake including all tributaries has been reclassified from Class WS-III to Class WS-III HQW. (3) Bridgers Creek (Index No. 13-25-24) from its source to the Little River has been reclassified from Class C to Class C HQW. (h) The Schedule of Classifications and Water Quality Standards for the Yadkin-Pee Dee River Basin was amended effective April 1, 1992 with the reclassification of the North Prong South Fork Mitchell River from Class C to Class C Trout. (i) The Schedule of Classifications and Water Quality Standards for the Yadkin-Pee Dee River was amended effective August 3, 1992 with the reclassification of all water supply waters (waters with a primary classification of WS-I, WS-II or WS-III). These waters were reclassified to WS-I, WS-II, WS-III, WS-IV or WS-V as defined in the revised water supply protection rules, (15A NCAC 2B .0100, .0200 and .0300) which became effective on August 3, 1992. In some cases, streams with primary classifications other than WS were reclassified to a WS classification due to their proximity and linkage to water supply waters. In other cases, waters were reclassified from a WS classification to an alternate appropriate primary classification after being identified as downstream of a water supply intake or identified as not being used for water supply purposes. (j) The Schedule of Classifications and Water Quality Standards for the Yadkin-Pee Dee River Basin has been amended effective December 1, 1992 as follows: (1) Pike Creek (Index No. 12-46-1-2) was reclassified from Class C Tr to Class C Tr HQW; (2) Basin Creek (Index No. 12-46-2-2) was reclassified from Class C Tr to Class C Tr ORW; (3) Bullhead Creek (Index No. 12-46-4-2) was reclassified from Class C Tr to Class C Tr ORW; (4) Rich Mountain Creek (Index No. 12-46-4-2-2) was reclassified from Class Tr to Class C Tr ORW; and (5) Widows Creek (Index No. 12-46-4-4) was reclassified from Class C Tr HQW to Class C Tr ORW. (k) The Schedule of Classifications and Water Quality Standards for the Yadkin-Pee Dee River Basin has been amended effective September 1, 1994 as follows: (1) Lanes Creek [Index Nos. 13-17-40-(1) and 13- 17-40-(10.5)] from its source to the Marshville water supply dam including tributaries was reclassified from Classes WS-II and WS-II CA to Class WS-V. (2) The South Yadkin River [Index Nos. 12-108- (9.7) and 12-108-(15.5)] from Iredell County SR 1892 to a point 0.7 mile upstream of the mouth of Hunting Creek including associated tributaries was reclassified from Classes WS-V, C and WS-IV to Classes WS-V, WS-IV, C and WS-IV CA. (3) The Yadkin River [Index Nos. 12-(53) and 12- (71)] from a point 0.3 mile upstream of the mouth of Elkin Creek (River) to the Town of King water supply intake including associated tributaries was reclassified from Classes C and WS-IV to Classes WS-IV and WS-IV CA. (4) The Yadkin River [Index Nos. 12-(80.5), 12- (81.5) and 12-(84.5)] from the Town of King water supply intake to the Davie County water supply intake reclassified from Classes C, B, WS-IV and WS-V to Classes WS-IV, WS-IV& B and WS-IV CA. (l) The Schedule of Classifications and Water Quality Standards for the Yadkin-Pee Dee River Basin has been amended effective August 1, 1995 as follows: Bear Creek [Index Nos. 12-108-18- (3), 12-108-18-(3.3)], Little Bear Creek (Index No. 12-108-18- 2), and Blue Branch (Index No. 12-108-18-2-1) were reclassified from WS-II and WS-II CA (Critical Area) to C and WS-IV. (m) The Schedule of Classifications and Water Quality Standards for the Yadkin-Pee Dee River Basin was amended effective August 1, 1998 with the revision to the primary classification for portions of the Yadkin River [Index No. 12- (45)] from Class WS-IV to WS-V, Yadkin River [Index No. 12- (67.5)] from Class WS-IV to Class C, Yadkin River [Index Nos. 12-(93.5) and 12-(98.5)] from Class WS-IV to Class WS-V, South Yadkin River [Index No. 12-108-(12.5)] from Class WS-IV to Class WS-V, and South Yadkin River [Index Nos. 12-108- (19.5) and 12-108-(22)] from Class WS-IV to Class C. (n) The Schedule of Classifications and Water Quality Standards for the Yadkin Pee-Dee River Basin was amended effective April 1, 1999 with the reclassification of a portion of the Yadkin River [Index No. 12-(80.5)] from WS-IV CA to WS-IV. A portion of the Yadkin River 0.5 mile upstream of Bashavia Creek was reclassified from WS-IV to WS-IV CA. Bashavia Creek [Index Nos. 12-81-(0.5) and 12-81-(2)] was reclassified from WS-IV and WS-IV CA to Class C. Tributaries to Bashavia Creek were also reclassified to Class C. Portions of the Yadkin River [Index Nos. 12-(25.5) and 12-(27)] were reclassified from WS-IV to Class C and from WS-IV & B to Class B. Tributaries were reclassed from Class WS-IV to Class C. Supplemental classifications were not changed. (o) The Schedule of Classifications and Water Quality Standards for the Yadkin Pee-Dee River Basin was amended effective July 1, 2006 with the reclassification of a portion of the Uwharrie River. More specifically, Index No. 13-2-(25), Index No. 13-2-(17.5), and a portion of Index No. 13-2-(1.5) was reclassified from Class WS-IV CA, WS-IV, and C, to Class WS-IV & B CA, WS-IV & B, and B, respectively. (p) The Schedule of Classifications and Water Quality Standards for the Yadkin Pee-Dee River Basin was amended effective September 1, 2006 with the reclassification of a segment of the Yadkin River [portion of Index No. 12-(53)] from a point 0.3 mile upstream of the Town of Elkin proposed water supply intake to the Town of Elkin proposed water supply intake from C to WS-IV CA. The Town of Elkin proposed water supply intake is to be placed on the Yadkin River at a point directly above the mouth of Elkin Creek. PROPOSED RULES 20:17 NORTH CAROLINA REGISTER March 1, 2006 1452 Authority G.S. 143-214.1; 143-215.1; 143-215.3(a)(1). Notice is hereby given in accordance with G.S. 150B-21.2 that the Environmental Management Commission intends to adopt the rule cited as 15A NCAC 02D .0543. Proposed Effective Date: July 1, 2006 Public Hearing: Date: April 6, 2006 Time: 7:00 p.m. Location: Leslie Building, Room 143, Pitt Community College, 1986 Pitt Tech Rd., Winterville, NC 28590 Date: April 12, 2006 Time: 7:00 pm Location: Haynes Conference Center, Large Conference Room, Asheville-Buncombe Technical Community College, Enka Campus, 1459 Sand Hill Road, Candler, NC 28715 Reason for Proposed Action: This Rule is proposed to improve visibility in federal Class I areas in response to federal requirements. Procedure by which a person can object to the agency on a proposed rule: If you have any objections to the proposed rule, please mail a letter including your specific reasons to Mr. Thomas C. Allen, Division of Air Quality, Raleigh, NC 27699- 1641. Comments may be submitted to: Mr. Thomas Allen, Division of Air Quality, 1641 Mail Service Center, Raleigh, NC 27699- 1641, phone (919) 733-1489, fax (919) 715-7476, email thom.allen@ncmail.net Comment period ends: May 1, 2006 Procedure for Subjecting a Proposed Rule to Legislative Review: If an objection is not resolved prior to the adoption of the rule, a person may also submit written objections to the Rules Review Commission. If the Rules Review Commission receives written and signed objections in accordance with G.S. 150B-21.3(b2) from 10 or more persons clearly requesting review by the legislature and the Rules Review Commission approves the rule, the rule will become effective as provided in G.S. 150B-21.3(b1). The Commission will receive written objections until 5:00 p.m. on the day following the day the Commission approves the rule. The Commission will receive those objections by mail, delivery service, hand delivery, or facsimile transmission. If you have any further questions concerning the submission of objections to the Commission, please call a Commission staff attorney at 919-733-2721. Fiscal Impact: A copy of the fiscal note can be obtained from the agency. State Local Substantive (>$3,000,000) None SUBCHAPTER 02D – AIR POLLUTION CONTROL REQUIREMENTS SECTION .0500 – EMISSION CONTROL STANDARDS 15A NCAC 02D .0543 BEST AVAILABLE RETROFIT TECHNOLOGY (a) For the purposes of this Rule, the definitions at 40 CFR 51.301 shall apply. (b) Mandatory Class I Federal areas are identified in 40 CFR Part 81, Subpart D. (c) This Rule applies to BART-eligible sources as determined using 40 CFR Part 51, Appendix Y that cause or contribute to any visibility impairment in a mandatory Class I Federal area as determined by using 40 CFR Part 51, Subpart P. (d) Unless exempted under 40 CFR 51.303, the owner or operators of any BART-eligible source subject to this Rule shall install, operate, and maintain best available retrofit technology (BART). (e) The owner or operators of a BART-eligible source required to install BART under this Rule shall submit permit applications for the installation and operation of BART by September 1, 2006. (f) BART shall be determined using "Guidelines for Determining Best Available Retrofit Technology for Coal-fired Power Plants and Other Existing Stationary Facilities" (1980), 40 CFR 51.308(e)(1)(ii), and 40 CFR Part 51, Appendix Y. Electric generating units covered under and complying with 15A NCAC 02D .2400, Clean Air Interstate Rules, are considered to be in compliance with the BART requirements for nitrogen oxides and sulfur dioxide under this Rule. (g) The owner or operator of a BART-eligible source required to install BART under this Rule shall have installed and begun operation of the BART controls by June 1, 2010. (h) "Guidelines for Determining Best Available Retrofit Technology for Coal-fired Power Plants and Other Existing Stationary Facilities" is incorporated by reference, exclusive of appendix E, and shall include any later amendments or editions. This document, which was published in the Federal Register on February 6, 1980 (45 FR 8210), is EPA publication No. 450/3– 80–009b and can be obtained from the U.S. Department of Commerce, National Technical Information Service, 5285 Port Royal Road, Springfield, Virginia 22161 for eighty-four dollars ($84.00). It is also available for inspection at the National Archives and Records Administration (NARA). Information on the availability of this material may be found at: http://www.archives.gov/federal_register/code_of_federal_regul ations/ibr_locations.html. Authority G.S.143-215/3(a)(1); 143-215.107(a)(5),(10). * * * * * * * * * * * * * * * * * * * * Notice is hereby given in accordance with G.S. 150B-21.2 that the Coastal Resources Commission intends to amend the rule(s) cited as 15A NCAC 07H .1102-.1103, .1203, .1302-.1303, .1403, PROPOSED RULES 20:17 NORTH CAROLINA REGISTER March 1, 2006 1453 .1503, .1603, .1703, .1803, .1903, .2003, .2102-.2103, .2203, .2303, .2403, .2503, .2603, .2703; 07K .0208. Proposed Effective Date: July 1, 2006 Public Hearing: Date: March 25, 2006 Time: 5:00 p.m. Location: Ramada Inn, 1701 South Virginia Trail, Kill Devil Hills, NC Reason for Proposed Action: 15A NCAC 07H – The General permit structure was created to facilitate the rapid permitting of low impact, commonly proposed projects. While the maximum fee that the agency can charge to process GPs has been legislatively capped at $400 since 1989, the costs associated with issuing GPs have increased over time. Staff perform site visits with these projects so when travel, record keeping and compliance are factored in, staff estimates that most GP costs over $200 each to issue. The agency proposed to increase its GP application fees within the legislative cap to offset the higher costs of processing permit applications. 15A NCAC 07K .0208 – Standardize language to be consistent with other current CRC rules and to add a time requirement for project construction. Procedure by which a person can object to the agency on a proposed rule: Objections may be filed in writing and addressed to the Director of Coastal Management, 400 Commerce Avenue, Morehead City, NC 28557 Comments may be submitted to: Charles S. Jones, 400 Commerce Avenue, Morehead City, NC 28557, phone (252) 808- 2808, fax (252) 247-3330, email charles.s.jones@ncmail.net Comment period ends: May 1, 2006 Procedure for Subjecting a Proposed Rule to Legislative Review: If an objection is not resolved prior to the adoption of the rule, a person may also submit written objections to the Rules Review Commission. If the Rules Review Commission receives written and signed objections in accordance with G.S. 150B-21.3(b2) from 10 or more persons clearly requesting review by the legislature and the Rules Review Commission approves the rule, the rule will become effective as provided in G.S. 150B-21.3(b1). The Commission will receive written objections until 5:00 p.m. on the day following the day the Commission approves the rule. The Commission will receive those objections by mail, delivery service, hand delivery, or facsimile transmission. If you have any further questions concerning the submission of objections to the Commission, please call a Commission staff attorney at 919-733-2721. Fiscal Impact: A copy of the fiscal note can be obtained from the agency. State 15A NCAC 07H .2303, .2603 Local Substantive (>$3,000,000) None 15A NCAC 07H .1102, .1103, .1203, .1302- .1303, .1403 .1503, .1603, .1703, .1803, .1903, .2003, .2102-.2103, .2203, .2403, .2503, .2703; 07K .0208 SUBCHAPTER 07H - STATE GUIDELINES FOR AREAS OF ENVIRONMENTAL CONCERN SECTION .1100 - GENERAL PERMIT FOR CONSTRUCTION OF BULKHEADS AND THE PLACEMENT OF RIPRAP FOR SHORELINE PROTECTION IN ESTUARINE AND PUBLIC TRUST WATERS AND OCEAN HAZARD AREAS 15A NCAC 07H .1102 APPROVAL PROCEDURES (a) The applicant must shall contact the Division of Coastal Management and complete an application form requesting approval for development. The applicant shall provide information on site location, dimensions of the project area, and his name and address. (b) The applicant must shall provide: (1) confirmation that a written statement has been obtained signed by the adjacent riparian property owners indicating that they have no objections to the proposed work; or (2) confirmation that the adjacent riparian property owners have been notified by certified mail of the proposed work. Such notice should shall instruct adjacent property owners to provide any written comments on the proposed development in writing for consideration by permitting officials to the Division of Coastal Management within ten days of receipt of the notice, and, indicate that no response will shall be interpreted as no objection. DCM staff will shall review all comments and determine, based on their relevance to the potential impacts of the proposed project, if the proposed project can be approved by a General Permit. If DCM staff determines that the project exceeds the guidelines established by the General Permit Process, finds that the comments are worthy of more in-depth review, the applicant will be notified that he must submit an application for a major development permit. (c) No work shall begin until an on-site meeting is held with the applicant and appropriate Division of Coastal Management representative so that the proposed bulkhead alignment can be appropriately marked. Written authorization to proceed with the proposed development may be issued during this visit. Construction of the bulkhead or riprap structure must shall be begin completed within 90 days of this visit or the general authorization expires and it will be necessary to re-examine the alignment to determine if the general authorization can be reissued. Authority G.S. 113A-107(a); 113A-107(b); 113A-113(b); 113A-118.1; 113A-124. PROPOSED RULES 20:17 NORTH CAROLINA REGISTER March 1, 2006 1454 15A NCAC 07H .1103 PERMIT FEE The applicant must shall pay a permit fee of one two hundred dollars ($100.00) ($200.00) for riprap and bulkhead structures sited at or above normal high water or normal water level, or a permit fee of four hundred dollars ($400.00) for bulkhead and riprap structures sited below normal high water or normal water level. Permit fees shall be paid by check or money order payable to the Department. Authority G.S. 113A-107; 113A-113(b); 113A-118.1; 113A-119; 113-119.1; 113A-124. SECTION .1200 - GENERAL PERMIT FOR CONSTRUCTION OF PIERS: DOCKS: AND BOAT HOUSES IN ESTUARINE AND PUBLIC TRUST WATERS AND OCEAN HAZARD AREAS 15A NCAC 07H .1203 PERMIT FEE The applicant must shall pay a permit fee of one two hundred dollars ($100.00) ($200.00) by check or money order payable to the Department. Authority G.S. 113A-107; 113A-113(b); 113A-118.1; 113A-119; 113-119.1; 113A-124. SECTION .1300 – GENERAL PERMIT TO MAINTAIN: REPAIR AND CONSTRUCT BOAT RAMPS ALONG ESTUARINE AND PUBLIC TRUST SHORELINES AND INTO ESTUARINE AND PUBLIC TRUST WATERS 15A NCAC 07H .1302 APPROVAL PROCEDURES (a) The applicant must shall contact the Division of Coastal Management and complete an application form requesting approval for development. The applicant shall provide information on site location, dimensions of the project area, and his name and address. (b) The applicant must shall provide: (1) confirmation that a written statement has been obtained signed by the adjacent riparian property owners indicating that they have no objections to the proposed work; or (2) confirmation that the adjacent riparian property owners have been notified by certified mail of the proposed work. Such notice should shall instruct adjacent property owners to provide any written comments on the proposed development in writing for consideration by permitting officials to the Division of Coastal Management within ten days of receipt of the notice, and, indicate that no response will shall be interpreted as no objection. DCM staff will shall review all comments and determine, based on their relevance to the potential impacts of the proposed project, if the proposed project can be approved by a General Permit. If DCM staff determines that the project exceeds the guidelines established by the General Permit Process, finds that the comments are worthy of more in-depth review, the applicant will be notified that he must submit an application for a major development permit. (c) No work shall begin until an on-site meeting is held with the applicant and appropriate Division of Coastal Management representative so that the proposed boat ramp alignment can be appropriately marked. Written authorization to proceed with the proposed development will be issued during this visit. Construction of the boat ramp structure must begin shall be completed within 90 days of this visit or the general authorization expires. Authority G.S. 113A-107(a); 113A-107(b); 113A-113(b); 113A-118.1; 113A-124. 15A NCAC 07H .1303 PERMIT FEE The applicant must shall pay a permit fee of one two hundred dollars ($100.00) ($200.00) by check or money order payable to the Department. Authority G.S. 113A-107; 113A-113(b); 113A-118.1; 113A-119; 113A-119.1; 113A-124. SECTION .1400 - GENERAL PERMIT FOR CONSTRUCTION OF WOODEN GROINS IN ESTUARINE AND PUBLIC TRUST WATERS AND OCEAN HAZARD AREAS 15A NCAC 07H .1403 PERMIT FEE The applicant must shall pay a permit fee of one two hundred dollars ($100.00) ($200.00) by check or money order payable to the Department. Authority G.S. 113A-107; 113A-113(b); 113A-118.1; 113A-119; 113A-119.1; 113A-124. SECTION .1500 - GENERAL PERMIT FOR EXCAVATION WITHIN OR CONNECTING TO EXISTING CANALS: CHANNELS: BASINS: OR DITCHES IN ESTUARINE WATERS: PUBLIC TRUST WATERS: AND ESTUARINE SHORELINE AEC'S 15A NCAC 07H .1503 APPLICATION FEE The applicant must shall pay a permit fee of one two hundred dollars ($100.00) ($200.00) for maintenance excavation of 100 cubic yards or less or four hundred dollars ($400.00) for maintenance excavation of over 100 to 1,000 cubic yards. Permit fees shall be paid by check or money order payable to the Department. Authority G.S. 113A-107; 113A-113(b); 113A-118.1; 113A-119; 113A-119.1; 113A-124. SECTION .1600 - GENERAL PERMIT FOR THE INSTALLATION OF AERIAL AND SUBAQUEOUS UTILITY LINES WITH ATTENDANT STRUCTURES IN COASTAL WETLANDS: ESTUARINE WATERS: PUBLIC TRUST WATERS AND ESTUARINE SHORELINES PROPOSED RULES 20:17 NORTH CAROLINA REGISTER March 1, 2006 1455 15A NCAC 07H .1603 PERMIT FEE The applicant must shall pay a permit fee of one four hundred dollars ($100.00) ($400.00) by check or money order payable to the Department. Authority G.S. 113-229(c1); 113A-107; 113A-113(b); 113A-118.1; 113A-119; 113A-119.1. SECTION .1700 - GENERAL PERMIT FOR EMERGENCY WORK REQUIRING A CAMA AND/OR A DREDGE AND FILL PERMIT 15A NCAC 07H .1703 PERMIT FEE The agency shall not charge a fee for permitting work necessary to respond to emergency situations except in the case when a temporary erosion control structure is used. In those cases, the applicant must shall pay a permit fee of two four hundred and fifty dollars ($250.00) ($400.00) by check or money order made payable to the Department. Authority G.S. 113-229(cl); 113A-107(a),(b); 113A-113(b); 113A-118.1; 113A-119. SECTION .1800 - GENERAL PERMIT TO ALLOW BEACH BULLDOZING LANDWARD OF THE MEAN HIGH WATER MARK IN THE OCEAN HAZARD AEC 15A NCAC 07H .1803 PERMIT FEE The applicant must shall pay a permit fee of one four hundred dollars ($100.00) ($400.00) by check or money order payable to the Department. Authority G.S. 113-229(c1); 113A-107; 113A-113(b); 113A-118.1; 113A-119; 113A-119.1. SECTION .1900 – GENERAL PERMIT TO ALLOW FOR TEMPORARY STRUCTURES WITHIN COASTAL SHORELINES AND OCEAN HAZARD AECS 15A NCAC 07H .1903 PERMIT FEE The applicant must shall pay a permit fee of one two hundred dollars ($100.00) ($200.00) by check or money order payable to the Department. Authority G.S. 113-229(c1); 113A-107; 113A-113(b); 113A-118.1; 113A-119; 113A-119.1. SECTION .2000 - GENERAL PERMIT FOR AUTHORIZING MINOR MODIFICATIONS AND REPAIR TO EXISTING PIER/MOORING FACILITIES IN ESTUARINE AND PUBLIC TRUST WATERS AND OCEAN HAZARD AREAS 15A NCAC 07H .2003 PERMIT FEE The applicant must shall pay a permit fee of one two hundred dollars ($100.00) ($200.00) by check or money order payable to the Department. Authority G.S. 113A-107; 113A-118.1; 113A-119.1. 15A NCAC 07H .2102 APPROVAL PROCEDURES (a) The applicant must shall contact the Division of Coastal Management and request approval for development. The applicant shall provide information on site location, dimensions of the project area, and his name and address. (b) The applicant must shall provide: (1) confirmation that a written statement has been obtained signed by the adjacent riparian property owners indicating that they have no objections to the proposed work; or (2) confirmation that the adjacent riparian property owners have been notified by certified mail of the proposed work. Such notice should shall instruct adjacent property owners to provide any written comments on the proposed development in writing for consideration by permitting officials to the Division of Coastal Management within ten days of receipt of the notice, and, indicate that no response will shall be interpreted as no objection. DCM staff will shall review all comments and determine, based on their relevance to the potential impacts of the proposed project, if the proposed project can be approved by a General Permit. If DCM staff determines that the project exceeds the guidelines established by the General Permit Process, finds that the comments are worthy of more in-depth review, the applicant will be notified that he must submit an application for a major development permit. (c) No work shall begin until an on-site meeting is held with the applicant and appropriate Division of Coastal Management representative so that the proposed breakwater alignment can be appropriately marked. Written authorization to proceed with the proposed development may be issued during this visit. Construction of the breakwater must begin shall be completed within 90 days of this visit or the general authorization expires and it will be necessary to re-examine the alignment to determine if the general authorization can be reissued. Authority G.S. 113A-107; 113A-118.1. 15A NCAC 07H .2103 PERMIT FEE The applicant must shall pay a permit fee of one two hundred dollars ($100.00) ($200.00). This fee may shall be paid by check or money order made payable to the Department. Authority G.S. 113A-107; 113A-118.1; 113A-119.1. SECTION .2200 - GENERAL PERMIT FOR CONSTRUCTION OF FREESTANDING MOORINGS IN ESTUARINE WATERS AND PUBLIC TRUST AREAS AND OCEAN HAZARD AREAS 15A NCAC 07H .2203 PERMIT FEE PROPOSED RULES 20:17 NORTH CAROLINA REGISTER March 1, 2006 1456 The applicant must shall pay a permit fee of one two hundred dollars ($100.00) ($200.00). This fee may shall be paid by check or money order made payable to the Department. Authority G.S. 113A-107; 113A-118.1; 113A-119; 113A-119.1. SECTION .2300 - GENERAL PERMIT FOR REPLACEMENT OF EXISTING BRIDGES AND CULVERTS IN ESTUARINE WATERS, ESTUARINE AND PUBLIC TRUST SHORELINES, PUBLIC TRUST AREAS, AND COASTAL WETLANDS 15A NCAC 07H .2303 PERMIT FEE The applicant shall pay a permit fee of one four hundred dollars ($100.00) ($400.00). This fee may shall be paid by check or money order made payable to the Department. Authority G.S. 113A-107; 113A-118.1; 113A-119; 113A-119.1; 113A-124. SECTION .2400 – GENERAL PERMIT FOR PLACEMENT OF RIPRAP FOR WETLAND PROTECTION IN ESTUARINE AND PUBLIC TRUST WATERS 15A NCAC 07H .2403 PERMIT FEE The applicant must shall pay a permit fee of fifty two hundred dollars ($50.00) ($200.00). This fee may shall be paid by check or money order made payable to the Department. Authority G.S. 113A-107; 113A-118.1; 113A-119.1. SECTION .2500 - EMERGENCY GENERAL PERMIT, TO BE INITIATED AT THE DISCRETION OF THE SECRETARY OF THE DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES FOR REPLACEMENT OF STRUCTURES, THE RECONSTRUCTION OF PRIMARY OR FRONTAL DUNE SYSTEMS, AND THE MAINTENANCE EXCAVATION OF EXISTING CANALS, BASINS, CHANNELS, OR DITCHES, DAMAGED, DESTROYED, OR FILLED IN BY HURRICANES OR TROPICAL STORMS, PROVIDED ALL REPLACEMENT, RECONSTRUCTION AND MAINTENANCE EXCAVATION ACTIVITIES CONFORM TO ALL CURRENT STANDARDS 15A NCAC 07H .2503 PERMIT FEE The standard permit fee of one two hundred dollars ($100.00) ($200.00) has been waived for this General Permit. Authority G.S. 113A-107; 113A-118.1. SECTION .2600 – GENERAL PERMIT FOR CONSTRUCTION OF WETLAND, STREAM AND BUFFER MITIGATION SITES BY THE NORTH CAROLINA ECOSYSTEM ENHANCEMENT PROGRAM OR THE NORTH CAROLINA WETLANDS RESTORATION PROGRAM 15A NCAC 07H .2603 PERMIT FEE The applicant shall pay a permit fee of one four hundred dollars ($100.00) ($400.00). This fee shall be paid by check or money order made payable to the Department. Department of Environment and Natural Resources (DENR). Authority G.S. 113A-107; 113A-118.1; 113A-119.1. SECTION .2700 – GENERAL PERMIT FOR THE CONSTRUCTION OF RIPRAP SILLS FOR WETLAND ENHANCEMENT IN ESTUARINE AND PUBLIC TRUST WATERS 15A NCAC 07H .2703 PERMIT FEE The applicant shall pay a permit fee of one two hundred dollars ($100.00) ($200.00). This fee shall be paid by check or money order made payable to the Department. Authority G.S. 113A-107; 113A-118.1; 113A-119.1. SUBCHAPTER 07K - ACTIVITIES IN AREAS OF ENVIRONMENTAL CONCERN WHICH DO NOT REQUIRE A COASTAL AREA MANAGEMENT ACT PERMIT SECTION .0200 - CLASSES OF MINOR MAINTENANCE AND IMPROVEMENTS WHICH SHALL BE EXEMPTED FROM THE CAMA MAJOR DEVELOPMENT PERMIT REQUIREMENT 15A NCAC 07K .0208 SINGLE FAMILY RESIDENCES EXEMPTED (a) All single family residences constructed within the Estuarine Shoreline Area of Environmental Concern which are more than 40 feet landward of the mean normal high water mark or normal water level, and involve no land disturbing activity within the 40 feet buffer area are exempted from the CAMA permit requirement as long as this exemption is consistent with all other applicable CAMA permit standards and local land use plans and/or rules in effect at the time the exemption is granted. This exemption does allow for the construction of an access to the water not exceeding six feet in width in accordance with Rule 07H .0209(d)(10). (b) Within the AEC for estuarine shorelines contiguous to waters classified as Outstanding Resource Waters (ORW), no CAMA permit will be required if the proposed development is a single-family residence which has a built upon area of 25 percent or less and: (1) has no stormwater collection system; and (2) is at least 40 feet from waters classified as ORW. (c) Before beginning any work under this exemption, the Department of Environment, Health, Environment and Natural Resources representative must be notified of the proposed activity to allow on-site review. Notification may be by telephone, in person or in writing. Notification must include: (1) the name, address, and telephone number of the landowner and the location of the work, PROPOSED RULES 20:17 NORTH CAROLINA REGISTER March 1, 2006 1457 including the county, nearest community and water body; (2) the dimensions of the proposed project, including proposed landscaping and the location of normal high water or normal water level; pier, bulkhead with backfill or the area dimensions to be covered by placement of riprap material; (3) confirmation that a written statement has been obtained, signed by the adjacent riparian property owners indicating that they have no objections to the proposed work. (These statements do not have to be presented at the time of notification of intent to perform work, but the permittee must make it available to CRC agents at their request.) (d) In eroding areas, this exemption shall apply only when, when in the opinion of the local permit officer, officer has determined that the house has been located the maximum feasible distance back on the lot but not less than forty feet. (e) Construction of the structure shall be completed within one year of the issuance date of this permit or the general authorization expires. Authority G.S. 113A-103(5)c. * * * * * * * * * * * * * * * * * * * * Notice is hereby given in accordance with G.S. 150B-21.2 that the Commission for Health Services intends to adopt the rules cited as 15A NCAC 13B .0531-.0547. Proposed Effective Date: January 1, 2007 Public Hearing: Date: April 3, 2006 Time: 2:00 p.m. Location: Ground Floor Hearing Room, Archdale Building, 512 N. Salisbury St., Raleigh, NC Reason for Proposed Action: These Rules are intended to provide regulatory guidance for the development of new and the continued operation of construction and demolition landfills (CDLF) operating on top of closed municipal solid waste (MSW) landfills. Procedure by which a person can object to the agency on a proposed rule: Persons may submit written objections to the proposed rules by contacting: Ed Mussler, DENR – Division of Waste Management, Solid Waste Section, 1646 Mail Service Center, Raleigh, NC 27699-1646, fax (919) 733-4810, email ed.mussler@ncmail.net. Comments may be submitted to: Ed Mussler, DENR – Division of Waste Management, Solid Waste Section, 1646 Mail Service Center, Raleigh, NC 27699-1646, phone (919) 508- 8495, fax (919) 733-4810, email ed.mussler@ncmail.net. Comment period ends: May 1, 2006 Procedure for Subjecting a Proposed Rule to Legislative Review: If an objection is not resolved prior to the adoption of the rule, a person may also submit written objections to the Rules Review Commission. If the Rules Review Commission receives written and signed objections in accordance with G.S. 150B-21.3(b2) from 10 or more persons clearly requesting review by the legislature and the Rules Review Commission approves the rule, the rule will become effective as provided in G.S. 150B-21.3(b1). The Commission will receive written objections until 5:00 p.m. on the day following the day the Commission approves the rule. The Commission will receive those objections by mail, delivery service, hand delivery, or facsimile transmission. If you have any further questions concerning the submission of objections to the Commission, please call a Commission staff attorney at 919-733-2721. Fiscal Impact: A copy of the fiscal note can be obtained from the agency. State Local 15A NCAC 13B .0532-.0547 Substantive (>$3,000,000) None 15A NCAC 13B .0531 CHAPTER 13 – SOLID WASTE MANAGEMENT SUBCHAPTER 13B - SOLID WASTE MANAGEMENT SECTION .0500 - DISPOSAL SITES 15A NCAC 13B .0531 PURPOSE, SCOPE, AND APPLICABILITY FOR CONSTRUCTION AND DEMOLITION LANDFILLS (a) Purpose. The purpose of Rules .0531 through .0547 of this Section is to regulate the siting, design, construction, operation, closure and post-closure of all construction and demolition solid waste landfill (C&DLF) facilities and units. (b) Scope. Rules .0531 through .0547 of this Section describe the performance standards, application requirements, and permitting procedures for all C&DLF facilities and units. Rules .0531 through .0547 of this Section are intended to: (1) establish the State standards for C&DLF facilities and units to provide for effective disposal practices and protect the public health and environment; and (2) coordinate other State Rules applicable to landfills. (c) Applicability. Owners and operators of C&DLF facilities and units shall conform to the requirements of Rules .0531 through .0547 of this Section as follows: (1) C&DLF units which do not receive solid waste after January 1, 2008, shall comply with the Conditions of the Solid Waste Permit and Rule .0510 of this Section. (2) C&DLF units which continue to receive waste after January 1, 2008, shall comply with Rule .0547 of this Section, at the time of closure of the unit(s). PROPOSED RULES 20:17 NORTH CAROLINA REGISTER March 1, 2006 1458 (3) C&DLF units permitted after January 1, 2007 shall comply with the requirements of Rules .0531 through .0546 of this Section. (d) Owners and operators of a C&DLF facility shall comply with any other applicable Federal, State and Local laws, rules, regulations, or other requirements. Authority G.S. 130A-294. 15A NCAC 13B .0532 DEFINITIONS FOR C&DLF FACILITIES This Rule contains definitions for terms that appear throughout the Rules pertaining to Construction and Demolition Landfills, Rules .0531 through .0547 of this Section; additional definitions appear in the specific rules to which they apply. (1) "100-year flood" means a flood that has a one-percent or greater chance of recurring in any given year or a flood of a magnitude equaled or exceeded once in 100 years on average over a significantly long period. (2) "Active life" means the period of operation beginning with the initial receipt of C&D solid waste and ending at completion of closure activities in accordance with Rule .0543 of this Section. (3) "Active portion" means that part of a facility or unit(s) that has received or is receiving wastes and that has not been closed in accordance with Rule .0543 of this Section. (4) "Aquifer" means a geological formation, group of formations, or portion of a formation capable of yielding ground water. (5) "Areas susceptible to mass movement" means those areas of influence (i.e., areas characterized as having an active or substantial possibility of mass movement) where the movement of earth material at, beneath, or adjacent to the C&DLF unit(s), because of natural or man-induced events, results in the downslope transport of soil and rock material by means of gravitational influence. Areas of mass movement include, but are not limited to, landslides, avalanches, debris slides and flows, soil fluction, block sliding, and rock fall. (6) "Base liner system" means the liner system installed on the C&DLF unit's foundation to control the flow of leachate. (7) "Cap system" means a liner system installed over the C&DLF unit(s) to minimize infiltration of precipitation and contain the wastes. (8) "C&D solid waste" means solid waste generated solely from the construction, remodeling, repair, or demolition operations on pavement, and buildings or structures. C&D waste does not include municipal and industrial wastes that may be generated by the on-going operations at buildings or structures. (9) "Floodplain" means the lowland and relatively flat areas adjoining inland and coastal waters, including flood-prone areas of offshore islands, which are inundated by the 100-year flood. (10) "Ground water" means water below the land surface in a zone of saturation. (11) "Hazardous Waste" means a solid waste as defined in G.S.130A-290 (a)(8). "Hazardous Waste" does not include those solid wastes excluded from regulation pursuant to 40 CFR 261.4, incorporated by reference in 15A NCAC 13A .0106. "Hazardous Waste" does include hazardous waste generated by conditionally exempt small quantity generators as defined in 40 CFR 261.5, incorporated by reference in 15A NCAC 13A .0106. (12) "Industrial solid waste" means solid waste generated by manufacturing or industrial processes that is not a hazardous waste regulated under Subtitle C of RCRA. Such waste may include, but is not limited to, waste resulting from the following manufacturing processes: electric power generation; fertilizer/agricultural chemicals; food and related products/by-products; inorganic chemicals; iron and steel manufacturing; leather and leather products; nonferrous metals manufacturing/foundries; organic chemicals; plastics and resins manufacturing; pulp and paper industry; rubber and miscellaneous plastic products; stone, glass, clay, and concrete products; textile manufacturing; transportation equipment; and water treatment. This term does not include mining waste or oil and gas waste. (13) "Karst terranes" means areas where karst topography, with its characteristic surface and subterranean features, is developed as the result of dissolution of limestone, dolomite, or other soluble rock. Characteristic physiographic features present in karst terranes include, but are not limited to, sinkholes, sinking streams, caves, large springs, and blind valleys. (14) "Landfill facility" means all contiguous land and structures, waste management unit(s), other appurtenances, and improvements on the land within the legal description of the site included in or proposed for the Solid Waste Permit. Existing facilities are those facilities which were permitted by the Division prior to July 1, 2007. Facilities permitted on or after January 1, 2007 are new facilities. (15) "Landfill unit" means a discrete area of land or an excavation, that receives a particular type of waste such as C&D, industrial, or municipal solid waste, and is not a land application unit, surface impoundment, injection well, or waste PROPOSED RULES 20:17 NORTH CAROLINA REGISTER March 1, 2006 1459 pile, as defined under 40 CFR Part 257. Such a landfill unit may be publicly or privately owned, may be located at a MSWLF, an industrial landfill facility, or other waste management facility. (16) "Lateral expansion" means a horizontal expansion of the waste boundaries of an existing C&DLF unit(s). (17) "Liner system" means an engineered environmental control system which can incorporate filters, drainage layers, compacted soil liners, geomembrane liners, piping systems, and connected structures. (18) "Liquid waste" means any waste material that is determined to contain "free liquids" as defined by Method 9095 (Paint Filter Liquids Test), S.W. 846. (19) "Licensed Geologist" means individual who is licensed to practice geology in accordance with N.C.G.S. Chapter 89E. (20) "Open burning" means the combustion of any solid waste without: (a) control of combustion air to maintain adequate temperature for efficient combustion; (b) containment of the combustion reaction in an enclosed device to provide sufficient residence time and mixing for complete combustion; and (c) control of the emission of the combustion products. (21) "Poor foundation conditions" means those areas where features exist which indicate that a natural or man-induced event may result in inadequate foundation support for the structural components of a C&DLF unit(s). (22) "Professional Engineer" means individual who is licensed to practice engineering in accordance with G.S. 89C. (23) "Project engineer" means the official representative of the permittee who is licensed to practice engineering in the State of North Carolina, who is responsible for observing, documenting, and certifying that activities related to the quality assurance of the construction of the solid waste management unit conforms to the Division approved plan, the permit to construct and the rules specified in this Section. All certifications must bear the seal and signature of the professional engineer and the date of certification. (24) "Registered Land Surveyor" means individual who is licensed to practice surveying in accordance with G.S. 89C. (25) "Run-off" means any rainwater that drains over land from any part of a facility or unit. (26) "Run-on" means any rainwater that drains over land onto any part of a facility. (27) "Structural components" means liners, leachate collection systems, final covers, run-on or run-off systems, and any other component used in the construction and operation of the C&DLF that is necessary for protection of human health and the environment. (28) "Unstable area" means a location that is susceptible to natural or human-induced events or forces capable of impairing the integrity of some or all of the landfill structural components responsible for preventing releases from a landfill. Unstable areas can include poor foundation conditions, areas susceptible to mass movements, and Karst terranes. (29) "Uppermost aquifer" means the geologic formation nearest the natural ground surface that is an aquifer, as well as, lower aquifers that are hydraulically interconnected with this aquifer within the facility's property boundary. (30) "Washout" means the carrying away of solid waste by waters of the base flood. Authority G.S. 130A-294. 15A NCAC 13B .0533 GENERAL APPLICATION REQUIREMENTS AND PROCESSING FOR C&DLF FACILITIES (a) Applicability. Owners or operators of a proposed or existing C&DLF unit or facility shall submit an application document as detailed in Rule .0535 of this Section in accordance with the criteria and scheduling requirements set forth in this Paragraph. (1) New facility. Owners or operators proposing to establish a C&DLF facility or unit in accordance with the following criteria shall submit a Site Study and subsequently, an application for a permit to construct as set forth in Paragraph (a) of Rule .0535 of this Section. A new facility permit application is required when: (A) The owner or operator proposes to establish a new facility not previously permitted by the Division. (B) The owner or operator proposes to expand the landfill facility in order to expand the C&DLF unit(s) boundary approved in accordance with Subparagraph (a)(1) of Rule .0536 of this Section. (2) Amendment to the permit. The owner or operator shall prepare an application to amend the permit to construct for any subsequent phase of landfill development in accordance with Paragraph (b) of Rule .0535 of this Section and submit the application: (A) at least 180 days prior to the date scheduled for commencing construction; or PROPOSED RULES 20:17 NORTH CAROLINA REGISTER March 1, 2006 1460 (B) five years from the issuance date of the initial permit to operate or as specified in the effective permit. (3) Substantial amendment to the permit. A permit issued in accordance with Paragraph (c) of this Rule approves a facility plan for the life of the C&DLF facility and a set of plans for the initial phase of landfill development. The owner or operator shall prepare an application in accordance with Paragraph (c) of Rule .0535 of this Section and submit the application when there is: (A) a substantial change in accordance to G.S. 130A-294(b1)(1); or (B) a transfer of ownership of the C&DLF facility. (4) Modifications to the permit. An owner or operator proposing changes to the plans approved in the permit shall request prior approval from the Division in accordance with Paragraph (d) of Rule .0535 of this Section. (b) Application format guidelines. All applications and plans required by Rules .0531 through .0547 of this Section shall be prepared in accordance with the following guidelines: (1) The initial application shall: (A) contain a cover sheet stating the project title and location, the applicant's name, and the engineer's name, address, signature, date of signature and seal; and (B) contain a statement defining the purpose of the submittal signed and dated by the applicant. (2) The text of the application shall: (A) be submitted in a three ring binder; (B) contain a table of contents or index outlining the body of the application and the appendices; (C) be paginated consecutively; and (D) identify revised text by noting the date of revision on the page. (3) Drawings. The engineering drawings for all landfill facilities shall be submitted using the following format. (A) The sheet size with title blocks shall be at least 22 inches by 34 inches. (B) The cover sheet shall include the project title, applicant's name, sheet index, legend of symbols, and the engineer's name, address, signature, date of signature, and seal. (C) Where the requirements do not explicitly specify a minimum scale, maps and drawings shall be prepared at a scale that adequately illustrates the subject requirement(s). (4) Number of copies. An applicant shall submit a minimum of three copies of each original application document and any revisions to the Division. The Division may request additional copies as necessary. The Division may request submittal of relevant documents in electronic format. (c) Permitting and Public Information Procedures. (1) Purpose and Applicability. (A) Purpose. The permitting process shall provide for public review of and input to permit documents containing the applicable design and operating conditions and shall provide for consideration of comments received and notification to the public of the permit design. (B) Applicability. Applications for a Permit to Construct for a new facility or a substantial amendment to the permit for an existing facility or a modification to the permit involving corrective remedy selection required by Paragraph (d) through (h) of Rule .0545 of this Section shall be subject to the requirements of Subparagraphs (c)(2) through (c)(9) of this Rule. Applications submitted in accordance with Subparagraphs (a)(2) and (a)(4) of this Rule are not subject to the requirements of this Paragraph. (2) Draft Permits. (A) Once an application is complete, the Division shall tentatively decide whether the permit should be issued or denied. (B) If the Division decides the permit should be denied, a notice to deny shall be sent to the applicant. Reasons for permit denial shall be in accordance with Rule .0203(e) of this Subchapter. (C) If the Division tentatively decides the permit should be issued, a draft permit shall be prepared. (D) A draft permit shall contain (either expressly or by reference) all applicable terms and conditions for the permit. (E) All draft permits shall be subject to the procedures of Subparagraphs (3) through (9) of this Paragraph, unless otherwise specified in those Subparagraphs. (3) Fact Sheet. (A) A fact sheet shall be prepared for every draft permit. (B) The fact sheet shall include a brief description of the type of facility or activity, which is the subject of the draft permit; a description of the area to be served and of the volume and PROPOSED RULES 20:17 NORTH CAROLINA REGISTER March 1, 2006 1461 characteristics of the waste stream, and a projection of the useful life of the landfill; a brief summary of the basis for the draft permit conditions including references to applicable statutory or regulatory provisions and appropriate supporting references to the permit application; a description of the procedures for reaching a decision on the draft permit, including the beginning and ending dates of the comment period under Subparagraph (4) of this Paragraph and the address where comments will be received; procedures for requesting a public hearing; and any other procedures by which the public may participate in the decision; and name and telephone number of a person to contact for additional information. (C) The Division shall send this fact sheet to the applicant and it shall be made available to the public for review or copying at the central office of the Division of Waste Management – Solid Waste Section. The fact sheet may be made available on the Division web site. (4) Public Notice of Permit Actions and Public Hearings. (A) The Division shall give public notice when a draft permit has been prepared; or a public hearing has been scheduled under Subparagraph (6) of this Paragraph; or a notice of intent to deny a permit has been prepared under Part (2)(B) of this Paragraph. (B) No public notice is required when a request for a permit modification is denied. (C) Written notice of denial shall be given to the applicant. (D) Public notices may describe more than one permit or permit action. (E) Public notice of the preparation of a draft permit or a notice of intent to deny a permit shall allow at least 45 days for public comment. (F) Public notice of a public hearing shall be given at least 15 days before the hearing. Public notice of the hearing may be given at the same time as public notice of the draft permit and the two notices may be combined. (G) Public notice of activities described in Part (A) of this Subparagraph shall be given by posting in the post office and public places of the municipalities nearest the site under consideration; or by publication in a daily or weekly local newspaper of general circulation; or by publication on the Division website; or by any other method deemed necessary or appropriate by the Division to give actual notice of the activities to persons potentially affected. (H) General Public Notices. All public notices issued under this Part shall at minimum contain name, address and phone number of the office processing the permit action for which notice is being given; name and address of the owner and operator applying for the permit; a brief description of the business conducted at the facility or activity described in the permit application including the size and location of the facility and type of waste accepted; a brief description of the comment procedures required by Subparagraphs (5) and (6) of this Paragraph, including a statement of procedures to request a public hearing, unless a hearing has already been scheduled, and other procedures by which the public may participate in the permit decision; name, address, and telephone number of a person from whom interested persons may obtain further information; a description of the time frame and procedure for making an approval or disapproval decision of the application; and any additional information considered necessary or proper as required by the Division. (I) Public Notices for Public Hearing. In addition to the general public notice described in Part (4)(A) of this Paragraph, the public notice of a public hearing shall contain the date, time, and place of the public hearing; a brief description of the nature and purpose of the public hearing, including the applicable rules and procedures; and a concise statement of the issues raised by the persons requesting the hearing. (5) Public Comments and Requests for Public Hearings. During the public comment period provided, any interested person may submit written comments on the draft permit and may request a public hearing, if no hearing has already been scheduled. A request for a public hearing shall be in writing and shall state the PROPOSED RULES 20:17 NORTH CAROLINA REGISTER March 1, 2006 1462 nature of the issues proposed to be raised in the hearing. All comments shall be considered in making the decision and shall be answered as provided in Subparagraph (9) of this Paragraph. (6) Public Hearings. (A) A public hearing shall be held whenever on the basis of requests a significant degree of public interest in a draft permit(s) is determined. The Division may also hold a public hearing at its discretion whenever such a hearing might clarify one or more issues involved in the permit decision. Public hearings held pursuant to this Rule shall be at a location convenient to the nearest population center to the subject facility. Public notice of the hearing shall be given as specified in Subparagraph (4) of this Paragraph. (B) Any person may submit oral or written statements and data concerning the draft permit. Reasonable limits may be set upon the time allowed for oral statements, and the submission of statements in writing may be required. The public comment period under Subparagraph (4) of this Paragraph shall be automatically extended to the close of any public hearing under this Subparagraph. The hearing officer may also extend the comment period by so stating at the hearing. (C) A recording or written transcript of the hearing shall be made available to the public for review or copying at the central office of the Division of Waste Management - Solid Waste Section. (7) Reopening of the Public Comment Period. (A) If any data, information, or arguments submitted during the public comment period appear to raise substantial new questions concerning a permit action, the Division may prepare a new draft permit, appropriately modified, under Subparagraph (2) of this Paragraph; prepare a fact sheet or revised fact sheet under Subparagraph (3) of this Paragraph and reopen the comment period under Subparagraph (4) of this Paragraph; or reopen or extend the comment period under Subparagraph (4) of this Paragraph to give interested persons an opportunity to comment on the information or arguments submitted. (B) Comments filed during the reopened comment period shall be limited to the substantial new questions that caused its reopening. The public notice under Subparagraph (4) of this Paragraph shall define the scope of the reopening. (C) Public notice of any of the actions of this Subparagraph shall be issued under Subparagraph (4) of this Paragraph. (8) Permit Decision. (A) After the close of the public comment period under Subparagraph (4) of this Paragraph on a draft permit or a notice of intent to deny a permit, the Division shall issue a permit decision. The Division shall notify the applicant and each person who has submitted a written request for notice of the permit decision. For the purposes of this Subparagraph, a permit decision means a decision to issue, deny or modify a permit. (B) A permit decision shall become effective upon the date of the service of notice of the decision unless a later date is specified in the decision. (9) Response to Comments. (A) At the time that a permit decision is issued under Subparagraph (8) of this Paragraph, the Division shall issue a response to comments. This response shall specify which provisions, if any, of the draft permit have been changed in the permit decision, and the reasons for the change; and briefly describe and respond to all significant comments on the draft permit raised during the public comment period, or during any public hearing. (B) The response to comments shall be made available to the public for review or copying at the central office of the Division of Waste Management – Solid Waste Section. (d) Permit approval or denial. The Division shall review all permit applications in accordance with Rule .0203 of Section .0200 - PERMITS FOR SOLID WASTE MANAGEMENT FACILITIES. Authority G.S. 130A-294. 15A NCAC 13B .0534 GENERAL REQUIREMENTS FOR C&DLF FACILITIES AND UNITS (a) Applicability. Permits issued by the Division for C&DLF facilities and units shall be subject to the general requirements set forth in this Rule. PROPOSED RULES 20:17 NORTH CAROLINA REGISTER March 1, 2006 1463 (b) Terms of the Permit. The Solid Waste Management Permit shall incorporate requirements necessary to comply with this Subchapter and the North Carolina Solid Waste Management Act including, but not limited to, the provisions of this Paragraph. (1) Division Approved Plan. Permits issued subsequent to the effective date of this Rule shall incorporate a Division approved plan. (A) The scope of the Division approved plan shall include the information necessary to comply with the requirements set forth in Rule .0535 of this Section. (B) The Division approved plans shall be subject to and may be limited by the conditions of the permit. (C) The Division approved plans for a new facility shall be described in the permit and shall include, but not be limited to, the Facility Plan, Rule .0537 of this Section, Engineering Plan, Rule .0539 of this Section, Construction Quality Assurance plan, Rule .0541 of this Section, Operation Plan, Rule .0542 of this Section, Closure and Post-Closure plan, Rule .0543 of this Section, and Monitoring Plans, Rule .0544 of this Section. (2) Permit provisions. All C&DLF facilities and units shall conform to the specific conditions set forth in the permit and the following general provisions. Nothing in this Subparagraph shall be construed to limit the conditions the Division may impose on a permit. (A) Duty to Comply. The permittee shall comply with all conditions of the permit, unless otherwise authorized by the Division. Any permit noncompliance, except as otherwise authorized by the Division, constitutes a violation of the Act and is grounds for enforcement action or for permit revocation, modification or suspension. (B) Duty to Mitigate. In the event of noncompliance with the permit, the permittee shall take all reasonable steps to minimize releases to the environment, and shall carry out such measures as are reasonable to prevent adverse impacts on human health or the environment. (C) Duty to Provide Information. The permittee shall furnish to the Division, any relevant information that the Division may request to determine whether cause exists for modifying, revoking or suspending the permit, or to determine compliance with the permit. The permittee shall also furnish to the Division, upon request, copies of records as required to be kept under the conditions of the permit. (D) Recordation Procedures. The permittee shall comply with the requirements of Rule .0204 of this Subchapter RECORDATION OF LAND DISPOSAL PERMITS in order for a new permit to be effective. (E) Need to Halt or Reduce Activity. It shall not be a defense for a permittee in an enforcement action to claim that it would have been necessary to halt or reduce the permitted activity in order to maintain compliance with the conditions of the permit. (F) Permit Actions. The permit may be modified, reissued, revoked, suspended or terminated in accordance with G.S. 130A-23. The filing of a request by the permittee for a permit modification, or a notification of planned changes or anticipated noncompliance, does not stay any existing permit condition. (G) No Property Rights. The permit does not convey any property rights of any sort, or any exclusive privilege. The permit is not transferable. (H) Construction. If construction does not commence within 18 months from the issuance date of the permit to construct, or a substantial amendment to the permit, or an amendment to the permit, then the permittee shall obtain written approval from the Division prior to construction and comply with any conditions of said approval. (I) Proper Operation and Maintenance. The permittee shall at all times properly operate and maintain all facilities and systems of treatment and control (and related appurtenances) which are installed or used by the permittee to achieve compliance with the conditions of the permit. Proper operation and maintenance includes effective performance, adequate funding, adequate operator staffing and training, and adequate laboratory and process controls, including appropriate quality assurance procedures. This provision requires the operation of back-up or auxiliary facilities or similar systems only PROPOSED RULES 20:17 NORTH CAROLINA REGISTER March 1, 2006 1464 when necessary to achieve compliance with the conditions of the permit. (J) Inspection and Entry. The permittee shall allow the Division or an authorized representative to enter the permittee's premises where a regulated unit(s) or activity is located or conducted, or where records are kept under the conditions of the permit; have access in order to copy any records required to be kept under the conditions of the permit; any unit(s), equipment (including monitoring and control equipment), practices or operations regulated by the Division; or monitor for the purposes of assuring permit compliance or as otherwise authorized by the Act, any substances or parameters at any location; and make photographs for the purpose of documenting items of compliance or noncompliance at waste management units, or where appropriate to protect legitimate proprietary interests, require the permittee to make such photos for the Division. (K) Waste Exclusions. Waste to be excluded from disposal in a C&DLF is listed in Rule .0542 of this Section. Permit conditions may include additional exclusions as they become necessary in order to protect the public health and the environment or to ensure proper landfill operation. (L) Additional Solid Waste Management Activities. Construction and operation of additional solid waste management activities at the landfill facility shall not impede operation or monitoring of the C&DLF unit(s) and shall be submitted to the Division for review and approval. Authority G.S. 130A-294. 15A NCAC 13B .0535 APPLICATION REQUIREMENTS FOR C&DLF FACILITIES (a) Permit for a new facility. The owner and operator of a new facility shall meet the re |
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