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).
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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