GENERAL ASSEMBLY OF NORTH CAROLINA

SESSION 1989

S	3 

SENATE BILL 27
Environment and Natural Resources Committee Substitute Adopted 2/20/89
Third Edition Engrossed 2/23/89

Short Title:  NC May Exceed US Environmental Regs.	(Public)
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Sponsors:
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Referred to:  
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January 18, 1989

A BILL TO BE ENTITLED
AN ACT TO REPEAL THOSE PORTIONS OF THE GENERAL STATUTES WHICH REQUIRE THAT ENVIRONMENTAL RULES BE NO MORE RESTRICTIVE THAN COMPARABLE FEDERAL REGULATIONS, TO REQUIRE THAT AN ASSESSMENT REPORT BE PREPARED AS TO THE BENEFITS AND BURDENS LIKELY TO RESULT FROM ENVIRONMENTAL RULE-MAKING, AND TO REQUIRE THAT THE BENEFITS OF ENVIRONMENTAL RULE-MAKING EXCEED THE BURDENS.
The General Assembly of North Carolina enacts:
Section 1.  G.S. 20-128.2(a) reads as rewritten:
	"(a) The rules and regulations promulgated pursuant to G.S. 143-215.107(a)(6) for the purposes of this section shall be limited to carbon monoxide, shall be statewide in scope but enforced on a county unit basis when ambient air pollutant concentrations exceed the National Ambient Air Quality Standards established pursuant to the Clean Air Act of 1970 as amended by the Clean Air Act amendments of 1977 and when the Environmental Management Commission certifies to the Commissioner of Motor Vehicles that the ambient air quality within a specified county requires a motor vehicle inspection/maintenance program; provided the Environmental Management Commission may prescribe different standards for different areas as may be necessary and appropriate to facilitate accomplishment of the stated purposes of this section. "
Sec. 2.  G.S. 130-166.21D is repealed.
Sec. 2.1.  Chapter 130A of the General Statutes is amended by adding a new section to read:
"§ 130A-294.2.  Waste pesticides, containers, and residues generated by farmers.
A farmer disposing of waste pesticides from his own use which are hazardous wastes may not be required to comply with standards which exceed federal law and regulations and rules adopted by the North Carolina Pesticide Board for those wastes provided that each empty pesticide container is triple rinsed in accordance with such law, regulations, and rules and pesticide residues are disposed of on the farmer's own farm in a manner consistent with the disposal instructions on the pesticide label."
Sec. 3.  G.S. 143-215 reads as rewritten:
"§ 143-215. Effluent standards and limitations.
(a)	The Commission is authorized and directed to develop, adopt, modify and revoke effluent standards and limitations and waste treatment management practices as it determines necessary to prohibit, abate, or control water pollution. The effluent standards or limitations or management practices may provide, without limitation, standards or limitations or management practices for any point source or sources; standards, limitations, management practices, or prohibitions for toxic wastes or combinations of toxic wastes discharged from any point source or sources; and pretreatment standards for wastes discharged to any disposal system subject to effluent standards or limitations or management practices.
(b)	The effluent standards and limitations developed and adopted by the Commission shall provide limitations upon the effluents discharged from pretreatment facilities and from outlets and point sources to the waters of the State adequate to limit the waste loads upon the waters of the State to the extent necessary to maintain or enhance the chemical, physical, biological and radiological integrity of the waters. The management practices developed and adopted by the Commission shall prescribe practices necessary to be employed in order to prevent or reduce contribution of pollutants to the State's waters.
(c)	Except as required by federal law or regulations, the Commission may not adopt effluent standards or limitations applicable to animal feeding operations not designated as concentrated animal feeding operations.  The definitions and provisions of Title 40, Code of Federal Regulations § 122.23 shall apply to this subsection."
Sec. 4.  G.S. 143-215.3(a)(15) reads as rewritten:
"(15)	To adopt rules and implement programs to prevent pollution from underground tanks containing petroleum, petroleum products, or hazardous substances."
Sec. 5.  G.S. 143-215.107 reads as rewritten:
"§ 143-215.107. Air quality standards and classifications.
(a)	Duty to Adopt Plans, Standards, etc. – The Commission is hereby directed and empowered, as rapidly as possible within the limits of funds and facilities available to it, and subject to the procedural requirements of this Article and Article 21:
(1)	To prepare and develop, after proper study, a comprehensive plan or plans for the prevention, abatement and control of air pollution in the State or in any designated area of the State.
(2)	To determine by means of field sampling and other studies, including the examination of available data collected by any local, State or federal agency or any person, the degree of air contamination and air pollution in the State and the several areas of the State.
(3)	To develop and adopt, after proper study, air quality standards applicable to the State as a whole or to any designated area of the State as the Commission deems proper in order to promote the policies and purposes of this Article and Article 21 most effectively.
(4)	To develop and adopt classifications for use in classifying air contaminant sources, which in the judgment of the Commission may cause or contribute to air pollution, according to levels and types of emissions and other characteristics which relate to air pollution and may require reporting for any such class or classes. Such classifications may be for application to the State as a whole or to any designated area of the State, and shall be made with special reference to effects on health, economic and social factors, and physical effects on property. Any person operating or responsible for the operation of air contaminant sources of any class for which the Commission requires reporting shall make reports containing such information as may be required by the Commission concerning location, size, and height of contaminant outlets, processes employed, fuels used, and the nature and time periods or duration of emissions, and such other information as is relevant to air pollution and available or reasonably capable of being assembled.
(5)	To develop and adopt such emission control standards as in the judgment of the Commission may be necessary to prohibit, abate or control air pollution commensurate with established air quality standards. Such standards may be applied uniformly to the State as a whole or to any area of the State designated by the Commission.
(6)	To adopt, when necessary and practicable, a program for testing emissions from motor vehicles and to adopt motor vehicle emission standards in compliance with applicable federal regulations.
(7)	To develop and adopt standards and plans necessary to implement programs for the prevention of significant deterioration and for the attainment of air quality standards in nonattainment areas.
(b)	Criteria for Standards. – In developing air quality and emission control standards, the Commission shall recognize varying local conditions and requirements and may prescribe different standards for different areas as may be necessary and appropriate to facilitate accomplishment of the stated purposes of this Article and Article 21.
(c)	Chapter 150B of the General Statutes governs the adoption and publication of rules under this Article.
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Sec. 6.  G.S. 143B-30.2(a) reads as rewritten:
"(a)	Rules adopted by an agency on or after September 1, 1986, shall be submitted to the Administrative Rules Review Commission, which shall review the rule to determine whether it:
(1) 	Is within the authority delegated to the agency by the General Assembly;
(2) 	Is clear and unambiguous;
(3) 	Is reasonably necessary to enable the administrative agency to perform a function assigned to it by statute or to enable or facilitate the implementation of a program or policy in aid of which the rule was adopted, provided that, for rule-making for which an assessment report is required by G.S. 150B-11.1, no rule shall be determined to be reasonably necessary unless the agency has found that the benefits of the rule exceed its burdens.
Any rule filed by the 20th of a month shall be reviewed by the Commission by the last day of the next calendar month.  Any rule filed after the 20th of a month shall be reviewed by the Commission by the last day of the second subsequent calendar month.  The Commission may extend the time for review of a rule by a period of up to 70 days to obtain additional information on the rule.  The Commission shall file notice of the extension of time for review of a rule with the agency and the Director of the Office of Administrative Hearings.  A rule may not be presented for filing with the Director of the Office of Administrative Hearings under G.S. 150B-59 unless the rule has been reviewed by the Commission as provided in this section."
Sec. 7.  Chapter 150B of the General Statutes is amended by adding a new section to read:
"§ 150B-11.1.  Additional requirements applicable to certain rule-making.
(a)	In addition to other rule-making requirements imposed by law, and except as provided in subsection (b) of this section, the requirements of this section shall apply to rule-making pursuant to:
(1)	G.S. 20-128.2;
(2)	Article 9 of Chapter 130A of the General Statutes;
(3)	G.S. 130A-320; and
(4)	Articles 21, 21A, 21B, and 38 of Chapter 143 of the General Statutes.
(b)	This section shall not apply to any federal regulation adopted by reference pursuant to G.S. 150B-14, to any State standard that is identical to a federal standard, to any State standard the form of which prescribed by federal law or regulation, to rule-making for which no hearing is required as provided by G.S. 150B-12(f) through (h), or to temporary rule-making pursuant to G.S. 150B-13.
(c)	An agency which proposes to adopt, amend, or repeal rules  pursuant to any provision of law to which this section applies shall prepare and consider an assessment report as a part of the rule-making process.  The assessment report shall consist of an estimate of the aggregate social and economic benefits and burdens likely to result from the proposed rule-making and shall include, at a minimum, an examination of benefits and burdens to:  (i) the environment and the ecology; (ii) public health; (iii) commerce and industry; (iv) State and local governments; and (v) agriculture.  The assessment report shall also include, to the extent practical, an estimate of the extent to which proposed rule-making will result in an increase or decrease in paperwork.  No rule shall be adopted, amended, or repealed pursuant to any provision of law to which this section applies unless the agency finds that the benefits of such rule-making exceed its burdens.
(d)	The assessment report shall present all relevant data, assumptions, analysis, and calculations in sufficient detail to permit the agency and any reviewing body to easily understand the information presented.  The scope of the assessment report and the resources allocated to its preparation shall be commensurate with the availability of information and the relative significance of the proposed rule-making.  The agency responsible for the preparation of an assessment report shall make reasonable efforts to secure information needed for the report, including the exercise of any statutory authority for the collection of information.
(e)	The assessment required by this section shall take into account the uncertainties associated with the estimation of particular benefits and burdens and the difficulties involved in the comparison of qualitatively and quantitatively dissimilar benefits and burdens.  The assessment of benefits and burdens which cannot be precisely quantified may be expressed in qualitative terms.  The assessment required by this section shall include consideration of both short-term and long-term benefits and burdens.
(f)	This section shall not be interpreted to require a numerically precise cost-benefit analysis nor to require an assessment or consideration of costs where such assessment and consideration is prohibited by federal law or regulation.
(g)	In preparing the assessment report, the agency may request technical assistance from any department of State government, the Agricultural Extension Service, and the institutions of The University of North Carolina regarding the acquisition and analysis of data necessary to assess the benefits and burdens of proposed rule-making.
(h)	A notice of proposed rule-making shall include information as to the availability of an assessment report unless the agency proposes not to prepare an assessment report as provided by subsection (i) of this section.  The assessment report shall be completed and copies shall be available for distribution to the public at least 15 days prior to the rule-making hearing.  The agency may charge a reasonable fee to cover the cost of printing and postage.
(i)	An agency may propose not to prepare an assessment report if it reasonably determines that proposed rule-making is not likely to result in any significant burden to any person.  An agency shall include notice of its intent not to prepare an assessment report unless requested and the procedure for requesting that an assessment report be prepared in the notice of proposed rule-making.  A rule-making hearing shall not be held earlier than 60 days after the date such notice is published.  Any person may, within 30 days of the publication of such notice, request in writing that an assessment report be prepared.  A request that an assessment report be prepared must include sufficient data to demonstrate that the proposed rule-making would result in a significant burden to the person making the request.  Upon receipt of a timely written request the agency shall prepare an assessment report as required by this section, and the rule-making hearing shall not be held until the assessment report has been completed as required by subsection (h) of this section.
(j)	If a proposed rule is modified during the course of the rule-making proceeding, and such modification would significantly affect the assessment of benefits and burdens, the assessment report shall be amended accordingly.  The agency shall include the final assessment report in the record of the rule-making proceeding.
(k)	This section shall not be construed to affect the validity of any rule in force on the effective date of this section."
Sec. 8.  This act shall not be construed to obligate the General Assembly to make any appropriation to implement the provisions of this act.  Each department and agency to which this act applies shall implement the provisions of this act from funds otherwise appropriated to that department or agency.
Sec. 9.  This act is effective upon ratification.  G.S. 150B-11.1 as enacted by this act shall not apply to any rule-making proceeding in which notice of public hearing has been published as of the effective date of this act.