GENERAL ASSEMBLY OF NORTH CAROLINA

SESSION 1993

H	1 

HOUSE BILL 702

Short Title:  Env. Permitting Reform.	(Public)
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Sponsors: Representatives B. Miller and Gottovi.
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Referred to:  Environment.
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April 1, 1993

A BILL TO BE ENTITLED
AN ACT TO REFORM AND EXPEDITE THE PROCESS BY WHICH APPLICATIONS FOR PERMITS UNDER CERTAIN ENVIRONMENTAL REGULATORY PROGRAMS ARE CONSIDERED AND TO REFORM AND EXPEDITE ADMINISTRATIVE AND JUDICIAL REVIEW OF PERMIT DECISIONS.
Section 1.  G.S. 74-49 is amended by adding the following two subdivisions to read:
"(11a)	'Person affected' means a person aggrieved, as defined in G.S. 150B-2, who either:
a.	Submits to the Department in a timely manner, either individually or jointly with other persons, written comment containing specific recommendations on a permit application.
b.	Presents oral comment at a public hearing if a public hearing is conducted by the Department on a permit application and, if there is an opportunity to submit written comment following the public hearing, submits written comment containing specific recommendations on the permit application to the Department in a timely manner.
c.	Makes a good cause showing that comment was not submitted or presented because there was no reason to have anticipated being adversely affected by the qualifying permit decision.
(11b)	'Qualifying permit decision' means any of the following:
a.	The approval or denial of an application for a new permit.
b.	The approval of an application to renew a permit to the extent the renewed permit differs from the former permit.
c.	The denial of an application to renew a permit.
d.	The approval or denial of an application for a major modification of a permit, as determined by rule of the Commission, to the extent the modified permit differs from the former permit."
Sec. 2.  G.S. 74-50 reads as rewritten:
"§ 74-50. Permits – General.
(a) No person shall engage in mining without having first obtained from the Department an operating permit  which covers the affected land and which has not terminated, been revoked, been suspended for the period in question, or otherwise become invalid. An operating permit may be modified from time to time to include land neighboring the affected land, in accordance with procedures set forth in G.S. 74-52. A separate permit shall be required for each mining operation that is not on land neighboring a mining operation for which the operator has a valid permit.
(b) Prior to the issuance of a new mining permit, an applicant shall notify by certified or registered mail all owners of record of land adjoining the proposed site and the chief administrative officer of the county or municipality in which the site is located.  The notice shall conform to the requirements of G.S. 74-51(d).
(c) No permit shall become effective until the operator has deposited with the Department an acceptable performance bond or other security pursuant to G.S. 74-54. If at any time said bond or other security, or any part thereof, shall lapse for any reason other than a release by the Department, and said lapsed bond or security is not replaced by the operator within 30 days after notice of the lapse, the permit to which it pertains shall automatically become void and of no further effect.
(d) An operating permit shall be granted for a period not exceeding 10  years. If the mining operation terminates and the reclamation required under the approved reclamation plan is completed prior to the end of said period, the permit shall terminate. Termination of a permit shall not have the effect of relieving the operator of any obligations which he has incurred under his approved reclamation plan or otherwise. Where the mining operation itself has terminated, no permit shall be required in order to carry out reclamation measures under the reclamation plan.
."
Sec. 3.  G.S. 74-51 reads as rewritten:
"§ 74-51. Permits – Application, granting, conditions.
(a) Any person desiring to engage in mining shall make written application to the Department for a permit.  Such application shall be upon a form furnished by the Department and shall fully state the information called for; in addition, the applicant may be required to furnish such other information as may be deemed necessary by the Department in order adequately to enforce this Article.
(b) The application shall be accompanied by a reclamation plan which meets the requirements of G.S. 74-53.  No permit shall be issued until such plan has been approved by the Department.
(c) The application shall be accompanied by a signed agreement, in a form specified by the Department, that in the event a bond forfeiture is ordered pursuant to G.S. 74-59, the Department and its representatives and its contractors shall have the right to make whatever entries on the land and to take whatever actions may be necessary in order to carry out reclamation which the operator has failed to complete.
(d) When an applicant submits an application for which a qualifying permit decision must be made, the Department shall set a period of not less than 30 days for accepting written comment on the application.  Within 10 days after receipt of the application, the Department shall send the applicant written notice of this period.  Within 10 days after receiving notice of the comment period, the applicant shall publish a notice of the application in a newspaper having general circulation in each county in which any part of the mining operation is proposed to be located.  For an application to be deemed complete, the applicant shall submit an affidavit of publication from the publisher of each newspaper in which the notice is published.  At a minimum, the notice shall:
(1)	Name the applicant.
(2)	Clearly identify the area to be mined and the nature of the proposed mining operation.
(3)	State the name and address of the agency to which public comment on the application may be directed and the time allowed for submitting comment.
(e) Before deciding whether to grant a new permit, the Department shall circulate copies of a notice of application for review and comment as it deems advisable.  The Department shall consider all relevant oral comment presented at any public hearing conducted by the Department and all relevant written comment submitted in a timely manner.  Written comment is submitted in a timely manner if it is received by the Department during the comment period stated in the newspaper notice or during any period that the Department holds the application open for receipt of additional information from the applicant.  The Department shall grant or deny the permit requested as expeditiously as possible, but in no event later than 60 days after the application form and any relevant and material supplemental information reasonably required shall have been filed with the Department, or if a public hearing is held, within 30 days following the hearing and the filing of any relevant and material supplemental information reasonably required by the Department.  Priority consideration shall be given to applicants who submit evidence that the mining proposed will be for the purpose of supplying materials to the Board of Transportation.
(f) Upon its determination that significant public interest exists, the Department shall conduct a public hearing on any application for a new mining permit.  If the Department conducts a public hearing, the hearing shall be held before the Department reaches a final decision on the application, and in making its determination, the Department shall give full consideration to all comments submitted at the public hearing.  If the Department conducts a public hearing, the hearing shall be held within 60 days after the application and any relevant and material supplemental information reasonably required by the Department is filed with the Department.
(g) The Department may deny such permit upon finding:
(1)	That any requirement of this Article or any rule promulgated hereunder will be violated by the proposed operation;
(2)	That the operation will have unduly adverse effects on wildlife or fresh water, estuarine, or marine fisheries;
(3)	That the operation will violate standards of air quality, surface water quality, or groundwater quality which have been promulgated by the Department;
(4)	That the operation will constitute a substantial physical hazard to a neighboring dwelling house, school, church, hospital, commercial or industrial building, public road or other public property;
(5)	That the operation will have a significantly adverse effect on the purposes of a publicly owned park, forest or recreation area;
(6)	That previous experience with similar operations indicates a substantial possibility that the operation will result in substantial deposits of sediment in stream beds or lakes, landslides, or acid water pollution; or
(7)	That the operator has not corrected all violations which he may have committed under any prior permit and which resulted in,
a.	Revocation of his permit,
b.	Forfeiture of part or all of his bond or other security,
c.	Conviction of a misdemeanor under G.S. 74-64, or
d.	Any other court order issued under G.S. 74-64.
(h) In the absence of any such findings, a permit shall be granted. Any permit issued shall be expressly conditioned upon compliance with all requirements of the approved reclamation plan for the operation and with such further reasonable and appropriate requirements and safeguards as may be deemed necessary by the Department to assure that the operation will comply fully with the requirements and objectives of this Article.  Such conditions may, among others, include a requirement of visual screening, vegetative or otherwise, so as to screen the view of the operation from public highways, public parks, or residential areas, where the Department finds such screening to be feasible and desirable.  Violation of any such conditions shall be treated as a violation of this Article and shall constitute a basis for suspension or revocation of the permit.
(i) Any operator wishing any modification of the terms and conditions of his permit or of the approved reclamation plan shall submit a request for modification in accordance with the provisions of G.S. 74-52.
(j) If the Department denies an application for a permit, it shall notify the applicant in writing, stating the reasons for its denial and any modifications in the application that would make it acceptable.  The applicant may modify the application or file an appeal, as provided in G.S. 74-61. 
(k) Upon approval of an application, the Department shall set the amount of the performance bond or other security which is to be required pursuant to G.S. 74-54.  The operator shall have 60 days following the mailing of such notification in which to deposit the required bond or security with the Department.  The operating permit shall not be issued until receipt of this deposit.
(l) When one operator succeeds to the interest of another in any uncompleted mining operation, by virtue of a sale, lease, assignment, or otherwise, the Department may release the first operator from the duties imposed upon him by this Article with reference to such operation and transfer the permit to the successor operator; provided, that both operators have complied with the requirements of this Article and that the successor operator assumes the duties of the first operator with reference to reclamation of the land and posts a suitable bond or other security."
Sec. 4.  G.S. 74-60 reads as rewritten:
"§ 74-60. Public notice of certain permit decisions; form of notice to applicants and permit holders.
(a) Public Notice. – The Department shall publish notice of a qualifying permit decision in the North Carolina Register.  If the Department has not submitted the notice for publication within 20 days after it makes the decision, the permit holder may submit the required notice to the North Carolina Register for publication.  At a minimum, the notice shall:
(1)	Identify the application, including the name of the applicant and the date the application was submitted.
(2)	Clearly identify the area to be mined including each county in which the area is located.
(3)	State the decision on the application.
(4)	State the last date on which a contested case petition may be filed in the Office of Administrative Hearings.
(5)	State the name and address of the agency that made the decision.
(b) Applicants and Permit Holders. – Whenever this Article requires the Department to give written notice to an applicant for a permit or a holder of a permit, the Department shall mail the notice by registered or certified mail to the permanent address of the applicant or permit holder set forth in the applicant's or permit holder's most recent application for a permit or for a modification or renewal of a permit.  
(c) Effect. – Notice of a qualifying permit decision given in accordance with subsection (a) of this section satisfies G.S. 150B-23(f).
(d) Notice by Mail. – The Department shall, to the extent practicable, mail a copy of the notice described in subsection (a) of this section to persons who provide the Department with a self-addressed envelope with sufficient postage affixed."
Sec. 5.  G.S. 74-61 reads as rewritten:
"§ 74-61.  Administrative and judicial review of decisions.
(a) Applicants and Permit Holders. – An applicant for a permit or a permit holder may contest a qualifying permit decision by filing a petition for a contested case under G.S. 150B-23 within 60 days after notice of the decision is published in the North Carolina Register.  A permit holder may contest any other permit decision, a refusal to release part or all of the holder's bond or other security, or the assessment of a civil penalty against a holder by filing a petition for a contested case under G.S. 150B-23 within 60 days after receiving written notice of the decision.
(b) Persons Affected. – A person affected may contest a qualifying permit decision, but may not contest any other permit decision, by filing a petition for a contested case under G.S. 150B-23 within 60 days after notice of the decision is published in the North Carolina Register.  When a person affected contests a qualifying permit decision, the assigned Administrative Law Judge shall by order make the permit holder a party to the contested case proceeding.  In the contested case, the person affected may not contest an issue that was not raised, either by the person affected or another person, with the Department when the contested decision was pending before the Department unless the Administrative Law Judge assigned to the contested case makes an exception for good cause shown.  The assigned Administrative Law Judge may allow a person affected to be heard on a new issue only if the Administrative Law Judge finds that the issue could not reasonably have been raised while the contested decision was pending before the Department.  If the contested case concerns the approval of an application to renew a permit, the person affected may contest only a difference between the renewed permit and the former permit.
(c) Other Persons. – A person who is not a permit holder who is assessed a civil penalty may contest the penalty by filing a petition for a contested case under G.S. 150B-23 within 60 days after receiving written notice of the assessment.  A person aggrieved by a permit decision who is not a permit applicant, a permit holder, or a person affected may not contest the decision by filing a petition for a contested case but may petition to intervene in any contested case on the decision.  A person aggrieved who fails to petition to intervene in a contested case has not exhausted all available administrative remedies.
(d) Stay. – If a permit holder or a person affected files a petition for a contested case proceeding to challenge a qualifying permit decision, any provision of a renewed permit that is specifically challenged in the petition and that differs from the former permit is stayed until the final decision is issued.  If a provision of the renewed permit is stayed under this section, the permit holder shall comply with the provision of the former permit that corresponds to the stayed provision, unless compliance with the former provision would be technologically incompatible with compliance of other provisions of the new permit that have not been stayed.
(e) Final Decision. – The Commission shall make the final decision in a contested case under this section.  If a permit applicant, permit holder, person affected, or other person assessed a civil penalty does not file a petition for a contested case within the required time, the decision by the Department is final and is not subject to administrative or judicial review.
(f) Judicial Review. – Except as provided in this subsection, Article 4 of Chapter 150B of the General Statutes governs judicial review of a final decision in a contested case and of a final decision for which the administrative remedy of a contested case is not available.  Any person who seeks judicial review of a final decision in a contested case must file a petition for review within 30 days after the parties to the case are served with a written copy of the decision.  Any person aggrieved by a final decision for which the administrative remedy of a contested case is not available may obtain judicial review of the decision by filing a petition for review within 30 days after the final decision is issued.  A petition for judicial review of a qualifying permit decision shall be dismissed unless the petitioner is either:
(1)	A person affected who either filed a contested case petition on the decision or was a party to a contested case on the decision.
(2)	A person aggrieved only as a result of the final decision in a contested case on the decision."
Sec. 6.  G.S. 143-213 is amended by adding the following five new subdivisions to read:
"(13a)	'Person affected' means a person aggrieved, as defined in G.S. 150B-2, except that, if newspaper notice and opportunity for comment are provided by the Commission, 'person affected' means a person aggrieved, as defined in G.S. 150B-2 who either:
a.	Submits to the Commission in a timely manner, either individually or jointly with other persons, written comment containing specific recommendations on a permit application.
b.	Presents oral comment at a public hearing if a public hearing is conducted by the Commission on a permit application and, if there is an opportunity to submit written comment following the public hearing, submits written comment containing specific recommendations on the permit application to the Commission in a timely manner.
c.	Makes a good cause showing that comment was not submitted or presented because there was no reason to have anticipated being adversely affected by the qualifying permit decision.
(13b)	'Qualifying permit decision' means any of the following actions by the Commission:
a.	The approval or denial of an application for a new permit, other than a general permit or a temporary permit.
b.	The approval of an application to reissue a permit, other than a general permit or a temporary permit, to the extent the reissued permit differs from the former permit.
c.	The denial of an application to reissue a permit, other than a general permit or a temporary permit.
d.	The approval or denial of an application for a major modification of a permit as determined by rule of the Commission.
e.	The issuance of a special order pursuant to G.S 143-215.2 or G.S. 143-215.110.
(13c)	'Qualifying air permit decision' means a qualifying permit decision made pursuant to Article 21B of this Chapter for an activity that is:
a.	Subject to regulation under Title IV or Title V.
b.	Required to be submitted to a local government for review pursuant to G.S. 143-215.108(f).
c.	Designated for public notice by rule of the Commission.
(13d)	'Qualifying water discharge permit decision' means a qualifying permit decision made pursuant to this Article for:
a.	An outlet into the waters of the State.
b.	A treatment works.
c.	A pretreatment facility.
d.	Any other activity that is designated for public notice by rule of the Commission.
(13e)	'Qualifying water nondischarge permit decision' means a qualifying permit decision made pursuant to this Article for:
a.	Land application of waste including petroleum contaminated soil and sludge.
b.	Any other activity that is designated for public notice by rule of the Commission."
Sec. 7.  G.S. 143-215.1(e) reads as rewritten:
"(e) Notice and Review. –G.S. 143-215.5 governs public notice of a permit decision and administrative and judicial review of a permit decision."
Sec. 8.  G.S. 143-215.2(b) reads as rewritten:
"(b) Review. – G.S. 143-215.5 governs administrative and judicial review of an order issued under this section."
Sec. 9.  G.S. 143-215.4(b) reads as rewritten:
"(b) Procedures for Public Input. –
(1)	The Commission may, on its own motion or when required by federal law, request public comments on or hold public hearings on matters within the scope of its authority under this Article or Articles 21A or 21B of this Chapter.  Before making a qualifying permit decision, the Department shall consider all relevant oral comment presented at any public hearing conducted by the Department and all relevant written comment submitted in a timely manner.  Written comment is submitted in a timely manner if it is received by the Department during the comment period stated in the newspaper notice or during any period that the Department holds the application or special order open for receipt of additional information from the applicant.
(2)	To request public comments on a matter, the Commission shall notify appropriate agencies of the opportunity to submit written comments to the Commission on the matter and shall publish a notice in a newspaper having general circulation in the affected area, stating the matter under consideration by the Commission and informing the public of its opportunity to submit written comments to the Commission on the matter.  A public comment period shall extend for at least 30 days after the notice is published.
(3)	To hold a public hearing on a matter, the Commission shall notify the applicant or permit holder by certified mail and shall publish a notice in a newspaper having general circulation in the affected area, stating the matter under consideration by the Commission and the time, date, and place of a public hearing to be held on the matter.  A public hearing shall be held no sooner than 20 days after the notice is published.  The proceedings at a public hearing held under this subsection shall be recorded.  Upon payment of a fee established by the Commission, any person may obtain a copy of the record of the public hearing.  After a public hearing, the Commission shall accept written comments for the time period prescribed by the Commission.
(4)	This subsection applies only to proceedings that are not rule-making proceedings or contested case hearings."
Sec. 10.  G.S. 143-215.5 reads as rewritten:
"§ 143-215.5.  Public notice of qualifying permit decisions; administrative and judicial review of decisions.
(a) Public Notice. – The Department shall publish notice of a qualifying air permit decision, a qualifying water discharge permit decision, and a qualifying water nondischarge permit decision in the North Carolina Register.  If the Department has not submitted the notice for publication within 20 days after it makes the decision, the permit holder may submit the required notice to the North Carolina Register for publication.  At a minimum, the notice shall:
(1)	Identify the application, including the name of the applicant and the date the application was submitted.
(2)	Clearly identify the location of the activity including each county in which the activity is located.
(3)	State the decision on the application.
(4)	State the last date on which a contested case petition may be filed in the Office of Administrative Hearings.
(5)	State the name and address of the agency that made the decision.
(b) Effect. – Notice of a qualifying air permit decision, a qualifying water discharge permit decision, and a qualifying water nondischarge permit decision given in accordance with subsection (a) of this section satisfies G.S. 150B-23(f).
(c) Notice by Mail. – The Department shall, to the extent practicable, mail a copy of the notice described in subsection (a) of this section to persons who provide the Department with a self-addressed envelope with sufficient postage affixed.
(d) Applicants and Permit Holders. – A permit applicant or permit holder may contest a qualifying air permit decision, a qualifying water discharge permit decision, or a qualifying water nondischarge permit decision of the Commission by filing a petition for a contested case under G.S. 150B-23 within 30 days after notice of the decision is published in the North Carolina Register.  A permit applicant or permit holder may contest any other permit decision by filing a petition for a contested case under G.S. 150B-23 within 30 days after receiving written notice of the decision.
(e) Persons Affected. – A person affected may contest a qualifying air permit decision, a qualifying water discharge permit decision, or a qualifying water nondischarge permit decision, but may not contest any other permit decision, by filing a petition for a contested case under G.S. 150B-23 within 30 days after notice of the decision is published in the North Carolina Register.  When a person affected contests a qualifying air permit decision, a qualifying water discharge permit decision, or a qualifying water nondischarge permit decision, the assigned Administrative Law Judge shall by order make the permit holder a party to the contested case proceeding.  In the contested case, the person affected may not contest an issue that was not raised, either by the person affected or another person, with the Commission when the contested decision was pending before the Commission unless the Administrative Law Judge assigned to the contested case makes an exception for good cause shown.  The assigned Administrative Law Judge may allow a person affected to be heard on a new issue only if the Administrative Law Judge finds that the issue could not reasonably have been raised while the contested decision was pending before the Commission.  If the contested case concerns the approval of an application to renew a permit, the person affected may contest only a difference between the renewed permit and the former permit.
(f) Other Persons. – A person aggrieved by a permit decision who is not a permit applicant, a permit holder, or a person affected may not contest the decision by filing a petition for a contested case but may petition to intervene in any contested case on the decision.  A person aggrieved who fails to petition to intervene in a contested case has not exhausted all available administrative remedies.
(g) Stay. – If a permit holder or a person affected files a petition for a contested case proceeding to challenge a qualifying permit decision, any provision of a reissued permit that is specifically challenged in the petition and that differs from the former permit is stayed until the final decision is issued.  If a provision of the reissued permit is stayed under this section, the permit holder shall comply with the provision of the former permit that corresponds to the stayed provision, unless compliance with the former provision would be technologically incompatible with compliance of other provisions of the new permit that have not been stayed.
(h) Final Decision. – The Commission shall make the final decision in a contested case under this section.  If a permit applicant, permit holder, or person affected does not file a petition for a contested case within the required time, the decision by the Commission is final and is not subject to administrative or judicial review.
(i) Judicial Review. – Except as provided in this subsection, Article 4 of Chapter 150B of the General Statutes governs judicial review of a final decision in a contested case and of a final decision for which the administrative remedy of a contested case is not available.  Any person who seeks judicial review of a final decision in a contested case must file a petition for review within 30 days after the parties to the case are served with a written copy of the decision.  Any person aggrieved by a final decision for which the administrative remedy of a contested case is not available may obtain judicial review of the decision by filing a petition for review within 30 days after the final decision is issued.  A person aggrieved by a final decision for which the administrative remedy of a contested case is not available may obtain judicial review of the decision by filing a petition in accordance with Article 4 of Chapter 150B of the General Statutes.  A petition for judicial review of a qualifying permit decision shall be dismissed unless the petitioner is either:
(1)	A person affected who either filed a contested case petition on the decision or was a party to a contested case on the decision.
(2)	A person aggrieved only as a result of the final decision in a contested case on the decision.
(j) Bond on Appeal. – If a case that concerns a decision of the Commission is appealed from the superior court to the Court of Appeals, no bond shall be required of the Commission."
Sec. 11.  G.S. 143-215.108(e) reads as rewritten:
"(e) Notice and Review. – G.S. 143-215.5 governs public notice of a permit decision and administrative and judicial review of a permit decision."
Sec. 12.  G.S. 143-215.110(b) reads as rewritten:
"(b) Review. – G.S. 143-215.5 governs administrative and judicial review of an order issued under this section."
Sec. 13.  G.S. 143-215.1(b)(4)c. reads as rewritten:
"c.	To modify or revoke any permit upon not less than 60 days' written notice to the permit holder."
Sec. 14.  G.S. 143-215.15(c) reads as rewritten:
"(c) In all cases in which sufficient evidence of a nonconsumptive use is not presented the Department shall notify each person required by this Part to secure a permit of the Commission's proposed action concerning such permit, and shall transmit with such notice a copy of any permit it proposes to issue to such persons, which permit will become final unless a request for a hearing is made within 15 days from the date of service of such notice. If sufficient evidence of a nonconsumptive use is not presented, the Commission may: (i) grant such permit with conditions as the Commission deems necessary to implement the rules adopted pursuant to G.S. 143-215.14; (ii) grant any temporary permit for such period of time as the Commission shall specify where conditions make such temporary permit essential, even though the action allowed by such permit may not be consistent with the Commission's rules applicable to such capacity use area; (iii) modify or revoke any permit upon not less than 60 days' written notice to the permit holder; and (iv) deny such permit if the application therefor or the effect of the water use proposed or described therein upon the water resources of the area is found to be contrary to public interest. Before issuing a permit under this subsection, the Commission shall notify the permit applicant of its proposed action by sending the permit applicant a copy of the permit the Commission proposes to issue.  Unless the permit applicant contests the proposed permit, the proposed permit shall become effective on the date set in the proposed permit.  A water user who is dissatisfied with a decision of the Commission concerning that user's or another user's permit application or permit may commence a contested case under G.S. 150B-23."
Sec. 15.  G.S. 143-215.32(a) reads as rewritten:
"(a) The Department is hereby authorized at any time to inspect any dam upon receipt of a written request of any person or agency, or upon a motion of the Environmental Management Commission. Within the limits of available funds the Department shall endeavor to provide for inspection of all dams at intervals of approximately five years."
Sec. 16.  G.S. 143-215.108(c)(3) reads as rewritten:
"(3)	To modify or revoke any permit upon not less than 60 days' written notice to the permit holder;".
Sec. 17.  This act becomes effective 1 October 1993, and applies to applications for a new permit, a modification of an existing permit, or a reissuance or renewal of an existing permit filed on or after that date.