GENERAL ASSEMBLY OF NORTH CAROLINA

SESSION 1995

H	1 

HOUSE BILL 1351*

Short Title:  Well and Pump Contractors.	(Public)

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Sponsors: Representatives Culp; Locke, Mitchell, Tolson, Weatherly, and Ives.

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Referred to:  Health and Environment.

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May 24, 1996

A BILL TO BE ENTITLED
AN ACT TO CREATE THE WELL CONTRACTORS AND PUMP CONTRACTORS CERTIFICATION COMMISSION, TO AMEND THE WELL DRILLERS AND PUMP INSTALLERS REGISTRATION REQUIREMENTS, AND TO MAKE VARIOUS AMENDMENTS TO THE WELL CONSTRUCTION ACT, AS RECOMMENDED BY THE ENVIRONMENTAL REVIEW COMMISSION.
The General Assembly of North Carolina enacts:
Section 1.  Article 7 of Chapter 143B of the General Statutes is amended by adding a new Part to read:
"Part 9A.  Well Contractors and Pump Contractors Certification Commission.
"§ 143B-301.10.  Definitions.
The definitions in G.S. 87-85 and G.S. 87-98.2 apply in this Part.
"§ 143B-301.11.  Creation, powers, and duties of the Commission.
(a)	Creation and Duties. – The Well Contractors and Pump Contractors Certification Commission is created within the Department.  The Commission shall:
(1)	Adopt rules with respect to the certification of well contractors and pump contractors as provided by Article 7A of Chapter 87 of the General Statutes.
(2)	Exercise quasi-judicial powers in accordance with the provisions of Chapter 150B of the General Statutes.  The Commission shall make the final agency decision on any matter involving the certification of well contractors and pump contractors pursuant to Article 7A of Chapter 87 of the General Statutes and on civil penalties assessed for violations of that Article or rules adopted pursuant to that Article.
(3)	Adopt rules as may be required to secure a federal grant-in-aid for a program concerned with the certification of well contractors and pump contractors.  This subdivision is to be liberally construed in order that the State and its citizens may benefit from federal grants-in-aid.
(b)	Delegation. –  The Commission may, by rule, delegate to the Secretary any of its powers, other than the power to adopt rules.
"§ 143B-301.12.  Membership of Commission.
(a)	Appointments. – The Commission shall consist of seven members appointed by the Governor, with the following qualifications:
(1)	One member who is engaged in well contractor activities, who is certified as a well contractor under Article 7A of Chapter 87 of the General Statutes, and who is engaged primarily in the construction, installation, repair, alteration, or abandonment of domestic water supply wells.
(2)	One member who is engaged in well contractor activities, who is certified as a well contractor under Article 7A of Chapter 87 of the General Statutes, and who is engaged primarily in the construction, installation, repair, alteration, or abandonment of industrial, municipal, or other large capacity water supply wells.
(3)	One member who is engaged in well contractor activities, who is certified as a well contractor under Article 7A of Chapter 87 of the General Statutes, and who is engaged primarily in the construction, installation, repair, alteration, or abandonment of nonwater supply wells, such as monitoring or recovery wells.
(4)	One member who is certified as a pump contractor under Article 7A of Chapter 87 of the General Statutes and who is not engaged in well contractor activities.
(5)	One member who is employed by a local county health department that is located east of or is traversed by Interstate 95 and who is actively engaged in well inspection and permitting.
(6)	One member who is employed by a local county health department that is located wholly west of Interstate 95 and who is actively engaged in well inspection and permitting.
(7)	One member of the public at large who is not engaged in the activities of a well contractor or a pump contractor and who is not an employee of either a business or firm engaged in well or pump contractor activities or a State or county governmental agency.
(b)	Additional Qualifications. – Appointment of members to fill positions (1), (2), and (3) shall be made from among all those persons who are recommended to the Governor for appointment to the Commission by any person who is engaged in well contractor activities and who is certified as a well contractor under Article 7A of Chapter 87 of the General Statutes.   Of the three members appointed to fill positions (1), (2), (3), one shall be a resident of a county that is located east of or is traversed by Interstate 95, and two shall be residents of a county that is located wholly west of Interstate 95.  None of these three shall reside or have their primary place of business in the same county or in contiguous counties.
(c)	Terms. – Appointments to the Commission shall be for terms of three years.  The terms of members appointed to fill positions (1), (4), and (7) shall expire on 30 June of years evenly divisible by three.  The terms of members appointed to fill positions (2) and (5) shall expire on 30 June of years that follow by one year those years that are evenly divisible by three.  The terms of members appointed to fill positions (3) and (6) shall expire on 30 June of years that precede by one year those years that are evenly divisible by three.  Members shall serve until their successors are appointed and qualified.  No member shall serve more than two consecutive terms.
(d)	Officers. – The Commission shall elect a Chairperson and a Vice-chairperson from among its members.  These officers shall  serve from the time of their election until 30 June of the following year, or until a successor is elected.
(e)	Vacancies. –  An appointment to fill a vacancy on the Commission created by the resignation, dismissal, death, or disability of a member shall be for the balance of the unexpired term.
(f)	Continuing Education. – During a member's term on the Commission, the member shall meet the annual continuing education requirements set for certified well contractors and certified pump contractors.  This requirement applies regardless of whether the member is a certified well contractor or a certified pump contractor.
(g)	Removal. –  The Governor may remove any member of the Commission from office for misfeasance, malfeasance, or nonfeasance.
(h)	Compensation. –  The members of the Commission shall receive per diem and necessary travel and subsistence expenses in accordance with the provisions of G.S. 138-5.
(i)	Quorum. –  A majority of the membership of the Commission constitutes a quorum for the transaction of business.
(j)	Services. –  All clerical and other services required by the Commission shall be supplied by the Secretary."
Sec. 2.  Chapter 87 of the General Statutes is amended by adding a new Article to read:
"ARTICLE 7A.
"Well Contractors and Pump Contractors Certification.
"§ 87-98.1.  Title.
This Part may be cited as the North Carolina Well Contractors and Pump Contractors Certification Act.
"§ 87-98.2.  Definitions.
The definitions in G.S. 87-85 and the following definitions apply in this Article:
(1)	Approved continuing education course. – An educational offering approved by the Commission.
(2)	Commission. – The Well Contractors and Pump Contractors Certification Commission.
(3)	Department. – The Department of Environment, Health, and Natural Resources.
(4)	Pump contractor. – An individual in the trade or business who undertakes to perform pump contractor activities or who undertakes to personally supervise or personally manage the performance of pump contractor activities on his or her own behalf or for any person, firm, or corporation.
(5)	Pump contractor activities. – Any activity associated with the installation or repair of well pumping equipment.  'Repair' includes all activities associated with access to the interior of the well casing or breaking of the well seal to effect repair of pumping equipment or appurtenances thereto.
(6)	Secretary. – The Secretary of Environment, Health, and Natural Resources.
(7)	Temporary certificate. – A certificate issued by the Commission that grants permission to an individual to perform specified activities of a well contractor or a pump contractor for a period of time appropriate for the specified activity.
(8)	Well contractor. – An individual in the trade or business who undertakes to perform well contractor activities or who undertakes to personally supervise or personally manage the performance of well contractor activities on his or her own behalf or for any person, firm, or corporation.
(9)	Well contractor activities. – An activity associated with the construction, installation, repair, alteration, or abandonment of any well.
"§ 87-98.3.  Purpose.
It is the purpose of this Article to protect the public health and safety by ensuring the integrity and competence of well contractors and pump contractors, to protect and beneficially develop the groundwater resources of the State, to require the examination of well contractors and pump contractors and the certification of their competency to supervise or conduct well or pump contractor activities, and to establish procedures for the examination and certification of well contractors and pump contractors.
"§ 87-98.4.  Certified well contractors required.
No well contractor shall perform well contractor activities without being certified under this Article.  This Article does not apply to an individual who meets any of the following descriptions:
(1)	Is employed by, or performs labor or services for, a certified well contractor in connection with well contractor activities performed under the personal supervision of the certified well contractor.
(2)	Constructs, repairs, or abandons a well that is located on land owned or leased by that individual.
(3)	Does not engage in a well contractor activity.  The Commission may specify the types of general construction activities or geophysical activities that are not expressly related to the extraction or injection of any fluid from or into the subsurface and are therefore not a well construction activity.
"§ 87-98.5.  Certified pump contractors required.
No pump contractor shall perform pump contractor activities without being duly certified under this Article.  This Article does not apply to an individual who meets any of the following descriptions:
(1)	Is employed by, or performs labor or services for, a certified pump contractor in connection with pump contractor activities performed under the personal supervision of the certified pump contractor.
(2)	Installs or repairs pumps or pumping equipment associated with wells that are located on land that is owned or leased by that individual.
"§ 87-98.6.  Certificate of persons engaged in well contractor or pump contractor activities prior to 1 January 1996.
An individual who meets both of the following requirements is not required to take an examination to receive a well contractor certificate or a pump contractor certificate:
(1)	Has been actively and consistently engaged in well contractor or pump contractor activities for a period of 10 years prior to 1 January 1996.
(2)	Has been continuously registered with the Department as required by G.S. 143-355(e) or the rules of the Commission or has been working for a firm or corporation so registered with the Department since 1992.
To obtain a certificate under this section, a person must submit an application to the Commission and pay the required fee.  The Commission shall establish procedures and rules for receipt and approval of these applications.
An individual who is certified under this section is required to maintain certification as a well contractor or a pump contractor under this Article.  If an individual receiving certification under this section has his or her certification revoked or suspended by the Commission, he or she will be required to obtain certification by examination in accordance with this Article in order to continue performing well or pump contractor activities.
"§ 87-98.7.  Certification of individuals holding a Grade A, B, or C water treatment facility operator well certificate.
An individual who meets all of the following requirements, as of 1 July 1996, is not required to take an examination to receive a pump contractor certificate:
(1)	Holds a Grade A, B, or C water treatment facility operator certificate issued by the Department pursuant to Article 2 of Chapter 90A of the General Statutes.
(2)	Is employed by any subdivision of government or by a person to whom a Certificate of Public Convenience and Necessity has been issued by the North Carolina Utilities Commission pursuant to Article 6 of Chapter 62 of the General Statutes.
To obtain a certificate under this section, a person must submit an application to the Commission and pay the required fee. The Commission shall establish procedures and rules for receipt and approval of these applications.
A certificate issued under this section is valid only while the  individual remains in the employment of a subdivision of government or a person to whom a Certificate of Public Convenience and Necessity has been issued by the North Carolina Utilities Commission.  An individual who is certified under this section may perform pump contractor activities only for the  subdivision of government or the holder of the Certificate of Public Convenience and Necessity with whom the individual is employed.
An individual who is certified under this section is required to maintain certification as a pump contractor under this Article.  If an individual receiving certification under this section has his or her water treatment facility operator certification revoked or suspended by the Commission, he or she will be required to obtain certification as a pump contractor under this Article by examination in order to continue performing pump contractor activities.
"§ 87-98.8.  Types of certificates; sole certification.
The Commission, with the advice and assistance of the Secretary, shall establish the appropriate types of certification for well contractors and pump contractors.  Each certification type established by the Commission shall be the sole certification required within the jurisdiction of the Commission to perform activities within the State.
"§ 87-98.9.  Well contractor qualifications and examination.
The Commission, with the advice and assistance of the Secretary, shall establish minimum requirements of education, experience, and knowledge for each type of certification for well contractors and shall establish procedures for receiving applications for certification, conducting examinations, and making investigations of applicants as may be necessary and appropriate so that prompt and fair consideration will be given to each applicant.
"§ 87-98.10.  Pump contractor qualifications and examination.
The Commission, with the advice and assistance of the Secretary, shall establish minimum requirements of education, experience, and knowledge for each type of certification for pump contractors and shall establish procedures for receiving applications for certification, conducting examinations, and making investigation of applicants as may be necessary and appropriate so that prompt and fair consideration will be given to each applicant.
"§ 87-98.11.  Issuance and renewal of certificates.
(a)	Issuance. – An applicant, upon satisfactorily meeting the appropriate requirements, shall be certified to perform in the capacity of a well contractor or a pump contractor and shall be issued a suitable certificate by the Commission designating the level of his or her competency.  A certificate shall be valid for one year or until any of the following occurs:
(1)	The certificate holder voluntarily surrenders the certificate to the Commission.
(2)	The certificate is revoked or suspended by the Commission for cause.
(b)	Renewal. – A certificate shall be renewed annually.  An individual who fails to renew a certificate within three months of the expiration of the certificate is required to reapply for certification under this Article.  An individual who applies to renew a certificate must pay the required renewal fee.
(c)	Temporary. –  An individual may receive temporary certification to construct a well or install a pump upon submission of an application to the Commission and subsequent approval in accordance with the criteria established by the Commission.  A temporary certification shall be granted to the same individual only once per calendar year and may not be valid for a period in excess of 45 consecutive days.  To perform additional well contractor activities or pump contractor activities during that same calendar year, the individual shall apply for certification under this Article.
"§ 87-98.12.  Revocation or suspension of certificate.
The Commission, in accordance with the procedure set forth in Chapter 150B of the General Statutes, may revoke or suspend a certificate or may issue a written reprimand to a well contractor or pump contractor if it finds any of the following:
(1)	That the well contractor or pump contractor has engaged in fraud or deception.
(2)	That reasonable care, judgment, or the application of the individual's knowledge or ability was not used in the performance of his or her activities.
(3)	The individual has failed to renew his or her certificate under this Article.
(4)	The individual has been grossly negligent or has demonstrated willful disregard of any applicable laws or rules governing well construction.
"§ 87-98.13.  Fees and Fund.
(a)	Fees. –  The Commission may set a fee for an examination for certification and a fee for the annual renewal of a certification.  The fee for an examination may not exceed one hundred fifty dollars ($150.00) and the annual renewal fee may not exceed three hundred fifty dollars ($350.00).
(b)	Fund. –  The Well Construction Fund is created as a nonreverting account within the Department.  The Fund shall be  used for the costs of administering this Article.  All application fees, certification fees, and permit fees collected by the State pursuant to Article 7 of this Chapter, and all fees collected pursuant to this Article shall be credited to the Fund.
"§ 87-98.14.  Promotion of training and other powers.
The Commission and the Secretary may take all necessary and appropriate steps in order to effectively and fairly achieve the purposes of this Article.  They may provide training for well contractors and pump contractors and cooperate with educational institutions and private and public associations, persons, or corporations in providing training for well contractors and pump contractors.
"§ 87-98.15.  Responsibilities of well contractors and pump contractors.
All individuals receiving certification under this Article to perform well contractor or pump contractor activities in this State shall be responsible for complying with all statutes, rules, and generally accepted construction practices, including all local rules or ordinances governing well contractor or pump contractor activities.
"§ 87-98.16.  Continuing education requirements.
Prior to renewal of a certification for a well contractor or a pump contractor, each individual certified as a well contractor or a pump contractor shall complete a requisite number of hours, as determined by the Commission, of approved continuing education courses for each certification period.  A contractor's certificate shall not be renewed unless the contractor has complied with this section.
"§ 87-98.17.  Injunctive relief.
Upon violation of this Article, a rule adopted under this Article, or an order issued under this Article, the Secretary may, either before or after the institution of proceedings for the collection of any penalty imposed under this Article for the violation, request the Attorney General to institute a civil action in the superior court in the name of the State for injunctive relief to restrain the violation or require corrective action and for any other relief the court finds proper.  Initiating an action shall not relieve any party to the proceedings from any penalty prescribed by this Article."
Sec. 3.  G.S. 87-94 reads as rewritten:
"§ 87-94.  Civil penalties.
(a)	Any person who violates any provision of this Article or Article 7A or any order issued pursuant thereto, or any rule adopted thereunder, shall be subject to a civil penalty of not more than one hundred dollars ($100.00) for each violation, as determined by the Secretary of Environment, Health, and Natural Resources.  Each day of a continuing violation shall be considered a separate offense.  No person shall be subject to a penalty who did not directly commit the violation or cause it to be committed.
				(c)	In determining the amount of the penalty the Secretary shall consider factors set out in G.S. 143B-282.1(b).  The procedures set out in G.S. 143B-282.1 shall apply to civil penalties assessed under this section.
(d)	The Secretary shall notify any person assessed a civil penalty of the assessment and the specific reasons therefor by registered or certified mail, or by any means authorized by G.S. 1A-1, Rule 4.
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Sec. 4.  G.S. 87-85(14) reads as rewritten:
"(14)	'Well' means any excavation that is cored, bored, drilled, jetted, dug or otherwise constructed for the purpose of locating, testing or withdrawing groundwater or for evaluating, testing, developing, draining or recharging any groundwater reservoirs or aquifer, or that may control, divert, or otherwise cause the movement of water from or into any aquifer.  "
Sec. 5.  G.S. 143-355(e) reads as rewritten:
"(e)	Registration with Department Required; Registration Periods. – Every person, firm or corporation engaged in the business of drilling, boring, coring or constructing wells in any manner with the use of power machinery in this State or engaged in the business of installing or repairing pumps or pumping equipment shall register annually with the Department on forms to be furnished by the said Department.  The registration required hereby shall be made during the period from January 1 to January 31 of each year.  Registration fees collected under this section shall be credited to the Well Construction Fund created by G.S. 87-98.13."
Sec. 6.  G.S. 143-355(e) is repealed.
Sec. 7.  G.S. 87-91(b) is repealed.
Sec. 8.  To provide for staggered terms, initial appointments by the Governor to the Well Contractors and Pump Contractors Certification Commission created in Section 1 of this act shall be as follows:
(1)	Initial appointments to positions (1), (4), and (7) shall expire on 30 June 1998.
(2)	Initial appointments to positions (2) and (5) shall expire on 30 June 1999.
(3)	Initial appointments to positions (3) and (6) shall expire on 30 June 2000.
Sec. 9.  Section 6 of this act becomes effective 1 July 1997.  The remainder of this act is effective upon ratification.