GENERAL ASSEMBLY OF NORTH CAROLINA

SESSION 1995

H	1 

HOUSE BILL 893

Short Title:  Revise Environmental Permit Appeals.	(Public)

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Sponsors: Representatives Reynolds; McMahan, K. Miller, and Watson.

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Referred to:  Health & Environment.

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April 12, 1995

A BILL TO BE ENTITLED
AN ACT TO REVISE THE ENVIRONMENTAL PERMIT APPEALS PROCESS BY CLARIFYING WHO IS ELIGIBLE TO INITIATE A CONTESTED CASE CONCERNING SUCH PERMITS.
The General Assembly of North Carolina enacts:
Section 1.  G.S. 143-215.1 reads as rewritten:
"§ 143-215.1.  Control of sources of water pollution; permits required.
(a)	Activities for Which Permits Required. – No person shall do any of the following things or carry out any of the following activities until or unless such person shall have applied for and shall have received from the Commission a permit therefor and shall have complied with such conditions, if any, as are prescribed by such permit:
(1)	Make any outlets into the waters of the State;
(2)	Construct or operate any sewer system, treatment works, or disposal system within the State;
(3)	Alter, extend, or change the construction or method of operation of any sewer system, treatment works, or disposal system within the State;
(4)	Increase the quantity of waste discharged through any outlet or processed in any treatment works or disposal system to any extent which would result in any violation of the effluent standards or limitations established for any point source or which would adversely affect the condition of the receiving waters to the extent of violating any of the standards applicable to such water;
(5)	Change the nature of the waste discharged through any disposal system in any way which would exceed the effluent standards or limitations established for any point source or which would adversely affect the condition of the receiving waters in relation to any of the standards applicable to such waters;
(6)	Cause or permit any waste, directly or indirectly, to be discharged to or in any manner intermixed with the waters of the State in violation of the water quality standards applicable to the assigned classifications or in violation of any effluent standards or limitations established for any point source, unless allowed as a condition of any permit, special order or other appropriate instrument issued or entered into by the Commission under the provisions of this Article;
(7)	Cause or permit any wastes for which pretreatment is required by pretreatment standards to be discharged, directly or indirectly, from a pretreatment facility to any disposal system or to alter, extend or change the construction or method of operation or increase the quantity or change the nature of the waste discharged from or processed in such facility;
(8)	Enter into a contract for the construction and installation of any outlet, sewer system, treatment works, pretreatment facility or disposal system or for the alteration or extension of any such facilities;
(9)	Dispose of sludge resulting from the operation of a treatment works, including the removal of in-place sewage sludge from one location and its deposit at another location, consistent with the requirement of the Resource Conservation and Recovery Act and regulations promulgated pursuant thereto;
(10)	Cause or permit any pollutant to enter into a defined managed area of the State's waters for the maintenance or production of harvestable freshwater, estuarine, or marine plants or animals;
(11)	Cause or permit discharges regulated under G.S. 143-214.7 which result in water pollution.
(a1)	In the event that both effluent standards or limitations and classifications and water quality standards are applicable to any point source or sources and to the waters to which they discharge, the more stringent among the standards established by the Commission shall be applicable and controlling.
(a2)	In connection with the above, no such permit shall be granted for the disposal of waste in waters classified as sources of public water supply where the head of the agency which administers the public water supply program pursuant to Article 10 of Chapter 130A of the General Statutes, after review of the plans and specifications for the proposed disposal facility, determines and advises the Commission that such disposal is sufficiently close to the intake works or proposed intake works of a public water supply as to have an adverse effect on the public health.
(a3)	In any case where the Commission denies a permit, it shall state in writing the reason for the denial, including a description of the changes in the application, plans, or proposed activities that would be required in order that the applicant may obtain a permit, if a permit could be issued for the proposed activity under the provisions of all applicable federal, regional, and State laws and all applicable regulations and rules.
	(a4)  The Department shall regulate wastewater systems under rules adopted by the Commission for Health Services pursuant to Article 11 of Chapter 130A of the General Statutes except as otherwise provided in this subsection. No permit shall be required under this section for a wastewater system regulated under Article 11 of Chapter 130A of the General Statutes. The following wastewater systems shall be regulated by the Department under rules adopted by the Commission:
(1)	Wastewater systems designed to discharge effluent to the land surface or surface waters.
(2)	Wastewater systems designed for groundwater remediation, groundwater injection, or landfill leachate collection and disposal.
(3)	Wastewater systems designed for the complete recycle or reuse of industrial process wastewater.
(b)	Commission's Power as to Permits. –
(1)	The Commission shall act on all permits so as to prevent, so far as reasonably possible, considering relevant standards under State and federal laws, any significant increase in pollution of the waters of the State from any new or enlarged sources. No permit shall be denied and no condition shall be attached to the permit, except when the Commission finds such denial or such conditions necessary to effectuate the purposes of this Article.
(2)	The Commission shall also act on all permits so as to prevent violation of water quality standards due to the cumulative effects of permit decisions. Cumulative effects are impacts attributable to the collective effects of a number of projects and include the effects of additional projects similar to the requested permit in areas available for development in the vicinity. All permit decisions shall require that the practicable waste treatment and disposal alternative with the least adverse impact on the environment be utilized.
(3)	General permits may be issued under rules adopted pursuant to Chapter 150B of the General Statutes. Such rules may provide that minor activities may occur under a general permit issued in accordance with conditions set out in such rules. All persons covered under general permits shall be subject to all enforcement procedures and remedies applicable under this Article.
(4)	The Commission shall have the power:
a.	To grant a permit with such conditions attached as the Commission believes necessary to achieve the purposes of this Article.
b.	To require that an applicant satisfy the Department that the applicant, or any parent, subsidiary, or other affiliate of the applicant or parent:
1.	Is financially qualified to carry out the activity for which the permit is required under subsection (a) of this section; and
2.	Has substantially complied with the effluent standards and limitations and waste management treatment practices applicable to any activity in which the applicant has previously engaged, and has been in substantial compliance with other federal and state laws, regulations, and rules for the protection of the environment.
	As used in this subdivision, the words 'affiliate,' 'parent,' and 'subsidiary' have the same meaning as in 17 Code of Federal Regulations § 240.12b-2 (1 April 1990 Edition).
c.	To modify or revoke any permit upon not less than 60 days' written notice to any person affected.
d.	To designate certain classes of minor activities for which a general permit may be issued, after considering:
1.	The environmental impact of the activities;
2.	How often the activities are carried out;
3.	The need for individual permit oversight; and
4.	The need for public review and comment on individual permits.
e.	To designate certain classes of minor activities for which:
1.	Performance conditions may be established by rule; and
2.	Individual or general permits are not required.
(b1)	Repealed by Session Laws 1991, c. 156, s. 1, effective October 1, 1991.
(c)	Applications for Permits and Renewals for Facilities Discharging to the Surface Waters and Certain Facilities Applying Waste to the Land Surface. –
(1)	All applications for a permit, other than a general permit or a temporary permit, for:
a.	An outlet, point source, treatment works, or disposal system discharging to the surface waters of the State other than an individual permit for a stormwater discharge issued pursuant to 33 U.S.C. § 1342 (p)(2).
b.	Recurring land application involving:
1.	Petroleum-contaminated soil;
2.	Residuals management involving a total application area of more than 1,000 acres; or
3.	An expansion of residuals management involving an increase in the application area of 500 acres or more.
	and for renewal of an existing permit for outlets and point sources and for treatment works and disposal systems discharging to the surface waters of the State and for recurring land application under sub-subdivision b. of this subdivision shall be in writing, and the Commission may prescribe the form of such application.   All applications shall be filed with the Commission at least 180 days in advance of the date on which it is desired to commence the discharge or land application of wastes or the date on which an existing permit expires, as the case may be.  Not more than 30 days before the date that an application is filed but prior to the date on which the application is filed, the applicant shall:
a1.	Publish notice of application at least once in a newspaper having general circulation within the county where the discharge, source, treatment works, disposal system, or land application is located;
b1.	File the notice of application with the office of the manager of each incorporated city and county having jurisdiction over the location of the discharge, source, treatment works, disposal system, or land application; and
c1.	Prominently post the notice of application at the public entrance to the facility for which the qualifying permit is sought.
	The notice of application shall be continuously posted until the qualifying permit is issued or denied.  The notice of application shall state, at a minimum, the name of the applicant; the activity for which the qualifying permit is sought; the receiving body of water, if any; the location of the discharge, source, treatment works, disposal system, or land application; the name and telephone number of a contact person for the applicant; and the name and location of the office within the Department to which application will be made.  The Commission shall act on a permit application as quickly as possible. The Commission may conduct any inquiry or investigation it considers necessary before acting on an application and may require an applicant to submit plans, specifications, and other information the Commission considers necessary to evaluate the application.
(2)	a. 	The Department shall refer each application for permit, or renewal of an existing permit, for outlets and point sources and treatment works and disposal systems discharging to the surface waters of the State to its staff for written evaluation and proposed determination with regard to issuance or denial of the permit. If the Commission concurs in the proposed determination, it shall give notice of intent to issue or deny the permit, along with any other data that the Commission may determine appropriate, to be given to the appropriate State, interstate and federal agencies, to interested persons, and to the public. The Commission shall prescribe the form and content of the notice.
	The notice required herein shall be given at least 45 days prior to any proposed final action granting or denying the permit. Public notice shall be given by publication of the notice one time in a newspaper having general circulation within the county.
b.	Repealed by Session Laws 1987, c. 734.
(3)	a.	If any person desires a hearing on any application for a permit or renewal of an existing permit, provided for in this subsection, he shall so request in writing to the Commission within 30 days following date of the notice of intent.  The Commission shall consider all such requests for hearings, and if the Commission determines that there is a significant public interest in holding such hearings, at least 30 days' notice of each such hearing shall be given to all persons to whom notice of intent was sent and to any other person requesting notice. At least 30 days prior to the date of a hearing, the Commission shall also cause a copy of the notice of the hearing to be published at least one time in a newspaper having general circulation in such county. In any county in which there is more than one newspaper having general circulation in that county, the Commission shall cause a copy of the notice of the hearing to be published in as many newspapers having general circulation in the county as the Commission in its discretion determines may be necessary to assure that such notice is generally available throughout the county. The Commission shall prescribe the form and content of the notice of the hearing.
b.	The Commission shall prescribe the procedures to be followed in such hearings. Detailed minutes of each hearing shall be kept and, along with any other written comments, exhibits, or documents presented at the hearing, shall be made a part of the record of decision on the application.
(4)	Any person, including the applicant, who believes that any aspect of a proposed permit decision is incorrect must raise all reasonably ascertainable issues and submit all supporting arguments and data not later than the close of the public comment period on the permit.  The Department is not required to consider written or oral comment unless the comment is accompanied by the name and current mailing address of the person making the comment.  Other than federal or State laws, regulations, or rules, any supporting materials that are submitted shall be included in the hearing record in full and shall not be incorporated by reference, unless the supporting materials are a part of the administrative record in the same proceeding.  All permit decisions shall be in writing and shall include a concise written statement explaining, in light of timely comments received, the reasons the Commission issued or denied the permit.
(5)	No permit issued pursuant to this subsection (c) shall be issued or renewed for a term exceeding five years.
(6)	The Commission shall not act upon an application for a new nonmunicipal domestic wastewater discharge facility until it has received a written statement from each city and county government having jurisdiction over any part of the lands on which the proposed facility and its appurtenances are to be located which states whether the city or county has in effect a zoning or subdivision ordinance and, if such an ordinance is in effect, whether the proposed facility is consistent with the ordinance. The Commission shall not approve a permit application for any facility which a city or county has determined to be inconsistent with its zoning or subdivision ordinance unless it determines that the approval of such application has statewide significance and is in the best interest of the State. An applicant for a permit shall request that each city and county government having jurisdiction issue the statement required by this subdivision by mailing by certified mail, return receipt requested, a written request for such statement and a copy of the draft permit application to the clerk of the city or county. If a local government fails to mail the statement required by this subdivision, as evidenced by a postmark, within 15 days after receiving and signing for the certified mail, the Commission may proceed to consider the permit application notwithstanding this subdivision.
(d)	Applications and Permits for Sewer Systems, Sewer System Extensions and Pretreatment Facilities, Nonrecurring Land Application of Waste, Wastewater Treatment Facilities Not Discharging to the Surface Waters of the State, and other Permits not Governed by subsection (c) of this section. –
(1)	All applications for new permits and for renewals of existing permits other than permits governed by subsection (c) of this section and all permits or renewals and decisions denying any application for permit or renewal shall be in writing. The Commission shall act on a permit application as quickly as possible. The Commission may conduct any inquiry or investigation it considers necessary before acting on an application and may require an applicant to submit plans, specifications, and other information the Commission considers necessary to evaluate the application. If the Commission fails to act on an application for a permit, including a renewal of a permit, within 90 days after the applicant submits all information required by the Commission, the application is considered to be approved. Permits and renewals issued in approving such facilities pursuant to this subsection shall be effective until the date specified therein or until rescinded unless modified or revoked by the Commission. Local governmental units to whom pretreatment program authority has been delegated shall establish, maintain, and provide to the public, upon written request, a list of pretreatment applications received.
(2)	An applicant for a permit under subsection (c) of this section or under this subsection to dispose of petroleum contaminated soil by land application shall give written notice that he intends to apply for such a permit to each city and county government having jurisdiction over any part of the land on which disposal is proposed to occur.  The Commission shall not accept such a permit application unless it is accompanied by a copy of the notice and evidence that the notice was sent to each such government by certified mail, return receipt requested.  The Commission may consider, in determining whether to issue the permit, the comments submitted by local governments.
	(3)	Each applicant under subsection (c) of this section or this subsection for a permit or renewal of an existing permit for the operation of a treatment works for a private multi-family or single family residential development, in which the owners of individual residential units are required to organize as a lawfully constituted and incorporated homeowners' association of a subdivision, condominium, planned unit development, or townhouse complex, shall be required to enter into an operational agreement with the Commission as a condition of any such permit granted. The agreement shall address, as necessary, construction, operation, maintenance, assurance of financial solvency, transfers of ownership and abandonment of the plant, systems, or works, and shall be modified as necessary to reflect any changed condition at the treatment plant or in the development. Where the Commission finds appropriate, it may require any other private residential subdivision, condominium, planned unit development or townhouse complex which is served by a private treatment works and does not have a lawfully constituted and incorporated homeowners' association, and for which an applicant applies for a permit or the renewal thereof under subsections (c) or (d), to incorporate as a lawfully constituted homeowners' association, and after such incorporation, to enter into an operational agreement with the Commission and the applicant as a condition of any permit granted under subsections (c) or (d). The local government unit or units having jurisdiction over the development shall receive notice of the application within an established comment period and prior to final decision.
(e)	Notice and Review. –The provisions and requirements set forth in G.S. 143-215.5A also apply to public notice of a permit decision and administrative and judicial review of a permit decision under this section.
(f)	Local Permit Programs for Sewer Extension. – Municipalities, counties, local boards or commissions, water and sewer authorities, or groups of municipalities and counties may establish and administer within their utility service areas their own general permit programs in lieu of State permit required in G.S. 143-215.1(a)(2), (3), and (8) above, for construction, operation, alteration, extension, change of proposed or existing sewer system, subject to the prior certification of the Commission. For purposes of this subsection, the service area of a municipality shall include only that area within the corporate limits of the municipality and that area outside a municipality in its extraterritorial jurisdiction where sewer service is already being provided by the municipality to the permit applicant or connection to the municipal sewer system is immediately available to the applicant; the service areas of counties and the other entities or groups shall include only those areas where sewer service is already being provided to the applicant by the permitting authority or connection to the permitting authority's system is immediately available. No later than the 180th day after the receipt of a program and statement submitted by any local government, commission, authority, or board the Commission shall certify any local program that:
(1)	Provides by ordinance or local law for requirements compatible with those imposed by this Part and the rules implementing this Part;
(2)	Provides that the Department receives notice and a copy of each application for a permit and that it receives copies of approved permits and plans upon request by the Commission;
(3)	Provides that plans and specifications for all construction, extensions, alterations, and changes be prepared by or under the direct supervision of an engineer licensed to practice in this State;
(4)	Provides for the adequate enforcement of the program requirements by appropriate administrative and judicial process;
(5)	Provides for the adequate administrative organization, engineering staff, financial and other resources necessary to effectively carry out its plan review program;
(6)	Provides that the system is capable of interconnection at an appropriate time with an expanding municipal, county, or regional system;
(7)	Provides for the adequate arrangement for the continued operation, service, and maintenance of the sewer system; and
(8)	Is approved by the Commission as adequate to meet the requirements of this Part and the rules implementing this Part.
The Commission may deny, suspend, or revoke certification of a local program upon a finding that a violation of the provisions in subsection (f)	of this section has occurred. A denial, suspension, or revocation of a certification of a local program shall be made only after notice and a public hearing. If the failure of a local program to carry out this subsection creates an imminent hazard, the Commission may summarily revoke the certification of the local program. Chapter 150B of the General Statutes does not apply to proceedings under this subsection.
Notwithstanding any other provision of this subsection, if the Commission determines that a sewer system, treatment works, or disposal system is operating in violation of the provisions of this Article and that the appropriate local authorities have not acted to enforce those provisions, the Commission may, after written notice to the appropriate local government, take enforcement action in accordance with the provisions of this Article.
(g)	Any person who is required to hold a permit under this section shall submit to the Department a written description of his current and projected plans to reduce the discharge of waste and pollutants under such permit by source reduction or recycling. The written description shall accompany the payment of the annual permit fee. The written description shall also accompany any application for a new permit, or for modification of an existing permit, under this section. The written description required by this subsection shall not be considered part of a permit application and shall not serve as the basis for the denial of a permit or permit modification."
Sec. 2.  G.S. 143-215.2(b) reads as rewritten:
"(	 Review. – The provisions and requirements set forth in G.S. 143-215.5A also apply to administrative and judicial review of an order issued under this section."
Sec. 3.  G.S. 143-215.5 is repealed.
Sec. 4.  Article 21 of Chapter 143 of the General Statutes is amended by adding a new section to read:
"§ 143-215.5A.  Public notice of water quality permits; administrative and judicial review of permit decisions.
(a)	Public Notice of Permit Decision. – The Department shall publish notice of a permit decision for permits issued pursuant to G.S. 143-215.1(c) by publishing the notice in a newspaper having general circulation in the area potentially affected by the decision and by either publishing the notice in the North Carolina Register or by mailing a copy of the notice to each person who submitted comment on the application in a timely manner.
(1)	At a minimum, the notice shall comply with all of the following requirements:
a.	Identify the application, including the name of the applicant and the date the application was submitted.
b.	Clearly identify the location of the activity, including each county in which the activity is located.
c.	State the decision on the application.
d.	State the last date on which a contested case petition may be filed in the Office of Administrative Hearings.
e.	State the name and address of the agency that made the decision.
(2)	The Department shall, to the extent practicable, mail a copy of the notice described in subdivision (1) of this subsection to persons who provide the Department with a self-addressed envelope with sufficient postage affixed.
(3)	If the Department has not given notice in accordance with this section within 20 days after it makes the decision, the applicant may give the required notice by publishing the notice in a newspaper having general circulation in the area that includes the facility that is the subject of the permit, and also by submitting the notice for publication in the North Carolina Register for publication.
(4)	Notice of a permit decision given in accordance with this subsection satisfies G.S. 150B-23(f) and initiates the times for seeking administrative and judicial review under this section.
(b)	Initiating a Contested Case. – Any person aggrieved who is entitled to initiate a contested case or judicial review under subsection (c) of this section may contest a 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.  Any person who is entitled to initiate a contested case or judicial review under subsection (c) of this section is precluded from contesting a permit decision by filing a petition for a contested case under Article 3 of Chapter 150B of the General Statutes, and is also precluded from contesting a permit decision by filing a petition for judicial review under Article 4 of Chapter 150B of the General Statutes.
(c)	Persons Entitled to Initiate a Contested Case or Judicial Review. – Only a person aggrieved who meets at least one of the following requirements may appeal a permit decision under subsection (b) of this section:
(1)	Submits to the Commission in a timely manner, either individually or jointly with other persons, written comment containing a specific recommendation on a permit application or a draft permit.
(2)	Presents oral comment at a public hearing on a permit application that makes a specific recommendation on the permit application or draft permit, if a public hearing is conducted by the Commission.
(3)	Makes a good cause showing in any petition for a contested case to challenge a permit under G.S. 150B-23 and subsection (e) of this section that the comment was not submitted or presented because there was no reason to have anticipated being adversely affected by the permit decision.  A person who attempts to make this showing of good cause shall, at a minimum, show why he or she did not become aware, and had no reasonable way of becoming aware, of the filing of the application through the publication of the notice of the permit.
(d)	Intervention in Contested Case. – When a person is entitled to initiate a contested case or judicial review pursuant to subsection (c) of this section, the assigned administrative law judge shall by order make the permit holder or applicant a party to the contested case proceeding.  Any person who is entitled to initiate a contested case or judicial review, but who does not initiate a proceeding for a contested case, may petition to intervene in any contested case on the decision.
(e)	Scope of Issues to be Considered on Appeal. – In a contested case, the appellant may not contest an issue that was not raised 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 party 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 entitled to initiate a contested case or judicial review pursuant to subsection (c) of this section may contest only a difference between the renewed permit and the former permit.
(f)	Stay During Appeal. – If a permit holder or a person entitled to initiate a contested case or judicial review pursuant to subsection (b) of this section files a petition for a contested case proceeding to challenge a permit decision, a stay under G.S. 1A-1, Rule 65, may be sought if the party seeking the stay can establish that all of the requirements of Rule 65 are met.
(g)	Procedure in Contested Case. – Any contested case proceeding involving permits issued under this Article shall be governed by the following procedures.
(1)	In any contested case proceeding regarding a permit decision, the provisions of Article 3 of Chapter 150B of the General Statutes shall apply, except to the extent otherwise provided herein, and except that no formal evidentiary hearing shall be held and the recommended decision shall be made on the basis of the Department's record, along with any exceptions to such record and arguments concerning such record raised by parties to the contested case, unless:
a.	A party in its initial filing with the Office of Administrative Hearings, requests a formal evidentiary hearing; and
b.	The administrative law judge assigned to the case determines, in a timely manner, that the contested case presents genuine issues of material fact.
(2)	In any contested case proceeding regarding a permit decision, unless altered by agreement of all the parties:
a.	A petition for contested case shall be filed with the Office of Administrative Hearings within 30 days after notice of a permit decision is given.
b.	Any responsive pleading or motion for intervention shall be filed with the Office of Administrative Hearings within 30 days after the petition for contested case is filed.
c.	A determination that a formal evidentiary hearing will be held shall be made within 75 days after the petition for contested case is filed.
d.	If a formal evidentiary hearing is determined to be necessary and properly requested, such hearing shall be concluded and a recommended decision proposed and served within 180 days after the petition for contested case is filed.
e.	If no formal evidentiary hearing is determined to be necessary or properly requested, a recommendation shall be prepared and served within 120 days after the petition for contested case is filed.
(3)	Pursuant to Article 3 of Chapter 150B of the General Statutes, the assigned administrative law judge may:
a.	Approve, reverse, or modify the decision of the Commission to grant or deny the permit.
b.	Issue an interlocutory order requiring the Department or Commission to act pursuant to any of the time limits set forth in G.S. 143-215.1(c).
(4)	If a recommended decision is not prepared and served in the time provided in this subsection, the petitioner may elect to treat the petition as denied and may request a final agency decision based solely on the original permit decision and any additional materials filed with the Office of Administrative Hearings concerning such decision.
(h)	Final Decision. – Notwithstanding the provisions of G.S. 150B-44, if the Commission fails to make a final decision within 45 days of its receipt of the recommended decision and record from the Office of Administrative Hearings, any party to the proceedings before the Office of Administrative Hearings may seek a judicial review as provided in subsection (i) of this section.  If a permit applicant, permit holder, or person who is entitled to initiate a contested case or judicial review pursuant to subsection (c) of this section 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 applies to 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 permit decision shall be dismissed unless the petitioner is either:
(1)	A person entitled to initiate a contested case or judicial review pursuant to subsection (c) of this section 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 North Carolina Court of Appeals, no bond shall be required of the Commission."
Sec. 5.  G.S. 143-215.108(e) reads as rewritten:
"(	
(e)	A permit applicant, a permittee, or a person who meets the requirements of G.S. 143-215.108A may commence a contested case by filing a petition under G.S. 150B-23 within 30 days after the Commission notifies the applicant or permittee of its decision.  If the permit applicant, permittee, or a person who meets the requirements of G.S. 143-215.108A does not file a petition within the required time, the Commission's decision on the application is final and is not subject to review."
Sec. 6.  Article 21B of Chapter 143 of the General Statutes is amended by adding a new section to read:
"§ 143-215.108A.  Public notice of air quality permits; administrative and judicial review of permit decisions.
(a)	Public Notice of Permit Decision. – The Department shall publish notice of a permit decision for permits issued pursuant to G.S. 143-215.108 by publishing the notice in a newspaper having general circulation in the area potentially affected by the decision and by either publishing the notice in the North Carolina Register or by mailing a copy of the notice to each person who submitted comment on the application in a timely manner.
(1)	At a minimum, the notice shall comply with all of the following requirements:
a.	Identify the application, including the name of the applicant and the date the application was submitted.
b.	Clearly identify the location of the activity, including each county in which the activity is located.
c.	State the decision on the application.
d.	State the last date on which a contested case petition may be filed in the Office of Administrative Hearings.
e.	State the name and address of the agency that made the decision.
(2)	The Department shall, to the extent practicable, mail a copy of the notice described in subdivision (1) of this subsection to persons who provide the Department with a self-addressed envelope with sufficient postage affixed.
(3)	If the Department has not given notice in accordance with this section within 20 days after it makes the decision, the applicant may give the required notice by publishing the notice in a newspaper having general circulation in the area that includes the facility that is the subject of permit, and also by submitting the notice for publication in the North Carolina Register for publication.
(4)	Notice of a permit decision given in accordance with this subsection satisfies G.S. 150B-23(f) and initiates the times for seeking administrative and judicial review under this section.
(b)	Initiating a Contested Case. – Any person aggrieved who is entitled to initiate a contested case or judicial review under subsection (c) of this section may contest a 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.  Any person who is entitled to initiate a contested case or judicial review under subsection (c) of this section is precluded from contesting a permit decision by filing a petition for a contested case under Article 3 of Chapter 150B of the General Statutes, and is also precluded from contesting a permit decision by filing a petition for judicial review under Article 4 of Chapter 150B of the General Statutes.
(c)	Persons Entitled to Initiate a Contested Case or Judicial Review. – Only a person aggrieved who meets at least one of the following requirements may appeal a permit decision under subsection (b) of this section:
(1)	Submits to the Commission in a timely manner, either individually or jointly with other persons, written comment containing a specific recommendation on a permit application or a draft permit.
(2)	Presents oral comment at a public hearing on a permit application that makes a specific recommendation on the permit application or draft permit, if a public hearing is conducted by the Commission.
(3)	Makes a good cause showing in any petition for a contested case to challenge a permit under G.S. 150B-23 and subsection (e) of this section that the comment was not submitted or presented because there was no reason to have anticipated being adversely affected by the permit decision.  A person who attempts to make this showing of good cause shall, at a minimum, show why he or she did not become aware, and had no reasonable way of becoming aware, of the filing of the application through the publication of the notice of the permit.
(d)	Intervention in Contested Case. – When a person is entitled to initiate a contested case or judicial review pursuant to subsection (c) of this section, the assigned administrative law judge shall by order make the permit holder or applicant a party to the contested case proceeding.  Any person who is entitled to initiate a contested case or judicial review, but who does not initiate a proceeding for a contested case, may petition to intervene in any contested case on the decision.
(e)	Scope of Issues to Be Considered on Appeal. – In a contested case, the appellant may not contest an issue that was not raised 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 party 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 entitled to initiate a contested case or judicial review pursuant to subsection (c) of this section may contest only a difference between the renewed permit and the former permit.
(f)	Stay During Appeal. – If a permit holder or a person entitled to initiate a contested case or judicial review pursuant to subsection (b) of this section files a petition for a contested case proceeding to challenge a permit decision, a stay under G.S. 1A-1, Rule 65, may be sought if the party seeking the stay can establish that all of the requirements of Rule 65 are met.
(g)	Procedure in Contested Case. – Any contested case proceeding involving permits issued under this Article shall be governed by the following procedures.
(1)	In any contested case proceeding regarding a permit decision, the provisions of Article 3 of Chapter 150B of the General Statutes shall apply, except to the extent otherwise provided herein, and except that no formal evidentiary hearing shall be held and the recommended decision shall be made on the basis of the Department's record, along with any exceptions to such record and arguments concerning such record raised by parties to the contested case, unless:
a.	A party in its initial filing with the Office of Administrative Hearings, requests a formal evidentiary hearing; and
b.	The administrative law judge assigned to the case determines, in a timely manner, that the contested case presents genuine issues of material fact.
(2)	In any contested case proceeding regarding a permit decision, unless altered by agreement of all the parties:
a.	A petition for contested case shall be filed with the Office of Administrative Hearings within 30 days after notice of a permit decision is given.
b.	Any responsive pleading or motion for intervention shall be filed with the Office of Administrative Hearings within 30 days after the petition for contested case is filed.
c.	A determination that a formal evidentiary hearing will be held shall be made within 75 days after the petition for contested case is filed.
d.	If a formal evidentiary hearing is determined to be necessary and properly requested, such hearing shall be concluded and a recommended decision proposed and served within 180 days after the petition for contested case is filed.
e.	If no formal evidentiary hearing is determined to be necessary or properly requested, a recommendation shall be prepared and served within 120 days after the petition for contested case is filed.
(3)	Pursuant to Article 3 of Chapter 150B of the General Statutes, the assigned administrative law judge may:
a.	Approve, reverse, or modify the decision of the Commission to grant or deny the permit.
b.	Issue an interlocutory order requiring the Department or Commission to act pursuant to any of the same time limits as those set forth in G.S. 143-215.1(c) for permits for facilities discharging to surface waters and facilities applying waste to the land surface.
(4)	If a recommended decision is not prepared and served in the time provided in this subsection, the petitioner may elect to treat the petition as denied and may request a final agency decision based solely on the original permit decision and any additional materials filed with the Office of Administrative Hearings concerning such decision.
(h)	Final Decision. – Notwithstanding the provisions of G.S. 150B-44, if the Commission fails to make a final decision within 45 days of its receipt of the recommended decision and record from the Office of Administrative Hearings, any party to the proceedings before the Office of Administrative Hearings may seek a judicial review as provided in subsection (i) of this section.  If a permit applicant, permit holder, or person who is entitled to initiate a contested case or judicial review pursuant to subsection (c) of this section 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 applies to 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 permit decision shall be dismissed unless the petitioner is either:
(1)	A person entitled to initiate a contested case or judicial review  pursuant to subsection (c) of this section 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 North Carolina Court of Appeals, no bond shall be required of the Commission."
Sec. 7.  Article 9 of Chapter 130A of the General Statutes is amended by adding a new section to read:
"§ 130A-295A.  Public notice of hazardous waste facility permits; administrative and judicial review of permit decisions.
(a)	Public Notice of Permit Decision. – The Department shall publish notice of a permit decision for permits issued pursuant to G.S. 130A-294(c) by publishing the notice in a newspaper having general circulation in the area potentially affected by the decision and by either publishing the notice in the North Carolina Register or by mailing a copy of the notice to each person who submitted comment on the application in a timely manner.
(1)	At a minimum, the notice shall comply with all of the following requirements:
a.	Identify the application, including the name of the applicant and the date the application was submitted.
b.	Clearly identify the location of the activity, including each county in which the activity is located.
c.	State the decision on the application.
d.	State the last date on which a contested case petition may be filed in the Office of Administrative Hearings.
e.	State the name and address of the agency that made the decision.
(2)	The Department shall, to the extent practicable, mail a copy of the notice described in subdivision (1) of this subsection to persons who provide the Department with a self-addressed envelope with sufficient postage affixed.
(3)	If the Department has not given notice in accordance with this section within 20 days after it makes the decision, the applicant may give the required notice by publishing the notice in a newspaper having general circulation in the area that includes the facility that is the subject of permit, and also by submitting the notice for publication in the North Carolina Register for publication.
(4)	Notice of a permit decision given in accordance with this subsection satisfies G.S. 150B-23(f) and initiates the times for seeking administrative and judicial review under this section.
(b)	Initiating a Contested Case. – Any person aggrieved who is entitled to initiate a contested case or judicial review under subsection (c) of this section may contest a 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.  Any person who is entitled to initiate a contested case or judicial review under subsection (c) of this section is precluded from contesting a permit decision by filing a petition for a contested case under Article 3 of Chapter 150B of the General Statutes, and is also precluded from contesting a permit decision by filing a petition for judicial review under Article 4 of Chapter 150B of the General Statutes.
(c)	Persons Entitled to Initiate a Contested Case or Judicial Review. – Only a person aggrieved who meets at least one of the following requirements may appeal a permit decision under subsection (b) of this section:
(1)	Submits to the Commission in a timely manner, either individually or jointly with other persons, written comment containing a specific recommendation on a permit application or a draft permit.
(2)	Presents oral comment at a public hearing on a permit application that makes a specific recommendation on the permit application or draft permit, if a public hearing is conducted by the Commission.
(3)	Makes a good cause showing in any petition for a contested case to challenge a permit under G.S. 150B-23 and subsection (e) of this section that the comment was not submitted or presented because there was no reason to have anticipated being adversely affected by the permit decision.  A person who attempts to make this showing of good cause shall, at a minimum, show why he or she did not become aware, and had no reasonable way of becoming aware, of the filing of the application through the publication of the notice of the permit.
(d)	Intervention in Contested Case. – When a person is entitled to initiate a contested case or judicial review pursuant to subsection (c) of this section, the assigned administrative law judge shall by order make the permit holder or applicant a party to the contested case proceeding.  Any person who is entitled to initiate a contested case or judicial review, but who does not initiate a proceeding for a contested case, may petition to intervene in any contested case on the decision.
(e)	Scope of Issues to Be Considered on Appeal. – In a contested case, the appellant may not contest an issue that was not raised 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 party 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 entitled to initiate a contested case or judicial review pursuant to subsection (c) of this section may contest only a difference between the renewed permit and the former permit.
(f)	Stay During Appeal. – If a permit holder or a person entitled to initiate a contested case or judicial review pursuant to subsection (b) of this section files a petition for a contested case proceeding to challenge a permit decision, a stay under G.S. 1A-1, Rule 65, may be sought if the party seeking the stay can establish that all of the requirements of Rule 65 are met.
(g)	Procedure in Contested Case. – Any contested case proceeding involving permits issued under G.S. 130A-294(c) shall be governed by the following procedures:
(1)	In any contested case proceeding regarding a permit decision, the provisions of Article 3 of Chapter 150B of the General Statutes shall apply, except to the extent otherwise provided herein, and except that no formal evidentiary hearing shall be held and the recommended decision shall be made on the basis of the Department's record, along with any exceptions to such record and arguments concerning such record raised by parties to the contested case, unless:
a.	A party in its initial filing with the Office of Administrative Hearings requests a formal evidentiary hearing; and
b.	The administrative law judge assigned to the case determines, in a timely manner, that the contested case presents genuine issues of material fact.
(2)	In any contested case proceeding regarding a permit decision, unless altered by agreement of all the parties:
a.	A petition for contested case shall be filed with the Office of Administrative Hearings within 30 days after notice of a permit decision is given.
b.	Any responsive pleading or motion for intervention shall be filed with the Office of Administrative Hearings within 30 days after the petition for contested case is filed.
c.	A determination that a formal evidentiary hearing will be held shall be made within 75 days after the petition for contested case is filed.
d.	If a formal evidentiary hearing is determined to be necessary and properly requested, such hearing shall be concluded and a recommended decision proposed and served within 180 days after the petition for contested case is filed.
e.	If no formal evidentiary hearing is determined to be necessary or properly requested, a recommendation shall be prepared and served within 120 days after the petition for contested case is filed.
(3)	Pursuant to Article 3 of Chapter 150B of the General Statutes, the assigned administrative law judge may:
a.	Approve, reverse, or modify the decision of the Commission to grant or deny the permit.
b.	Issue an interlocutory order requiring the Department or Commission to act pursuant to any of the same time limits as those set forth in G.S. 143-215.1(c) for permits for facilities discharging to surface waters and facilities applying waste to the land surface.
(4)	If a recommended decision is not prepared and served in the time provided in this subsection, the petitioner may elect to treat the petition as denied and may request a final agency decision based solely on the original permit decision and any additional materials filed with the Office of Administrative Hearings concerning such decision.
(h)	Final Decision. – Notwithstanding the provisions of G.S. 150B-44, if the Commission fails to make a final decision within 45 days of its receipt of the recommended decision and record from the Office of Administrative Hearings, any party to the proceedings before the Office of Administrative Hearings may seek a judicial review as provided in subsection (i) of this section.  If a permit applicant, permit holder, or person who is entitled to initiate a contested case or judicial review pursuant to subsection (c) of this section 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 applies to 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 permit decision shall be dismissed unless the petitioner is either:
(1)	A person entitled to initiate a contested case or judicial review pursuant to subsection (c) of this section 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 North Carolina Court of Appeals, no bond shall be required of the Commission."
Sec. 8.  Article 7 of Chapter 74 of the General Statutes is amended by adding a new section to read:
"§ 74-52A.  Public notice of mining permits; administrative and judicial review of permit decisions.
(a)	Public Notice of Permit Decision. – The Department shall publish notice of a permit decision for permits issued pursuant to G.S. 74-51 or G.S. 74-52 by publishing the notice in a newspaper having general circulation in the area potentially affected by the decision and by either publishing the notice in the North Carolina Register or by mailing a copy of the notice to each person who submitted comment on the application in a timely manner.
(1)	At a minimum, the notice shall comply with all of the following requirements:
a.	Identify the application, including the name of the applicant and the date the application was submitted.
b.	Clearly identify the location of the activity, including each county in which the activity is located.
c.	State the decision on the application.
d.	State the last date on which a contested case petition may be filed in the Office of Administrative Hearings.
e.	State the name and address of the agency that made the decision.
(2)	The Department shall, to the extent practicable, mail a copy of the notice described in subdivision (1) of this subsection to persons who provide the Department with a self-addressed envelope with sufficient postage affixed.
(3)	If the Department has not given notice in accordance with this section within 20 days after it makes the decision, the applicant may give the required notice by publishing the notice in a newspaper having general circulation in the area that includes the facility that is the subject of permit, and also by submitting the notice for publication in the North Carolina Register for publication.
(4)	Notice of a permit decision given in accordance with this subsection satisfies G.S. 150B-23(f) and initiates the times for seeking administrative and judicial review under this section.
(b)	Initiating a Contested Case. – Any person aggrieved who is entitled to initiate a contested case or judicial review under subsection (c) of this section may contest a 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.  Any person who is entitled to initiate a contested case or judicial review under subsection (c) of this section is precluded from contesting a permit decision by filing a petition for a contested case under Article 3 of Chapter 150B of the General Statutes, and is also precluded from contesting a permit decision by filing a petition for judicial review under Article 4 of Chapter 150B of the General Statutes.
(c)	Persons Entitled to Initiate a Contested Case or Judicial Review. – Only a person aggrieved who meets at least one of the following requirements may appeal a permit decision under subsection (b) of this section:
(1)	Submits to the Commission in a timely manner, either individually or jointly with other persons, written comment containing a specific recommendation on a permit application or a draft permit.
(2)	Presents oral comment at a public hearing on a permit application that makes a specific recommendation on the permit application or draft permit, if a public hearing is conducted by the Commission.
(3)	Makes a good cause showing in any petition for a contested case to challenge a permit under G.S. 150B-23 and subsection (e) of this section that the comment was not submitted or presented because there was no reason to have anticipated being adversely affected by the permit decision.  A person who attempts to make this showing of good cause shall, at a minimum, show why he or she did not become aware, and had no reasonable way of becoming aware, of the filing of the application through the publication of the notice of the permit.
(d)	Intervention in Contested Case. – When a person is entitled to initiate a contested case or judicial review pursuant to subsection (c) of this section, the assigned administrative law judge shall by order make the permit holder or applicant a party to the contested case proceeding.  Any person who is entitled to initiate a contested case or judicial review, but who does not initiate a proceeding for a contested case, may petition to intervene in any contested case on the decision.
(e)	Scope of Issues to Be Considered on Appeal. – In a contested case, the appellant may not contest an issue that was not raised 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 party 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 entitled to initiate a contested case or judicial review pursuant to subsection (c) of this section may contest only a difference between the renewed permit and the former permit.
(f)	Stay During Appeal. – If a permit holder or a person entitled to initiate a contested case or judicial review pursuant to subsection (b) of this section files a petition for a contested case proceeding to challenge a permit decision, a stay under G.S. 1A-1, Rule 65, may be sought if the party seeking the stay can establish that all of the requirements of Rule 65 are met.
(g)	Procedure in Contested Case. – Any contested case proceeding involving permits issued under this Article shall be governed by the following procedures.
(1)	In any contested case proceeding regarding a permit decision, the provisions of Article 3 of Chapter 150B of the General Statutes shall apply, except to the extent otherwise provided herein, and except that no formal evidentiary hearing shall be held and the recommended decision shall be made on the basis of the Department's record, along with any exceptions to such record and arguments concerning such record raised by parties to the contested case, unless:
a.	A party in its initial filing with the Office of Administrative Hearings requests a formal evidentiary hearing; and
b.	The administrative law judge assigned to the case determines, in a timely manner, that the contested case presents genuine issues of material fact.
(2)	In any contested case proceeding regarding a permit decision, unless altered by agreement of all the parties:
a.	A petition for contested case shall be filed with the Office of Administrative Hearings within 30 days after notice of a permit decision is given.
b.	Any responsive pleading or motion for intervention shall be filed with the Office of Administrative Hearings within 30 days after the petition for contested case is filed.
c.	A determination that a formal evidentiary hearing will be held shall be made within 75 days after the petition for contested case is filed.
d.	If a formal evidentiary hearing is determined to be necessary and properly requested, such hearing shall be concluded and a recommended decision proposed and served within 180 days after the petition for contested case is filed.
e.	If no formal evidentiary hearing is determined to be necessary or properly requested, a recommendation shall be prepared and served within 120 days after the petition for contested case is filed.
(3)	Pursuant to Article 3 of Chapter 150B of the General Statutes, the assigned administrative law judge may:
a.	Approve, reverse, or modify the decision of the Commission to grant or deny the permit.
b.	Issue an interlocutory order requiring the Department or Commission to act pursuant to any of the same time limits as those set forth in G.S. 143-215.1(c) for permits for facilities discharging to surface waters and facilities applying waste to the land surface.
(4)	If a recommended decision is not prepared and served in the time provided in this subsection, the petitioner may elect to treat the petition as denied and may request a final agency decision based solely on the original permit decision and any additional materials filed with the Office of Administrative Hearings concerning such decision.
(h)	Final Decision. – Notwithstanding the provisions of G.S. 150B-44, if the Commission fails to make a final decision within 45 days of its receipt of the recommended decision and record from the Office of Administrative Hearings, any party to the proceedings before the Office of Administrative Hearings may seek a judicial review as provided in subsection (i) of this section.  If a permit applicant, permit holder, or person who is entitled to initiate a contested case or judicial review pursuant to subsection (c) of this section 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 applies to 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 permit decision shall be dismissed unless the petitioner is either:
(1)	A person entitled to initiate a contested case or judicial review pursuant to subsection (c) of this section 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 North Carolina Court of Appeals, no bond shall be required of the Commission."
Sec. 9.  This act becomes effective one year after its ratification and applies to an application for a new permit, a modification of an existing permit, or a reissuance or renewal of an existing permit under G.S. 143-215.1, 143-215.108, 130A-295(c), 74-51, or 74-52, filed on or after that date.