GENERAL ASSEMBLY OF NORTH CAROLINA

SESSION 1995

S	1 

SENATE BILL 950

Short Title:  Environmental Permit Appeals.	(Public)

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Sponsors: Senators Blackmon and Hartsell.

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Referred to:  Judiciary II/Election Laws

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May 2, 1995

A BILL TO BE ENTITLED
AN ACT TO CREATE UNIFORM PROCEDURES FOR AIR, WATER, AND MINING PERMIT APPEALS AND TO STREAMLINE THE PERMIT APPEAL PROCESS.
The General Assembly of North Carolina enacts:
Section 1.  Chapter 150B of the General Statutes is amended by adding the following new Article to read:
"ARTICLE 3B.
"Environmental Permit Hearings.
"§ 150B-42.1.  Scope.
This Article applies to the following:
(1)	Mining. – Decisions of the Department of Environment, Health, and Natural Resources subject to the commencement of a contested case pursuant to G.S. 74-61(a);
(2)	Air. – Decisions of the Department of Environment, Health, and Natural Resources subject to the commencement of a contested case pursuant to G.S. 143-215.108(e); and
(3)	Water. – Decisions of the Department of Environment, Health, and Natural Resources subject to the commencement of a contested case pursuant to G.S. 143-215.1(e).
"§ 150B-42.2.  Commencement of contested case; designation of permit appeal panel; hearing required; notice; intervention.
(a)	A contested case may be commenced under this Article by filing a petition with the Office of Administrative Hearings.  The party who files the petition shall serve a copy of the petition on the agency and, if the filing party is not the permit applicant, the filing party shall also serve a copy of the petition upon the permit applicant.  A party who files a petition shall file a certificate of service together with the petition as well as a copy of the contested permit.  Service shall be accomplished in accordance with G.S. 1A-1, Rule 45.  A petition must be signed by a party or a representative of the party and shall state facts tending to establish that the agency named as the respondent has deprived the petitioner of property or has otherwise substantially prejudiced the petitioner's rights by the agency action and that the agency:
(1)	Exceeded its authority or jurisdiction;
(2)	Acted erroneously;
(3)	Failed to use proper procedure;
(4)	Acted arbitrarily or capriciously; or
(5)	Failed to act as required by law or rule.
Any person aggrieved by the action of an agency subject to this Article may commence a contested case under this Article.
(b)	Each contested case petition filed under this Article shall be heard by a permit appeal panel comprised of an administrative law judge designated by the Chief Administrative Law Judge of the Office of Administrative Hearings and four additional members designated by the Chief Administrative Law Judge, as follows:
(1)	Mining.  – For appeals pursuant to G.S. 74-61, two members of the Mining Commission appointed pursuant to G.S. 143B-291(3) as representatives of nongovernmental conservation interests, one member of the Mining Commission appointed pursuant to G.S. 143B-291(2) as a representative of the mining industry, and one member of the Mining Commission appointed pursuant to G.S. 143B-291(4) or (5).
(2)	Air. – For appeals pursuant to G.S. 143-215.108(e), two members of the Environmental Management Commission with experience relevant to air quality issues and appointed pursuant to G.S. 143B-283(a)(4),(8), or (10), and two members of the Environmental Management Commission appointed pursuant to G.S. 143B-283(a)(7).
(3)	Water. – For appeals pursuant to G.S. 143-215.1(e), two members of the Environmental Management Commission with experience relevant to water quality issues and appointed pursuant to G.S. 143B-283(a)(4), (6), (8), or (11), and two members of the Environmental Management Commission appointed pursuant to G.S. 143B-283(a)(7).
The administrative law judge shall serve as the presiding member of the permit appeal panel.
(c)	The administrative law judge serving as presiding member may require each party to the contested case to file a prehearing statement.  A party's prehearing statement must be served on all other parties to the contested case.
(d)	The parties to a contested case shall be given a notice of hearing by the Office of Administrative Hearings not less than 15 days before the hearing.  If prehearing statements have been filed in the case, the notice shall state the date, hour, and place of the hearing.  If prehearing statements have not been filed in the case, the notice shall state the date, hour, place, and nature of the hearing, shall list the particular sections of the General Statutes and administrative rules involved, and shall give a short and plain statement of the factual allegations.
(e)	Notice shall be given personally or by certified mail.  If given by certified mail, notice shall be deemed to have been given on the delivery date appearing on the return receipt.  If giving of notice cannot be accomplished either personally or by certified mail, notice shall then be given in the manner provided in G.S. 1A-1, Rule 4(j1).
(f)	All hearings under this Article shall be open to the public.  Hearings shall be conducted in an impartial manner.  Hearings shall be conducted according to the procedures set out in this Article, except to the extent and in the particulars that specific hearing procedures and time standards are governed by another law or administrative rule.
(g)	Unless another State or federal law, rule, or regulation sets a time limitation for the filing of a petition in contested cases against a specified agency, the general limitation for the filing of a petition in a contested case under this Article is 30 days.  The time limitation, whether established by another State or federal law, rule, or regulation, or this section, shall commence when notice is given of the agency decision to all persons aggrieved who are known to the agency by personal delivery or by the placing of the notice in an official depository of the United States Postal Service postage paid and wrapped in a wrapper addressed to the person at the latest address given by the person to the agency.  The notice shall be in writing, shall set forth the agency action, and shall inform the persons of the right, the procedure, and the time limit to file a contested case petition.  When no informal settlement request has been received by the agency prior to issuance of the notice, any subsequent informal settlement request shall not suspend the time limitation for the filing of a petition for a contested case hearing.
(h)	All hearings conducted under this Article shall be held in Wake County; provided, however, that if a different venue would promote the ends of justice or better serve the convenience of witnesses, the agency, or the permit appeal panel, the administrative law judge serving as presiding member may designate another county upon motion of a party.
(i)	Any person aggrieved may petition to become a party by filing a motion to intervene in the manner provided in G.S. 1A-1, Rule 24.  In addition, any person interested in a contested case may intervene and participate in the proceeding to the extent deemed appropriate by the administrative law judge serving as presiding member.
(j)	If someone other than the permit holder files the petition, the administrative law judge shall designate the permit holder as a corespondent with the State agency.
"§ 150B-42.3.  Conduct of hearing; answer.
(a)	Hearings shall be conducted in a fair and impartial manner.  At the hearing, the agency and the parties shall be given an opportunity to present evidence on issues of fact, examine and cross-examine witnesses, including the author of a document prepared by or on behalf of or for the use of the agency and offered into evidence, submit rebuttal evidence, and present arguments on issues of law or policy.
(b)	If a party fails to appear in a contested case after proper service of notice, and if no adjournment or continuance is granted, the permit appeal panel may proceed with the hearing in the absence of a party.
(c)	Evidence shall be presented first by the agency.
(d)	It shall be the burden of the petitioning party to prove the allegations set forth in the petition.
"§ 150B-42.4.  Subpoena.
(a)	After the commencement of a contested case, subpoenas may be issued for the purposes of obtaining the testimony of a witness at the hearing or to command the person to which it is directed to produce the records, books, papers, documents, or tangible things designated therein.  Subpoenas shall be issued by the Office of Administrative Hearings and served in accordance with G.S. 1A-1, Rule 45(a), (c), and (e).  In addition to the methods of service in G.S. 1A-1, Rule 45, a State law enforcement officer may serve a subpoena on behalf of an agency that is a party to the contested case by any method by which a sheriff may serve a subpoena under that Rule.  Subpoenas shall not be issued for the purpose of taking depositions or compelling the appearance of persons or the production of documents in advance of the hearing.
(b)	Upon a motion, the administrative law judge serving as presiding member may quash a subpoena if, upon a hearing, the administrative law judge finds that the evidence required to be produced does not relate to a matter in issue, the subpoena does not describe with sufficient particularity the evidence required to be produced, or for any other reason sufficient in law.
(c)	Witness fees shall be paid by the party requesting the subpoena to the subpoenaed witnesses in accordance with G.S. 7A-314.  However, State officials or employees who are subpoenaed shall not be entitled to witness fees, but they shall receive their normal salary and they shall not be required to take any annual leave for the witness days.  Travel expenses of State officials or employees who are subpoenaed shall be reimbursed as provided in G.S. 138-6.
"§ 150B-42.5.  Record of case; exchange of evidence.
(a)	Within 10 days after the initiation of a contested case under this Article, the agency shall file a certified record of its permit decision with the Office of Administrative Hearings and shall serve copies upon the petitioner, corespondent, and any other parties.  The certified record shall contain a copy of the application, all documents received by the agency in connection with the action, all records of the agency made in connection with the permit decision, and any other documents directly related to the permit decision.  The certified record need not include records related solely to the internal procedures of the agency or records which are exempt from disclosure by law.
(b)	The administrative law judge serving as presiding member shall require each party to serve all other parties with the following documents and information not less than 30 days prior to the date of hearing; provided, however, that for good cause shown the administrative law judge serving as presiding member may allow additional filings as the interest of justice may require:
(1)	Copies of all documentary evidence the party will offer at the hearing,
(2)	A list of any other exhibits or nontestimonial evidence the party will offer at the hearing, and
(3)	A list of witnesses to be called by the party at the hearing, together with a brief summary of each witness's forecasted testimony.
Upon motion of any party receiving the witness list in subdivision (3) of this subsection, the administrative law judge serving as presiding member may order the party who prepared the list to serve upon all parties a more definite statement of the forecasted testimony of any witness.  Except as provided for in this section, parties shall not be required to engage in discovery.
"§ 150B-42.6.  Prehearing conference.
In any action commenced under this Article, the administrative law judge serving as presiding member may direct the parties in the contested case to appear before the administrative law judge for a prehearing conference in accordance with G.S. 1A-1, Rule 16(a).
"§ 150B-42.7.  Stipulations.
(a)	The parties in a contested case may, by a stipulation in writing filed with the administrative law judge serving as presiding member, agree upon any fact involved in the controversy, which stipulation shall be used as evidence at the hearing and shall be binding on the parties thereto.  Parties should agree upon facts when practicable.
(b)	Except as otherwise provided by law, disposition may be made of a contested case by stipulation, agreed settlement, consent order, waiver, default, or other method agreed upon by the parties.
"§ 150B-42.8.  Rules of evidence.
(a)	In all contested cases under this Article, irrelevant, immaterial, and unduly repetitious evidence shall not be admissible.  Except as otherwise provided, the rules of evidence as applied in the trial division of the General Court of Justice shall be followed; however, when evidence is not reasonably available under the rules to show relevant facts, then the most reliable and substantial evidence available shall be admitted.  On his own motion, the administrative law judge serving as presiding member may exclude evidence that is inadmissible under this section.  It shall not be necessary for a party or a party's attorney to object at the hearing to evidence in order to preserve the right to object to its consideration by the permit appeal panel in making its final decision or by the court on judicial review.
(b)	Evidence in a contested case under this Article, including records and documents, shall be offered and made a part of the record.  Factual information or evidence not made a part of the record shall not be considered in the determination of the case, except as permitted under G.S. 150B-42.9.  Documentary evidence may be received in the form of a copy or excerpt or may be incorporated by reference, if the materials so incorporated are available for examination by the parties not less than five days in advance of the hearing.  Upon timely request, a party shall be given an opportunity to compare the copy with the original if available.
"§ 150B-42.9.  Official notice.
Official notice may be taken of all facts of which judicial notice may be taken and of other facts within the specialized knowledge of the agency or members of the permit appeal panel.  The noticed fact and its source shall be stated and made known to affected parties at the earliest practical time, and any party shall on timely request be afforded an opportunity to dispute the noticed fact through submission of evidence and argument.
"§ 150B-42.10.  Disqualification of panel members.
(a)	On the filing in good faith by a party of a timely and sufficient affidavit of personal bias or disqualification of a member of the permit appeal panel, including the administrative law judge serving as presiding member, the administrative law judge serving as presiding member shall determine the matter as a part of the record in the case, and this determination shall be subject to judicial review at the conclusion of the proceeding.
(b)	When the the administrative law judge serving as presiding member is disqualified or it is impractical for him to continue the hearing, the Director of the Office of Administrative Hearings shall assign another administrative law judge to continue with the case unless it is shown that substantial prejudice to any party will result, in which event a new hearing shall be held or the case dismissed without prejudice.
(c)	When a member of the permit appeal panel other than the the administrative law judge serving as presiding member is disqualified or it is impractical for the member to continue the hearing, the Chief Administrative Law Judge of the Office of Administrative Hearings shall designate another member as provided in G.S. 150B-42.2(b) to continue with the case unless it is shown that substantial prejudice to any party will result, in which event a new hearing shall be held or the case dismissed without prejudice.
"§ 150B-42.11.  No ex parte communication; exceptions.
Unless required for disposition of an ex parte matter authorized by law, neither the administrative law judge assigned to a contested case nor a member of the permit appeal panel in the case may communicate, directly or indirectly, in connection with any issue of fact or question of law, with any person, party, or party's representative, except on notice and opportunity for all parties to participate.
"§ 150B-42.12.  Powers of administrative law judge.
(a)	The administrative law judge serving as presiding member shall stay any contested case under this Article on motion of an agency which is a party to the contested case if the agency shows by supporting affidavits that it is engaged in other litigation or administrative proceedings, by whatever name called, with or before a federal agency, and this other litigation or administrative proceedings will determine the position, in whole or in part, of the agency in the contested case.  At the conclusion of the other litigation or administrative proceedings, the contested case shall proceed and be determined as expeditiously as possible.
(b)	The administrative law judge serving as presiding member may:
(1)	Administer oaths and affirmations;
(2)	Sign, issue, and rule on subpoenas in accordance with G.S. 150B-42.4;
(3)	Rule on all prehearing motions that are authorized by relevant provisions of G.S. 1A-1, Rules of Civil Procedure;
(4)	Regulate the course of the hearing, set the time and place for continued hearings, and fix the time for filing or service of briefs and other documents;
(5)	Direct the parties to appear and confer to consider simplification of the issues by consent of the parties;
(6)	Determine whether the hearing shall be recorded by a stenographer or by an electronic device; and
(7)	Impose the sanctions provided for in G.S. 1A-1 or Chapter 3 of Title 26 of the North Carolina Administrative Code for noncompliance with applicable procedural rules.
(c)	The administrative law judge serving as presiding member may enter an order returnable in the General Court of Justice, Superior Court Division, to show cause why a person should not be held in contempt.  The court shall have the power to impose punishment for contempt for any act which would constitute direct or indirect contempt if the act occurred in an action pending in superior court.
(d)	Notwithstanding G.S. 150B-42.13, the following decisions made by the the administrative law judge serving as presiding member are final decisions:
(1)	An order finding that the permit appeal panel lacks jurisdiction.
(2)	An order pursuant to the authority in G.S. 7A-759(e).
(3)	An order pursuant to a written prehearing motion that either dismisses the contested case for failure of the petitioner to prosecute or grants the relief requested when a party does not comply with procedural requirements.
(4)	An order pursuant to a prehearing motion to dismiss the contested case in accordance with G.S. 1A-1, Rule 12(b) when the order disposes of all issues in the contested case.
"§ 150B-42.13.  Powers of the permit appeal panel; final agency decision.
(a)	The permit appeal panel that hears a contested case under this Article may:
(1)	Enter a final agency decision affirming the Department's action;
(2)	Enter a final agency decision reversing the Department's action;
(3)	Remand the matter to the Department for further consideration consistent with the panel's decision;
(4)	Stay the contested action by the agency pending the outcome of the case, upon such terms as it deems proper, and subject to G.S. 1A-1, Rule 65; and
(5)	Determine that a rule as applied in a particular case is void because:
a.	It is not within the statutory authority of the agency,
b.	It is not clear and unambiguous to persons it is intended to direct, guide, or assist, or
c.	It is not reasonably necessary to enable the agency to fulfill a duty delegated to it by State law.
(b)	No orders or decisions issued by the permit appeal panel pursuant to this section shall be made except by affirmative vote of a majority of the panel.
(c)	A final decision or order in a contested case shall be made by the permit appeal panel in writing.  Except as provided in G.S. 150B-42.12(e), the decision or order shall include findings of fact and conclusions of law.  Findings of fact shall be based exclusively on the certified copy of the permit decision, the evidence, and on matters officially noted.  Findings of fact, if set forth in statutory language, shall be accompanied by a concise and explicit statement of the underlying facts supporting the decision or order.  A decision or order shall not be made except upon consideration of the record as a whole and shall be supported by substantial evidence admissible under G.S. 150B-42.7, 150B-42.8, or 150B-42.9.
"§ 150B-42.14.  Final decision; official record.
(a)	A copy of the final decision or order shall be served by the Office of Administrative Hearings upon each party personally or by certified mail addressed to the party at the latest address given by the party to the Office, and a copy shall be furnished to the party's attorney of record.
(b)	For each final decision or order entered pursuant to this Article, the Office of Administrative Hearings shall prepare an official record of the case that includes, as applicable:
(1)	Notices, pleadings, motions, and intermediate rulings;
(2)	Questions and offers of proof, objections, and rulings thereon;
(3)	Evidence presented;
(4)	Matters officially noticed, except matters so obvious that a statement of them would serve no useful purpose; and
(5)	The final decision or order.
(c)	Proceedings at which oral evidence is presented shall be recorded, but need not be transcribed unless requested by a party.  Each party shall bear the cost of the transcript or part thereof or copy of the transcript or part thereof which the party requests, and the transcript or part thereof shall be added to the official record as an exhibit."
Sec. 2.  G.S. 150B-45 reads as rewritten:
"§ 150B-45.  Procedure for seeking review; waiver.
(a)	Except as provided in G.S. 150B-52, to obtain judicial review of a final decision under this Article, the person seeking review must file a petition in the Superior Court of Wake County or in the superior court of the county where the person resides.
	The person seeking review must file the petition within 30 days after the person is served with a written copy of the decision.
	(b)	A person who fails to file a petition within the required time waives the right to judicial review under this Article.  For good cause shown, however, the court may accept an untimely petition."
Sec. 3.  G.S. 150B-52 reads as rewritten:
"§ 150B-52.  Appeal; stay of court's decision.
(a)	A party to a review proceeding in a superior court may appeal to the appellate division from the final judgment of the superior court as provided in G.S. 7A-27.  Pending the outcome of an appeal, an appealing party may apply to the court that issued the judgment under appeal for a stay of that judgment or a stay of the administrative decision that is the subject of the appeal, as appropriate.
(b)	To obtain judicial review of a final agency decision under Article 3B of this Chapter, the person seeking review must file a petition with the appellate division as provided in G.S. 7A-29.  The person seeking review must file the petition within 30 days after the person is served with a written copy of the decision."
Sec. 4.  G.S. 7A-29 reads as rewritten:
"§ 7A-29.  Appeals of right from certain administrative agencies.
(a)	From any final order or decision of the North Carolina Utilities Commission not governed by subsection (b) of this section, the Department of Human Resources under G.S. 131E-188(b), the Commissioner of Banks under Articles 17, 18, 18A, and 21 of Chapter 53 of the General Statutes, the Administrator of Savings and Loans under Article 3A of Chapter 54B of the General Statutes, the North Carolina Industrial Commission, the North Carolina State Bar under G.S. 84-28, the Property Tax Commission under G.S. 105-290 and G.S. 105-342, the Commissioner of Insurance under G.S. 58-2-80, an environmental permit appeal panel under G.S. 150B-52, or the Secretary of Environment, Health, and Natural Resources under G.S. 104E-6.2, appeal as of right lies directly to the Court of Appeals.
(b)	From any final order or decision of the Utilities Commission in a general rate case, appeal as of right lies directly to the Supreme Court."
Sec. 5.  G.S. 74-61 reads as rewritten:
"§ 74-61.  Administrative and judicial review of decisions.
(a)	An applicant, permittee, or affected person may contest a decision of the Department to issue, deny, suspend, modify, or revoke a permit or a reclamation plan, or to renew a permit, by filing a petition for a contested case under G.S. 150B-42.2.
(b)	An applicant, permittee, or affected person may contest a decision of the Department to refuse to release part or all of a bond or other security, or to assess a civil penalty by filing a petition for a contested case under G.S. 150B-23 within 30 days after the Department makes the decision. The Commission shall make the final decision in a contested case under this subsection. Article 4 of Chapter 150B of the General Statutes governs judicial review of a decision of the Commission."
Sec. 6.  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 Department 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 issued by the Department or special order or other appropriate instrument issued or entered into by the Department 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.
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.
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 Department 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.
In any case where the Department denies a permit, it shall state in writing the reason for such denial and shall also state the Department's estimate of the changes in the applicant's proposed activities or plans which will be required in order that the applicant may obtain a permit.
(a1)	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 for Health Services:
(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)	Department's Power as to Permits. –
(1)	The Department 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 Department finds such denial or such conditions necessary to effectuate the purposes of this Article.
(2)	The Department 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 Department shall have the power:
a.	To grant a permit with such conditions attached as the Department 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. –
(1)	All applications for permits and for renewal of existing permits for outlets and point sources and for treatment works and disposal systems discharging to the surface waters of the State shall be in writing, and the Department may prescribe the form of such applications. All applications shall be filed with the Department at least 180 days in advance of the date on which it is desired to commence the discharge of wastes or the date on which an existing permit expires, as the case may be. The Department shall act on a permit application as quickly as possible. The Department 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 Department considers necessary to evaluate the application.
(2)	a. 	The Department shall give notice of intent to issue or deny the permit, along with any other data that the Department may determine appropriate, to be given to the appropriate State, interstate and federal agencies, to interested persons, and to the public. The Department 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)	If any person desires a public meeting on any application for permit or renewal of an existing permit provided for in this subsection, he shall so request in writing to the Department within 30 days following date of the notice of intent. The Department shall consider all such requests for meeting, and if the Department determines that there is a significant public interest in holding such meeting, at least 30 days' notice of such meeting 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 meeting, the Department shall also cause a copy of the notice thereof 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 Department shall cause a copy of such notice to be published in as many newspapers having general circulation in the county as the Department in its discretion determines may be necessary to assure that such notice is generally available throughout the county. The Department shall prescribe the form and content of the notices.
		The Department shall prescribe the procedures to be followed in such meetings. Detailed minutes of the meeting shall be kept and shall be submitted, along with any other written comments, exhibits or documents presented at the meeting.  The Department shall give consideration to the information prior to final action granting or denying the permit.
(4)	Not later than 60 days following notice of intent or, if a public hearing is held, within 90 days following consideration of the matters and things presented at such hearing, the Department shall grant or deny any application for issuance of a new permit or for renewal of an existing permit. All permits or renewals issued by the Department and all decisions denying application for permit or renewal shall be in writing.
(5)	No permit issued pursuant to this subsection (c) shall be issued or renewed for a term exceeding five years.
(6)	The Department 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 Department 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 Department may proceed to consider the permit application notwithstanding this subdivision.
(d)	Applications and Permits for Sewer Systems, Sewer System Extensions and Pretreatment Facilities, Land Application of Waste, and for Wastewater Treatment Facilities Not Discharging to the Surface Waters of the State. –
(1)	All applications for new permits and for renewals of existing permits for sewer systems, sewer system extensions and for disposal systems, and for land application of waste, or treatment works which do not discharge to the surface waters of the State, and all permits or renewals and decisions denying any application for permit or renewal shall be in writing. The Department shall act on a permit application as quickly as possible. The Department 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 Department considers necessary to evaluate the application. If the Department 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 Department, 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 Department. 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 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 Department 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 Department may consider, in determining whether to issue the permit, the comments submitted by local governments.
(d1)	Each applicant under subsections (c) or (d) for a permit (or the renewal thereof) 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 Department 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 Department 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 Department 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)	Administrative Review. – A permit applicant or permittee who is dissatisfied with a decision of the Department may commence a contested case by filing a petition under G.S. 150B-42.2 within 30 days after the Department notifies the applicant or permittee of its decision. If the permit applicant or permittee does not file a petition within the required time, the Department's decision is final and is not subject to review.
(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 Department. 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 Department 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 Department;
(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 Department as adequate to meet the requirements of this Part and the rules implementing this Part.
The Department 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 Department 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 Department 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 Department 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 the person's 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. 7.  G.S. 143-215.108 reads as rewritten:
"§ 143-215.108.  Control of sources of air pollution; permits required.
(a)	After the effective date applicable to any air quality or emission control standards established pursuant to G.S. 143-215.107 and except as provided in subsections (a1) and (a2) of this section, no person shall do any of the following things or carry out any of the following activities which contravene or will be likely to contravene such standards until or unless such person shall have applied for and shall have received from the Department a permit therefor and shall have complied with such conditions, if any, as are prescribed by such permit:
(1)	Establish or operate any air contaminant source;
(2)	Build, erect, use or operate any equipment which may result in the emission of air contaminants or which is likely to cause air pollution;
(3)	Alter or change the construction or method of operation of any equipment or process from which air contaminants are or may be emitted;
(4)	Enter into an irrevocable contract for the construction and installation of any air-cleaning device, or allow or cause such device to be constructed, installed, or operated.
(a1)	The Commission may by rule establish procedures that meet the requirements of section 502(b)(10) of Title V (42 U.S.C. § 7661a(b)(10)) and 40 Code of Federal Regulations § 70.4(b)(12) (1 July 1993 Edition) to allow a permittee to make changes within a permitted facility without requiring a revision of the permit.
(a2)	The Commission may adopt rules that provide for a minor modification of a permit.  At a minimum, rules that provide for a minor modification of a permit shall meet the requirements of 40 Code of Federal Regulations § 70.7(e)(2) (1 July 1993 Edition).  If the Commission adopts rules that provide for a minor modification of a permit, a permittee shall not make a change in the permitted facility while the application for the minor modification is under review unless the change is authorized under the rules adopted by the Commission.
(b)	The Department shall act upon all applications for permits so as to effectuate the purpose of this section, by reducing existing air pollution and preventing, so far as reasonably possible, any increased pollution of the air from any additional or enlarged sources.
(c)	The Department shall have the power:
(1)	To grant and renew a permit with such conditions attached as the Department believes necessary to achieve the purposes of this section or the requirements of the Clean Air Act and implementing regulations adopted by the United States Environmental Protection Agency;
(2)	To grant and renew any temporary permit for such period of time as the Department shall specify even though the action allowed by such permit may result in pollution or increase pollution where conditions make such temporary permit essential;
(3)	To terminate, modify, or revoke and reissue any permit upon not less than 60 days' written notice to any person affected;
(3a)	To suspend any permit pursuant to the provisions of G.S. 150B-3(c);
(4)	To require all applications for permits and renewals to be in writing and to prescribe the form of such applications;
(5)	To request such information from an applicant and to conduct such inquiry or investigation as it may deem necessary and to require the submission of plans and specifications prior to acting on any application for a permit;
(5a)	To require that an applicant satisfy the Department that the applicant, or any parent, subsidiary, or other affiliate of the applicant or parent:
a.	Is financially qualified to carry out the activity for which a permit is required under subsection (a); and
b.	Has substantially complied with the air quality and emission control standards applicable to any activity in which the applicant has previously engaged, and has been in substantial compliance with 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);
(6)	To adopt rules, as it deems necessary, establishing the form of applications and permits and procedures for the granting or denial of permits and renewals pursuant to this section; and all permits, renewals and denials shall be in writing;
(7)	To prohibit any stationary source within the State from emitting any air pollutant in amounts that will prevent attainment or maintenance by any other state of any national ambient air quality standard or that will interfere with measures required to be included in the applicable implementation plan for any other state to prevent deterioration of air quality or protect visibility; and
(8)	To designate certain classes of activities for which a general permit may be issued, after considering the environmental impact of an activity, the frequency of the activity, the need for individual permit oversight, and the need for public review and comment on individual permits.
(d) 	(1)	The Department 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 Department considers necessary to evaluate the application.  A permit application may not be deemed complete unless it is accompanied by a copy of the request for determination as provided in subsection (f) of this section that bears a date of receipt entered by the clerk of the local government and until the 15-day period for issuance of a determination has elapsed.
(2)	The Department shall adopt rules specifying the times within which it must act upon applications for permits required by Title V and other permits required by this section.  The times specified shall be extended for the period during which the Department is prohibited from issuing a permit under subdivisions (3) and (4) of this subsection.  The Department shall inform a permit applicant as to whether or not the application is complete within the time specified in the rules for action on the application.  If the Department fails to act on an application for a permit required by Title V or this section within the time period specified, the failure to act on the application constitutes a final agency decision to deny the permit.  A permit applicant, permittee, or other person aggrieved, as defined in G.S. 150B-2, may seek judicial review of a failure to act on the application as provided in G.S. 143-215.5 and Article 4 of Chapter 150B of the General Statutes.  Notwithstanding the provisions of G.S. 150B-51, upon review of a failure to act on an application for a permit required by Title V or this section, a court may either: (i) affirm the denial of the permit or (ii) remand the application to the Department for action upon the application within a specified time.
(3)	If the Administrator of the United States Environmental Protection Agency validly objects to the issuance of a permit required by Title V within 45 days after the Administrator receives the proposed permit and the required portions of the permit application, the Department shall not issue the permit until the Department revises the proposed permit to meet all objections noted by the Administrator or otherwise satisfies all objections consistent with Title V and implementing regulations adopted by the United States Environmental Protection Agency.
(4)	If the Administrator of the United States Environmental Protection Agency validly objects to the issuance of a permit required by Title V after the expiration of the 45-day review period specified in subdivision (3) of this subsection as a result of a petition filed pursuant to section 505(b)(2) of Title V (42 U.S.C. § 7661d(b)(2)) and prior to the issuance of the permit by the Department, the Department shall not issue the permit until the Department revises the proposed permit to meet all objections noted by the Administrator or otherwise satisfies all objections consistent with Title V and implementing regulations adopted by the United States Environmental Protection Agency.
(d1)	No permit issued pursuant to this section shall be issued or renewed for a term exceeding five years.
(e)	A permit applicant or permittee who is dissatisfied with a decision of the Department may commence a contested case by filing a petition under G.S. 150B-42.2 within 30 days after the Department notifies the applicant or permittee of its decision.  If the permit applicant or permittee does not file a petition within the required time, the Department's decision on the application is final and is not subject to review.
(f)	An applicant for a permit under this section for a new facility or for the expansion of a facility permitted under this section shall request each local government having jurisdiction over any part of the land on which the facility and its appurtenances are to be located to issue a determination as to whether the local government has in effect a zoning or subdivision ordinance applicable to the facility and whether the proposed facility would be consistent with the ordinance.  The request to the local government shall be accompanied by a copy of the draft permit application and shall be delivered to the clerk of the local government personally or by certified mail.  The determination shall be verified or supported by affidavit signed by the official designated by the local government to make the determination and, if the local government states that the facility is inconsistent with a zoning or subdivision ordinance, shall include a copy of the ordinance and the specific reasons for the determination of inconsistency.  A copy of any such determination shall be provided to the applicant when it is submitted to the Department.  The Department shall not act upon an application for a permit under this section until it has received a determination from each local government requested to make a determination by the applicant.  Unless the local government makes a subsequent determination of consistency with all ordinances cited in the determination or the proposed facility is determined by a court of competent jurisdiction to be consistent with the cited ordinances, the Department shall attach as a condition of the permit a requirement that the applicant, prior to construction or operation of the facility under the permit, comply with all lawfully adopted local ordinances, including those cited in the determination, that apply to the facility at the time of construction or operation of the facility.  If a local government fails to submit a determination to the Department as provided by this subsection within 15 days after receipt of the request, the Department may proceed to consider the permit application without regard to local zoning and subdivision ordinances.  This subsection shall not be construed to limit any opportunity a local government may have to comment on a permit application under any other law or rule.  This subsection shall not apply to any facility with respect to which local ordinances are subject to review under either G.S. 104E-6.2 or G.S. 130A-293.
(g)	Any person who is required to hold a permit under this section shall submit to the Department a written description of the person's current and projected plans to reduce the emission of air contaminants 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. 8.  G.S. 143B-282(a)(1) reads as rewritten:
"(1)	Within the limitations of G.S. 143-215.9 concerning industrial health and safety, the Environmental Management Commission shall have the following powers and duties:
	b.	To issue a special order pursuant to G.S. 143-215.2(b) and G.S. 143-215.110 to any person whom the Commission finds responsible for causing or contributing to any pollution of water within such watershed or pollution of the air within the area for which standards have been established;
c.	To conduct and direct that investigations be conducted pursuant to G.S. 143-215.3 and G.S. 143-215.108(b)(5);
d.	To conduct public hearings, institute actions in superior court, and agree upon or enter into settlements, all pursuant to G.S. 143-215.3;
e.	To direct the investigation of any killing of fish and wildlife pursuant to G.S. 143-215.3;
f.	To consult with any person proposing to construct, install, or acquire an air or water pollution source pursuant to G.S. 143-215.3 and G.S. 143-215.111;
g.	To encourage local government units to handle air pollution problems and to provide technical and consultative assistance pursuant to G.S. 143-215.3 and G.S. 143-215.112;
h.	To review and have general oversight and supervision over local air pollution control programs pursuant to G.S. 143-215.3 and G.S. 143-215.112;
i.	To declare an emergency when it finds a generalized dangerous condition of water or air pollution pursuant to G.S. 143-215.3;
j.	To render advice and assistance to local government regarding floodways pursuant to G.S. 143-215.56;
k.	To declare and delineate and modify capacity use areas pursuant to G.S. 143-215.13;
l.	To grant permits for water use within capacity use areas pursuant to G.S. 143-215.15;
m.	To direct that investigations be conducted when necessary to carry out duties regarding capacity use areas pursuant to G.S. 143-215.19;
n.	To approve, disapprove and approve subject to conditions all applications for dam construction pursuant to G.S. 143-215.28; to require construction progress reports pursuant to G.S. 143-215.29;
o.	To halt dam construction pursuant to G.S. 143-215.29;
p.	To grant final approval of dam construction work pursuant to G.S. 143-215.30;
q.	To have jurisdiction and supervision over the maintenance and operation of dams pursuant to G.S. 143-215.31;
r.	To direct the inspection of dams pursuant to G.S. 143-215.32;
s.	To modify or revoke any final action previously taken by the Commission pursuant to G.S. 143-214.1 and G.S. 143-215.107; and
t.	To have jurisdiction and supervision over oil pollution pursuant to Article 21A of Chapter 143.
Commission members sitting as members of permit appeal panels pursuant to Article 3B of Chapter 150B of the General Statutes shall have, in the manner and to the extent set out in that Article, the power and duty to decide cases governed by that Article."
Sec. 9.  G.S. 143B-290(1) reads as rewritten:
"(1)	The North Carolina Mining Commission shall have the following powers and duties:
a.	To act as the advisory body to the Interstate Mining Compact pursuant to G.S. 74-38(a);
b.	To adopt and modify rules to implement Chapter 74, Article 6, pursuant to G.S. 74-44(b);
	d.	To adopt rules necessary to administer the Mining Act of 1971, pursuant to G.S. 74-63; and
e.	To adopt rules necessary to administer the Control of Exploration for Uranium in North Carolina Act of 1983, pursuant to G.S. 74-86.
Commission members sitting as members of permit appeal panels pursuant to Article 3B of Chapter 150B of the General Statutes shall have, in the manner and to the extent set out in that Article, the power and duty to decide cases governed by that Article."
Sec. 10.  G.S. 143B-291 reads as rewritten:
"§ 143B-291.  North Carolina Mining Commission – members; selection; removal; compensation; quorum; services.
The North Carolina Mining Commission shall consist of eleven members appointed as follows:
(1)	one member appointed by the Governor who is the chairman of the North Carolina State University Minerals Research Laboratory Advisory Committee;
(2)	three members appointed by the Governor who are representatives of mining industries;
(3)	three members appointed by the Governor who are representatives of nongovernmental conservation interests;
(4)	one member appointed by the Speaker of the House of Representatives who is a registered engineer with training and experience in mine design or mining technology;
(5)	one member appointed by the President Pro Tempore of the Senate who has formal training and experience in mining pollution control; and
(6)	two members who shall represent the Environmental Management Commission and be knowledgeable in the principles of water and air resources management.
The initial members of the North Carolina Mining Commission shall be those members of the present North Carolina Mining Council who shall meet the above requirements for membership on the North Carolina Mining Commission and who shall serve on the North Carolina Mining Commission for a period equal to the remainder of their current terms on the North Carolina Mining Council. The remaining initial members shall be appointed by the Governor to staggered terms of six years. Any 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. At the expiration of each member's term, the appointing authority shall replace the member with a new member of like qualifications for a term of six years.
The Governor shall have the power to remove any member of the Commission from office for misfeasance, malfeasance, or nonfeasance in accordance with the provisions of G.S. 143B-13 of the Executive Organization Act of 1973.
The members of the Commission shall receive per diem and necessary traveling and subsistence expenses in accordance with the provisions of G.S. 138-5.
A majority of the Commission shall constitute a quorum for the transaction of business.
All clerical and other services required by the Commission shall be supplied by the Secretary of the Department."
Sec. 11.  This act becomes effective October 1, 1995, and applies to agency actions for which notice is mailed on or before that date.