NORTH CAROLINA GENERAL ASSEMBLY
1967 SESSION
CHAPTER 892
HOUSE BILL 356
AN ACT TO CREATE A BOARD OF WATER AND AIR RESOURCES AND TO DEFINE ITS DUTIES AND POWERS RELATING TO WATER AND AIR POLLUTION CONTROL AND WATER RESOURCE MANAGEMENT.
The General Assembly of North Carolina do enact:
Section 1. Article 21 of Chapter 143 (Vol. 3C Replacement 1964) is hereby rewritten to read as follows:
"Article 21
"Department of Water and Air Resources
"Sec. 143-211. Declaration of Public Policy. It is hereby declared to be the public policy of this State to provide for the conservation of its water and air resources. Furthermore, it is the intent of the General Assembly, within the context of this Article, to achieve and to maintain for the citizens of the State a total environment of superior quality. Recognizing that the water and air resources of the State belong to the people, the General Assembly affirms the State's ultimate responsibility for the preservation and development of these resources in the best interests of all its citizens and declares the prudent utilization of these resources to be essential to the general welfare. It is the purpose of this Article to create an agency which shall administer a program of water and air pollution control and water resource management. It is the intent of the General Assembly, through the duties and powers defined herein, to confer such authority upon the Board of Water and Air Resources as shall be necessary to administer a complete program of water and air conservation, pollution abatement and control and to achieve a coordinated effort of pollution abatement and control with other jurisdictions. Standards of water and air purity shall be designed to protect human health, to prevent injury to plant and animal life, to prevent damage to public and private property, to insure the continued enjoyment of the natural attractions of the State, to encourage the expansion of employment opportunities, to provide a permanent foundation for healthy industrial development and to secure for the people of North Carolina, now and in the future, the beneficial uses of these great natural resources.
"Sec. 143-212. Department of Water and Air Resources Created. There is hereby created the Department of Water and Air Resources.
"Sec. 143-213. Definitions. Unless the context otherwise requires, the following terms as used in this Act are defined as follows: "(1) 'Department' means the Department of Water and Air Resources to be governed by a Board of Water and Air Resources as created in this Article.
"(2) 'Board' means the Board of Water and Air Resources created under the provisions of this Article.
"(3) 'Person' shall mean any and all persons, including individuals, firms, partnerships, associations, public or private institutions, municipalities or political subdivisions, governmental agencies, or private or public corporations organized or existing under the laws of this State or any other state or country.
"(4) 'Waters' shall mean any stream, river, brook, swamp, lake, sound, tidal estuary, bay, creek, reservoir, waterway or any other body or accumulation of water, surface or underground, public or private, natural or artificial, which is contained within, flows through, or borders upon this State or any portion thereof, including those portions of the Atlantic Ocean over which this State has jurisdiction.
"(5) 'Waste' shall mean and include the following:
"(a) 'Sewage', which shall mean water-carried human waste discharged, transmitted, and collected from residences, buildings, industrial establishments, or other places into a unified sewerage system or an arrangement for sewage disposal or a group of such sewerage arrangements or systems, together with such ground, surface, storm, or other water as may be present.
"(b) 'Industrial waste' shall mean any liquid, solid, gaseous, or other waste substance or a combination thereof resulting from any process of industry, manufacture, trade or business, or from the development of any natural resource.
"(c) 'Other waste' means sawdust, shavings, lime, refuse, offal, oil, tar chemicals, and all other substances, except industrial waste and sewage, which may be discharged into or placed in such proximity to the water that drainage therefrom may reach the water.
"(6) Whenever reference is made in this Article to the 'discharge of waste', it shall be interpreted to include the discharge of waste into any unified sewerage system or arrangement for sewage disposal, which system or arrangement in turn discharges the waste into the waters of the State.
"(7) The term 'water pollution' means a condition of any waters (as determined by standardized tests under conditions and procedures to be prescribed by official regulations to be issued under the authority of this Article) which is in contravention to the standards established and applied to such waters as set forth in G.S. 143-214.1.
"(8) The term 'standard' or 'standards' means such measure or measures of the quality of water and air as are established by the Board pursuant to Section 143-214.1 and Section 143-215.
"(9) The term 'sewer system' means pipelines or conduits, pumping stations, and force mains, and all other construction, devices, and appliances appurtenant thereto, used for conducting sewage, industrial waste or other wastes to a point of ultimate disposal.
"(10) The term 'treatment works' means any plant, disposal field, lagoon, pumping station, constructed drainage ditch or surface water intercepting ditch, incinerator, area devoted to sanitary land fills, or other works not specifically mentioned herein, installed for the purpose of treating, neutralizing, stabilizing or disposing of sewage, industrial waste or other waste.
"(11) The term 'disposal system' means a system for disposing of sewage, industrial waste or other waste, and including sewer systems and treatment works.
"(12) The term 'outlet' means the terminus of a sewer system, or the point of emergence of any sewage, industrial waste or other waste or the effluent therefrom, into the waters of the State.
"(13) The term 'watershed' means a natural area of drainage, including all tributaries contributing to the supply of at least one major waterway within the State, the specific limits of each separate watershed to be designated by the Board for all statutory purposes and to be defined by the Board in its official regulations.
"(14) The term 'effective date' means the date, as established pursuant to the statutory powers of the Board and announced by official regulations of the Board after which the statutory provisions designated by the Board shall become applicable and enforceable, with respect to persons within one or more watersheds, the State as a whole or one or more 'areas of the State' as designated by the Board.
"(15) The term 'air contaminant' means particulate matter, dust, fumes, gas, mist, smoke, or vapor or any combination thereof.
"(16) The term 'air pollution' means the presence in the outdoor atmosphere of one or more air contaminants in such quantities and for such duration as to be injurious or detrimental to health or human safety, animal or plant life, or property.
"(17) The term 'air contamination' means the presence in the outdoor atmosphere of one or more air contaminants which contribute to a condition of air pollution.
"(18) The term 'air contamination source' means any source at, from, or by reason of which there is emitted into the atmosphere any air contaminant.
"(19) The term 'emission' means a release into the outdoor atmosphere of air contaminants.
"(20) The term 'air cleaning device' means any method, process or equipment which removes, reduces, or renders less noxious air contaminants discharged into the atmosphere.
"(21) The term 'area of the State' means any municipality or county or portion thereof or other substantial geographical area of the State as may be designated by the Board.
"Sec. 143-214. Board of Water and Air Resources, (a) Organization. There is hereby created the North Carolina Board of Water and Air Resources, hereinafter referred to as 'Board', which shall be charged with the duty of administering this Article. The Board shall consist of 13 members. The first appointments to membership on said Board shall consist of 11 selected from the membership of the State Stream Sanitation Committee and the membership of the Board of Water Resources. The two additional members shall be one licensed physician and one person, who shall, at the time of appointment, be actively connected with either the State Board of Health or a local health department. Any public official appointed to the Board shall serve ex officio. All successors to membership on the Board after the original appointments shall be made as follows: two who shall, at the time of appointment, be actively connected with and have had production experience in the field of agriculture; two who shall, at the time of appointment, be actively connected with industrial production and have had experience in the field of industrial water supply and pollution control; two who shall, at the time of appointment, be actively connected with and have had practical experience in water supply and pollution control problems of municipal government; one who shall, at the time of appointment, be actively connected with and have had experience in water or air management problems of county government; one who shall, at the time of appointment, be actively connected with and have had experience in the fish and wildlife activities of the State; one who shall, at the time of appointment, be actively connected with a public health department and have had experience in water and air pollution control activities; one licensed physician; and three members appointed from the public at large, one of whom shall, at the time of his appointment, be actively connected with and knowledgeable in the ground water industry. In making the original appointments the members shall serve by staggered terms of office so that four members shall serve for a term of six years, five members shall serve for a term of four years; and four members shall serve for a term of two years. All appointments to the Board shall be made by the Governor of North Carolina, who shall, at the time of making the appointments, fix the term of office of each member. The 13 members of the Board shall be appointed by the Governor on or before July 1, 1967. Any public official appointed or to be appointed shall serve ex officio. The Governor shall have the power to designate the member of said Board who shall serve as Chairman thereof for such period as the Governor may fix. Upon the expiration of the respective terms of office of said members, the successors of said members shall be appointed for a term of six years each thereafter, including the member acting as Chairman of the Board. All members shall hold their offices until their successors are appointed and qualified. Any member appointed by the Governor to fill a vacancy occurring in any of the appointments shall be appointed for the remainder of the term of the member causing the vacancy. The Governor may at any time, remove any member of the Board for gross inefficiency, neglect of duty, malfeasance, misfeasance or nonfeasance in office. In each instance appointments to fill vacancies in the membership of the Board shall be a person or persons with experience in the same field as that of the member or members being replaced.
"(b) Divisions. The Board may in its discretion divide the functions and duties of the business and affairs under the jurisdiction of the Board into such divisions or other units as the Board may think proper and may make each division or unit responsible for the discharge of its distinctive functions and duties. These shall include divisions of water and air pollution control, ground water, navigable waterways and such other divisions as the Board deems proper, and the Board may change the names of and revise the duties of its divisions or other units as it deems appropriate. The Board may assign such administrative and other personnel to each division as the Board may deem requisite and proper.
"(c) Compensation. The members of the Board shall receive the usual and customary per diem allowed for the other members of boards and commissions of the State and as fixed in the Biennial Appropriation Act, and, in addition, the members of the Board shall receive subsistence and travel expenses according to the prevailing State practices and as allowed and fixed by statute for such purposes, which said travel expenses shall also be allowed while going to or from any place of meeting or when on official business for the Board. The per diem payments made to each member of the Board shall include necessary time spent in traveling to and from their places of residence within the State to any place of meeting or while traveling on official business for the Board.
"(d) Meetings of Board. The Board shall meet at least once every three months and may hold special meetings at any time at the call of the Chairman or any three members of the Board. Both regular and special meetings shall be at places and dates to be determined by the Chairman, and all members shall be notified by the Chairman in writing of the time and place of regular and special meetings at least seven day in advance of such meetings, unless otherwise waived. Seven members of the Board shall constitute a quorum.
"(e) Administration. The Board shall have full power and authority to administer this Article and such other provisions of law as may be assigned to it, including the power and authority to adopt, amend, or rescind rules and regulations, to employ such persons, make such expenditures, require such reports, make such investigations, and take such other action as it deems necessary or suitable in the administration of its statutory authority and responsibilities. The Board shall determine its own internal organization and methods of procedure and shall have an official seal which shall be judicially noticed. Subject to other provisions of this Article, which deal with the appointment of the Director and an Assistant Director, the Board is authorized in accordance with the provisions of the Personnel Act to appoint, fix the compensation, and prescribe the duties and powers of all officers, agents, auditors, accountants, experts and any and all other persons that may be necessary in order to perform the duties required by the Board in the administration of its statutory responsibilities. The Board may delegate to any officer, agent or employee so appointed by the Board such power and authority as it deems reasonable and proper for the effective administration of its statutory responsibilities, and may, in its discretion, bond any person handling moneys or signing checks hereunder. The Board may appoint subdivisions or committees from its membership, the number of members on said subdivisions or committees being fixed by the Board, for the purpose of holding hearings and reporting same to the Board for decision, for the purpose of making investigations, for the purpose of transacting such business and carrying out such policies as the Board shall fix and direct.
"(f) Director. The Board, with the approval of the Governor, shall appoint a full-time Director, who shall be a well qualified engineer, experienced and knowledgeable in the fields of water and air resource management. The Director shall be the administrative officer of the Board and shall perform in the name of the Board such functions and duties of the Board as shall be delegated to him by formal resolution. The Director shall be paid such salary as shall be fixed by the Governor, with the approval of the Advisory Budget Commission and shall serve at the pleasure of the Board. The Director shall attend all meetings, but without the power of voting, shall keep or cause to be kept an accurate and complete record of all meetings, hearings, correspondence, laboratory studies, technical work, and shall make these records available for public inspection at all reasonable times. The Director shall direct the work of the personnel employed by the Board and perform such other duties as the Board may from time to time direct.
"(g) Personnel and Facilities of Board. The Board may employ such clerical, technical and professional personnel with such qualifications as the Board may prescribe, in accordance with the State Personnel Regulations and Budgetary Laws, and is hereby authorized to pay such personnel from any funds made available to it through grants and appropriations made to the Board or from any appropriations made to any other agency of the State for the benefit of the Board. The Board may, with the approval of the Governor, employ such consultants as it deems necessary and may compensate same for services received. The Attorney General shall act as attorney for the Board, and shall initiate actions in the name of, and at the request of, the Board, and shall represent the Board in hearing of any appeal from or other review of any order of the Board.
"(h) Acceptance and Administration of Federal or Private Funds. The Board shall have power and authority to accept, receive and administer any funds or financial assistance given, granted or provided under any federal act or acts or from any federal agency, including funds from foundations or private sources, and to comply with all conditions and requirements necessary for the receipt, acceptance and use of said funds to the extent not inconsistent with the laws of this State and the rules and regulations thereunder pertaining to water and air resources. In the administration of either private or federal funds, the Board shall have authority to formulate plans and projects for federal approval or for the approval of foundations and to enter into such contracts and agreements as may be necessary for such purposes or to enter into joint agreements with any other agency or division of government for such purposes and to furnish such information as may be requested for any project or program related to or conducted pursuant to such plans and contracts. Such funds received by the Board pursuant to this provision shall be deposited in the State Treasury to the account of the Board and shall remain in such account until used by the Board.
"(i) Assistant Director. The Board, with the approval of the Governor, shall appoint an Assistant Director who shall be a registered engineer in the State of North Carolina. He shall be well qualified and knowledgeable in the principles of water and air pollution control. The Assistant Director appointed under this provision shall be paid a salary fixed by the Governor and approved by the Advisory Budget Commission. The Assistant Director, under the general supervision of the Director, shall carry out the administrative duties and policies with respect to the water and air pollution control programs, shall direct the work of the department in the absence of the Director and shall perform such other duties as may be delegated to him, and the duties of said Assistant Director shall be fixed by resolution of the Board. The Assistant Director shall supervise the work of the employees assigned to the water and air pollution control programs and shall have the authority to review and approve all plans, specifications and reports as may be required in connection with applications for permits and other documents of approval authorized pursuant to the provisions of this Article as same relate to the water and air pollution control programs.
"(j) Advisory Councils. There is hereby authorized the establishment of a Water Control Advisory Council and an Air Control Advisory Council, hereinafter referred to as the Advisory Councils. Each Council shall consist of nine members appointed by the Governor. The membership of each Advisory Council shall include one registered professional engineer knowledgeable in matters of water or air pollution, depending upon which Council he serves on, as well as one representative from municipal government, one representative from county government, one representative of public health, two representatives from industry providing they are from different industries, one representative of agriculture, one licensed physician knowledgeable in the health aspects of water or air pollution depending upon which Council he serves on and one practicing biologist knowledgeable in the principles of water quality management. The Assistant Director shall serve as secretary to the Advisory Councils. The Councils shall meet either separately or jointly at the request of the Chairman of the Board or any three members of the Board. Such administrative services and moneys as may be made available to or for the Advisory Councils shall be charges on the Board. Members of the Advisory Councils shall serve at the pleasure of the Governor. The members shall serve without compensation but shall receive regular State subsistence and travel expenses during the performance of their duties. The Advisory Councils shall assist the Board in the development of rules, regulations, and quality standards for water and air as may be considered necessary to achieve the purposes of this Article and may consider other matters related to the purposes of this Act, which may be submitted to it by the Board.
"Sec. 143-214.1. Water; Water Quality Standards and Classifications; Duties of Board. (a) The Board is hereby directed and empowered, as rapidly as possible within the limits of funds and facilities available to it, and subject to the procedural requirements of this Article:
"(1) To develop and adopt, after proper study, a series of classifications and the standards applicable to each such classification, which will be appropriate for the purpose of classifying each of the waters of the State in such a way as to promote the policy and purposes of this Article most effectively;
"(2) To survey all the waters of the State and to separately identify all such waters as the Board believes ought to be classified separately in order to promote the policy and purposes of this Article, omitting only such waters, as in the opinion of the Board, are insufficiently important to justify classification or control under this Article; and
"(3) To assign to each identified water of the State such classification, from the series adopted as specified above, as the Board deems proper in order to promote the policy and purposes of this Article most effectively.
"(b) Criteria for Classification. In developing and adopting classifications, and the standards applicable to each, the Board shall recognize that a number of different classifications should be provided for (with different standards applicable to each) so as to give effect to the need for balancing conflicting considerations as to usage and other variable factors; that different classifications with different standards applicable thereto may frequently be appropriate for different segments of the same water; and that each classification and the standards applicable thereto should be adopted with primary reference to the best usage to be made of the waters to which such classification will be assigned.
"(c) Criteria for Standards. In establishing the standards applicable to each classification, the Board shall consider and the standards when finally adopted and published shall state: The extent to which any physical, chemical, or biological properties should be prescribed as essential to the contemplated best usage.
"(d) Criteria for Assignment of Classifications. In assigning to each identified water the appropriate classifications (with its accompanying standards), the Board shall consider, and the decision of the Board when finally adopted and published shall contain its conclusions with respect to the following factors as related to such identified waters:
"(1) The size, depth, surface area covered, volume, direction and rate of flow, stream gradient and temperature of the water;
"(2) The character of the district bordering said water, including any peculiar suitability such district may have or any dominant economic interest or development which has become established in relation to or by reason of any particular use of such water;
"(3) The uses and extent thereof which have been made, are being made, or may in the future be made, of such water for domestic consumption, bathing, fish or wildlife and their culture, industrial consumption, transportation, fire prevention, power generation, the disposal of sewage, industrial wastes and other wastes, or any other uses.
"(e) Proposed Adoption and Assignment of Classification. Prior to the adoption by the Board of the series of classifications and standards applicable thereto as specified in subparagraph (a) (1) of this Section, prior to the assignment by the Board of any such classifications to any waters as specified in subparagraph (a) (3) of this Section, and prior to any modification of any of such actions previously taken by the Board, the Board shall give notice of its proposed action and shall conduct one or more public hearings with respect to any such proposed action in accordance with the following requirements:
"(1) Notice of any such hearing shall be given not less than 20 days before the date of such hearing and shall state the date, time, and place of hearing, the subject of the hearing, and the action which the Board proposes to take. The notice shall either include details of such proposed action, or where such proposed action, as in the case of proposed assignments of classifications to identified waters, is too lengthy for publication, as hereinafter provided for, the notice shall specify that copies of such detailed proposed action can be obtained on request from the office of the Board in sufficient quantity to satisfy the requests of all interested persons.
"(2) Any such notice shall be published at least once in one newspaper of general circulation circulated in each county of the State in which the water area affected is located, and a copy of such notice shall be mailed to each person on the mailing list required to be kept by the Board pursuant to the provisions of Section 143-215.4.
"(3) Any person who desires to be heard at any such public hearing shall give notice thereof in writing to the Board on or before the first date set for the hearing. The Board is authorized to set reasonable time limits for the oral presentation of views by any one person at any such public hearing. The Board shall permit anyone who so desires to file a written argument or other statement with the Board in relation to any proposed action of the Board any time within 30 days following the conclusion of any public hearing or within any such additional time as the Board may allow by notice given as prescribed in this Section.
"(f) Final Adoption and Assignment of Classification. Upon completion of hearings and consideration of submitted evidence and arguments with respect to any proposed action of the Board pursuant to this Section, the Board shall adopt its final action with respect thereto and shall publish such final action as part of its official regulations. When final action has been adopted and is published with respect to the assignment of classifications applicable to the identified waters of any one or more watersheds within the State, the Board shall likewise publish as part of its official regulations, the effective date for the application of the provisions of Section 143-215.1 and 143-215.2 to persons within such watershed or watersheds.
"(g) Board's Power to Modify or Revoke. The Board is empowered to modify or revoke from time to time any final action previously taken by it pursuant to the provisions of this part; any such modification or revocation, however, to be subject to the procedural requirements of this Article.
"Sec. 143-215. Air Quality Standards and Classifications. (a) The Board is hereby directed and empowered, as rapidly as possible within the limits of funds and facilities available to it, and subject to the procedural requirements of this Article:
"(1) To prepare and develop, after proper study, a comprehensive plan or plans for the prevention, abatement and control of air pollution in the State or in any designated area of the State.
"(2) To determine by means of field sampling and other studies, including the examination of available data collected by any local, State or federal agency or any person, the degree of air contamination and air pollution in the State and the several areas of the State.
"(3) To develop and adopt, after proper study, air quality standards applicable to the State as a whole or to any designated area of the State as the Board deems proper in order to promote the policies and purposes of this Article most effectively.
"(4) To develop and adopt classifications for use in classifying air contaminant sources, which in the judgment of the Board may cause or contribute to air pollution, according to levels and types of emissions and other characteristics which relate to air pollution and may require reporting for any such class or classes. Such classifications may be for application to the State as a whole or to any designated area of the State, and shall be made with special reference to effects on health, economic and social factors, and physical effects on property. Any person operating or responsible for the operation of air contaminant sources of any class for which the Board requires reporting shall make reports containing such information as may be required by the Board concerning location, size, and height of contaminant outlets, processes employed, fuels used, and the nature and time periods or duration of emissions, and such other information as is relevant to air pollution and available or reasonably capable of being assembled.
"(5) To develop and adopt such emission control standards as in the judgment of the Board may be necessary to prohibit, abate or control air pollution commensurate with established air quality standards. Such standards may be applied uniformly to the State as a whole or to any area of the State designated by the Board.
"(b) Criteria for Standards. In developing air quality and emission control standards, the Board shall recognize varying local conditions and requirements and may prescribe different standards for different areas, as may be necessary and appropriate to facilitate accomplishment of the stated purposes of this Article.
"(c) Proposed Adoption of Standards and Classifications. Prior to the adoption by the Board of air quality standards, emission control standards and classifications for air contaminant sources, and prior to any modification of any such actions previously taken, the Board shall give notice of its proposed action and shall conduct one or more public hearings with respect to any such proposed action in accordance with the procedure set forth in subparagraphs (e) (1), (e) (2), and (e) (3) of Section 143-214.1.
"(d) Final Adoption of Air Quality Standards, Emission Control Standards and Classifications for Air Contaminant Sources. Upon completion of hearings and consideration of submitted evidence and arguments concerning any proposed action by the Board with respect to the adoption of air quality standards, emission control standards and classifications for air contaminant sources, the Board shall adopt its final action with respect thereto and shall publish such final action as a part of its official regulations. When final action has been adopted and is published with respect to the aforestated standards and classifications, the Board shall likewise publish as a part of its official regulations, the effective date for the application of the provisions of Sections 143-215.1 and 143-215.2 to persons within the State as a whole or within any designated area of the State.
"(e) Board's Power to Modify or Revoke. The Board is hereby empowered to modify or revoke from time to time any final action previously taken by it pursuant to the provisions of this part, any such modification or revocation, however, to be subject to the procedural requirements of this Article.
"Sec. 143-215.1. Control of New Sources of Air and Water Pollution; Permits Required. (a) Water. After the effective date applicable to any watershed established pursuant to Section 143-214.1, 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 Board a permit therefor and shall have complied with such conditions, if any, as are prescribed by such permit:
"(1) Make any new outlets into the water of such watershed;
"(2) Construct or operate any new sewer system, treatment works or disposal system within such watershed;
"(3) Alter, extend, or change the construction or the method of operation of any existing sewer system, treatment works or disposal system within such watershed;
"(4) Increase the quantity (determined by such method of measurement as the Board shall prescribe by its official regulations) of sewage, industrial waste, or other waste discharged through any existing outlet or processed in any existing treatment works or disposal system to an extent which would adversely affect the condition of the receiving water within such watershed in relation to any of the standards applicable to such water, or to an extent beyond such minimum limits as the Board may prescribe, by way of general exemption from the provisions of this paragraph, by its official regulations;
"(5) Change the nature of the sewage, industrial waste or other waste discharged through any existing disposal system in any way which would adversely affect the condition of the receiving water within such watershed in relation to any of the standards applicable to such water.
"In connection with the above, no such permit shall be granted for the disposal of wastes into waters classified as sources of public water supply, where the State Board of Health determines and advises the Board that such disposal is sufficiently close to the intake works of a public water supply as to have an adverse effect thereon, until the Board has referred the complete plans and specifications to the State Board of Health and has received advice in writing that same are approved in accordance with the provisions of G.S. 130-161. In any case where the Board denies a permit, it shall state in writing the reason for such denial and shall also state the Board'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.
"(b) Air. After the effective date applicable to any air quality or emission control standards established pursuant to Section 143-215, no person shall do any of the following things or carry out any of the following activities which would contravene or be likely to contravene such standards until or unless such person shall have applied for and shall have received from the Board a permit therefor and shall have complied with such conditions, if any, as are prescribed by such permit:
"(1) Establish or operate any new air contaminant source;
"(2) Build, erect, use or operate any new 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 existing equipment or process from which air contaminants are or may be emitted.
"(4) Enter into a contract for the construction and installation of any air cleaning device, or allow or cause such device to be constructed, installed, or operated.
"Any plant, facility, equipment or air cleaning device which on the effective date of such control standards is under construction or being installed, or is the subject of a contract for construction, installation or purchase, shall not be considered within the meaning of subsection (b) to be a new air contaminant source, new equipment or a new air cleaning device.
"(c) Board's Power as to Permits. The Board shall act upon all applications for permits so as to effectuate the purpose of this Section, by preventing, so far as reasonably possible, any pollution or any increased pollution of the waters and air of the State from any additional or enlarged sources.
"The Board shall have the power:
"(1) To grant a permit with such conditions attached as the Board believes necessary to achieve the purposes of this Section;
"(2) To grant any temporary permit for such period of time as the Board shall specify even though the action allowed by such permit may result in pollution or increase pollution where conditions make such temporary permit essential; and
"(3) To modify or revoke any permit upon not less than 60 days' written notice to any person affected.
"No permit shall be denied and no condition shall be attached to the permit, except when the Board finds such denial or such conditions necessary to effectuate the purposes of this Section.
"(d) Procedure as to Application and Permits. All applications for permits and all permits issued by the Board, or decisions denying any applications for a permit, shall be in writing. The Board shall act on all applications for permits as rapidly as possible. The Board shall have power to request such information from an applicant and to conduct such inquiry or investigation as it may deem necessary prior to acting on any application for a permit. Failure of the Board to take action on an application for a permit within 90 days shall be treated as approval of such application. The Board shall adopt such forms and rules as it deems necessary, to be published as part of its rules of procedure, with respect to the application for the grant or denial of permits pursuant to this Section. Such rules may require the submission of plans and specifications and other information as the Board deems necessary to the proper evaluation of the application for a permit.
"(e) Hearings and Appeals. Any person whose application for a permit is denied, or is granted subject to conditions which are unacceptable to such person, or whose permit is modified or revoked, shall have the right to a hearing before the Board upon making demand therefor within 30 days following the giving of notice by the Board as to its decision on such application. Unless such a demand for a hearing is made, the decision of the Board on the application shall be final and binding. If demand for a hearing is made, the procedure with respect thereto and with respect to all further proceedings shall be as specified in Section 143-215.4 and in any applicable rules of procedure of the Board.
"Sec. 143-215.2. Abatement of Existing Pollution; Required Compliance with Special Orders. (a) After the effective date applicable to any watershed, or established for any air quality standards or emission control standards, no person shall discharge any sewage, industrial waste, or other waste into the waters of such watershed or any air contaminants into the outdoor atmosphere of the State of any designated area thereof in violation of, or except upon compliance with the terms of, any special order, or other appropriate instrument, issued by the Board to such person in accordance with the procedure specified by this Article.
"(b) Board's Powers as to Special Orders. The Board is hereby empowered, after the effective date applicable to any watershed, or established for any air quality standards or emission control standards, to issue (and from time to time to modify or revoke) a special order, or other appropriate instrument, to any person whom it 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. Such an order or instrument may direct such person to take, or refrain from taking such action, or to achieve such results, within a period of time specified by such special order, as the Board deems necessary and feasible in order to alleviate or eliminate such pollution. No such special order shall be issued against a person, or, if issued, the time for compliance therewith by such person shall be extended to the extent necessary, where the Board concludes, after investigation, or where it is demonstrated after a hearing, that it is impossible or, for the time being, not feasible for such person to correct or eliminate the activities causing or contributing to any such pollution. Such a situation shall be deemed to exist where no adequate or practical method of disposal, control, or treatment is known for the particular waste or air contaminant for which such person is responsible, or where the cost of any such known method of disposal, control or treatment is unduly burdensome in comparison with the pollution abatement results which can be achieved, or where a known method of disposal, abatement, or treatment cannot be adopted because of financial inability (due to statutory restriction on borrowing power or otherwise), or where there is reason to believe that diligent research and experimentation is being carried on to such an extent as to justify postponement of the adoption of relatively inefficient known methods of disposal, abatement, or treatment until further opportunity is given for the discovery of more effective methods. The burden of proof as to any of such conditions or any other conditions alleged to exist as a reason for the nonissuance of a special order or for extension of the time of compliance therewith shall be upon the person alleging such conditions.
"(c) Procedure as to Special Orders. No special order shall be issued by the Board (unless issued upon the consent of a person affected thereby) except after a hearing in accordance with the procedural requirements specified in Section 143-215.4 and in any applicable rules of procedure of the Board. Any special order shall be based on and shall set forth the findings of fact resulting from evidence presented at such hearing and shall specify the time within which the person against whom such order is issued shall achieve the results required by the special order.
"(d) Appeals. Any person against whom a special order is issued shall have the right to appeal in accordance with the provisions of Section 143-215.5. Unless such appeal is taken within the prescribed time limit, the special order of the Board shall be final and binding.
"(e) Encouragement of Voluntary Action. The powers conferred by this Section are granted for the purpose of enabling the Board to carry out a State-wide program of water and air pollution abatement to the end that ultimately the purposes of this Article will be achieved. It is the intent of this Section, however, that the Board should seek to obtain the cooperative effort of all persons contributing to each situation involving water or air pollution in remedying such situation, and that the powers granted by this Section shall be exercised only when the objective of this Section cannot be otherwise achieved within a reasonable time.
"(f) Equality of Enforcement Action. It is the intent of this Article that a comprehensive all-inclusive effort be made to accomplish the purpose of this Article and to that end it is specifically provided that whenever more than one person is found to be responsible for a condition involving pollution of the air of any area of the State or water of any segment of any particular water as identified and classified under Sections 143-214.1 and 143-215 that the Board shall endeavor to obtain the cooperative effort of all such persons and that if this cannot be accomplished and the Board deems it necessary to take enforcement action to correct such pollution, by invoking the power granted by this Article, such action shall be taken against all persons who share responsibility for such condition, to the extent that such persons have not voluntarily undertaken satisfactory remedial measures or have not agreed, by consenting to the issuance of special orders pursuant to this Section to undertake such measures.
"When an order of the Board to abate a water or air pollution problem is served upon a municipality, upon a metropolitan sewerage district, or upon a sanitary district, the governing board of such municipality, metropolitan sewerage district, or sanitary district shall, unless said order be reversed on appeal, proceed to provide funds, using any or all means necessary and available therefor by law, by issuance of bonds secured by the full faith and credit of such municipality or district or by issuance of revenue bonds or otherwise, for financing the cost of all things necessary for full compliance with said order and shall thereby comply with said order: Provided, nothing herein shall be construed to supersede or modify the provisions of the Local Government Act or of the Revenue Bond Act of 1938 with respect to approval or disapproval of bonds by the Local Government Commission and to the sale of bonds by said Commission.
"(g) Voluntary Projects; Applications for Certificate of Approval; Installation of Treatment Works or Air Cleaning Devices and Approval Thereof. Prior to the effective date applicable to any watershed or established for any air quality standards or emission control standards, any person who is discharging or who proposes to discharge sewage, industrial waste, or other waste into any waters of the State or who is discharging or who proposes to discharge any air contaminants into the air of the State may submit to the Board proposed plans for the installation of treatment works with respect to such sewage, industrial waste or other waste, or for the installation of air cleaning devices, with respect to such air contaminants and apply to the Board for approval thereof. Such applications shall be in such form as the Board may prescribe in its rules of procedure, shall describe in precise detail the nature and volume of the sewage, industrial waste, other waste, or air contaminant which the applicant discharges or proposes to discharge, and shall contain or be supplemented by any information or plans and specifications whatsoever which the Board may request. The applicant may submit the opinion of any independent expert as to the probable effectiveness and results of such treatment works or air cleaning devices and the Board may request that the opinion of experts or additional experts be obtained in any case where it considers the same necessary, the expense in connection therewith to be borne by the applicant. Such an application may be filed by any person irrespective of whether any proceedings involving such person have been taken or are pending under any other provision of this Article.
"(h) Voluntary Projects, Conditions for Issuance of Certificate. The Board shall make a thorough investigation of any application filed pursuant to this Section before acting thereon, and may require the applicant to submit any statements in support of such application under oath. The Board shall not issue a certificate of approval to any applicant, unless it finds that the proposed treatment works or air cleaning devices, if installed and operated in accordance with the plans submitted to the Board:
"(1) Will provide an effective method of preventing or abating actual or potential pollution of the waters or air into which the applicant is discharging or proposes to discharge any air contaminants or sewage, industrial waste, or other waste; and
"(2) Will require such expenditure by the applicant, in relation to the air cleaning or waste treatment problem to be remedied and the size and nature of the applicant's activities resulting in such problem, that it is fair to give the applicant reasonable protection against being required by law, at some later date, to make further capital expenditures in connection with the same air cleaning or waste treatment problem.
"(i) Voluntary Projects, Effect of Certificate of Approval. If the Board approves the proposed air cleaning devices or waste treatment works, with any modifications it may recommend, it shall have the power to issue to the applicant a certificate of approval which shall have the following effect and be subject to the following limitations:
"(1) Such certificate shall give the person to whom it is issued binding assurance that, for the period specified in the certificate and so long as such person complies with all the terms of the certificate, he will not be required to take or refrain from any further action nor be required to achieve any further results under the terms of this or any other State law relating to the control of water or air pollution, for the purpose of alleviating or eliminating any pollution or alleged pollution resulting from the sewage, industrial waste, other waste, or air contaminants, which such person is discharging into any water or the atmosphere.
"(2) Such certificate shall be effective from the date of its issuance for such period of time as the Board deems fair and reasonable in the light of all the circumstances.
"(3) Such certificate shall provide that it shall become void unless the applicant completes the proposed air cleaning devices or waste treatment works within a time limit specified in such certificate, and unless the proposed air cleaning devices or waste treatment works are constructed and at all times operated in accordance with the plans and specifications approved by the Board pursuant to this Section.
"(4) Such certificate shall be effective only with respect to the nature and volume of air contaminants or sewage, industrial waste or other waste described in the application or in the certificate itself after treatment by the proposed treatment works or air cleaning devices.
"(5) Such certificate shall inure to the benefit of any successors or assigns of the applicant subject to the same conditions as are applicable to the applicant.
"(6) Such certificate may impose any other limitations on its effectiveness as the Board may deem necessary or appropriate.
"(j) Voluntary Projects, Procedure. The Board by rules of procedure, not inconsistent with this Article, may specify any further rules applicable to the granting of certificates of approval pursuant to this Section. Any action by the Board on an application for a certificate of approval is a matter of discretion and consequently there shall be no right to a hearing nor to an appeal with respect to any refusal of the Board to grant any certificate of approval, or to the terms thereof. The Board shall have power to entertain and act on applications for modification of any certificate of approval. The Board shall have no power to revoke or modify a certificate of approval which has been issued, except by agreement, or except where the terms of such certificate have been violated or have not been fulfilled.
"(k) Nonvoluntary Projects, Effect of Compliance. Any person who installs a treatment works or an air cleaning device for the purpose of alleviating or eliminating water or air pollution in compliance with the terms of, or as a result of conditions specified in, a permit issued pursuant to Section 143-215.1 or a special order issued pursuant to Section 143-215.2 or a final decision of the Board or a court rendered decision pursuant to either of said Sections, shall not be required to take or refrain from any further action nor be required to achieve any further results under the terms of this or any other State law relating to the control of water or air pollution, for a period to be fixed by the Board or court as it shall deem fair and reasonable in the light of all the circumstances after the date when such special order or decision or the conditions of such permit become finally effective, if:
"(1) The treatment works or air cleaning devices result in the elimination or alleviation of water or air pollution to the extent required by such permit, special order or decision and complies with any other terms thereof; and
"(2) Such person complies with the terms and conditions of such permit, special order or decision within the time limit, if any, specified thereby or as the same may be extended, and thereafter remains in compliance.
"Sec. 143-215.3. General Powers of Board; Auxiliary Powers. (a) In addition to the specific powers prescribed elsewhere in this Article, and for the purpose of carrying out its duties, the Board shall have the power:
"(1) To adopt from time to time and to modify and revoke official regulations interpreting and applying the provisions of this Article and rules of procedure establishing and amplifying the procedures to be followed in the administration of this Article: Provided, that no regulations and no rules of procedure shall be effective nor enforceable until published and filed as prescribed by Section 143-215.4;
"(2) To conduct such investigations as it may reasonably deem necessary to carry out its duties as prescribed by this Article, and for this purpose to enter at reasonable times upon any property, public or private, for the purpose of investigating the condition of any waters and the discharge therein of any sewage, industrial waste or other waste or for the purpose of investigating the condition of the air, air pollution, air contaminant sources, emissions or the installation and operation of any air cleaning devices, and to require written statements or the filing of reports under oath, with respect to pertinent questions relating to the operation of any air cleaning device, sewer system, disposal system or treatment works: Provided, that no person shall be required to disclose any secret formula, processes, or methods used in any manufacturing operation or any confidential information concerning business activities carried on by him or under his supervision. No person shall refuse entry or access to any authorized representative of the Board who requests entry for purposes of inspection, and who presents appropriate credentials, nor shall any person obstruct, hamper or interfere with any such representative while in the process of carrying out his official duties;
"(3) To conduct public hearings in accordance with the procedures prescribed by this Article;
"(4) To delegate such of the powers of the Board as the Board deems necessary to one or more of its members, to its Director, Assistant Director, or to any other qualified employee of the Board; provided, that the provisions of any such delegation of power shall be set forth in the official regulations of the Board; and provided further that the Board shall not delegate to persons other than its own members and its own qualified employees the power to conduct hearings with respect to the classification of waters, the assignment of classifications, air quality standards, air contaminant source classifications, emission control standards, or the issuance of any special order except in the case of an emergency under subsection 143-215.3 (a) (12) for the abatement of existing water or air pollution. Any employee of the Board to whom a delegation of power is made to conduct a hearing shall report the hearing with its evidence and record to the Board for decision;
"(5) To institute such actions in the Superior Court in the county in which any defendant resides, or has his or its principal place of business, as the Board may deem necessary for the enforcement of any of the provisions of this Article or of any official actions of the Board, including proceedings to enforce subpoenas or for the punishment of contempt of the Board;
"(6) To agree upon or enter into any settlements or compromises of any actions and to prosecute any appeals or other proceedings.
"(7) To investigate any killing of fish and wildlife which, in the opinion of the Board, is of sufficient magnitude to justify investigation and is known or believed to have resulted from the pollution of the waters or air as defined in this Article, and whenever any person, whether or not he shall have been issued a certificate of approval, permit or other document of approval authorized by this or any other State law, has negligently, or carelessly or unlawfully, or wilfully and unlawfully, caused pollution of the waters or air as defined in this Article, in such quantity, concentration or manner that fish or wildlife are killed as the result thereof, the Board may recover, in the name of the State, damages from such person. The measure of damages shall be the amount determined by the Board and the North Carolina Wildlife Resources Commission or the North Carolina Department of Conservation and Development, whichever has jurisdiction over the first or wildlife destroyed, to be the replacement costs thereof plus the cost of all reasonable and necessary investigations made or caused to be made by the State in connection therewith. Upon receipt of the estimate of damages caused, the Board shall notify the persons responsible for the destruction of the fish or wildlife in question and may effect such settlement as it deems proper and reasonable, and if no settlement is reached within a reasonable time, the Board shall bring a civil action to recover such damages in the Superior Court in the county in which the discharge took place. Upon such action being brought the Superior Court shall have jurisdiction to hear and determine all issues or questions of law or fact, arising on the pleadings, including issues of liability and the amount of damages.
"The State of North Carolina shall be deemed the owner of the fish or wildlife killed and all actions for recovery shall be brought by the Board on behalf of the State as the owner of the fish or wildlife. The fact that the person or persons alleged to be responsible for the pollution which killed the fish or wildlife holds or has held a certificate of approval, permit or other document of approval authorized by this Article or any other law of the State shall not bar any such action. The proceeds of any recovery had, less the cost of investigations, recovered and retained or otherwise disbursed by the Board to the appropriate investigating agencies, shall be paid to the appropriate State agency to be used to replace, insofar as and as promptly as possible, the fish and wildlife killed, or in cases where replacement is not practicable, the proceeds shall be used in whatever manner the responsible agency deems proper for improving the fish and wildlife habitat in question. Any such funds received are hereby appropriated for these designated purposes. Nothing in this paragraph shall be construed in any way to limit or prevent any other action which is now authorized by this Article.
"(8) To make a continuing study of the effects of the emission of air contaminants from motor vehicles on the quality of the outdoor atmosphere of the State and the several areas thereof, and make recommendations to the General Assembly and other appropriate public and private bodies for the control of such air contaminants.
"(9) Consult, upon request, with any person, proposing to construct, install, or otherwise acquire an air or water pollution source, air cleaning device or waste disposal system for the control of air contaminants or waste discharges concerning the efficacy of such device or disposal system, or the air or water pollution problem which may be related to such source, device or disposal system; provided, however, that nothing in any such consultation shall be construed to relieve any person from compliance with this Article, rules and regulations adopted pursuant thereto, or any other provision of law.
"(10) To encourage local units of government to handle air pollution problems within their respective jurisdictions and on a cooperative basis, and to provide such local units technical and consultative assistance to the maximum extent possible.
"(11) Local Air Pollution Control Programs, (a) To review and have general oversight and supervision over all existing or proposed local air pollution control programs and to this end shall review and certify such programs as being adequate to meet the requirements of this Article and any applicable standards and rules and regulations pursuant thereto. The Board shall certify any local program which:
"1. Provides by ordinance or local law for requirements compatible with those imposed by the provisions of this Article, and the standards and rules and regulations issued pursuant thereto; provided, however, the Board upon request of a municipality or other local unit may grant special permission for the governing body of such unit to adopt a particular class of air contaminant regulations which would result in more effective air pollution control than applicable standards, rules, or regulations promulgated by the Board.
"2. Provides for the adequate enforcement of such requirements by appropriate administrative and judicial process;
"3. Provides for an adequate administrative organization, staff, financial and other resources necessary to effectively and efficiently carry out its programs; and
"4. Is approved by the Board as adequate to meet the requirements of this Article and any applicable rules and regulations pursuant thereto.
"(b) No municipality, county, local board or commission or group of municipalities and counties may establish and administer an air pollution control program unless such program meets the requirements of paragraph 11 of subsection (a) of this Section and is so certified by the Board.
"(c) If the Board finds that the location, character or extent of particular concentrations of population, air contaminant sources, the geographic, topographic or meteorological considerations, or any combinations thereof, are such as to make impracticable the maintenance of appropriate levels of air quality without an area-wide air pollution control program, the Board may determine the boundaries within which such program is necessary and require such area-wide program as the only acceptable alternative to direct State administration.
"(d) 1. If the Board has reason to believe that a local air pollution control program certified and in force pursuant to the provisions of this Section is inadequate to abate or control air pollution in the jurisdiction to which such program relates, or that such program is being administered in a manner inconsistent with the requirements of this Article, the Board shall, upon due notice, conduct a hearing on the matter.
"2. If, after such hearing the Board determines that an existing local air pollution control program or one which has been certified by the Board is inadequate to abate or control air pollution in the municipality, county, or municipalities or counties to which such program relates, or that such program is not accomplishing the purposes of this Article, it shall set forth in its findings the corrective measures necessary for continued certification and shall specify a reasonable period of time, not to exceed one year, in which such measures must be taken if certification is not to be rescinded.
"3. If the municipality, county, local board or commission or municipalities or counties fail to take such necessary corrective action within the time specified, the Board shall rescind any certification as may have been issued for such program and shall administer within such municipality, county, or municipalities or counties all of the regulatory provisions of this Article. Such air pollution control program shall supersede all municipal, county or local laws, regulations, ordinances and requirements in the affected jurisdiction.
"4. If the Board finds that the control of a particular class of air contaminant source because of its complexity or magnitude is beyond the reasonable capability of the local air pollution control authorities or may be more efficiently and economically performed at the State level, it may assume and retain jurisdiction over that class of air contaminant source. Classification pursuant to this paragraph may be either on the basis of the nature of the sources involved or on the basis of their relationship to the size of the communities in which they are located.
"5. Any municipality or county in which the Board administers its air pollution control program pursuant to paragraph (3) of this subsection may, with the approval of the Board, establish or resume a municipal, county, or local air pollution control program which meets the requirements for certification by the Board.
"6. Nothing in this Article shall be construed to supersede or oust the jurisdiction of any local air pollution control program in operation on the effective date of this Article; provided that within two years from such date any such program shall meet all requirements of this Article for certification by the Board as an approved local air pollution control program. Any certification required from the Board shall be deemed granted unless the Board takes specific action to the contrary.
"7. Any municipality, county, local board or commission or municipalities or counties or designated area of this State for which a local air pollution control program is established or proposed for establishment may make application for, receive, administer and expend federal grant funds for the control of air pollution or the development and administration of programs related to air pollution control; provided that any such application is first submitted to and approved by the Board. The Board shall approve any such application if it is consistent with this Article and other applicable requirements of law.
"(12) To declare an emergency when it finds that a generalized condition of water or air pollution which is causing imminent danger to the health or safety of the public. Regardless of any other provisions of law, if the department finds that such a condition of water or air pollution exists and that it creates an emergency requiring immediate action to protect the public health and safety or to protect fish and wildlife, the Assistant Director, with the approval of the Director and the concurrence of the Governor, shall order persons causing or contributing to the water or air pollution in question to reduce or discontinue immediately the emission of air contaminants or the discharge of wastes. Immediately after the issuance of such order, the Chairman of the Board shall fix a place and time for a hearing before the Board to be held within 24 hours after issuance of such order, and within 24 hours after the commencement of such hearing, and without adjournment thereof, the Board shall either affirm, modify or set aside the order of the Assistant Director.
"In the absence of a generalized condition of air or water pollution of the type referred to above, if the Assistant Director finds that the emissions from one or more air contaminant sources or the discharge of wastes from one or more sources of water pollution is causing imminent danger to human health and safety or to fish and wildlife, he may with the approval of the Director and the concurrence of the Governor order the person or persons responsible for the operation or operations in question to immediately reduce or discontinue the emissions of air contaminants or the discharge of wastes or to take such other measures as are, in his judgment, necessary, without regard to any other provisions of this Article. In such event, the requirements for hearing and affirmance, modification or setting aside of such orders set forth in the preceding paragraph of this provision shall apply.
"Nothing in this subsection shall be construed to limit any power which the Governor or any other officer may have to declare an emergency and act on the basis of such declaration, if such power is conferred by statute or constitutional provision, or inheres in the office.
"(b) Research Functions. The Board shall have the power to conduct scientific experiments, research, and investigations to discover economical and practical corrective methods for air pollution and waste disposal problems. To this end, the Board may cooperate with any public or private agency or agencies in the conduct of such experiments, research, and investigations, and may, when funds permit, establish research studies in any North Carolina educational institution, with the consent of such institution. In addition, the Board shall have the power to cooperate and enter into contracts with technical divisions of State agencies, institutions and with municipalities, industries, and other persons in the execution of such surveys, studies, and research as it may deem necessary in fulfilling its functions under this Article. All State departments shall advise with and cooperate with the Board on matters of mutual interest.
"(c) Relation with the Federal Government. The Board as official water and air pollution control agency for the State is delegated to act in local administration of all matters covered by any existing federal statutes and future legislation by Congress relating to water and air quality control.
"(d) Relations With Other States. The Board may, with the approval of the Governor, consult with qualified representatives of adjoining states relative to the establishment of regulations for the protection of waters and air of mutual interest, but the approval of the General Assembly shall be required to make any regulations binding.
"Sec. 143-215.4. General Provisions as to Procedure; Seal. (a) Persons Entitled to Notice, Mailing List. In any proceeding pursuant to Sections 143-215.1, 143-215.2, 143-215.3, the Board shall give notice with respect to all steps of the proceeding only to each person directly affected by such proceeding who shall be made a party thereto. In all proceedings pursuant to Sections 143-214.1 and 143-215, the Board shall give notice as provided by that Section, and it shall also give notice of all its official acts (such as the adoption of regulations or rules of procedure) which have, or are intended to have, general application and effect, to all persons on its mailing list on the date when such action is taken. It shall be the duty of the Board to keep such a mailing list on which it shall record the name and address of each person who requests listing thereon, together with the date of receipt of such request. Any person may, by written request to the Board, ask to be permanently recorded on such mailing list.
"(b) Publication and Codification of Board's Regulations and Rules. All official acts of the Board which have or are intended to have general application effect shall be incorporated either in the Board's official regulations (applying and interpreting this Article), or in its rules of procedure. All such regulations and rules shall upon adoption thereof by the Board be printed (or otherwise duplicated), and a duly certified copy thereof shall immediately be filed with the Secretary of State. One copy of each such action shall at the same time be mailed to all persons then on the mailing list, and additional copies shall at all times be kept at the office of the Board in sufficient numbers to satisfy all reasonable requests therefor. The Board shall codify its regulations and rules and from time to time shall revise and bring up to date such codifications.
"(c) Notices. All notices which are required to be given by the Board or by any party to a proceeding shall be given by registered or certified mail to all persons entitled thereto, including the Board. The date of receipt for such registered or certified mail shall be the date when such notice is deemed to have been given. Notice by the Board may be given to any person upon whom a summons may be served in accordance with the provisions of law covering civil actions in the Superior Courts of this State. Any notice shall be sufficient if it reasonably sets forth the action requested or demanded or gives information as to action taken. The Board by its rules of procedure may prescribe other necessary practices and procedures with regard to the form, content and procedure as to any particular notices.
"(d) Hearings. The following provisions, together with any additional provisions not inconsistent herewith which the Board may prescribe, shall be applicable in connection with hearings pursuant to this Article, except where other provisions are applicable in connection with specific types of hearings:
"(1) Any hearing held pursuant to Sections 143-215.1 and 143-215.2 or 143-215.3, except those held pursuant to subsection (a) (12) of Section 143-215.3, whether called at the instance of the Board or of any person, shall be held upon not less than 30 days' written notice given by the Board to any person who is, or is entitled to be, a party to the proceedings with respect to which such hearing is to be held, unless a shorter notice is agreed upon by all such parties.
"(2) All hearings shall be before the Board or its authorized agent or agents, and the hearing shall be open to the public. The Board, or its authorized agents, shall have the authority to administer oaths.
"(3) A full and complete record of all proceedings at any hearing shall be taken by a reporter appointed by the Board or by other method approved by the Attorney General. Any party to a proceeding shall be entitled to a copy of such record upon the payment of the reasonable cost thereof as determined by the Board.
"(4) The Board shall follow generally the procedures applicable in civil actions in the Superior Court insofar as practicable, including rules and procedures with regard to the taking and use of depositions, the making and use of stipulations, and the entering into of agreed settlements and consent orders.
"(5) Subpoenas or subpoenas duces tecum issued by the Board, in connection with any hearing, shall be directed to any officer authorized by law to serve process, and the further procedures and rules of law applicable with respect thereto shall be prescribed in connection with subpoenas to the same extent as if issued by a court of record. In case of a refusal to obey a notice of hearing or subpoena issued by the Board, application may be made to the Superior Court of the appropriate county for enforcement thereof.
"(6) The burden of proof at any hearing shall be upon the person or the Board, as the case may be, at whose instance the hearing is being held.
"(7) No decision or order of the Board shall be made in any proceeding unless the same is supported by competent, material and substantial evidence upon consideration of the whole record.
"(8) Following any hearing, the Board shall afford the parties thereto a reasonable opportunity to submit within such time as prescribed by the Board proposed findings of fact and conclusions of law and any brief in connection therewith. The record in the proceeding shall show the Board's ruling with respect to each such requested finding of fact and conclusion of law.
"(9) All orders and decisions of the Board shall set forth separately the Board's findings of fact and conclusions of law and shall, wherever necessary, cite the appropriate provision of law or other source of authority on which any action or decision of the Board is based.
"(10) As previously recited above, the Board shall have the authority to adopt a seal which shall be the seal of said Board and which shall be judicially noticed by the courts of the State. Any document, proceeding, order, decree, special order, rule, regulation, rule of procedure or any other official act or records of the Board or its minutes may be certified by the Director or Assistant Director of the department under his hand and the seal of the Board and when so certified shall be received in evidence in all actions or proceedings in the courts of the State without further proof of the identity of the same if such records are competent, relevant and material in any such action or proceeding. The Board shall have the right to take judicial notice of all studies, reports, statistical data or any other official reports or records of the Federal Government or of any sister state and all such records, reports and data may be placed in evidence by the Board or by any other person or interested party where material, relevant and competent.
"Sec. 143-215.5. Judicial Review. Any person against whom any final order or decision has been made except where no appeal is allowed as provided by Section 143-215.2 (j) shall have a right of appeal to the Superior Court of Wake County or of the county where the order or decision is effective within 30 days after such order or decision has become final. Upon such appeal the Board shall send a certified transcript of all testimony and exhibits introduced before the Board, the order or decision, and the notice of appeal to the Superior Court. The matter on appeal shall be heard and determined de novo on the transcript certified to the court and any evidence or additional evidence as shall be competent under rules of evidence then applicable to trials in the Superior Court without a jury upon any question of fact; provided, the court shall allow any party to introduce evidence or additional evidence upon any question of fact. At the conclusion of the hearing, the Judge shall make findings of fact and enter his decision thereto. Appeals from the judgment and orders of the Superior Court shall lie to the Supreme Court. No bond shall be required of the Board to the Supreme Court.
"(a) Upon appeal filed by any party, the Board shall forthwith furnish each party to the proceeding with a copy of the certified transcript and exhibits filed with the Board. A reasonable charge shall be paid the Board for said copies.
"(b) Within 15 days after receipt of copy of certified transcript and exhibits, any party may file with the court exceptions to the accuracy or omissions of any evidence or exhibits included in or excluded from said transcript.
"Sec. 143-215.6. Violations and Penalties; Acts which Constitute Violations. (a) After the effective date applicable to any watershed or for the application of any air quality standards or emission control standards it shall be a violation of this Article for any person within such watershed; the State as a whole or one or more areas of the State:
"(1) To perform any of the acts set forth in Sections 143-215.1 (a) or 143-215.1 (b) without first obtaining a permit as required by Section 143-215.1, or to perform any such acts in disregard of the terms of any such permit.
"(2) To fail to comply with the terms of any special order issued by the Board to such person which has become final pursuant to Section 143-215.2 or any order issued pursuant to Section 143-215.3 (a) (12). No person, however, shall be charged with nor convicted of any violation under the provisions hereof by reason of any act of God, war, strike, riot, or other circumstances over which such person has no control.
"(b) Penalties for Violations. Any person who shall be adjudged to have violated this Article shall be guilty of a misdemeanor and shall be liable to a penalty of not less than one hundred dollars ($100.00) nor more than one thousand dollars ($1,000.00) for each violation. In addition, if any person is adjudged to have committed such violation willfully, the court may determine that each day during which such violation continued constitutes a separate violation subject to the foregoing penalty: Provided, however, that where a vote of the people is required to effectuate the intent and purpose of this Article by a municipality or other political subdivision of the State and the vote on the referendum is against the means or machinery for carrying the same into effect, then, and only then, this Section shall not apply to the elected officials or to any duly authorized appointed officials or employees, of said municipality or political subdivision.
"Sec. 143-215.7. Effect on Laws Applicable to Public Water Supplies and the Sanitary Disposal of Sewage. This Article shall not be construed as amending, repealing, or in any manner abridging or interfering with those Sections of the General Statutes of North Carolina relative to the control of public water supplies, as now administered by the State Board of Health; nor shall the provisions of this Article be construed as being applicable to or in any wise affecting the authority of the North Carolina State Board of Health to control the sanitary disposal of sewage as provided in Article 13 of Chapter 130 of the General Statutes of North Carolina, or as affecting the powers, duties and authority of city, county, county-city and district health departments usually referred to as local health departments or as affecting the charter powers, or other lawful authority of municipal corporations, to pass ordinances in regard to sewage disposal.
"Sec. 143-215.8. Injunctive Relief. Upon violation of any of the provisions of this Article, the Director or the Assistant Director of the Board may, either before or after the institution of proceedings for the collection of the penalty imposed by this Article for such violation, institute a civil action in the Superior Court in the name of the State upon the relation of the Director or the Assistant Director of the Board for injunctive relief to restrain the violation and for such other or further relief in the premises as said court shall deem proper. Neither the institution of the action nor any of the proceedings thereon shall relieve any party to such proceedings from the penalty prescribed by this Article for any violation of same.
"Sec. 143-215.9. Restrictions on Authority of the Board. Nothing in this Article shall be construed to:
"(1) Grant to the Board any jurisdiction or authority with respect to air contamination existing solely within commercial and industrial plants, works or shops;
"(2) Affect the relations between employers and employees with respect or arising out of conditions of air contamination or air pollution;
"(3) Supersede or limit the applicability of any law, rules and regulations or ordinances relating to industrial health or safety."
Sec. 2. Transfer of all Powers and Duties of Department of Water Resources, Including Personnel and Records of the Board, (a) On and after July 1, 1967, the Board of Water Resources shall cease to exist, and the terms of office of each of the members of the Board of Water Resources shall terminate and expire on July 1, 1967. G.S. 143-353 is hereby repealed but said repeal shall not become effective until July 1, 1967. On and after July 1, 1967, and as soon as reasonably practicable, all records, papers, documents, files, supplies, funds, credits, appropriations, claims, demands, liabilities, and all personnel, quarterly allotments, all executory contracts of the Department of Water Resources, the Board of Water Resources, the Division of Water Pollution Control and of the State Stream Sanitation Committee shall be transferred, conveyed, assigned, delivered and made over to the Board, and are hereby transferred, delivered, conveyed and assigned to the Board as of said date of July 1, 1967, and on and after said date the said Board shall be entitled to the exclusive possession, custody and control of all of said items and categories referred to above, and all the transfers ordered under this Section shall be made under the supervision of the Department of Administration, which shall be the final authority as to all differences and disputes arising incident to such transfers. Insofar as practicable the expenses necessary to carry out the provisions of this Article and of such transfers made under authority of same shall be provided out of appropriations made to the presently existing agencies whose functions are to be transferred to the Board, and in the event additional funds are necessary to carry out the provisions of this Article, the Governor, with the approval of the Council of State, is hereby authorized to appropriate such additional funds from the Contingency and Emergency Fund.
(b) No transfer of functions to the Board as provided for in this Section and in this Article shall affect any action, suit, proceeding, prosecution, contract, lease or other transaction, classification, standards, orders, permits or other approval documents issued or reports involving any function which was initiated, undertaken or entered into prior to or pending the time of the transfer, and the title or name of the department or board shall be substituted for the agency from which the function was transferred, and so far as practicable the procedure provided for in this Article shall be employed in completing or disposing of the matter. In all documents, papers, reports, proceedings, suits or actions at law wherever apt and appropriate the name of the Board shall be substituted for and in lieu of the name of any of the agencies transferred to the Board under the provisions of this Article.
(c) All of the powers, duties, authority, responsibilities and functions of the Department of Water Resources and of the Water Resources Board, as set forth in Article 38 of Chapter 143 of the General Statutes, are transferred to and vested in the Board as of July 1, 1967, and on and after said date all of said powers and duties of the Water Resources Board, as set forth in G.S. 143-354, G.S. 143-355, as well as any other powers and duties set forth in Article 38 of Chapter 143, are hereby adopted and made a part of this Article as if herein copied and set forth except G.S. 143-348, 143-349, 143-351, and 143-353, which are repealed under conditions set forth above.(d) This Act shall be known and shall be cited as "The North Carolina Water and Air Resources Act."
Sec. 3. The following amendments are hereby made to Article 13, Chapter 130 of the General Statutes to bring it into conformity with this Act:
(a) G.S. 130-161 (Cumulative Supplement, 1959) is amended by substituting the words "Board of Water and Air Resources" for the words "State Stream Sanitation Committee" wherever same appear in this Section.
(b) G.S. 130-165 (Cumulative Supplement, 1959) is amended by substituting the words "Board of Water and Air Resources" for the words "State Stream Sanitation Committee" wherever same appear in this Section.
Sec. 4. Subsection 2 of G.S. 160-383 (Cumulative Supplement, 1957) is amended by substituting the words "Board of Water and Air Resources" for the words "State Stream Sanitation Committee" wherever same appear in this subsection.
Sec. 5. Article 25 of Chapter 130, General Statutes of North Carolina, cited as the "State Air Hygiene Program Act", which Act authorized and empowered the State Board of Health to create and administer a State Air Hygiene Service, is hereby repealed in its entirety and such service is hereby terminated.
Sec. 6. Subsection 13 of G.S. 105-147 is hereby rewritten to read as follows:
"(13) In lieu of any depreciation allowance pursuant to this Section, at the option of the taxpayer, an allowance with respect to the amortization of the cost of any air cleaning device, sewage or waste treatment plant, including waste lagoons, and pollution abatement equipment purchased or constructed and installed which reduces the amount of air or water pollution resulting from the discharge of sewage and industrial wastes or other polluting materials or substances into streams, lakes, or rivers, or the emission of air contaminants into the outdoor atmosphere, based on a period of 60 months. The deduction provided herein shall apply to the facilities or equipment of private or public utilities built and installed primarily for the purpose of providing sewer service to residential and outlying areas. The deduction provided for in this subsection shall be allowed by the Commissioner only upon condition that the person, firm or corporation, claiming such allowance shall furnish to the Commissioner a certificate from the Board of Water and Air Resources certifying that said Board has found as a fact that the waste treatment plant, air cleaning: device, or air or water pollution abatement equipment purchased or constructed and installed as above described has actually been constructed and installed and that such plant or equipment complies with the requirements of said Board with respect to such plants or equipment, that such plant, device, or equipment is being effectively operated in accordance with the terms and conditions set forth in the permit, certificate of approval, or other document of approval issued by the Board of Water and Air Resources, and that the primary purpose thereof is to reduce air or water pollution resulting from the emission of air contaminants or the discharge of sewage and waste and not merely incidental to other purposes and functions. The deduction herein provided for shall also be allowed as to plants or equipment constructed or installed before January 1, 1955, but only with respect to the undepreciated value of such plants or equipment."
Sec. 7. G.S. 105-294 is hereby amended by rewriting the last paragraph thereof to read as follows:
"It is hereby declared to be the policy of this State to use its system of real estate taxation in such manner as to encourage the conservation of natural resources and the abatement and prevention of air and water pollution, and all tax assessors are hereby instructed that in assessing real estate under the provisions of G.S. 105-279 they shall make no increase in the tax valuation of real estate as the result of the owner's enterprise in installing or constructing or installing air cleaning devices or waste disposal or water pollution abatement plants, including waste lagoons, or equipment, upon the condition that a certificate is furnished to the tax supervisor of the county, wherein such property is located, by the Board of Water and Air Resources, certifying that said Board has found as a fact that the waste treatment plant, air cleaning device, or air or water pollution abatement equipment purchased or constructed and installed as above described has actually been constructed and installed and that such plant, device, or equipment complies with the requirements of said Board with respect to such plants, devices, or equipment, that such plant, device, or equipment is being effectively operated in accordance with the terms and conditions set forth in the permit, certificate of approval, or other document of approval issued by the Board of Water and Air Resources, and that the primary purpose thereof is to reduce air or water pollution resulting from the emission of air contaminants or the discharge of sewage and waste and not merely incidental to other purposes and functions; provided, this Section shall apply to the facilities or equipment of private or public utilities built and installed primarily for the purpose of providing sewer service to residential and outlying areas."
Sec. 8. Subsection 11 of G.S. 105-296 is hereby amended by rewriting same to read as follows:
"Real property, or so much thereof, which is used exclusively for air cleaning or waste disposal or air or water pollution abatement facilities, including waste lagoons, designed to abate, reduce, or prevent pollution of air or water. This exemption is allowed only upon the condition that a certificate is furnished to the tax supervisor of the county, wherein such property is located, by the Board of Water and Air Resources, certifying that said Board has found as a fact that the air cleaning device or the waste treatment plant, including waste lagoons, or pollution abatement equipment above described has been constructed or installed thereon and that such plant, device or equipment complies with the requirements of said Board with respect to such plants, devices or equipment, that such plant, device or equipment is being effectively operated in accordance with the terms and conditions set forth in the permit, certificate of approval, or other document of approval issued by the Board of Water and Air Resources, and that the primary purpose thereof is to reduce air or water pollution resulting from the emission of air contaminants or the discharge of sewage and waste and not merely incidental to other purposes and functions. The exemption provided in this Section shall apply to the facilities or equipment of private or public utilities built and installed primarily for the purpose of providing sewer service to residential and outlying areas. The exemption herein .provided for shall be applicable only with respect to taxes levied in 1955 and subsequent years."
Sec. 9. Subsection 16 of G.S. 105-297 is hereby amended by rewriting same to read as follows:
"Air cleaning devices, sewage and waste treatment facilities, and air or water pollution abatement equipment designated to abate, reduce, or eliminate air or water pollution. This exemption shall be allowed only upon the condition that a certificate is furnished to the tax supervisor of the county, wherein such property is located, by the Board of Water and Air Resources, certifying that said Board has found as a fact that the air cleaning device or waste treatment plant or pollution abatement equipment purchased or constructed or installed as above described has actually been constructed and installed and that such plant or equipment complies with the requirements of said Board with respect to such devices, plants, or equipment, that such device, plant or equipment is being effectively operated in accordance with the terms and conditions set forth in the permit, certificate of approval, or other document of approval issued by the Board of Water and Air Resources, and that the primary purpose thereof is to reduce air or water pollution resulting from the emission of air contaminants or the discharge of sewage and waste and not merely incidental to other purposes and functions. The exemption herein provided shall apply to facilities or equipment of private or public utilities built and installed primarily for the purpose of providing sewer service to residential and outlying areas. The exemption herein provided for shall be applicable only with respect to taxes levied in 1955 and subsequent years."
Sec. 10. Subsection (b) of G.S. 105-122 is hereby amended by rewriting the sentence immediately following the first sentence thereof to read as follows:
"There shall also be treated as a deductible liability reserves for the entire cost of any air cleaning device or sewage or waste treatment plant, including waste lagoons, and pollution abatement equipment purchased or constructed and installed which reduces the amount of air or water pollution resulting from the emission of air contaminants or the discharge of sewage and industrial wastes or other polluting materials or substances into the outdoor atmosphere or streams, lakes, or rivers, upon condition that the corporation claiming such deductible liability shall furnish to the Commissioner a certificate from the Board of Water and Air Resources certifying that said Board has found as a fact that the air cleaning device, waste treatment plant or pollution abatement equipment purchased or constructed and installed as above described has actually been constructed and installed and that such plant or equipment complies with the requirements of said Board with respect to such devices, plants or equipment, that such device, plant or equipment is being effectively operated in accordance with the terms and conditions set forth in the permit, certificate of approval, or other document of approval issued by the Board of Water and Air Resources and that the primary purpose thereof is to reduce air or water pollution resulting from the emission of air contaminants or the discharge of sewage and waste and not merely incidental to other purposes and functions. The cost of constructing facilities of any private or public utility built for the purpose of providing sewer service to residential and outlying areas shall be treated as deductible for the purposes of this Section; the deductible liability allowed by this Section shall apply only with respect to such pollution abatement plants or equipment constructed or installed on or after January 1, 1955."
Sec. 11. Subsection (d) of G.S. 105-122 is hereby amended by rewriting the last sentence at the end of the first paragraph thereof:
"In computing 'total actual investment in tangible personal property' there shall also be deducted reserves for the entire cost of any air cleaning device or sewage or waste treatment plant, including waste lagoons, and pollution abatement equipment purchased or constructed and installed which reduces the amount of air or water pollution resulting from the emission of air contaminants or the discharge of sewage and industrial wastes or other polluting materials or substances into the outdoor atmosphere or into streams, lakes, or rivers, upon condition that the corporation claiming such deduction shall furnish to the Commissioner a certificate from the Board of Water and Air Resources certifying that said Board has found as a fact that the air cleaning device, waste treatment plant or pollution abatement equipment purchased or constructed and installed as above described has actually been constructed and installed and that such device, plant or equipment complies with the requirements of said Board with respect to such devices, plants or equipment, that such device, plant or equipment is being effectively operated in accordance with the terms and conditions set forth in the permit, certificate of approval, or other document of approval issued by the Board of Water and Air Resources and that the primary purpose thereof is to reduce air or water pollution resulting from the emission of air contaminants or the discharge of sewage and waste and not merely incidental to other purposes and functions. The cost of constructing facilities of any private or public utility built for the purpose of providing sewer service to residential and outlying areas shall be treated as deductible for the purposes of this Section; the deductible liability allowed by this Section shall apply only with respect to such pollution abatement plants or equipment constructed or installed on or after January 1, 1955."
Sec. 12. G.S. 143-350 (Replacement 1964) is hereby rewritten to read as follows:
"Sec. 143-350. Definitions. Definitions as used in this Article: " 'Board' means the Board of Water and Air Resources created by G.S. 143-214.
"'Department' means the Department of Water and Air Resources created by G.S. 143-212."
Sec. 13. All laws and clauses of laws in conflict with the provisions of this Act are hereby repealed.
Sec. 14. This Act shall be in full force and effect from and after its ratification.
In the General Assembly read three times and ratified, this the 22nd day of June, 1967.