House Bill 36-First Edition

GENERAL ASSEMBLY OF NORTH CAROLINA

SESSION 2007

H 1

HOUSE BILL 36

Short Title: Haz. Materials Task Force Recommendations.		(Public)
Sponsors:	Representatives Weiss, Ross, T. Harrell, Dollar (Primary Sponsors); Alexander, Blue, Brown, Carney, Coleman, Cunningham, Faison, Farmer‑Butterfield, Fisher, Folwell, Glazier, Hall, Harrison, Holliman, Insko, Justice, Luebke, Martin, Mobley, Stam, Tolson, and Underhill.
Referred to:	Rules, Calendar, and Operations of the House.

January 30, 2007

A BILL TO BE ENTITLED

AN ACT to improve the oversight of hazardous waste facilities, as recommended by the governor's haZardous materials task force.

The General Assembly of North Carolina enacts:

PART I. REGULATORY RECOMMENDATIONS

REQUIRE COMMERCIAL HAZARDOUS WASTE FACILITIES TO PROVIDE FINANCIAL ASSURANCE FOR THE CLEANUP AND FOR THE OFF‑SITE SCREENING FOR POTENTIAL CONTAMINATION MIGRATION IN THE EVENT OF A RELEASE OF HAZARDOUS WASTE OR HAZARDOUS WASTE CONSTITUENTS INTO THE ENVIRONMENT

SECTION 1.1.(a) Part 2 of Article 9 of Chapter 130A of the General Statutes is amended by adding a new section to read:

"§ 130A‑295.04. Financial responsibility of hazardous waste facilities.

(a) In addition to any other financial requirements for solid waste facilities under G.S. 130A‑294, an applicant for a permit for a hazardous waste facility shall satisfy the Department that the applicant, and any parent, subsidiary, or other affiliate of the applicant or parent, has sufficient availability of funds for facility closure, post‑closure monitoring, any corrective measures, and potential liability for sudden and nonsudden accidental occurrences. To establish sufficient availability of funds under this subsection, the applicant may use insurance, financial tests, third‑party guarantees by persons who can pass the financial test, guarantees by corporate parents who can pass the financial test, irrevocable letters of credit, trusts, surety bonds, or any other financial device, or any combination of the foregoing, shown to provide protection equivalent to the financial protection that would be provided by insurance if insurance were the only mechanism used. Any direct or indirect parent corporation or other parent entity of the operator of a commercial hazardous waste facility shall be a guarantor of payment by the operator for closure, monitoring, and corrective measures and for liability incurred by the operator arising from the operation of the commercial hazardous waste facility. The Department may provide a copy of any filing to meet the financial responsibility requirements under this subsection to the State Treasurer, who shall review the filing and provide written comments on the equivalency of protection provided by the filing, including any recommended changes.

(b) In addition to the financial assurance required under subsection (a) of this section, an applicant for a permit for a commercial hazardous waste facility shall satisfy the Department that the applicant, and any parent, subsidiary, or other affiliate of the applicant or parent, has sufficient availability of funds both for cleanup and for off‑site screening for potential migration of contaminants, in the event of a release of hazardous waste or hazardous waste constituents into the environment. To establish sufficient availability of funds under this subsection for cleanup, the applicant may provide financial assurance through the use of insurance, financial tests, third‑party guarantees by persons who can pass the financial test, guarantees by corporate parents who can pass the financial test, irrevocable letters of credit, trusts, surety bonds, or any other financial device, or any combination of the foregoing, shown to provide protection equivalent to the financial protection that would be provided by insurance if insurance were the only mechanism used. To establish sufficient availability of funds under this subsection for off‑site screening for potential migration of contaminants, the applicant shall establish an escrow account in a form and amount approved by the Department for the benefit of the Department for costs associated with these off‑site assessments. Payments from the escrow account shall be made as directed by the Department in writing either to reimburse the Department for its off‑site assessment costs or to reimburse other persons authorized by the Department to make the off‑site assessments. The Department may provide a copy of any filing to meet the financial responsibility requirements under this subsection to the State Treasurer, who shall review the filing and provide written comments on the equivalency of protection provided by the filing, including any recommended changes.

(c) An applicant for a permit for a hazardous waste facility shall satisfy the Department that the applicant has met the requirements of subsection (a) of this section and, if applicable, subsection (b) of this section before the Department is required to otherwise review the application. In order to continue to hold a permit for a hazardous waste facility, a permittee must remain financially qualified and must provide any information requested by the Department to demonstrate that the permittee continues to be financially qualified.

(d) The Commission may adopt rules regarding financial responsibility in order to implement this section."

SECTION 1.1.(b) This section becomes effective October 1, 2007.

REQUIRE APPLICANTS FOR PERMITS FOR HAZARDOUS WASTE FACILITIES TO SEEK INPUT FROM LOCAL GOVERNMENT AND EMERGENCY RESPONSE AGENCIES ON THEIR CONTINGENCY PLANS FOR THE FACILITIES

SECTION 1.2.(a) G.S. 130A‑295 is amended by adding four new subsections to read:

"(d) At least 120 days prior to submitting an application, an applicant for a permit for a hazardous waste facility shall provide to the county in which the facility is located, to any municipality with planning jurisdiction over the site of the facility, and to all emergency response agencies that have a role under the contingency plan for the facility all of the following information:

(1) Information on the nature and type of operations to occur at the facility.

(2) Identification of the properties of the hazardous waste to be managed at the facility.

(3) A copy of the draft contingency plan for the facility that includes the proposed role for each local government and each emergency response agency that received information under this subsection.

(4) Information on the hazardous waste locations within the facility.

(e) The local governments and the emergency response agencies that receive information under subsection (d) of this section shall, within 60 days of receiving the information, respond to the applicant in writing as to the adequacy of the contingency plan, the availability and adequacy of its resources and equipment to respond, according to the role set forth under the contingency plan, to an emergency at the facility that results in a release of hazardous waste or hazardous waste constituents into the environment.

(f) An applicant for a permit for a hazardous waste facility shall include with its application for a permit the written responses the applicant received under subsection (e) of this section, along with documentation that the local governments and emergency response agencies did in fact receive the information required under subsection (d) of this section, and verification by each that its resources and equipment are available and adequate to respond to an emergency at the facility in accordance with its role as set forth in the contingency plan.

(g) In addition to the requirements under subsections (d) through (f) of this section, every two years after receiving its permit, the applicant shall again verify that the resources and equipment of each local government and emergency response agency are available and adequate to respond to an emergency at the facility in accordance with its role as set forth in the contingency plan and shall submit this verification to the Department."

SECTION 1.2.(b) This section is effective when it becomes law.

REQUIRE OPERATORS OF COMMERCIAL HAZARDOUS WASTE FACILITIES TO MAINTAIN CERTAIN INFORMATION AND MANIFESTS OFF‑SITE AND MAKE THESE ACCESSIBLE TO THE DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES, LOCAL GOVERNMENT, AND EMERGENCY RESPONSE AGENCIES THAT HAVE A ROLE UNDER CONTINGENCY PLANS

SECTION 1.3.(a) G.S. 130A‑295.01 is amended by adding a new subsection to read:

"(c) The operator of a commercial hazardous waste facility shall maintain off‑site copies of information concerning the quantity, type, location, and hazards of the waste at the facility and copies of the manifests required under subdivision (5) of subsection (c) of G.S. 130A‑294 and shall make this information and manifests, in a form and manner to be determined by the Department, accessible to the Department, to the county in which the facility is located, to any municipality with planning jurisdiction over the site of the facility, and to emergency response agencies that have a role under the contingency plan for the facility."

SECTION 1.3.(b) This section becomes effective October 1, 2007.

REQUIRE APPLICANTS FOR COMMERCIAL HAZARDOUS WASTE FACILITIES TO NOTIFY PROPERTY OWNERS WHO OWN PROPERTY LOCATED WITHIN ONE‑FOURTH MILE OF THE PROPOSED FACILITIES AND RESIDENTS OF THAT AREA THAT THE APPLICANT HAS FILED AN APPLICATION AND TO PROVIDE THE DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES WITH DOCUMENTATION THAT THIS NOTICE REQUIREMENT WAS MET; AND REQUIRE THESE APPLICANTS TO PROVIDE THESE PROPERTY OWNERS AND RESIDENTS WITH INFORMATION CONCERNING THE FACILITY'S CONTINGENCY PLAN

SECTION 1.4.(a) G.S. 130A‑295.01 is amended by adding a new subsection to read:

"(d) Within 10 days of filing an application for a permit for a commercial hazardous waste facility and again at the midpoint of the term of such permit, the applicant shall do all of the following:

(1) Notify by certified mail, return receipt requested, every property owner who owns property located within one‑fourth mile of any property boundary of the facility and every resident of that area that the application has been filed.

(2) Provide, by certified mail, return receipt requested, and in a form and manner approved by the Department, with the notice under subdivision (1) of this subsection, all of the following:

a. A description of the facility.

b. The location of the facility.

c. The wastes, both hazardous and nonhazardous, that are to be received and processed at the facility.

d. A description of the facility's planned response to emergencies.

(3) Provide sufficient documentation to the Department to satisfy the Department that the requirements under subdivisions (1) and (2) of this subsection have been met."

SECTION 1.4.(b) This section is effective when it becomes law.

REQUIRE THE DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES TO CONSIDER, WHEN DETERMINING THE FREQUENCY OF INSPECTIONS AT COMMERCIAL HAZARDOUS WASTE FACILITIES, CHANGES IN SENSITIVE LAND USE OR POPULATION DENSITY THAT OCCURRED DURING THE PREVIOUS YEAR IN THE AREA LOCATED WITHIN ONE‑FOURTH MILE OF ANY PROPERTY BOUNDARY OF SUCH FACILITIES

SECTION 1.5.(a) G.S. 130A‑295.01 is amended by adding a new subsection to read:

"(e) No later than January 31 of each year, the operator of a commercial hazardous waste facility shall report to the Department any changes in sensitive land use or population density that occurred during the previous calendar year in the area located within one‑fourth mile of any property boundary of the facility. Changes shall be recorded in the operating record of the facility. As used in this subsection, 'sensitive land use' includes residential housing, places of assembly, churches, schools, day care providers, and hospitals. Sensitive land use does not include retail businesses."

SECTION 1.5.(b) G.S. 130A‑295.02(j) reads as rewritten:

"(j) For purposes of this subsection, special purpose commercial hazardous waste facilities include: a facility that manages limited quantities of hazardous waste; a facility that limits its hazardous waste management activities to reclamation or recycling, including energy or materials recovery or a facility that stores hazardous waste primarily for use at such facilities; or a facility that is determined to be low risk under rules adopted by the Commission pursuant to this subsection. The Commission shall adopt rules establishing reasonable times and frequencies for the presence of a resident inspector on less than a full‑time basis at special purpose commercial hazardous waste facilities. Rules adopted pursuant to this subsection shall establish classifications of special purpose hazardous waste facilities based on factors including, but not limited to, the size of the facility, the type of treatment or storage being performed, the nature and volume of waste being treated or stored, the uniformity, similarity, or lack of diversity of the waste streams, the predictability of the nature of the waste streams and their treatability, whether the facility utilizes automated monitoring or safety devices that adequately perform functions that would otherwise be performed by a resident inspector, the fact that reclamation or recycling is being performed at the facility, and the compliance history of the facility and its operator. Special purpose commercial hazardous waste facilities shall be subject to inspection at all times during which the facility is in operation, undergoing any maintenance or repair, or undergoing any test or calibration. Rules adopted pursuant to this subsection shall specify a minimum number of inspections during such times as the facility is subject to inspection. When determining the frequency of inspections, the Department also shall consider any changes in sensitive land use or population density that occurred during the previous calendar year in the area located within one‑fourth mile of any property boundary of the facility. Special purpose commercial hazardous waste facilities that utilize hazardous waste as a fuel source shall be inspected a minimum of 40 hours per week, unless compliance data for these facilities can be electronically monitored and recorded off‑site by the Department. The Department, considering the benefits provided by electronic monitoring, shall determine the number of hours of on‑site inspection required at these facilities. The Department shall maintain records of all inspections at special purpose commercial hazardous waste facilities. Such records shall contain sufficient detail and shall be arranged in a readily understandable format so as to facilitate determination at any time as to whether the special purpose commercial hazardous waste facility is in compliance with the requirements of this subsection and of rules adopted pursuant to this subsection."

SECTION 1.5.(c) This section is effective when it becomes law.

REQUIRE COMMERCIAL HAZARDOUS WASTE FACILITIES TO PROVIDE SECURITY AND SURVEILLANCE AT THE FACILITY 24 HOURS A DAY, SEVEN DAYS A WEEK, EITHER BY PROVIDING ELECTRONIC SECURITY AND SURVEILLANCE OR BY EMPLOYING TRAINED FACILITY PERSONNEL

SECTION 1.6.(a) G.S. 130A‑295.01 is amended by adding a new subsection to read:

"(f) An applicant for a commercial hazardous waste facility shall provide security and surveillance at the facility 24 hours a day, seven days a week, to continuously monitor site conditions and to control entry. The requirement under this subsection may be satisfied either by providing an electronic security and surveillance system approved by the Department or by employing trained facility personnel that are capable of immediately detecting unauthorized access to the facility, monitoring conditions, identifying operator errors, and detecting any discharge that could directly or indirectly cause a fire, explosion, or release of hazardous waste or hazardous waste constituents into the environment or threaten human health. Electronic security and surveillance under this subsection may be provided by television, motion detectors, heat sensing equipment, combustible gas monitors, any combination of these, or any others approved by the Department."

SECTION 1.6.(b) This section becomes effective October 1, 2007.

REQUIRE PERMITS FOR COMMERCIAL HAZARDOUS WASTE FACILITIES TO BE SUBJECT TO RENEWAL AT LEAST EVERY FIVE YEARS

SECTION 1.7.(a) G.S. 130A‑295.01 is amended by adding a new subsection to read:

"(g) Any permit for a commercial hazardous waste facility shall not exceed five years. Unless permission for a later date is granted by the Department, any application for the renewal of such a permit shall be submitted no later than one calendar year prior to the expiration of the permit."

SECTION 1.7.(b) This section is effective when it becomes law.

AUTHORIZE THE DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES TO REGULATE FACILITIES AT WHICH HAZARDOUS WASTE IS STORED FOR MORE THAN 24 HOURS BUT LESS THAN 10 DAYS AND DIRECT THE DEPARTMENT TO STUDY THE NEED FOR FURTHER REGULATION AND PERMITTING OF THESE FACILITIES

SECTION 1.8.(a) G.S. 130A‑290(a) is amended by renumbering subdivision (13a) as (13b) and by adding a new subdivision to read:

"(13a) 'Hazardous waste transfer facility' means any facility or location where a hazardous waste transporter stores hazardous waste for a period of more than 24 hours but less than 10 days."

SECTION 1.8.(b) G.S. 130A‑290(a)(9) reads as rewritten:

"(9) "Hazardous waste facility" means a facility for the collection, storage, processing, treatment, recycling, recovery, or disposal of hazardous waste. Hazardous waste facility does not include a hazardous waste transfer facility that meets the requirements of 40 Code of Federal Regulations § 263.12 (1 July 2006)."

SECTION 1.8.(c) Part 2 of Article 9 of Chapter 130A of the General Statutes is amended by adding a new section to read:

"§ 130A‑295.05. Hazardous waste transfer facilities.

(a) A hazardous waste transporter shall register with the Department every hazardous waste transfer facility the transporter uses in North Carolina and shall obtain a hazardous waste transfer facility identification number for each such hazardous waste transfer facility.

(b) The Department shall issue a hazardous waste transfer facility identification number for a hazardous waste transfer facility if the hazardous waste transporter provides all of the following information regarding the transfer facility at the time of registration:

(1) The location of the hazardous waste transfer facility.

(2) The identification number issued by the Department for the hazardous waste transporter.

(3) The name of the owner of the property on which the hazardous waste transfer facility is located.

(c) Except during transportation emergencies as determined by the Department, the storage, consolidation, or commingling of hazardous waste may occur if and only if all of the following requirements are satisfied:

(1) The storage, consolidation, or commingling of hazardous waste occurs at a hazardous waste transfer facility that has been issued a facility identification number by the Department.

(2) The storage, consolidation, or commingling of hazardous waste is designated on the hazardous waste manifest.

(d) A hazardous waste transporter shall conduct all operations at any hazardous waste transfer facility in compliance with the requirements of 40 C.F.R. Part 263 and 49 U.S.C. 5101, et seq., and any regulations adopted under those federal laws. Accordingly, loading, unloading, and transferring between containers, segregating hazardous materials, providing emergency response information, maintaining emergency response information in a location that is immediately accessible to facility personnel in the event of an emergency involving the hazardous material, requiring training of facility personnel, and reporting incidents are subject to these federal laws and regulations. The Department may adopt rules that exceed these federal laws and regulations for hazardous waste transporter operations at hazardous waste transfer facilities if the Department determines these rules are necessary to protect human health and the environment. Any records that are required to be kept for hazardous waste transfer facilities shall be maintained at the hazardous waste transfer facility for a period of three years."SECTION 1.8.(d) The Department of Environment and Natural Resources shall study the need for further regulation of hazardous waste transfer facilities, as defined in G.S. 130A‑290(a)(13a), as enacted by subsection (a) of this section, including the need for requiring these facilities to obtain a permit under Part 2 of Article 9 of Chapter 130A of the General Statutes, pay permit fees, provide contingency plans, and provide financial assurance. No later than February 15, 2008, the Department of Environment and Natural Resources shall report the results of this study to the Environmental Review Commission, along with its findings and any recommendations, including legislative or administrative proposals.

SECTION 1.8.(e) This section becomes effective October 1, 2007.

REQUIRE COMMERCIAL HAZARDOUS WASTE FACILITIES TO OBTAIN AND MAINTAIN ON‑SITE WIND MONITORS

SECTION 1.9.(a) G.S. 130A‑295.01 is amended by adding a new subsection to read:

"(h) Each commercial hazardous waste facility shall obtain and maintain an on‑site wind monitor approved by the Department. The wind monitor required under this subsection shall be located so that the real‑time wind direction can be determined from a remote location in the event of a release of hazardous waste or hazardous waste constituents into the environment."

SECTION 1.9.(b) This section becomes effective October 1, 2007.

PROHIBIT THE INVALIDATION OF LOCAL ORDINANCES THAT PLACE A CONDITION OR A RESTRICTION UPON THE MANAGEMENT OF HAZARDOUS WASTE OR UPON THE SITING OF A HAZARDOUS WASTE FACILITY WHEN THE PRIMARY PURPOSE OF THESE ORDINANCES IS TO PROTECT PUBLIC HEALTH AND SAFETY OR THE ENVIRONMENT, CREATE A PRESUMPTION THAT LOCAL ORDINANCES ARE VALID UNLESS THE SECRETARY OF ENVIRONMENT AND NATURAL RESOURCES MAKES A FINDING TO THE CONTRARY, AND REQUIRE THE OFFICE OF THE GOVERNOR TO SEEK THE ADVICE OF LOCAL UNITS OF GOVERNMENT REGARDING THE ADEQUACY OF CURRENT CRITERIA THE SECRETARY MUST CONSIDER WHEN DECIDING WHETHER TO PREEMPT THESE LOCAL ORDINANCES

SECTION 1.10.(a) G.S. 130A‑293 reads as rewritten:

"§ 130A‑293. Local ordinances prohibiting hazardous waste facilities invalid; petition to preempt local ordinance.

(a) It is the intent of the General Assembly to maintain a uniform system for the management of hazardous waste and to place limitations upon the exercise by all units of local government in North Carolina of the power to regulate the management of hazardous waste by means of special, local, or private acts or resolutions, ordinances, property restrictions, zoning regulations, or otherwise. Notwithstanding any authority granted to counties, municipalities, or other local authorities to adopt local ordinances, including but not limited to those imposing taxes, fees, or charges or regulating health, environment, or land use, any local ordinance that prohibits or has the effect of prohibiting the establishment or operation of a hazardous waste facility that the Secretary has preempted pursuant to subsections (b) through (f) of this section, shall be invalid to the extent necessary to effectuate the purposes of this Chapter. To this end, all provisions of special, local, or private acts or resolutions are repealed that:

(1) Prohibit the transportation, treatment, storage, or disposal of hazardous waste within any county, city, or other political subdivision.

(2) Prohibit the siting of a hazardous waste facility within any county, city, or other political subdivision.

(3) Place any restriction or condition not placed by Article 9 of Chapter 130A of the General Statutes upon the transportation, treatment, storage, or disposal of hazardous waste, or upon the siting of a hazardous waste facility within any county, city, or other political ~~subdivision.~~subdivision, other than a restriction or condition whose primary purpose is to protect public health, safety, or the environment.

(4) In any manner are in conflict or inconsistent with the provisions of Article 9 of Chapter 130A of the General Statutes.

(a1) No special, local, or private acts or resolutions enacted or taking effect hereafter may be construed to modify, amend, or repeal any portion of Article 9 of Chapter 130A of the General Statutes unless it expressly provides for such by specific references to the appropriate section of this Part. Further to this end, all provisions of local ordinances, including those regulating land use, adopted by counties, municipalities, or other local authorities that prohibit or have the effect of prohibiting the establishment or operation of a hazardous waste facility are invalidated to the extent preempted by the Secretary pursuant to this Section. Local ordinances that regulate land use are not invalidated under this section to the extent that they place restrictions or conditions that are generally applicable or they have the primary purpose to protect public health, safety, or the environment.

(b) When a hazardous waste facility would be prevented from construction or operation by a county, municipal, or other local ordinance, the operator of the proposed facility may petition the Secretary to review the matter. After receipt of a petition, the Secretary shall hold a hearing in accordance with the procedures in subsection (c) of this section and shall determine whether or to what extent to preempt the local ordinance to allow for the establishment and operation of the facility.

(c) When a petition described in subsection (b) of this section has been filed with the Secretary, the Secretary shall hold a public hearing to consider the petition. The public hearing shall be held in the affected locality within 60 days after receipt of the petition by the Secretary. The Secretary shall give notice of the public hearing by:

(1) Publication in a newspaper or newspapers having general circulation in the county or counties where the facility is or is to be located or operated, once a week for three consecutive weeks, the first notice appearing at least 30 days prior to the scheduled date of the hearing; and

(2) First class mail to persons who have requested notice. The Secretary shall maintain a mailing list of persons who request notice in advance of the hearing pursuant to this section. Notice by mail shall be complete upon deposit of a copy of the notice in a post‑paid wrapper addressed to the person to be notified at the address that appears on the mailing list maintained by the Board, in a post office or official depository under the exclusive care and custody of the United States Postal Service.

(c1) Any interested person may appear before the Secretary at the hearing to offer testimony. In addition to testimony before the Secretary, any interested person may submit written evidence to the Secretary for the Secretary's consideration. At least 20 days shall be allowed for receipt of written comment following the hearing.

(d) A local ordinance is presumed to be valid and enforceable unless the Secretary makes a finding of fact to the contrary. The Secretary shall determine whether or to what extent to preempt local ordinances so as to allow for the establishment and operation of the facility no later than 60 days after conclusion of the hearing. The Secretary shall preempt a local ordinance only if the Secretary makes all ~~five~~ of the following findings:

(1) That there is a local ordinance that would prohibit or have the effect of prohibiting the establishment or operation of a hazardous waste facility.

(2) That the proposed facility is needed in order to establish adequate capability to meet the current or projected hazardous waste management needs of this State or to comply with the terms of any interstate agreement for the management of hazardous waste to which the State is a party and therefore serves the interests of the citizens of the State as a whole.

(3) That all legally required State and federal permits or approvals have been issued by the appropriate State and federal agencies or that all State and federal permit requirements have been satisfied and that the permits or approvals have been denied or withheld only because of the local ordinance.

(4) That local citizens and elected officials have had adequate opportunity to participate in the siting process.

(5) That the construction and operation of the facility will not pose an unreasonable health or environmental risk to the surrounding locality and that the facility operator has taken or consented to take reasonable measures to avoid or manage foreseeable risks and to comply to the maximum feasible extent with applicable local ordinances.

(d1) If the Secretary does not make all ~~five~~ of the findings ~~set out above,~~under subsection (d) of this section, the Secretary shall not preempt the challenged local ordinance. The Secretary's decision shall be in writing and shall identify the evidence submitted to the Secretary plus any additional evidence used in arriving at the decision.

(e) The decision of the Secretary shall be final unless a party to the action files a written appeal under Article 4 of Chapter 150B of the General Statutes, as modified by G.S. 7A‑29 and this section, within 30 days of the date of the decision. The record on appeal shall consist of all materials and information submitted to or considered by the Secretary, the Secretary's written decision, a complete transcript of the hearing, all written material presented to the Secretary regarding the location of the facility, the specific findings required by subsection (d) of this section, and any minority positions on the specific findings required by subsection (d) of this section. The scope of judicial review shall be that the court may affirm the decision of the Secretary, or may remand the matter for further proceedings, or may reverse or modify the decision if the substantial rights of the parties may have been prejudiced because the agency findings, inferences, conclusions, or decisions are:

(1) In violation of constitutional provisions;

(2) In excess of the statutory authority or jurisdiction of the agency;

(3) Made upon unlawful procedure;

(4) Affected by other error of law;

(5) Unsupported by substantial evidence admissible under G.S. 150B‑29(a) or G.S. 150B‑30 in view of the entire record as submitted; or

(6) Arbitrary or capricious.

(e1) If the court reverses or modifies the decision of the agency, the judge shall set out in writing, which writing shall become part of the record, the reasons for the reversal or modification.

(f) In computing any period of time prescribed or allowed by this procedure, the provisions of Rule 6(a) of the Rules of Civil Procedure, G.S. 1A‑1, shall apply.

(g) Repealed by Session Laws 1989, c. 168, s. 13."

SECTION 1.10.(b) The Office of the Governor shall seek the advice of local units of government to determine whether the criteria the Secretary of Environment and Natural Resources considers to determine whether or to what extent to preempt local ordinances so as to allow for the establishment and operation of a hazardous waste facility under G.S. 130A‑293, as amended by subsection (a) of this section, should be further amended or whether further additional criteria should be considered by the Secretary. No later than May 1, 2008, the Office of the Governor shall report its findings under this subsection and any legislative recommendations to the Environmental Review Commission and to the Department of Environment and Natural Resources.

SECTION 1.10.(c) This section is effective when it becomes law.

PART II. REGULATORY RECOMMENDATIONS CONFORMING CHANGES

SECTION 2.1.(a) G.S. 130A‑290(a) is amended by adding a new subdivision to read:

"(8a) 'Hazardous waste constituent' has the same meaning as in 40 Code of Federal Regulations § 260.10 (1 July 2006)."

SECTION 2.1.(b) G.S. 130A‑294(c) reads as rewritten:

"(c) The Commission shall adopt and the Department shall enforce rules concerning the management of hazardous waste. These rules shall establish a complete and integrated regulatory scheme in the area of hazardous waste management and shall provide for:

(1) Establishing criteria for hazardous waste, identifying the characteristics of hazardous waste and listing particular hazardous ~~waste;~~waste.

(1a) Establishing criteria for hazardous constituents, identifying the characteristics of hazardous constituents and listing particular hazardous ~~constituents;~~constituents.

(2) Record‑keeping and reporting by generators and transporters of hazardous waste and owners and operators of hazardous waste ~~facilities;~~facilities.

(3) Proper labeling of hazardous waste ~~containers;~~containers.

(4) ~~Use of~~ Using appropriate containers for hazardous ~~waste;~~waste.

(5) A Maintaining a manifest system to assure that all hazardous waste is designated for treatment, storage or disposal at a hazardous waste facility to which a permit has been ~~issued;~~issued.

(6) ~~Proper~~ Requiring proper transportation of hazardous ~~waste;~~waste.

(7) ~~Treatment,~~Developing treatment storage and disposal standards of performance and techniques to be used by hazardous waste ~~facilities;~~facilities.

(8) ~~Location,~~Developing standards regarding location, design, ownership and construction of hazardous waste facilities; provided, however, that no hazardous waste disposal facility or polychlorinated biphenyl disposal facility shall be located within 25 miles of any other hazardous waste disposal facility or polychlorinated biphenyl disposal ~~facility;~~facility.

(9) ~~Plans~~ Requiring plans to minimize unanticipated damage from treatment, storage or disposal of hazardous waste; and a plan or plans providing for the establishment and/or operation of one or more hazardous waste facilities in the absence of adequate approved hazardous waste facilities established or operated by any person within the ~~State;~~State.

(10) ~~Proper~~ Requiring proper maintenance and operation of hazardous waste facilities, including requirements for ownership by any person or the State, financial responsibility (including requirements for sufficient availability of funds for facility closure and post‑closure monitoring and corrective measures through the use of a letter of credit, insurance, surety, trust agreement, financial test, or financial test and corporate guarantee), in accordance with this section and G.S. 130A‑295.04, training of personnel, continuity of operation and procedures for establishing and maintaining hazardous waste ~~facilities;~~facilities.

(11) Monitoring by owners or operators of hazardous waste ~~facilities;~~facilities.

(12) ~~Inspection~~ Authorizing or requiring inspection or copying of records required to be ~~kept;~~kept by owners or operators.

(13) Obtaining and analyzing hazardous waste samples and samples of hazardous waste containers and labels from generators and transporters and from owners and operators of hazardous waste ~~facilities;~~facilities.

(14) A Developing a permit system governing the establishment and operation of hazardous waste ~~facilities;~~facilities.

(15) ~~Additional~~ Developing additional requirements as necessary for the effective management of hazardous ~~waste;~~waste.

(16) ~~The~~ Requiring the operator of the hazardous waste disposal facility ~~shall~~ to maintain adequate insurance to cover foreseeable claims arising from the operation of the facility. The Department shall determine what constitutes an adequate amount of ~~insurance;~~insurance.

(17) ~~The~~ Requiring the bottom of a hazardous waste disposal facility ~~shall~~ to be at least 10 feet above the seasonal high water table and more when necessary to protect the public health and the ~~environment; and~~environment.

(18) ~~The~~ Requiring the operator of a hazardous waste disposal facility ~~shall~~ to make monthly reports to the board of county commissioners of the county in which the facility is located on the kinds and amounts of hazardous wastes in the facility."

SECTION 2.1.(c) G.S. 130A‑294(j) is repealed.

SECTION 2.1.(d) G.S. 130A‑295.01 reads as rewritten:

"§ 130A‑295.01. Additional requirement for commercial hazardous waste ~~treatment~~ facilities.

(a) As used in this section:

(1) "Commercial hazardous waste ~~treatment~~ facility" means any hazardous waste ~~treatment facility which~~facility that accepts hazardous waste from the general public or from another person for a fee, but does not include any facility owned or operated by a generator of hazardous waste solely for his own use, and does not include any facility owned by the State or by any agency or subdivision thereof solely for the ~~treatment~~ management of hazardous waste generated by agencies or subdivisions of the ~~State;~~State.

(2) "New", when used in connection with "facility", refers to a planned or proposed facility, or a facility ~~which~~ that has not been placed in operation, but does not include facilities ~~which~~ that have commenced operations as of June 22, 1987, including facilities operated under interim ~~status;~~status.

(3) "Modified", when used in connection with "permit", means any change in any permit in force on or after June 22, 1987, ~~which~~ that would either expand the scope of permitted operations, or extend the expiration date of the permit, or otherwise constitute a ~~major~~ Class 2 or Class 3 modification of the permit as defined in Title 40, ~~Part 270.41~~ Part 270.42 of the Code of Federal Regulations ~~(1 July 1986); and~~(28 September 1988).

(4) "7Q10 conditions", when used in connection with "surface water," refers to the minimum average flow for a period of seven consecutive days that has an average occurrence of once in 10 years as referenced in 15 NCAC 2B .0206(a)(3) as adopted February 1, 1976.

(b) No permit for any new commercial hazardous waste ~~treatment~~ facility shall be issued or become effective, and no permit for a commercial hazardous waste ~~treatment~~ facility shall be modified, until the applicant has satisfied the Department that such facility meets, in addition to all other applicable requirements, the following requirements:

(1) The facility shall not discharge directly a hazardous or toxic substance into a surface water that is upstream from a public drinking water supply intake in North Carolina, unless there is a dilution factor of 1000 or greater at the point of discharge into the surface water under 7Q10 conditions.

(2) The facility shall not discharge indirectly through a publicly owned treatment works (POTW) a hazardous or toxic substance into a surface water that is upstream from a public drinking water supply intake in North Carolina, unless there is a dilution factor of 1000 or greater, irrespective of any dilution occurring in a wastewater treatment plant, at the point of discharge into the surface water under 7Q10 conditions.

(i) The Commission may adopt rules to implement this section."

SECTION 2.1.(e) This section becomes effective October 1, 2007, and applies to new and existing facilities.

PART III. RECOMMENDATIONS FOR OTHER STATUTORY CHANGES

AUTHORIZE STATE MEDICAL ASSISTANCE TEAMS AND THE EPIDEMIOLOGY SECTION OF THE DIVISION OF PUBLIC HEALTH OF THE DEPARTMENT OF HEALTH AND HUMAN SERVICES TO SEEK REIMBURSEMENT FOR ALL REASONABLE DEPLOYMENT COSTS INCURRED WHEN ACTIVATED TO RESPOND TO THE RELEASE OF HAZARDOUS MATERIAL OR HAZARDOUS WASTE INTO THE ENVIRONMENT

SECTION 3.1.(a) G.S. 166A‑27 reads as rewritten:

"§ 166A‑27. Action for the recovery of costs of hazardous materials emergency response.

(a) A person who causes the release of a hazardous material requiring the activation of a regional response team shall be liable for all reasonable costs incurred by the regional response team in responding to and mitigating the incident. The Secretary shall invoice the person liable for the hazardous materials release, and, in the event of nonpayment, may institute an action to recover those costs in the superior court of the county in which the release occurred.

(b) A person who causes the release of a hazardous material requiring the activation of one or more State Medical Assistance Teams ("SMATs") or the Epidemiology Section of the Division of Public Health of the Department of Health and Human Services shall be liable for all reasonable costs incurred by each team or the Epidemiology Section that responds to or mitigates the incident. The Secretary of Health and Human Services shall invoice the person liable for the hazardous materials release, and, in the event of nonpayment, may institute an action to recover those costs in the superior court of the county in which the release occurred."

SECTION 3.1.(b) Article 1 of Chapter 130A of the General Statutes is amended by adding a new section to read:

"§ 130A‑20.01. Action for the recovery of costs of hazardous materials emergency medical response.

The owner or operator of a hazardous waste facility permitted under Article 9 of this Chapter from which hazardous waste or a constituent of hazardous waste is released into the environment requiring the activation of one or more State Medical Assistance Teams ("SMATs") or the Epidemiology Section of the Division of Public Health of the Department of Health and Human Services shall be liable for all reasonable costs incurred by each team or the Epidemiology Section that responds to or mitigates the incident. The Secretary of Health and Human Services shall invoice the owner or operator of the facility, and, in the event of nonpayment, may institute an action to recover those costs in the superior court of the county in which the release occurred."

SECTION 3.1.(c) This section is effective when it becomes law and applies to civil actions filed on or after that date.

CLARIFY THAT MUNICIPAL 911 DATA HAS THE SAME CONFIDENTIALITY AS COUNTY 911 DATA

SECTION 3.2.(a) G.S. 132‑1.5 reads as rewritten:

"§ 132‑1.5. 911 database.

Automatic number identification and automatic location identification information that consists of the name, address, and telephone numbers of telephone subscribers which is contained in a county or municipal 911 database is confidential and is not a public record as defined by Chapter 132 of the General Statutes if that information is required to be confidential by the agreement with the telephone company by which the information was obtained. Dissemination of the information contained in the 911 automatic number and automatic location database is prohibited except on a call‑by‑call basis only for the purpose of handling emergency calls or for training, and any permanent record of the information shall be secured by the public safety answering points and disposed of in a manner which will retain that security except as otherwise required by applicable law."

SECTION 3.2.(b) This section is effective when it becomes law.

CLARIFY THAT DATA CONTAINED IN A REVERSE 911 EMERGENCY NOTIFICATION SYSTEM IS CONFIDENTIAL

SECTION 3.3.(a) G.S. 132‑1.5, as amended by Section 3.2 of this act, reads as rewritten:

"§ 132‑1.5. 911 database.

Automatic number identification and automatic location identification information that consists of the name, address, and telephone numbers of telephone ~~subscribers which~~ subscribers, or the e‑mail addresses of subscribers to a reverse 911 system, that is contained in a county or municipal 911 ~~database~~ database, or in a county or municipal telephonic or electronic emergency notification system (reverse 911), is confidential and is not a public record as defined by Chapter 132 of the General Statutes if that information is required to be confidential by the agreement with the telephone company by which the information was obtained. Dissemination of the information contained in the 911 or reverse 911 automatic number and automatic location database is prohibited except on a call‑by‑call basis only for the purpose of handling emergency calls or for training, and any permanent record of the information shall be secured by the public safety answering points and disposed of in a manner which will retain that security except as otherwise required by applicable law."

SECTION 3.3.(b) This section is effective when it becomes law.

PART IV. STUDIES

ESTABLISH A TASK FORCE TO REVIEW THE STATE BUILDING CODE TO ENSURE THAT THE CODE ADDRESSES THE NEEDS AND SAFETY OF THE CITIZENS OF THE STATE WITH RESPECT TO THE REGULATION OF FACILITIES THAT STORE, TREAT, OR DISPOSE OF HAZARDOUS MATERIALS; TO MANDATE THE NORTH CAROLINA BUILDING CODE COUNCIL TO AMEND THE STATE BUILDING CODE TO IMPLEMENT ANY RECOMMENDATIONS OF THE TASK FORCE; AND TO ALLOW STATE AND LOCAL FIRE INSPECTORS TO IDENTIFY ALL RISKS ASSOCIATED WITH HAZARDOUS MATERIALS

SECTION 4.1.(a) Task Force Established. – There is established the Regulation of Hazardous Materials Facilities Task Force.

SECTION 4.1.(b) Membership. – The Task Force shall consist of 11 members. The Secretary of the Department of Environment and Natural Resources and the Commissioner of Insurance, or their designees, shall serve as ex officio members. The remaining members shall be appointed as follows:

(1) Three persons appointed by the General Assembly, upon recommendation of the Speaker of the House of Representatives, one of whom shall be a representative from the North Carolina Association of Fire Marshals and one of whom shall be a fire marshal or inspector from the Western region of the State.

(2) Three persons appointed by the General Assembly, upon recommendation of the President Pro Tempore of the Senate, one of whom shall be a representative from the North Carolina Fire Chiefs Association and one of whom shall be a fire marshal or inspector from the Eastern region of the State.

(3) One representative from one of the seven North Carolina Regional Response Teams for Hazardous Materials Response, appointed by the Governor.

(4) One fire marshal or inspector from the Piedmont region of the State, appointed by the Governor.

(5) One member of the general public appointed by the Governor.

Appointments to the Task Force shall be made no later than September 1, 2007. A vacancy in the Task Force or as chair of the Task Force resulting from the resignation of a member or otherwise shall be filled in the same manner in which the original appointment was made.

SECTION 4.1.(c) Duties of Task Force. – The Task Force shall study issues related to the treatment, storage, and disposal of hazardous materials, as defined in G.S. 166A‑21, hazardous waste, as defined in G.S. 130A‑290, hazardous substances, as defined in G.S. 143‑215.77, and hazardous chemicals, as defined in G.S. 95‑174 and shall review all current fire code regulations regarding the commercial treatment, storage, and disposal of those hazardous materials, hazardous waste, hazardous substances, and hazardous chemicals to ensure that the Code addresses the needs and safety of the citizens of the State. In particular, the Task Force shall:

(1) Review the facts and issues related to the Environmental Quality Industrial Services facility fire in Apex, North Carolina, on October 5, 2006. The Task Force shall review the investigation report and determine whether the fire could have been prevented by additional, or more specific, State regulations.

(2) Analyze all fire inspection or investigation reports of fires that have occurred at commercial facilities that treat, store, or dispose of hazardous materials within the past 10 years and determine if there is a trend in violations.

(3) Review the current State Building Code with respect to allowable hazardous materials quantities and determine if the State Building Code should be amended to provide for an additional classification of mixed waste or unidentifiable materials.

(4) Analyze the current definitions of high hazard facilities and high hazardous Group H classifications in the State Building Code and determine whether commercial facilities that treat, store, or dispose of hazardous materials should be classified so that mixed wastes and unidentifiable materials can be easily identified.

(5) Review the current annual fire inspection process at permitted commercial hazardous waste facilities, as defined in G.S. 130A‑295.01, that are treatment, storage, and disposal facilities to determine how the annual fire inspection can be conducted in collaboration with the inspection and permitting process of the Department of Environment and Natural Resources.

(6) Review the sprinkler requirements for Hazardous Materials Facilities (Section 903.2.4) of the State Building Code and determine whether sprinkler design criteria and coverage should be amended.

(7) Review the fire alarm requirements for Hazardous Materials Facilities (Section 907.2.5) of the State Building Code and determine whether the relevant facilities should have a full fire alarm system or, in the alternative, full staffing as recommended by the Department of Environment and Natural Resources. If the Task Force determines that relevant facilities should have full staffing, the Task Force shall recommend the level of knowledge and training that should be required of the staff.

(8) Determine when any new regulatory rules recommended by the Task Force should become effective for existing commercial hazardous waste facilities.

SECTION 4.1.(d) Report. – By April 1, 2008, the Task Force shall submit a report of its findings and recommendations, including legislative, administrative, and funding recommendations, to the 2008 Regular Session of the 2007 General Assembly, the Governor, the North Carolina Building Code Council, and the Environmental Review Commission. The Task Force shall terminate upon filing its report.

SECTION 4.1.(e) Expenses of Members. – Members of the Task Force shall receive per diem, subsistence, and travel allowances in accordance with G.S. 120‑3.1, 138‑5, or 138‑6, as appropriate.

SECTION 4.1.(f) Chair; Meetings. – The President Pro Tempore of the Senate and the Speaker of the House of Representatives shall each designate one member to serve as cochair of the Task Force. The cochairs shall call the initial meeting of the Task Force on or before October 1, 2007. The Task Force shall subsequently meet upon such notice and in such manner as its members determine. A majority of the members of the Task Force shall constitute a quorum. The Task Force may meet in the Legislative Building or the Legislative Office Building upon the approval of the Legislative Services Commission.

SECTION 4.1.(g) Upon the prior approval of the Legislative Services Commission, the Legislative Services Officer may assign professional and clerical staff and other services and supplies, as needed for the Task Force to carry out its duties in an effective manner.

SECTION 4.1.(h) Cooperation by Government Agencies. – The Task Force may call upon any department, agency, institution, or officer of the State or any political subdivision thereof for facilities, data, or other assistance.

SECTION 4.1.(i) The North Carolina Building Code Council shall adopt rules or amend the State Building Code to implement the recommendations of the Regulation of Hazardous Materials Facilities Task Force. In particular, the Building Code Council shall adopt rules or amend the State Building Code to require that hazardous waste, as defined in G.S. 130A‑290, hazardous substances, as defined in G.S. 143‑215.77, hazardous chemicals, as defined in G.S. 95‑174, and hazardous materials as defined in G.S. 166A‑21, are classified and identified in a manner that provides State and local inspectors with sufficient information to identify all potential risks to the citizens of the State.

SECTION 4.1.(j) This section becomes effective July 1, 2007.

STUDY POTENTIAL SOURCES OF PERMANENT FUNDING FOR THE STATE MEDICAL ASSISTANCE TEAMS

SECTION 4.2.(a) The Department of Crime Control and Public Safety shall study potential sources of permanent funding to continue and support the State Medical Assistance Teams in light of the uncertain future availability of federal and local funding. The Department shall report its findings to the Fiscal Research Division of the General Assembly no later than January 1, 2008, and shall identify an appropriate source of permanent funding in this report.

SECTION 4.2.(b) This section is effective when it becomes law.

PART V. OTHER RECOMMENDATIONS

REQUIRE THE DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES TO ESTABLISH A DIGITAL INFORMATION EXCHANGE SYSTEM FOR A HAZARDOUS CHEMICALS INVENTORY DATABASE

SECTION 5.1.(a) The Division of Information Technology Services of the Department of Environment and Natural Resources, in collaboration with the Division of Emergency Management of the Department of Crime Control and Public Safety, shall establish a Tier II hazardous chemicals inventory database and web‑based access application, to be maintained by the Division of Emergency Management of the Department of Crime Control and Public Safety, that will accept uploads of Tier II data from local government systems acting as partners in the project and from the University of Texas at Dallas EPlan repository until all Tier II hazardous chemical inventory is in the database. The database also shall consist of data concerning sites listed in the planned Toxic Release Inventory exchange and the Department's existing Facilities Registry System, a database of facilities for which the Department has environmental concerns, such as facilities that are subject to an environmental permit for water, air, waste, land quality, wetlands, public water supply, wastewater treatment, and other environmental permits. The database shall be connected via web services to the North Carolina Exchange Node. The purposes of this project are to provide a one‑stop, real‑time information source for all regulated hazardous material and toxic release sites and all sites that are subject to an environmental permit in order to enhance the operational effectiveness of the Department of Environment and Natural Resources, the Division of Emergency Management of the Department of Crime Control and Public Safety, first responders and emergency management officials, local government officials, and any others with a role in emergency management or planning, to remove the burden of data reentry in multiple systems and reduce the dependence on paper forms submissions for Tier II reporting, and to extend the Network for the Exchange Node community and reuse information already deployed at the Department.

SECTION 5.1.(b) This section becomes effective July 1, 2007.

REQUIRE THE DEPARTMENT OF HEALTH AND HUMAN SERVICES TO DEVELOP A MODEL PLAN FOR PUBLIC HEALTH RESPONSE TO EVENTS WITH A POTENTIAL FOR CHEMICAL, BIOLOGICAL, OR RADIOLOGICAL CONTAMINATION

SECTION 5.2.(a) The Occupational and Environmental Epidemiology Branch of the Division of Public Health of the Department of Health and Human Services shall enter into an 18‑month contract with an industrial hygienist who, under the terms of the contract, shall be required to develop a plan that will be used as a model for the public health response to events with a potential for chemical, biological, or radiological contamination. The scope of the plan shall address pre‑event, event, and post‑event stages of the contamination event. The terms of the contract shall require the industrial hygienist contractor to:

(1) Develop a planning and training project that will include opportunities for training in all North Carolina counties.

(2) Develop a statement of need for integrating existing environmental data around the 11 hazardous waste sites in North Carolina and, following analysis by the industrial hygienist, recommend additional testing that is needed, including testing to establish background levels of selected hazardous materials.

(3) Initiate and facilitate a staff level work group of federal, State, and local response partners for continuity and to further develop best practice response protocols.

SECTION 5.2.(b) This section becomes effective July 1, 2007.

AUTHORIZE THE BOARD OF GOVERNORS OF THE UNIVERSITY OF NORTH CAROLINA TO ESTABLISH AN INSTITUTE FOR DISASTER STUDIES AND TO STUDY THE EMISSION AND TRANSPORT OF POLLUTANTS AT FIRES AT COMMERCIAL HAZARDOUS WASTE FACILITIES AND RESEARCH THE HEALTH AND ECONOMIC IMPACTS OF SUCH FIRES

SECTION 5.3.(a) The Board of Governors of The University of North Carolina may establish a multidisciplinary, interinstitutional, basic and applied research program that applies state‑of‑the‑art concepts and technologies to address urgent and important disaster research questions and to assist the campuses within The University of North Carolina to develop crisis management and crisis communications systems that will help individual campuses to better prepare in the event of a disaster.

SECTION 5.3.(b) The Board of Governors of The University of North Carolina may study the emission and transport of pollutants at fires at commercial hazardous waste facilities, as defined in G.S. 130A‑295.01, and may research the human health and economic impacts of fires at commercial hazardous waste facilities, as defined in G.S. 130A‑295.01.

SECTION 5.3.(c) This section becomes effective July 1, 2007.