GENERAL ASSEMBLY OF NORTH CAROLINA
SESSION 2011
S 2
SENATE BILL 810*
Commerce Committee Substitute Adopted 5/24/12
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Short Title: Regulatory Reform Act of 2012. |
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Referred to: |
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May 21, 2012
A BILL TO BE ENTITLED
AN ACT to (1) reestablish the Joint Legislative Administrative Procedure Oversight Committee; (2) make various technical and clarifying changes to the Administrative Procedures act; (3) extend the effective date for changes to final decision-making authority in certain contested cases; (4) limit the period during which records of unclaimed property must be maintained; (5) direct agencies to submit a report on notice given before auditing or examining a business to the joint legislative administrative procedure oversight committee; (6) CLARIFY THAT THE DISCHARGE OF WASTE into waters of the state DOES NOT INCLUDE THE RELEASE OF AIR CONTAMINANTS INTO THE OUTDOOR ATMOSPHERE; (7) authorize rather than require the commission for public health to adopt rules for the testing of water from new drinking water wells for certain volatile organic compounds; (8) direct the department of environment and natural resources to track and report on permit processing times; (9) delay the effective date for compliance with wading pool fencing requirements from July 1, 2012, to January 1, 2013; and (10) DIRECT THE COMMISSION FOR PUBLIC HEALTH TO AMEND THE RULES GOVERNING the duration of permits for sanitary landfills and THE PERIOD IN WHICH those PERMITS ARE REVIEWED, as recommended by the joint regulatory reform committee.
The General Assembly of North Carolina enacts:
SECTION 1. Section 1.3 of S.L. 2011-291 is repealed.
SECTION 2. G.S. 150B-18 reads as rewritten:
"§ 150B-18. Scope and effect.
This Article applies to an agency's exercise of its authority
to adopt a rule. A rule is not valid unless it is adopted in substantial
compliance with this Article. An agency shall not seek to implement or enforce
against any person a policy, guideline, or other nonbinding interpretive
statement that meets the definition of a rule contained in G.S. 150B-2(8a)
if the policy, guideline, or other nonbindinginterpretive statement has
not been adopted as a rule in accordance with this Article."
SECTION 3. G.S. 150B-19.1 reads as rewritten:
"§ 150B-19.1. Requirements for agencies in the rule-making process.
(a) In developing and drafting rules for adoption in accordance with this Article, agencies shall adhere to the following principles:
(1) An agency may adopt only rules that are expressly authorized by federal or State law and that are necessary to serve the public interest.
(2) An agency shall seek to reduce the burden upon those persons or entities who must comply with the rule.
(3) Rules shall be written in a clear and unambiguous manner and must be reasonably necessary to implement or interpret federal or State law.
(4) An agency shall consider the cumulative effect of all rules adopted by the agency related to the specific purpose for which the rule is proposed. The agency shall not adopt a rule that is unnecessary or redundant.
(5) When appropriate, rules shall be based on sound, reasonably available scientific, technical, economic, and other relevant information. Agencies shall include a reference to this information in the notice of text required by G.S. 150B-21.2(c).
(6) Rules shall be designed to achieve the regulatory objective in a cost-effective and timely manner.
(b) Each agency subject to this Article shall conduct an annual review of its rules to identify existing rules that are unnecessary, unduly burdensome, or inconsistent with the principles set forth in subsection (a) of this section. The agency shall repeal any rule identified by this review.
(c) Each agency
subject to this Article shall post on its Web site when the agency submits
the notice of text for publication in accordance with G.S. 150B-21.2Web
site, no later than the publication date of the notice of text in the North
Carolina Register, all of the following:
(1) The text of a proposed rule.
(2) An explanation of the proposed rule and the reason for the proposed rule.
(3) The federal certification required by subsection (g) of this section.
(4) Instructions on how and where to submit oral or written comments on the proposed rule.
(5) Any fiscal note that has been prepared for the proposed rule.
The agency shall maintain the information in a searchable
database and shall periodically update this online information to reflect changes
in the proposed rule or the fiscal note prior to adoption.If an agency
proposes any change to a rule or fiscal note prior to the date it proposes to
adopt a rule, the agency shall publish the proposed change on its Web site as
soon as practicable after the change is drafted. If an agency's staff proposes
any such change to be presented to the rule-making agency, the staff shall
publish the proposed change on the agency's Web site as soon as practicable
after the change is drafted.
(d) Each agency shall determine whether its policies and programs overlap with the policies and programs of another agency. In the event two or more agencies' policies and programs overlap, the agencies shall coordinate the rules adopted by each agency to avoid unnecessary, unduly burdensome, or inconsistent rules.
(e) Each agency
shall quantify the costs and benefits to all parties of a proposed rule to the
greatest extent possible. Prior to submission of a proposed rule for
publication in accordance with G.S. 150B-21.2, the agency shall review the
details of any fiscal note prepared in connection with the proposed rule with
the rule-making body, and the rule-making body mustand approve the
fiscal note before submission.
(f) If the agency determines that a proposed rule will have a substantial economic impact as defined in G.S. 150B-21.4(b1), the agency shall consider at least two alternatives to the proposed rule. The alternatives may have been identified by the agency or by members of the public.
(g) Whenever an agency proposes a rule that is purported to implement a federal law, or required by or necessary for compliance with federal law, or on which the receipt of federal funds is conditioned, the agency shall:
(1) Prepare a certification identifying the federal law requiring adoption of the proposed rule. The certification shall contain a statement setting forth the reasons why the proposed rule is required by federal law. If all or part of the proposed rule is not required by federal law or exceeds the requirements of federal law, then the certification shall state the reasons for that opinion.
(2) Post the certification on the agency Web site in accordance with subsection (c) of this section.
(3) Maintain a copy of the federal law and provide to the Office of State Budget and Management the citation to the federal law requiring or pertaining to the proposed rule.
(h) Before an agency that is within the Governor's cabinet submits the proposed text of a permanent rule change for publication in the North Carolina Register, the agency must submit the text of the proposed rule change and an analysis of the proposed rule change to the Office of State Budget and Management and obtain a certification from the Office that the agency adhered to the principles set forth in this section. Before an agency that is within the departments of the Council of State other than the Governor submits the proposed text of a permanent rule change for publication in the North Carolina Register, the agency must submit the text of the proposed rule change and an analysis of the proposed rule change to the Commission and obtain a certification from the Commission that the agency adhered to the principles set forth in this section. The Office of State Budget and Management or the Commission, respectively, must respond to an agency's request for certification within 20 days of receipt of the request."
SECTION 4. G.S. 150B-21.4(a) reads as rewritten:
"(a) State Funds. -
Before an agency publishes in the North Carolina Register the proposed text of
a permanent rule change that would require the expenditure or distribution of
funds subject to the State Budget Act, Chapter 143C of the General Statutes it
must submit the text of the proposed rule change, an analysis of the proposed
rule change, and a fiscal note on the proposed rule change to the Office
of State Budget and Management and obtain certification from the Office that
the funds that would be required by the proposed rule change are available. The
Office must also determine and certify that the agency adhered to the
principles set forth in G.S. 150B-19.1. The fiscal note must state the
amount of funds that would be expended or distributed as a result of the
proposed rule change and explain how the amount was computed. The Office of
State Budget and Management must certify a proposed rule change if funds are
available to cover the expenditure or distribution required by the proposed
rule change."
SECTION 5. G.S. 150B-23.2(b) reads as rewritten:
"(b) Time of Collection. -
All fees that are required to be assessed, collected, and remitted under
subsection (a) of this section shall be collected by the Office of
Administrative Hearings at the time of commencement of the contested case (except
in suits in forma pauperis).except as may be allowed by rule to permit
or complete late payment or in suits in forma pauperis."
SECTION 6. G.S. 150B-23(a) reads as rewritten:
"(a) A contested
case shall be commenced by paying a fee in an amount established in
G.S. 150B-23.2 and by filing a petition with the Office of Administrative
Hearings and, except as provided in Article 3A of this Chapter, shall be
conducted by that Office. The party who files the petition shall serve a copy
of the petition on all other parties and, if the dispute concerns a license,
the person who holds the license. A party who files a petition shall file a
certificate of service together with the petition. A petition shall be signed
by a party or a representative of the party party, an attorney
representing a party, or other representative of the party as may specifically
be authorized by law, and, if filed by a party other than an agency, shall
state facts tending to establish that the agency named as the respondent has
deprived the petitioner of property, has ordered the petitioner to pay a fine
or civil penalty, or has otherwise substantially prejudiced the petitioner's
rights and that the agency:
(1) Exceeded its authority or jurisdiction;
(2) Acted erroneously;
(3) Failed to use proper procedure;
(4) Acted arbitrarily or capriciously; or
(5) Failed to act as required by law or rule.
The parties in a contested case shall be given an opportunity for a hearing without undue delay. Any person aggrieved may commence a contested case hereunder.
A local government employee, applicant for employment, or former employee to whom Chapter 126 of the General Statutes applies may commence a contested case under this Article in the same manner as any other petitioner. The case shall be conducted in the same manner as other contested cases under this Article."
SECTION 7. G.S. 150B-29(a) reads as rewritten:
"(a) In all
contested cases, irrelevant, immaterial and unduly repetitious evidence shall
be excluded. Except as otherwise provided, the rules of evidence as applied in
the trial division of the General Court of Justice shall be followed; but, when
evidence is not reasonably available under the rules to show relevant facts,
then the most reliable and substantial evidence available shall be admitted. On
the judge's own motion, an administrative law judge may exclude evidence that
is inadmissible under this section. The party with the burden of proof in a
contested case must establish the facts required by G.S. 150B-23(a) by a
preponderance of the evidence. It shall not be necessary for a party or his
attorney to object at the hearing to evidence in order to preserve the right to
object to its consideration by the administrative law judge in making a decision,
by the agency in making a final decision,decision or by the court on
judicial review."
SECTION 8. Section 63 of S.L. 2011-398 reads as rewritten:
"SECTION 63. Sections 2 through 14 of this
act become effective October 1, 2011, and apply to rules adopted on or after
that date. Sections 15 through 55 of this act become effective January 1, 2012,
and apply to contested cases commenced on or after that date. With regard to
contested cases affected by Section 55.2 of this act, the provisions of
Sections 15 through 27 of this act become effective when the United States
Environmental Protection Agency approvals referenced in Section 55.2 have been
issued or June 15, 2012,October 1, 2012, whichever occurs first. With
regard to contested cases affected by Section 55.1 of this act, the provisions
of Sections 15 through 27 and Sections 32 and 33 of this act become effective
when the waiver referenced in Section 55.1 has been granted or February 1,
2013, whichever occurs first. Unless otherwise provided elsewhere in this
act, the remainder of this act is effective when it becomes law."
SECTION 9. G.S. 116B-73(a) reads as rewritten:
"(a) Except as
otherwise provided in subsection (b) of this section, a holder required to file
a report under G.S. 116B-60 shall maintain the records containing the
information required to be included in the report for 10 years five
years after the holder files the report, unless a shorter period is
provided by rule of the Treasurer."
SECTION 10. Each State agency, as defined in G.S. 150B-2(1a), shall submit a report of the audit, examination, and inspection functions performed by the agency and the amount of notice, if any, that the agency is required, by law or rule, to provide to a business or individual prior to conducting the audit, examination, or inspection. The agency shall submit the report to the Joint Legislative Administrative Procedure Oversight Committee, as reestablished by Section 1 of this act, no later than October 31, 2012.
SECTION 11. G.S. 143-213 reads as rewritten:
Unless the context otherwise requires, the following terms as used in this Article and Articles 21A and 21B of this Chapter are defined as follows:
…
(9) Whenever reference is made in this Article to "discharge" or the "discharge of waste," it shall be interpreted to include discharge, spillage, leakage, pumping, placement, emptying, or dumping into waters of the State, or into any unified sewer system or arrangement for sewage disposal, which system or arrangement in turn discharges the waste into the waters of the State. A reference to "discharge" or the "discharge of waste" shall not be interpreted to include "emission" as defined in subdivision (12) of this section.
…
(12) The term "emission" means a release into the outdoor atmosphere of air contaminants.
…."
SECTION 12.(a) Section 1 of S.L. 2008-198, S.L. 2009-124, and Section 10.10A of S.L. 2010-31 are repealed.
SECTION 12.(b) G.S. 87-97 reads as rewritten:
"§ 87-97. Permitting, inspection, and testing of private drinking water wells.
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(h) Drinking Water Testing. - Within 30 days after it issues a certificate of completion for a newly constructed private drinking water well, the local health department shall test the water obtained from the well or ensure that the water obtained from the well has been sampled and tested by a certified laboratory in accordance with rules adopted by the Commission for Public Health. The water shall be tested for the following parameters: arsenic, barium, cadmium, chromium, copper, fluoride, lead, iron, magnesium, manganese, mercury, nitrates, nitrites, selenium, silver, sodium, zinc, pH, and bacterial indicators.
(i) Commission
for Public Health to Adopt Drinking Water Testing Rules. - The Commission for
Public Health shall adopt rules governing the sampling and testing of well
water and the reporting of test results. The rules shall allow local health
departments to designate third parties to collect and test samples and report
test results. The rules shall also provide for corrective action and retesting
where appropriate. The Commission for Public Health may by rule require testing
for additional parameters parameters, including volatile organic
compounds, if the Commission makes a specific finding that testing for the
additional parameters is necessary to protect public health. If the
Commission finds that testing for certain volatile organic compounds is
necessary to protect public health and initiates rule making to require testing
for certain volatile organic compounds, the Commission shall consider all of
the following factors in the development of the rule: (i) known current and
historic land uses around well sites and associated contaminants; (ii) known
contaminated sites within a given radius of a well and any known data regarding
dates of contamination, geology, and other relevant factors; (iii) any GIS-based
information on known contamination sources from databases available to the
Department of Environment and Natural Resources; and (iv) visual on-site
inspections of well sites.
…."
SECTION 13. Part 1 of Article 7 of Chapter 143B of the General Statutes is amended by adding a new section to read:
"§ 143B-279.17. Tracking and report on permit processing times.
The Department of Environment and Natural Resources shall track the time required to process all permit applications received by the Department. The processing time tracked shall include (i) the total processing time from when an initial permit application is received to issuance or denial of the permit and (ii) the processing time from when a complete permit application is received to issuance or denial of the permit. No later than March 1 of each year, the Department shall report to the Fiscal Research Division of the General Assembly and the Environmental Review Commission on the permit processing times required to be tracked pursuant to this section."
SECTION 14. Section 3(b) of S.L. 2011-39 reads as rewritten:
"SECTION 3.(b) Wading Pool Fence
Compliance. - From the effective date of this act through July 1, 2012,January
1, 2013, the Department of Environment and Natural Resources shall not
require owners and operators of public swimming pools to comply with 15A NCAC
18A .2531(a)(7)."
SECTION 15. No later than July 1, 2013, the Commission for Public Health shall adopt rules to allow applicants for sanitary landfills the option to (i) apply for a permit to construct a five-year phase of landfill development and apply to amend the permit to construct subsequent five-year phases of landfill development; or (ii) apply for a permit to construct a 10-year phase of landfill development and apply to amend the permit to construct subsequent 10-year phases of landfill development, with a limited review of the permit five years after issuance of the initial permit and five years after issuance of each amendment for subsequent phases of development. In developing these rules, the Department of Environment and Natural Resources shall examine the current fee schedule for permits for sanitary landfills set forth under G.S. 130A-295.8, and formulate recommendations for adjustments to the current fee schedule sufficient to address any additional demands associated with review of permits issued for 10-year phases of landfill development. The Department shall report its findings and recommendations, including any legislative proposals, to the Environmental Review Commission on or before December 1, 2012. The rules required by this section shall not become effective until the fee schedule set forth under G.S. 130A-295.8 is amended as necessary to address any additional demands associated with review of permits issued for 10-year phases of landfill development.
SECTION 16. This act is effective when it becomes law.