North Carolina § 150B-19 - Restrictions on what can be adopted as a rule.

§ 150B-19. Restrictions on what can be adopted as a rule.

An agency may not adopt a rule that does one or more of the following: Implements or interprets a law unless that law or another law specifically authorizes the agency to do so. Enlarges the scope of a profession, occupation, or field of endeavor for which an occupational license is required. Imposes criminal liability or a civil penalty for an act or omission, including the violation of a rule, unless a law specifically authorizes the agency to do so or a law declares that violation of the rule is a criminal offense or is grounds for a civil penalty. Repeats the content of a law, a rule, or a federal regulation. A brief statement that informs the public of a requirement imposed by law does not violate this subdivision and satisfies the "reasonably necessary" standard of review set in G.S. 150B-21.9(a)(3). Establishes a fee or other charge for providing a service in fulfillment of a duty unless a law specifically authorizes the agency to do so or the fee or other charge is for one of the following: A service to a State, federal, or local governmental unit. A copy of part or all of a State publication or other document, the cost of mailing a document, or both. A transcript of a public hearing. A conference, workshop, or course. Data processing services. Allows the agency to waive or modify a requirement set in a rule unless a rule establishes specific guidelines the agency must follow in determining whether to waive or modify the requirement. Repealed by Session Laws 2011-398, s. 61.2, effective July 25, 2011. History (1973, c. 1331, s. 1; 1985, c. 746, s. 1; 1991, c. 418, s. 1; 1996, 2nd Ex. Sess., c. 18, s. 7.10(a); 2011-13, s. 1; 2011-398, s. 61.2.) Editor's Note. - Session Laws 2009-216, s. 2(c), provides: "Additional Rule-Making Authority. - The Commission shall adopt a rule to replace Wastewater Discharge Rule 15A NCAC 02B.0270. Notwithstanding G.S. 150B-19(4), the rule adopted by the Commission pursuant to this section shall be substantively identical to the provisions of Section 2(b) of this act. Rules adopted pursuant to this section are not subject to G.S. 150B-21.9 through G.S. 150B-21.14. Rules adopted pursuant to this section shall become effective as provided in G.S. 150B-21.3(b1) as though 10 or more written objections had been received as provided by G.S. 150B-21.3(b2)." Section 2 of Session Laws 2009-216 pertains to wastewater discharge into the Jordan Lake Reservoir. Session Laws 2009-216, s. 3(j), provides: "Additional Rule-Making Authority. - The Commission shall adopt a rule to replace Sections 3(c) through 3(i) of this act. Notwithstanding G.S. 150B-19(4), the rule adopted by the Commission pursuant to this section shall be substantively identical to the provisions of Sections 3(c) through 3(f) of this act. Rules adopted pursuant to this section are not subject to G.S. 150B-21.9 through G.S. 150B-21.14. Rules adopted pursuant to this section shall become effective as provided in G.S. 150B-21.3(b1) as though 10 or more written objections had been received as provided by G.S. 150B-21.3(b2)." Section 3 of Session Laws 2009-216 pertains to stormwater management, Jordan Lake Reservoir. For provisions on interpretation of certain rules to implement nutrient management strategies for the B. Everett Jordan Reservoir adopted pursuant to Session Laws 2009-216, see Session Laws 2012-187, s. 12.1. Session Laws 2011-39, s. 4, provides: "Rule-making Authority. - No later than January 1, 2012, the Commission for Public Health shall adopt rules consistent with the provisions of Sections 1 and 2 of this act. Notwithstanding G.S. 150B-19(4), the rules adopted by the Commission pursuant to this section shall be substantively identical to the provisions of Sections 1 and 2 of this act." Session Laws 2011-39, ss. 1 and 2, which are noted in full under G.S. 130A-280 and 130A-282, modify the applicability of certain fencing requirements to public swimming pools and provide that requirements related to dressing and sanitary facilities do not apply to interactive play attractions. Session Laws 2011-48, s. 2(c), provides: "Additional Rule-Making Authority. - The Commission shall adopt a rule to replace Permitting by Regulation Rule 15A NCAC 02U.0113. Notwithstanding G.S. 150B-19(4), the rule adopted by the Commission pursuant to this section shall be substantively identical to the provisions of Section 2(b) of this act. Rules adopted pursuant to this section are not subject to G.S. 150B-21.9 through G.S. 150B-21.14. Rules adopted pursuant to this section shall become effective as provided in G.S. 150B-21.3(b1) as though 10 or more written objections had been received as provided by G.S. 150B-21.3(b2)." Session Laws 2011-48, s. 3(c), provides: "Additional Rule-Making Authority. - The Commission shall adopt a rule to replace Reclaimed Water Utilization Rule 15A NCAC 02U.0501. Notwithstanding G.S. 150B-19(4), the rule adopted by the Commission pursuant to this section shall be substantively identical to the provisions of Section 3(b) of this act. Rules adopted pursuant to this section are not subject to G.S. 150B-21.9 through G.S. 150B-21.14. Rules adopted pursuant to this section shall become effective as provided in G.S. 150B-21.3(b1) as though 10 or more written objections had been received as provided by G.S. 150B-21.3(b2)." Session Laws 2011-48, ss. 2(b) and 3(b), which are noted in full under G.S. 143-211, 143-215.1 and 143-215.3, provide that uses of reclaimed water for irrigation of ornamental crops by field nurseries and aboveground container nurseries are deemed to be permitted by regulation without issuance of an individual permit or coverage under a general permit, and that artificial lakes or ponds that are used for storage and irrigation of reclaimed water are exempt from certain setback requirements and design criteria for wastewater treatment storage facilities." Session Laws 2011-394, s. 15(a), provides: "Notwithstanding G.S. 150B-19, as amended by S.L. 2011-13, the Commission for Public Health may adopt rules to incorporate all or part of the United States Food and Drug Administration Food Code 2009 and to require that employees of establishments regulated under subsections (a) and (a2) of G.S. 130A-248 be certified in food protection in accordance with the United States Food and Drug Administration Food Code 2009." Session Laws 2013-77, s. 4, provides: "Additional rule-making authority. - Notwithstanding G.S. 150B-19(4), the Commission shall adopt amendments to the Homeless Shelter Provision to be substantively identical to the provisions of Section 3 of this act. Rules adopted pursuant to this section are not subject to G.S. 150B-21.8 through G.S. 150B-21.14. Rules adopted pursuant to this section shall become effective as provided in G.S. 150B-21.3(b1) as though 10 or more written objections had been received as provided by G.S. 150B-21.3(b2)." Session Laws 2013-413, s. 21(a)-(d), as amended by Session Laws 2015-263, s. 16, provides: "(a) 15A NCAC 02T.1302 (Definitions) and 15A NCAC 02T.1307 (Swine Waste Management System Performance Standards). - Until the effective date of the revised permanent rules that the Environmental Management Commission is required to adopt pursuant to Section 21(c) of this act, the Commission and the Department of Environment and Natural Resources shall implement 15A NCAC 02T.1302 (Definitions) and 15A NCAC 02T.1307 (Swine Waste Management System Performance Standards) as provided in Section 21(b) of this act. "(b) Implementation. - Notwithstanding 15A NCAC 02T.1302 (Definitions), "new animal waste management system" means animal waste management systems which are constructed and operated at a site where no feedlot existed previously or where a permit for a system has been rescinded, and is then reissued when the permittee confines animals in excess of the thresholds established in G.S. 143-215.10B. Notwithstanding subsection (a) of 15A NCAC 02T.1307 (Swine Waste Management System Performance Standards), the Swine Waste Management System Performance Standards shall: "(1) Apply to any farm facility that receives a permit for its animal waste management system that allows a level of production at the farm, as measured by steady state live weight, greater than the largest production for which the farm has received a permit in the past, and so that they also apply to any other animal waste management system otherwise subject to regulation under G.S. 143-215.10I. "(2) Not apply to any facility that meets all of the following conditions: "a. Has had no animals on site for five continuous years or more. "b. Notifies the Division of Water Resources in writing at least 60 days prior to bringing any animals back on to the site. "c. The system depopulated after January 1, 2005, and the system ceased operation no longer than 10 years prior to the current date. "d. At the time the system ceased operation, the system was in compliance with an individual permit or a general permit issued pursuant to G.S. 143-215.10C. "e. The Division of Water Resources issues an individual permit or certificate of coverage under a general permit issued pursuant to G.S. 143-215.10C for operation of the system before any animals are brought on the facility. "f. The permit for the animal waste management system does not allow production, measured by steady state live weight, to exceed the greatest steady state live weight previously permitted for the system under G.S. 143-215.10C. "g. No component of the animal waste management system and swine farm, other than an existing swine house or land application site, shall be constructed on land that is located within the 100-year floodplain. "h. The inactive animal waste management system was not closed using the expenditure of public funds and was not closed pursuant to a settlement agreement, court order, cost share agreement, or grant condition. "(c) Additional Rule-Making Authority. - The Environmental Management Commission shall adopt rules as promptly as practicable to amend 15A NCAC 02T.1302 (Definitions) and 15A NCAC 02T.1307 (Swine Waste Management System Performance Standards) consistent with Section 21(b) of this act. Notwithstanding G.S. 150B-19(4), the rules adopted by the Commission pursuant to this section shall be substantively identical to the provisions of Section 21(b) of this act. Rules adopted pursuant to this section are not subject to Part 3 of Article 2A of Chapter 150B of the General Statutes. Rules adopted pursuant to this section shall become effective as provided in G.S. 150B-21.3(b1) as though 10 or more written objections had been received as provided by G.S. 150B-21.3(b2). "(d) Sunset. - Section 21(b) of this act expires on the date that rules adopted pursuant to Section 21(c) of this act become effective." Session Laws 2013-413, s. 22(a)-(e), provides: "(a) The definitions set out in G.S. 143-212 and 15A NCAC 02U.0103 (Definitions) apply to this section. "(b) 15A NCAC 02U.0701 (Setbacks). - Until the effective date of the revised permanent rule that the Commission is required to adopt pursuant to Section 22(d) of this act, the Commission and the Department shall implement 15A NCAC 02U.0701 (Setbacks) as provided in Section 22(c) of this act. "(c) Implementation. - Notwithstanding 15A NCAC 02U.0701 (Setbacks), the rule shall be implemented as provided in this section. "(1) Setbacks in subsection (c) of the rule for surface waters not classified as SA shall not apply provided that the reclaimed water to be utilized contains no more than 10 mg/l of Total Nitrogen and no more than 2 mg/l of Total Phosphorus. The elimination of setbacks to surface waters does not exempt any discharge of reclaimed water to waters of the State from meeting permit requirements established in 15A NCAC 02U.0101 (Purpose). "(2) Notwithstanding subsections (a) and (b) of the rule, no setback shall be required between final reclaimed water effluent storage facilities and property lines provided that the proposed final effluent storage facility was constructed prior to June 18, 2011. "(3) Setbacks between reclaimed water storage ponds and property lines or wells under separate ownership may be waived by the adjoining property owner. A copy of the signed waiver shall be provided to the Department. "(4) Setbacks between reclaimed water storage ponds and wells under the same ownership as the reclaimed water storage pond may be waived by the property owner. "(d) Additional Rule-Making Authority. - The Environmental Management Commission shall adopt a rule to amend 15A NCAC 02U.0701 (Setbacks) consistent with Section 22(c) of this act. Notwithstanding G.S. 150B-19(4), the rule adopted by the Commission pursuant to this section shall be substantively identical to the provisions of Section 22(c) of this act. Rules adopted pursuant to this section are not subject to Part 3 of Article 2A of Chapter 150B of the General Statutes. Rules adopted pursuant to this section shall become effective as provided in G.S. 150B-21.3(b1) as though 10 or more written objections had been received as provided by G.S. 150B-21.3(b2). "(e) Sunset. - Section 22(c) of this act expires on the date that rules adopted pursuant to Section 22(d) of this act become effective." Session Laws 2013-413, s. 28(a)-(d), provides: "(a) 15A NCAC 02D.1903 (Open Burning Without an Air Quality Permit). - Until the effective date of the revised permanent rule that the Commission is required to adopt pursuant to Section 28(c) of this act, the Commission, the Department, and any other political subdivision of the State that implements 15A NCAC 02D.1903 (Open Burning Without an Air Quality Permit) shall implement the rule, as provided in Section 28(b) of this act. "(b) Implementation. - Notwithstanding 15A NCAC 02D.1903(b)(2)(F)(Open Burning Without an Air Quality Permit), open burning for land clearing or right-of-way maintenance is permissible without an air quality permit if materials are not carried off site or transported over public roads for open burning unless the materials are carried or transported to: "(1) Facilities permitted in accordance with 15A NCAC 02D.1904 (Air Curtain Burners) for the operation of an air curtain burner at a permanent site; or "(2) A location, where the material is burned not more than four times per year, that meets all of the following criteria: "a. At least 500 feet from any dwelling, group of dwellings, or commercial or institutional establishment, or other occupied structure not located on the property on which the burning is conducted. "b. There are no more than two piles, each 20 feet in diameter, being burned at one time. "c. The location is not a permitted solid waste management facility. "(c) Additional Rule-Making Authority. - The Commission shall adopt a rule to amend 15A NCAC 02D.1903 (Open Burning Without an Air Quality Permit) consistent with Section 28(b) of this act. Notwithstanding G.S. 150B-19(4), the rule adopted by the Commission pursuant to this section shall be substantively identical to the provisions of Section 28(b) of this act. Rules adopted pursuant to this section are not subject to G.S. 150B-21.8 through G.S. 150B-21.14. Rules adopted pursuant to this section shall become effective as provided in G.S. 150B-21.3(b1) as though 10 or more written objections had been received as provided by G.S. 150B-21.3(b2). "(d) Sunset. - Section 28(b) of this act expires on the date that rules adopted pursuant to Section 28(c) of this act become effective." Session Laws 2013-413, s. 34(a)-(d), as amended by Session Laws 2014-120, s. 53, provides: "(a) 15A NCAC 18A .1949(b) (Sewage Flow Rates for Design Units). - Until the effective date of the revised permanent rule that the Commission is required to adopt pursuant to Section 34(c) of this act, the Commission, the Department, and any other political subdivision of the State shall implement 15A NCAC 18A .1949(b) (Sewage Flow Rates for Design Units) as provided in Section 34(b) of this act. "(b) Implementation. - Notwithstanding the Daily Flow for Design rates listed for dwelling units in 15A NCAC 18A .1949(a) or for other establishments in Table No. 1 of 15A NCAC 18A .1949(b)(Sewage Flow Rates for Design Units), a wastewater system shall be exempt from the Daily Flow for Design, and any other design flow standards that are established by the Department of Health and Human Services or the Commission for Public Health provided flow rates that are less than those listed in 15A NCAC 18A .1949 (Sewage Flow Rates for Design Units) can be achieved through engineering design that utilizes low-flow fixtures and low-flow technologies and the design is prepared, sealed, and signed by a professional engineer licensed pursuant to Chapter 89C of the General Statutes. The Department and Commission may establish, by rule, lower limits on reduced flow rates as necessary to ensure wastewater system integrity and protect public health, safety, and welfare, provided that the Commission relies on scientific evidence specific to soil types found in North Carolina that the lower limits are necessary for those soil types. Rules adopted pursuant to this section shall become effective as provided in G.S. 150B-21.3(b1) as though 10 or more written objections had been received as provided by G.S. 150B-21.3(b2). Proposed daily design flows for wastewater systems that are calculated to be less than 3,000 total gallons per day shall not require State review pursuant to 15A NCAC 18A .1938(e). Neither the State nor any local health department shall be liable for any damages caused by a system approved or permitted pursuant to this section. "(c) Additional Rule-Making Authority. - The Commission shall adopt a rule to amend 15A NCAC 18A .1949(b)(Sewage Flow Rates for Design Units) consistent with Section 34(b) of this act. Notwithstanding G.S. 150B-19(4), the rule adopted by the Commission pursuant to this section shall be substantively identical to the provisions of Section 34(b) of this act. Rules adopted pursuant to this section are not subject to G.S. 150B-21.8 through G.S. 150B-21.14. Rules adopted pursuant to this section shall become effective as provided in G.S. 150B-21.3(b1) as though 10 or more written objections had been received as provided by G.S. 150B-21.3(b2). "(d) Sunset. - Section 34(b) of this act expires on the date that rules adopted pursuant to Section 34(c) of this act become effective." Session Laws 2013-413, s. 61(a) is a severability clause. Session Laws 2017-10, s. 5.1 , is a severability clause. Session Laws 2019-129, s. 1, provides: "Notwithstanding G.S. 150B-19(4), the Commission for Public Health may adopt rules to incorporate all or part of the 2017 edition of the United States Food and Drug Administration Food Code." Effect of Amendments. - Session Laws 2011-13, s. 1, effective March 25, 2011, and applicable to rules published in the North Carolina Register by an agency on or after that date, added subdivision (7). Session Laws 2011-398, s. 61.2, effective July 25, 2011, repealed subdivision (7), as added by Session Laws 2011-13, s. 1.